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OPINION
SLOVITER, Circuit Judge.
John Van Salisbury appeals a $152,500 penalty assessed by the United States Department of Commerce, National Oceanic and Atmospheric Administration (“NOAA”), for civil violations of the Mag-nuson-Stevens Fishery Conservation and Management Act (“Magnuson-Stevens Act”), 16 U.S.C. §§ 1801-1882. The District Court affirmed the assessment on cross motions for summary judgment. Van Salisbury claims the assessment was excessive and disproportionate to the wrongdoing, in violation of the Eighth Amendment Excessive Fines Clause. We will affirm.1
I.
Because we write primarily for the parties, our recitation of the facts is brief. Van Salisbury, a licensed New Jersey lob-sterman, owns arid operates the commercial fishing vessel Major Expense. In August 2004, after numerous complaints that Van Salisbury tampered with, damaged, and stole lobsters and fishing gear owned by other lobstermen, NOAA special agents opened an investigation and planned a sting operation; they placed 40 uniquely marked lobsters in traps adjacent to Van Salisbury’s. A search of the Major Expense revealed five uniquely marked lobsters in Van Salisbury’s catch.
NOAA brought an administrative action against Van Salisbury under the Magnu-son-Stevens Act for penalties and sanctions. Following a two-day hearing, a NOAA administrative law judge determined that Van Salisbury violated 16 U.S.C. §§ 1857(l)(K)(i) (prohibiting removal of and damage to protected fishing gear) and 1857(l)(K)(ii) (prohibiting theft of fish from protected fishing gear). The administrative law judge assessed a civil penalty of $152,500. Van Salisbury brought an action in the District Court under 16 U.S.C. § 1858(b) for judicial review; the District Court affirmed the assessment on cross motions for summary judgment.
The sole issue on appeal is whether the assessment was excessive in violation of the Eighth Amendment to the United States Constitution.2
II.
“Our review of a district court’s grant of summary judgment in favor of an administrative agency is de novo. ” Allegheny Def. Project, Inc. v. United States Forest Serv., 423 F.3d 215, 229 (3d Cir.2005). An agency’s determination will not be reversed unless it was “arbitrary, capricious, an abuse of discretion, or otherwise not in accordance "with law.” 5 U.S.C. § 706(2)(A).
The Eighth Amendment to the United States Constitution provides, “Excessive bail shall not be required, nor excessive fines imposed, nor cruel and unusual punishments inflicted.” U.S. CONST, amend. VIII. A monetary assessment imposed as *312punishment is a “fine” within the meaning of the Excessive Fines Clause. See, e.g., United States v. Bajakajian, 524 U.S. 321, 327-34, 118 S.Ct. 2028, 141 L.Ed.2d 314 (1998) (punitive forfeiture subject to Excessive Fines Clause scrutiny). Fines, like punitive forfeitures, are unconstitutionally excessive if “grossly disproportional to the gravity of a defendant’s offense.” Id. at 334, 118 S.Ct. 2028. An evaluation of proportionality must take into account legislative “judgments about the appropriate punishment for an offense....” Id. at 336, 118 S.Ct. 2028.
Van Salisbury violated the Magnuson-Stevens Act twice; each violation was punishable in August 2004, when the violations occurred, by a civil penalty of $120,000. 16 U.S.C. § 1858(a); Civil Monetary Penalties; Adjustment for Inflation, 65 Fed. Reg. 65260 (2000) (codified at 15 C.F.R. § 6.4). The administrative law judge assessed a penalty of $152,500 for both violations, a substantial amount but well below the statutory maximum. Applying Baja-kajian, the administrative law judge considered that Van Salisbury’s “acts were not accidental or unintentional” and that his prior citation for removing lobster traps rendered him “acutely aware of the proscriptions concerning fishing gear and lobsters.” Supp. App. at 19. In assessing the gravity of Van Salisbury’s offenses, the administrative law judge considered other factors, including economic harm to other lobstermen and documented potential for violent conflicts at sea. We conclude the civil penalty was not excessive; the agency’s assessment was proper.
III.
For the reasons stated above, we will affirm the District Court’s ruling.
. We have jurisdiction over this appeal pursuant to 28 U.S.C. § 1291.
. Van Salisbury frames his argument as one of due process, but relies on Eighth Amendment jurisprudence, which is applicable.
Van Salisbury also makes a conclusory allegation that the District Court denied due process by granting summary judgment without a hearing. This allegation is unaccompanied by argument and is otherwise without merit. See, e.g., AD/SAT v. Associated Press, 181 F.3d 216, 226 (2d Cir.1999) ("a district court's decision whether to permit oral argument [on motions for summary judgment] rests within its discretion”).
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OPINION
SLOVITER, Circuit Judge.
Petitioner Jian Wu Zheng, a native of Changle City in the Fujian Province of China, seeks review of a final order issued by the Board of Immigration Appeals (“BIA”) affirming the decision of an Immigration Judge (“IJ”) to deny Zheng’s motion to reopen his case on the basis of changed country conditions.
I.
Background
Zheng entered the United States in 1994 and was immediately scheduled for a hearing before an IJ for failure to possess valid entry documentation. When Zheng failed to appear at his immigration hearing in 1996, the judge ordered him removed to China in absentia. In July 2007, Zheng filed an untimely motion to reopen his case under 8 C.F.R. § 1003.2(e)(3)(ii), asserting that the conditions in China have changed so that if he were to return it is likely that he would be forcibly sterilized because China’s population control policies mandate sterilization of Chinese citizens with two or more children. Zheng argues that inasmuch as he had two sons who were born in the United States, he is now eligible for asylum and withholding of deportation under the Immigration and Nationality Act and the Convention Against Torture.
The IJ denied Zheng’s motion to reopen, holding that Zheng failed to demonstrate prima facie eligibility for relief because he was “not convincing that ... China would learn of his children,” because “it is ... likely that only a monetary fine would be imposed on the couple for having an extra son,” and because “the present case law is not supportive of [Zheng’s] motion.” App. at 65-66.
The BIA affirmed that decision, holding that Zheng did not meet “his burden of establishing a material change of country conditions that would affect his eligibility for relief, so as to except him from the time limitation for motions to reopen,” App. at 2, and also “rejecting] [Zheng’s] prima facie asylum case,” App. at 3. In so doing, the BIA referenced four of its own opinions as well as a case from this court. It also found both that Zheng’s affidavit was inconsistent as to whether Chinese officials were aware of his children, and that the affidavit provided by Zheng’s mother-in-law did not support the existence of forced sterilization in the locale to which Zheng presumably would return, Changle City.
Zheng filed a timely petition for review.1
II.
Discussion
To succeed in his untimely motion to reopen Zheng must show that country eon-*314ditions in China have changed since his case was closed in 1996. 8 C.F.R. § 1003.2(e)(3)(ii). Also, immigration courts can deny an application to reopen if a petitioner has not made out a prima face case for relief. Zheng v. Att’y Gen., 549 F.3d 260, 265-66 (3d Cir.2008). We review the denial of a motion to reopen for an abuse of discretion, Guo v. Ashcroft, 386 F.3d 556, 562 (3d Cir.2004), and will reject the BIA’s factual findings only if a “reasonable adjudicator would be compelled to conclude to the contrary,” 8 U.S.C. § 1252(b)(4)(B).
Zheng argues that he has presented evidence of “a change in country conditions, both nationally and locally in [Zheng’s] hometown, in that family planning officials are increasingly enforcing China’s family planning policy through means constituting persecution,” i.e., forced sterilization or excessive fines, and that, as a Chinese citizen whose children were born in the United States, he would be subject to this policy. Petitioner’s Br. at 10. Zheng submitted a large number of documents. Rather than address each document separately, the BIA in part referenced its own precedent which addressed much the same evidence as Zheng presents here, including the 2006 Department of State Country Report on China, the 2003 Changle City Administrative Opinion, 2003 Fujian Province Administrative Decision, and 1999 Q&A Handbook, and found it unpersuasive. See In re J-W-S-, 24 I & N Dec. 185, 190-92 (BIA 2007), and In re S-Y-G-, 24 I & N Dec. 247, 253-54 (BIA 2007).
Recently, in Liu v. Att’y Gen., 555 F.3d 145, 149 (3d Cir.2009), a case decided after the BIA’s decision here, we declined to review a BIA decision denying a petitioner’s application to reopen on the ground that the Chinese official policy of forced sterilization had not changed. The Liu court noted that the Board found unpersuasive the “March 14, 2006, letter from the ‘Administrative Office of the National Population and Family Planning Committee’ ” also submitted here by Zheng, and cited the analysis in In re J-W-S- with approval. Liu, 555 F.3d at 149. The BIA’s rejection of the evidence in those cases is dispositive.
Zheng, however, also presented three pieces of new evidence that his hometown of Changle City has a policy of counting foreign born children towards the child limits in China’s family planning policies. Even assuming that the existence of such a policy in Zheng’s hometown is a sufficient basis to support a grant of asylum or withholding relief, Zheng’s evidence still falls short because (1) it not only fails to show that the policy is enforced in a manner amounting to persecution, and (2) because, as the government emphasizes, Zheng’s evidence fails to show changed country conditions. Such a showing is a prerequisite to grant a petition to reopen.
The letter Zheng provided from his cousin’s husband Chen to support his claim of forcible sterilization for having violated the family planning laws is not probative of a changed policy. Similarly, the letter Zheng submitted from his mother-in-law stating that over the past twenty years various family members and friends had been forcibly sterilized by the Changle City government for having two Chinese-born children demonstrates that the Chinese family policy has existed for decades. Moreover, her reference to forcible sterilizations that took place twenty years ago undermines the necessary premise that Changle City’s policy was adopted after 1996.
The letter Zheng offers from the Chan-gle City village “committee” states that local officials are aware that he has two children and that therefore he “must” upon his return “report to the local family *315Planning Office ... [to] make an appointment to undergo sterilization operation in appointed date,” does not explain how this sterilization mandate would be enforced. App. at 174. We will not assume that methods amounting to persecution, such as physical force, would be employed, especially given that, as the In re J-W-S-panel noted, the U.S. State Department has stated that China’s “central government's] policy prohibits physical coercion to compel persons to submit to family planning enforcement.” In re J-W-S-, 24 I & N Dec. at 193. The evidence that Zheng would at least be subject to a fine is insufficient because Zheng failed to show that such a fine would have a substantial economic disadvantage on him personally. Guan Shan Liao v. U.S. Dep’t of Justice, 293 F.3d 61, 70 (2d Cir.2002) (“[Economic deprivation may constitute persecution, [but] an asylum applicant must offer some proof that he suffered a deliberate imposition of substantial economic disadvantage.”) (internal quotations omitted).
In sum, the evidence does not compel the conclusion that the BIA abused its discretion in declining to grant Zheng’s petition to reopen.
III.
Conclusion
For the reasons set forth above, we will deny the petition for review.
. We have jurisdiction to review the decision of the BIA under 8 U.S.C. § 1252.
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OPINION
PER CURIAM.
Yong Ho Liu, a native and citizen of the People’s Republic of China, entered the United States at or near Miami, Florida, in September 2002, without a valid immigrant visa, and applied for entry as an immigrant. The Government charged him as removable. Liu conceded the charge, but applied for asylum, withholding, and protection under the Convention Against Torture (“CAT”) based on his and his wife’s experiences with China’s population control policies.
The Immigration Judge (“IJ”) denied his applications on the basis of an adverse credibility determination. Liu appealed to the Board of Immigration Appeals (“BIA”), challenging the credibility finding and raising a due process claim (which we will discuss below). The BIA dismissed his appeal. Liu presents a petition for review.
We have jurisdiction over Liu’s petition for review pursuant to 8 U.S.C. § 1252(a). We review the decisions of the IJ and the BIA. See Chen v. Ashcroft, 376 F.3d 215, 222 (3d Cir.2004). We consider questions of law de novo. See Gerbier v. Holmes, 280 F.3d 297, 302 n. 2 (3d Cir.2002). We review factual findings, including adverse credibility determinations, for substantial evidence. See Butt v. Gonzales, 429 F.3d 430, 433 (3d Cir.2005). We evaluate whether a credibility determination was “appropriately based on inconsistent statements, contradictory evidences, and inherently improbable testimony ... in view of the background evidence of country conditions.” Chen, 376 F.3d at 223. We afford an adverse credibility finding substantial deference, so long as the finding is supported by sufficient, cogent reasons. See Butt, 429 F.3d at 434. Because the adverse credibility determination in this case was supported by sufficient, cogent reasons, we will deny the petition for review.
First, there is a significant inconsistency between Liu’s initial account of the basis for his claim for relief from removal in his airport interview and his subsequent accounts of the same incident. We recognize that we have cautioned against putting too much weight on the airport interview, especially when the IJ and BIA are without information about how the interview was conducted. See, e.g., Chen, 376 F.3d at 223-24. However, discrepancies between an airport interview and a petitioner’s testimony that go to the heart of the claim may support an adverse credibility determination. See id.
In this case, at his airport interview, Liu stated that the incidents on which his applications for relief were largely based, namely the forced sterilization of his wife and forced abortion while she was pregnant, occurred two years ago before his arrival in the United States. Then, in his *317credible fear interview, Liu stated that the forced abortion and sterilization took place when his wife was pregnant with their fourth child, about one year before his arrival in the United States. Later, in his application and during his testimony, he claimed that the events occurred in 1994, which would be eight years before his arrival in the United States. We conclude that the variously reported times for such a significant event at the heart of his claim support the adverse credibility determination in this case.
We note that Liu testified that he had been nervous and that he did not understand the questions because he was interviewed in Mandarin at the airport, but his explanation does not change our determination. Liu’s answers in the interview were responsive to the questions asked, and he verified before the IJ that other answers were correct. He also stated during the airport interview that he understood the questions in Mandarin.
Furthermore, during Liu’s testimony, his attorney had to ask him several times to explain what happened to his wife before Liu described the forced abortion in addition to the forced sterilization. Before his attorney asked specifically “what happened to the baby,” Liu only reported his wife’s sterilization.
Also, at best, the documentary evidence, such as the picture purporting to be of Liu’s wife bearing a scar consistent with a sterilization procedure, supports Liu’s claim that his wife was sterilized. However, it does not necessarily support Liu’s claim that his wife was involuntarily sterilized. Moreover, the inconsistencies between the documentary evidence and the testimony support the adverse credibility determination. Specifically, when the Government investigated the documents that Liu submitted in support of his claim, the birth control operation certificate was found to be counterfeit (a separately submitted fine receipt was found to be authentic, but Liu’s payment of an unplanned birth fine alone does not amount to past persecution in this case). The certificate had a counterfeit stamp and bore the name of a doctor never employed by the hospital. (Moreover, the certificate, even if it had been found to be authentic, also only supports a claim that Liu’s wife was sterilized; abortion, another option on the document, was not marked off.)
Liu protests that the IJ and the BIA improperly, and in violation of his right to due process, considered the results of the investigation of his documents. The Federal Rules of Evidence do not apply in immigration proceedings; however, evidence must be probative and used in a fundamentally fair manner to satisfy concerns of due process. See Ezeagwuna v. Ashcroft, 325 F.3d 396, 405 (3d Cir.2003). In Ezeagwuna, on which Liu relies,1 we were troubled by, and repudiated, “multiple hearsay of the most troubling kind.” See id. at 406. However, the evidence and the circumstances surrounding the presentation of the evidence in this case is distinguishable from the circumstances in Eze-agwuna. First, unlike in Ezeagwuna, see id., the petitioner had ample time to consider the results of the investigation; the report was presented to Liu almost two years in advance of his hearing. Second, unlike in Ezeagwuna, see id. at 406-08, the investigator directly communicated with the local officials who provided information for the report, and the investigator explained how she conducted the inquiry. Through her involvement, she could evaluate the credibility of the immediately pre*318ceding declarants, also unlike the speaker in Ezeagwuna, see id. at 406. In short, under the circumstances of this case, there were sufficient indicia of reliability and trustworthiness such that Liu’s due process rights were not violated by the admission of the report into evidence or the agency’s reliance on it.
In conclusion, there were inconsistencies between Liu’s testimony and his earlier accounts of his and his wife’s experiences in China, inconsistencies between his testimony and the documentary evidence, and evidence that Liu submitted counterfeit documents. Accordingly, there are sufficient, cogent reasons for the adverse credibility finding in this case, and the evidence in the record does not compel a conclusion contrary to that reached by the agency. We therefore will deny the petition for review.
. Although Liu also relies on Joseph v. Attorney Gen. of the United States, we did not address the due process issue in that case. See 421 F.3d 224, 234 n. 18 (3d Cir.2005).
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PROST, Circuit Judge.
ORDER
Andy Lewis Heating & Air Conditioning, LLC submits correspondence stating that the above-captioned appeals were transmitted to this court in error and requesting that the court dismiss the appeals.
The parties appeal a decision of the United States District Court for the Northern District of Georgia. Andy Lewis’s district court complaint indicated that he sought relief for trademark infringement and a variety of state law claims. The notices of appeal indicate that both parties appealed to the United States Court of Appeals for the Eleventh Circuit. However, the appeals were transmitted to this court.
This court’s jurisdiction over appeals of district court decisions is limited primarily to cases involving patents and suits against the United States not exceeding $10,000. See 28 U.S.C. § 1295(a)(1), (2). Thus, this court lacks jurisdiction over these appeals. Andy Lewis states that the district court clerk has now transmitted the appeals to the Eleventh Circuit. Under these circumstances, dismissal is appropriate.
Accordingly,
IT IS ORDERED THAT:
(1) The appeals are dismissed.
(2) Each side shall bear its own costs.
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https://www.courtlistener.com/api/rest/v3/opinions/8472136/
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ON MOTION
PROST, Circuit Judge.
ORDER
Vermont Yankee Nuclear Power Corporation, Entergy Nuclear Vermont Yankee, LLC (ENVY) and Entergy Nuclear Operations, Inc. (ENO) (collectively, ENVY and ENO are referred to in this order as Entergy), and the United States each respond to the court’s order directing them to respond whether the Fed.R.Civ.P. 54(b) judgment was properly entered by the United States Court of Federal Claims.
The underlying proceedings involve litigation over a Standard Contract requiring Department of Energy (DOE) to accept spent nuclear fuel. Vermont Yankee owned and operated a power station that generated spent nuclear fuel until 2002. In 2002, Vermont Yankee sold the power station to ENVY. One day prior to the completion of the sale, Vermont Yankee filed suit against the United States seeking damages for (1) costs to provide for extended on-site storage of spent nuclear fuel prior to the sale of the power station and (2) alleged diminution in the sale price. In 2003, ENVY and ENO filed suit against the United States in the Court of Federal Claims to recover damages for DOE’s breach of its obligation to dispose of spent nuclear fuel. ENVY and ENO sought damages for the time periods both before and after it purchased the power station. The trial court consolidated the cases for purposes of trial and discovery.
ENVY moved for summary judgment, arguing that in the Purchase and Sale Agreement Vermont Yankee assigned to ENVY all claims against DOE with the exception of claims relating to a one-time *590fee that Vermont Yankee was required to pay relating to spent nuclear fuel that power station operators already had in possession at the time they signed Standard Contracts in 1983. ENVY argued that Vermont Yankee’s claims in this case, seeking pre-sale storage cost damages and damages for alleged diminution in the sale price, do not relate to the one-time fee and thus were assigned to ENVY.
The trial court granted ENVY’s summary judgment motion, holding that Vermont Yankee’s claims do not relate to the one-time fee and thus Vermont Yankee had not retained those claims in the Purchase and Sale Agreement. The trial court dismissed Vermont Yankee’s complaint, and Vermont Yankee appealed. The United States moved to vacate, alter, or amend the trial court’s October 30, 2008 judgment, resulting in this court deactivating the appeal pending resolution of that motion. Vermont Yankee informs the court that the trial court has now resolved the United States’ motion and directed entry of judgment pursuant to Rule 54(b) with respect to Vermont Yankee’s claims. The trial court also amended its consolidation order “to permit ENVY to participate as a party in Vermont Yankee’s appeal.”
The court recently held that in a case involving claims concerning spent nuclear fuel brought by both the prior and current owner of a power station, the claims may be so intertwined that entry of a Rule 54(b) judgment as to just one plaintiff may be improper. See Boston Edison Co. v. United States, 299 Fed.Appx. 956 (Fed.Cir.2008); see also Curtiss-Wright Corp. v. General Elec. Co., 446 U.S. 1, 8-10, 100 S.Ct. 1460, 64 L.Ed.2d 1 (1980) (trial court may decide whether claims under review were separable from others remaining to be adjudicated and “whether the nature of the claims already determined was such that no appellate court would have to decide the same issues more than once if there were subsequent appeals”; court of appeals must “scrutinize the district court’s evaluation of such factors as the interrelationship of the claims so as to prevent piecemeal appeals in cases which should be reviewed only as single units”); W.L. Gore & Assocs., Inc. v. Int’l Med. Prosthetics Res. Assocs., Inc., 975 F.2d 858, 862 (Fed.Cir.1992) (“[t]he separateness of the claims for relief, on the other hand, is a matter to be taken into account in reviewing the trial court’s exercise of discretion in determining that there is no just reason to delay the appeal”).
Because it appeared that Vermont Yankee’s claims and ENVY’s claims were intertwined, the court directed the parties to show cause whether the Rule 54(b) judgment was properly entered.
Vermont Yankee responds that the trial court’s Rule 54(b) judgment was properly entered. Vermont Yankee contends that there is no risk that the court will be faced with the same contract interpretation issue again in a subsequent appeal. Entergy similarly contends that the court will not be faced with the same question in a subsequent appeal, making this case different from Boston Edison, because “this Court’s resolution of the assignment issues will bind all parties, because Entergy is a party to the present appeal.”
The United States indicates that ENVY and Vermont Yankee both sought the same reracking costs and costs related to the storage of spent nuclear fuel. Because of this, the United States contends, if this court reversed the trial court’s judgment in Vermont Yankee, it would directly impact ENVY’s lawsuit and its ability to recover the damages it seeks. Thus, the United States argues that the claims are intertwined and the trial court should not have entered judgment pursuant to Rule 54(b).
*591The court agrees with the United States that the claims of Vermont Yankee and ENVY ai’e sufficiently intertwined that judgment pursuant to Rule 54(b) should not have been entered. Essentially, Vermont Yankee and ENVY have each claimed relief for the same alleged wrong, and each contends, and the trial court agreed, that pursuant to the Purchase and Sale Agreement only one of them can recover. Under these circumstances, the claims are too intertwined for entry of judgment pursuant to Rule 54(b) as to only one party and entry of judgment under Rule 54(b) was not proper. See W.L Gore.
Accordingly,
IT IS ORDERED THAT:
(1) The appeals are dismissed.
(2) The case is remanded to the Court of Federal Claims with instructions to vacate the Rule 54(b) judgment.
(3) All sides shall bear their own costs.
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ON MOTION
PER CURIAM.
ORDER
The United States moves to waive the requirements of Fed. Cir. R. 27(f) and to dismiss Daniel L. DuMonde’s appeal as premature. DuMonde responds. Separately, DuMonde moves for leave to proceed in forma pauperis.
DuMonde filed a complaint in the United States Court of Federal Claims alleging false imprisonment. On May 23, 2009, DuMonde filed a document which the Court of Federal Claims treated as a notice of appeal to this court.
The court’s jurisdiction over appeals from decisions of the Court of Federal Claims is governed by 28 U.S.C. § 1295(a)(3). Section 1295(a)(3) provides that the court has jurisdiction over “an appeal from a final decision of the United States Court of Federal Claims” (emphasis added). “A ‘final decision’ generally is one which ends the litigation on the merits and leaves nothing for the court to do but execute the judgment.” Catlin v. United States, 324 U.S. 229, 233, 65 S.Ct. 631, 89 L.Ed. 911 (1945); see also Ultra-Precision Mfg. Ltd. v. Ford Motor Co., 338 F.3d 1353, 1356-57 (Fed.Cir.2003) (“[a] district court’s judgment is final where it ‘ends the litigation on the merits and leaves nothing *592for the court to do but execute the judgment.’ ” (citation omitted)).
The Court of Federal Claims had not entered or announced a judgment before DuMonde filed his appeal. Because the complaint was pending in the Court of Federal Claims, we must dismiss the appeal. The court notes that the Court of Federal Claims subsequently entered final judgment in this matter on July 8, 2009.
Accordingly,
IT IS ORDERED THAT:
(1) The United States’ motion to dismiss is granted.
(2) Each side shall bear its own costs.
(3) DuMonde’s motion for leave to proceed in forma pauperis is denied as moot.
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ON MOTION
ORDER
The parties jointly move to dismiss and remand this appeal to the Trademark Trial and Appeal Board of the United States Patent and Trademark Office (TTAB).
Dismissal and remand are mutually exclusive dispositions. It appears that the parties seek remand for further proceedings before the TTAB.
Accordingly,
IT IS ORDERED THAT;
(1) The motion to remand is granted. Each side shall bear its own costs.
(2) The motion to dismiss is denied as moot.
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ON MOTION
ORDER
Upon consideration of Deborah J. Jackson’s unopposed motion to voluntarily dismiss her appeal,
IT IS ORDERED THAT:
(1) The motion is granted.
(2) Each side shall bear its own costs.
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SUMMARY ORDER
Defendant-Appellant Starwood Hotels & Resorts Worldwide, Inc. (“Starwood”) appeals from an Order of the United States District Court for the Southern District of New York (McMahon, J.). The district court denied Starwood’s motion to compel Plaintiff-Appellee Moisés Mendez to arbitrate his employment discrimination claims against Starwood. Starwood bases its motion to compel upon a one-page letter-agreement between Starwood and Mendez. According to the district court, the arbitration provision in the letter-agreement is unenforceable because Mendez’s union, the New York Hotel & Motel Trades Council, AFL-CIO, is a designated collective-bargaining representative with exclusive authority to negotiate agreements to arbitrate such claims. Starwood has filed this interlocutory appeal under § 16(a)(1) of the Federal Arbitration Act (“FAA”), 9 U.S.C. § 16(a)(1), which provides for immediate appeal from an order denying a motion to compel arbitration. We assume the parties’ familiarity with the facts, procedural history of the case, and issues presented on appeal.
This Court reviews the denial of a motion to compel arbitration de novo. Arciniaga v. Gen. Motors Corp., 460 F.3d 231, 234 (2d Cir.2006). Pursuant to the National Labor Relations Act, a designated bar*603gaining representative has exclusive authority to bargain over “rates of pay, wages, hours of employment, or other conditions of employment.” 29 U.S.C. § 159(a). In NLRB v. Allis-Chalmers Mfg. Co., 388 U.S. 175, 87 S.Ct. 2001, 18 L.Ed.2d 1123 (1967), the Supreme Court confirmed that where a union functions as an exclusive bargaining representative, “only the union may contract the employee’s terms and conditions of employment.” Id. at 180, 87 S.Ct. 2001. Represented employees are bound by these negotiated terms and conditions of employment, which are mandatory subjects of bargaining. Id.
Citing § 159(a) and Allis-Chalmers, the district court concluded that an agreement to arbitrate employment disputes is among the terms and conditions of employment over which a designated bargaining representative has exclusive bargaining authority. Therefore, according to the district court, only Mendez’s union had the authority to negotiate such an arbitration agreement and the provision in the individual letter-agreement between Starwood and Mendez is an unenforceable “side agreement.”
The arbitration provision in the letter-agreement Starwood asked Mendez to sign is without limitation, extending not simply to statutory claims but to “any disputes with respect to [Mendez’s] employment.” Because the provision Starwood relies upon reaches any dispute, it relates to subjects that are within the union’s exclusive bargaining realm, such as seniority, wages, and conditions of employment, and is therefore unenforceable. See Allis-Chalmers, 388 U.S. at 180, 87 S.Ct. 2001. Furthermore, unlike cases in which courts have severed an unenforceable fee provision from an otherwise enforceable arbitration clause, see Herrera v. Katz Commc’ns, Inc., 532 F.Supp.2d 644, 647 (S.D.N.Y.2008), there is no way to construe the language in the letter-agreement’s arbitration clause to allow severance of an invalid portion from an otherwise enforceable provision.
During the pendency of this appeal, the Supreme Court decided 14 Penn Plaza LLC v. Pyett, — U.S. - — -, 129 S.Ct. 1456, 173 L.Ed.2d 398 (2009), overruling Pyett v. Pennsylvania Bldg. Co., 498 F.3d 88 (2d Cir.2007). In Penn Plaza, the Court stated that an agreement to arbitrate employment-related discrimination claims is a “freely negotiated term” of a collective-bargaining agreement that “easily qualifies as a ‘condition of employment’ that is subject to mandatory bargaining under [NLRA] § 159(a).” Id. at 1464 (alteration omitted). Penn Plaza confirms that a union designated under § 159(a) has exclusive authority to negotiate agreements to arbitrate statutory discrimination claims. Nothing in Penn Plaza gives an employer the right to do so outside of the collective-bargaining context.
For the foregoing reasons, the decision is AFFIRMED.1
. Whether, in light of Penn Plaza, the arbitration provision in the industry-wide collective-bargaining agreement requires arbitration is not before us on appeal.
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OPINION
SLOVITER, Circuit Judge.
Appellant Bonthan Eirng pled guilty to one count of possession with intent to distribute more than fifty grams of cocaine base (“crack cocaine”), in violation of 21 U.S.C. §§ 841(a)(1) and (b)(1)(A). He was sentenced to 240 months imprisonment by the District Court.1 His counsel filed a motion to withdraw as counsel accompanied by a brief in support of that motion pursuant to Anders v. California, 386 U.S. 738, 87 S.Ct. 1396, 18 L.Ed.2d 493 (1967).
Under Anders, if, after review of the district court record and a conscientious investigation, counsel is convinced that the appeal presents no issue of arguable merit, counsel may properly ask to withdraw while filing a brief referring to anything in the record that might arguably support the appeal. Id. at 741-42, 744, 87 S.Ct. 1396. Anders requires that appellant’s counsel must “satisfy the court that he or she has thoroughly scoured the record in search of appealable issues” and then “explain why the issues are frivolous.” United States v. Marvin, 211 F.3d 778, 780 (3d Cir.2000). “The Court’s inquiry when counsel submits an Anders brief is thus twofold [to determine]: (1) whether counsel adequately fulfilled [Third Circuit Local Appellate Rule 109.2(a)’s] requirements[,] and (2) whether an independent review of the record presents any nonfriv-olous issues.” United States v. Youla, 241 F.3d 296, 300 (3d Cir.2001).
I.
In October 2004, Philadelphia police executed a search warrant at 194 W. Chew Avenue. During the search, officers observed Eirng throwing large chunks of what they later determined was crack cocaine from an open window in his second floor bedroom. Officers immediately apprehended Eirng and recovered from his bedroom large quantities of bulk cocaine base, numerous packets of crack cocaine, about $4,646 in cash, and several items of drug paraphernalia. Officers discovered a total 232 grams of crack cocaine in Eirng’s home.
Eirng was thereafter charged in an indictment with one count of possession of more than fifty grams of crack cocaine with intent to distribute, in violation of 21 U.S.C. § 841(a)(1) and (b)(1)(A). The government subsequently filed an information under 21 U.S.C. § 851 setting forth Eirng’s prior conviction of a felony drug offense. As a result of the prior conviction, Eirng’s mandatory minimum sentence was increased from ten years to twenty years imprisonment. See 21 U.S.C. § 841(b)(1)(A).
The parties entered into a guilty plea agreement in which Eirng admitted that he possessed 232 grams of crack cocaine with the intent to distribute. At the sentencing hearing, the District Court adopted the findings of the PSR that Eirng’s offense level was 31 and that he was in a criminal history category of II. This would produce an advisory sentencing range of 121-151 months. However, as the District Court pointed out, this range was subsumed by the “statutory, mandatory minimum of 20 years.” J.T. App. at 24. *320On that basis, the District Court sentenced Eirng to 240 months. Eirng appeals.
II.
In March 2009, Eirng’s counsel filed an Anders brief asserting that no meritorious issues existed on appeal, and the Government filed a brief in agreement. Thereafter, Eirng filed a pro se brief, arguing that “the District Court [e]rred when [it] failed to reduce [his] sentence pursuant to the Sentencing Commission’s Amendment (706) to the Crack Cocaine Guidelines.” Appellant’s Informal Br. at 7. Eirng’s reference to Amendment 706 of the Sentencing Guidelines, by which the Sentencing Commission reduced the offense levels for many crack cocaine offenses, does not set forth a non-frivolous issue for review for two reasons.
First, whether a retroactive guideline amendment is applicable to a particular sentence cannot be raised in a direct appeal, but rather only in a proceeding under 18 U.S.C. § 3582(c)(2). Second, inasmuch as Eirng was sentenced to a mandatory minimum term of imprisonment based on a prior drug felony, his sentence is unaffected by any guideline amendment. See United States v. Doe, 564 F.3d 305, 309 (3d Cir.2009) (holding a statutory minimum sentence unaffected by Amendment 706).
III.
For the reasons above, we will affirm the sentence and grant counsel’s motion to withdraw.
. The District Court had jurisdiction pursuant to 18 U.S.C. § 3231. We have jurisdiction to review this matter pursuant to 28 U.S.C. § 1291.
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SUMMARY ORDER
Petitioner Rafiq Lalani Mohammed (“petitioner” or “Mohammed”), a native and citizen of India, appeals from a final removal order by the Board of Immigration Appeals (“BIA”) of August 21, 2008. Petitioner argues that the BIA erred when it denied his application to adjust status on the ground that the BIA lacks jurisdiction over the adjustment application. We assume the parties’ familiarity with the facts and procedural history of this case.
We review legal and constitutional questions decided by the BIA de novo. See Nguyen v. Chertoff, 501 F.3d 107, 111 (2d Cir.2007).
Petitioner argues that the BIA’s reasoning in affirming the IJ’s denial of adjustment of status was unresponsive to the relief he sought, see Sheng Gao Ni v. BIA 520 F.3d 125 (2d Cir.2008), in that it simply noted the IJ’s lack of jurisdiction to grant adjustment of status, and failed to recognize that regulations promulgated after the IJ’s decision permitted arriving aliens to seek adjustment by applying to the USCIS. Petitioner argues that the BIA should have remanded the matter to the IJ with instructions to stay the removal proceedings to permit him to make such an application. However, petitioner never asked the BIA for such relief; he simply appealed the IJ’s own decision, which de*605nied petitioner’s application for lack of jurisdiction.
Accordingly, although the BIA erred in citing a superseded regulation, 8 C.F.R. § 1245.1(c)(8), the BIA’s decision affirming the IJ was both correct, in that the jurisdictional bar remains intact, see 8 C.F.R. § 1245.2(a)(i )(ii), and fully responsive, in that the IJ lacked jurisdiction to consider petitioner’s application for adjustment of status, and petitioner requested no other relief. Under these circumstances, the BIA did not err in dismissing petitioner’s appeal.
We note, however, that under the regulations now in effect (and in effect at the time of the BIA’s decision) petitioner is eligible to apply to the USCIS for adjustment. See 8 C.F.R. § 245.2(a)(1). It is not clear that the BIA, which cited only the prior regulation, was aware of this possibility. Accordingly, while the petition for review is denied, we grant petitioner’s motion for a stay of removal to allow petitioner to file a proper motion to reopen with the BIA, if he wishes to do so, in order to permit him to proceed with an application to the USCIS for adjustment of status. Of course, we intimate no view on the timeliness or merits of any such motion.
CONCLUSION
For the foregoing reasons, the petition for review is DENIED. The pending motion for a stay of removal in this petition is GRANTED. The stay shall be in effect from the date of entry of this order until December 1, 2009 to allow petitioner to proceed to file a proper motion to reopen with the BIA, if he wishes to do so, in order to permit him to proceed with an application to USCIS for adjustment of status. If petitioner files such a motion on or before that date, the stay shall continue in effect until the BIA decides any such motion to reopen.
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SUMMARY ORDER
Petitioner Hung Liang Lin, a native and citizen of the People’s Republic of China, seeks review of: (1) the May 5, 2008 order of the BIA denying his second motion to reopen; and (2) the November 17, 2008 order of the BIA denying his third motion to reopen. In re Hung Liang Lin, No. A072 483 889 (B.I.A. May 5, 2008); In re Hung Liang Lin, No. A072 483 889 (B.I.A. Nov. 17, 2008). We assume the parties’ familiarity with the underlying facts and procedural history of this case.
We review the BIA’s denial of a motion to reopen for abuse of discretion. See Kaur v. BIA, 413 F.3d 232, 233 (2d Cir.2005) (per curiam). There is no dispute that Lin’s second and third motions to reopen were untimely and number-barred. See 8 C.F.R. § 1003.2(c)(2) (providing that an alien seeking to reopen proceedings may file one motion to reopen no later than 90 days after the date on which the final administrative decision was rendered). However, there are no time and number limitations for filing a motion to reopen where the motion is “based on changed circumstances arising in the country of nationality or in the country to which deportation has been ordered, if such evidence is material and was not available and could not have been discovered or presented at the previous hearing.” 8 C.F.R. § 1003.2(e)(3)(ii).
The BIA did not abuse its discretion in denying Lin’s second and third motions to reopen where it reasonably *607found that he failed to proffer material evidence that would have established his prima facie eligibility for relief. See 8 C.F.R. § 1003.2(c)(1); see also Poradisova v. Gonzales, 420 F.3d 70, 78 (2d Cir.2005). Further, we note that the translation errors, which Lin argues constituted the functional equivalent of changed country conditions, would not materially alter the meaning of the country-conditions evidence by demonstrating a risk of forced sterilization.
With respect to Lin’s due process argument, Lin has no due process right in seeking a discretionary grant of a motion to reopen. Cf. Yuen Jin v. Mukasey, 538 F.3d 143, 157 (2d Cir.2008) (holding that “an alien who has already filed one asylum application, been adjudicated removable and ordered deported, and who has nevertheless remained in the country illegally for several years, does not have a liberty or property interest in a discretionary grant of asylum”); see Gomez-Palacios v. Holder, 560 F.3d 354, 361 n. 2 (5th Cir.2009); Iglesias v. Mukasey, 540 F.3d 528, 531 (7th Cir.2008). Lin has remained in this country illegally for over sixteen years—eleven of those after his final order of removal. In that time he has filed, and has had adjudicated, an asylum application and three motions to reopen. He has received ample process. See Yuen Jin, 538 F.3d at 157; see also Wei Guang Wang v. BIA, 437 F.3d 270, 273-74 (2d Cir.2006).
Additionally, contrary to Lin’s argument, the BIA did not err in declining to reopen his removal proceedings based on his eligibility for adjustment of status because that eligibility would not excuse the untimely filing of his motion to reopen. See 8 C.F.R. § 1003.2(c)(3).
Finally, the BIA also properly determined that Lin was not eligible to file a successive asylum application based solely on his changed personal circumstances. See Yuen Jin, 538 F.3d at 156; Matter of C-W-L, 24 I. & N. Dec. 346 (B.I.A.2007).
For the foregoing reasons, Lin’s petitions for review are DENIED. As we have completed our review, any stay of removal that the Court previously granted in these petitions is VACATED, and any pending motion for a stay of removal in these petitions is DISMISSED as moot. Any pending request for oral argument in these petitions is DENIED in accordance with Federal Rule of Appellate Procedure 34(a)(2), and Second Circuit Local Rule 34(b).
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SUMMARY ORDER
Jiabing Gao, a native and citizen of the People’s Republic of China, seeks review of a July 30, 2008 order of the BIA, affirming the March 27, 2003 decision of Immigration Judge (“IJ”) Joanna Miller Bukszpan, which denied her application for asylum and withholding of removal. In re Jiabing Gao, No. A076 120 028 (B.I.A. July 30, 2008), aff'g No. A076 120 028 (Immig. Ct. N.Y. City Mar. 27, 2003). We assume the parties’ familiarity with the underlying facts and procedural history of this case.
When the BIA adopts the decision of the IJ and supplements the IJ’s decision, this Court reviews the decision of the IJ as supplemented by the BIA. See Yan Chen v. Gonzales, 417 F.3d 268, 271 (2d Cir.2005). We review the agency’s factual findings, including adverse credibility determinations, under the substantial evidence standard. 8 U.S.C. § 1252(b)(4)(B); see Dong Gao v. BIA, 482 F.3d 122, 126 (2d Cir.2007). We review de novo questions of law and the application of law to undisputed fact. Salimatou Bah v. Mukasey, 529 F.3d 99, 110 (2d Cir.2008).
I. Asylum and Withholding of Removal
A. Past Persecution
With respect to Gao’s claim of past persecution, substantial evidence supports the agency’s adverse credibility determination. See Liang Chen v. U.S. Att’y Gen., 454 *612F.3d 103, 106-07 (2d Cir.2006). For example, as the IJ found, while Gao claimed that she underwent an abortion in China after the birth of her daughter, Gao’s medical records indicate she had an abortion before the birth of her daughter. When confronted with the discrepancy, Gao failed to provide a compelling explanation. See Majidi v. Gonzales, 430 F.3d 77, 80 (2d Cir.2005). Although Gao argues that this inconsistency is immaterial, the circumstances of Gao’s abortions bear a legitimate nexus to her claim. See Secaida-Rosales v. INS, 331 F.3d 297, 307 (2d Cir.2003).
The IJ further observed that although Gao’s asylum application listed her husband as having entered the U.S. on January 23, 1999, Gao testified that her husband has never been to the U.S. and remains in China. Similarly, although Gao stated on her asylum application that birth control officials came to her house and informed her that she must have an abortion, she testified that the officials informed her mother-in-law of the required abortion. Gao argues that these inconsistencies are too minor to support an adverse credibility determination. We disagree. Yet, even if these inconsistencies were minor, together they served to undermine Gao’s credibility. See Tu Lin v. Gonzales, 446 F.3d 395, 402 (2d Cir.2006).
Ultimately, the IJ’s adverse credibility determination was “based upon neither a misstatement of the facts in the record nor bald speculation or caprice,” and was thus supported by substantial evidence. Zhou Yun Zhang v. INS, 386 F.3d 66, 74 (2d Cir.2004), overruled in part on other grounds by Shi Liang Lin v. Dep’t of Justice, 494 F.3d 296, 305 (2d Cir.2007) (en banc).
B. Well-Founded Fear
With respect to Gao’s well-founded fear of persecution claim, she argues that the agency erred in concluding that she failed to demonstrate eligibility for relief based on the fact that she has two children. While Gao stated that she violated China’s family planning policy by failing to obtain a birth permit for her second child, the IJ found that Gao had not corroborated that claim. Gao fails to identify any error in the IJ’s decision and does not point to anything in the record that the IJ failed to consider that would compel a contrary conclusion. Thus, the IJ did not err in finding that Gao failed to establish eligibility for relief based on the birth of her children. See Jian Hui Shao v. Mukasey, 546 F.3d 138, 158-73 (2d Cir.2008); see also Wei Guang Wang v. BIA 437 F.3d 270, 274-76 (2d Cir.2006); Jian Xing Huang v. INS, 421 F.3d 125, 128-29 (2d Cir.2005).
Because substantial evidence supports the agency’s adverse credibility determination and because Gao otherwise failed to meet her burden of proof, the agency properly denied her application for asylum and withholding of removal where both claims were based on the same factual predicate. See Paul v. Gonzales, 444 F.3d 148, 156 (2d Cir.2006); Xue Hong Yang v. Dep’t of Justice, 426 F.3d 520, 523 (2d Cir.2005).
II. CAT Relief
Under 8 U.S.C. § 1252(d)(1), “[a] court may review a final order of removal only if ... the alien has exhausted all administrative remedies available to the alien as of right.” This jurisdictional rule is absolute with respect to the requirement that the alien raise in her appeal to the BIA each category of relief she subsequently raises in this Court. See Karaj v. Gonzales, 462 F.3d 113, 119 (2d Cir.2006) (citing Beharry v. Ashcroft, 329 F.3d 51, 59 (2d Cir.2003)). *613Here, although Gao explicitly declined to seek CAT relief before the IJ and the IJ found that she had waived any such claim, the BIA purported to “agree” with the IJ’s denial of CAT relief. Ordinarily, when the BIA addresses an issue that an individual did not raise in her brief to the BIA, that issue is considered exhausted and may be reviewed by this Court. See Xian Tuan Ye v. Dep’t of Homeland Sec., 446 F.3d 289, 296-97 (2d Cir.2006); Waldron v. INS, 17 F.3d 511, 515 n. 7 (2d Cir.1994). However, as Gao explicitly declined to seek CAT relief before the IJ, the BIA’s misstatement of the record cannot revive a claim that Gao never made. See Li Hua Lin v. Dep’t of Justice, 453 F.3d 99, 107 (2d Cir.2006). Thus, to the extent Gao argues in this Court that she is eligible for CAT relief, her arguments are unexhausted.
For the foregoing reasons, the petition for review is DENIED. As we have completed our review, any stay of removal that the Court previously granted in this petition is VACATED, and any pending motion for a stay of removal in this petition is DISMISSED as moot. Any pending request for oral argument in this petition is DENIED in accordance with Federal Rule of Appellate Procedure 34(a)(2), and Second Circuit Local Rule 34(b).
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SUMMARY ORDER
Petitioner Anani Ore-Omolere Komi Dos-Reis, a native and citizen of Togo, seeks review of the September 10, 2008 order of the BIA affirming the December 18, 2006 decision of Immigration Judge (“IJ”) William Van Wyke pretermitting his application for asylum and denying his application for withholding of removal and relief under the Convention Against Torture (“CAT”).2 In re Anani Ore-Omolere Komi Dos-Reis, No. A 098 166 714 (B.I.A. Sept. 10, 2008), aff'g No. A 098 166 714 (Immig. Ct. N.Y. City Dec. 18, 2006). We assume the parties’ familiarity with the underlying facts and procedural history in this case.
When the BIA adopts the decision of the IJ and supplements the IJ’s decision, this Court reviews the decision of the IJ as supplemented by the BIA. See Yan Chen v. Gonzales, 417 F.3d 268, 271 (2d Cir.2005). This Court reviews the agency’s factual findings, including adverse credibility determinations, under the substantial evidence standard. 8 U.S.C. § 1252(b)(4)(B); see also Corovic v. Mukasey, 519 F.3d 90, 95 (2d Cir.2008). We review de novo questions of law and the application of law to undisputed fact. See Salimatou Bah v. Mukasey, 529 F.3d 99, 110 (2d Cir.2008).
Substantial evidence supports the agency’s adverse credibility determination. In his brief, Dos-Reis does not challenge the IJ’s findings that: (1) his testimony was internally inconsistent because he testified both that his wife received three summonses at their home in Togo, and also that she was in Ghana at the time; and (2) the original basis of his claim — that he was targeted because he objected to his supervisor’s request that he secretly withdraw ministry funds for the President of Togo— was implausible. Because Dos-Reis does not challenge those findings, they stand as valid bases for the IJ’s adverse credibility determination. See Shunfu Li v. Mukasey, 529 F.3d 141, 146-147 (2d Cir.2008).
We also find no error in the findings that Dos-Reis does challenge. The IJ reasonably found that: (1) Dos-Reis’s testimony that he was in the hospital for four days after he was beaten by the police was inconsistent with medical records and his asylum application, which both indicated that he was in the hospital for a month and four days; (2) Dos-Reis testified implausibly when he claimed that, after fleeing to Ghana, his wife returned to Togo because the couple could not find housing together in Ghana; and (3) Dos-Reis gave evasive answers during his merits hearing. While Dos-Reis offered explanations before the agency that were responsive to each of *615these findings, the agency did not err in rejecting them. See Majidi v. Gonzales, 430 F.3d 77, 80-81 (2d Cir.2005). We are similarly unpersuaded by the arguments Dos-Reis makes in this Court.
Ultimately, substantial evidence supported the IJ’s adverse credibility determination. See 8 U.S.C. § 1252(b)(4)(B); Corovic, 519 F.3d at 95. Accordingly, the IJ properly denied Dos-Reis’s application for withholding of removal and CAT relief because the only evidence that he was likely to be persecuted or tortured depended on his credibility. See Paul v. Gonzales, 444 F.3d 148, 156 (2d Cir.2006).
For the foregoing reasons, the petition for review is DENIED. As we have completed our review, any pending motion for a stay of removal in this petition is DISMISSED as moot. Any pending request for oral argument in this petition is DENIED in accordance with Federal Rule of Appellate Procedure 34(a)(2), and Second Circuit Local Rule 34(b).
. Dos-Reis challenges only the agency's denial of his application for withholding of removal and CAT relief.
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SUMMARY ORDER
Petitioner Li Peng Wang, a native and citizen of the People’s Republic of China, seeks review of an October 27, 2008 order of the BIA affirming the July 20, 2006 decision of Immigration Judge (“IJ”) Joanna Miller Bukszpan denying Wang’s application for asylum and withholding of removal. In re Li Peng Wang, No. A 078 858 951 (B.I.A. Oct. 27, 2008), aff'g No. A 078 858 951 (Immig. Ct. N.Y. City July 20, 2006). We assume the parties’ familiarity with the underlying facts and procedural history in this case.
When the BIA adopts the decision of the IJ and supplements the IJ’s decision, we review the decision of the IJ as supplemented by the BIA. See Yan Chen v. Gonzales, 417 F.3d 268, 271 (2d Cir.2005). We review the agency’s factual findings under the substantial evidence standard. 8 U.S.C. § 1252(b)(4)(B); see also Manzur v. U.S. Dep’t of Homeland Sec., 494 F.3d 281, 289 (2d Cir.2007). We review de novo questions of law and the application of law to undisputed fact. Salimatou Bah v. Mukasey, 529 F.3d 99, 110 (2d Cir.2008).
I. Asylum
Even when an applicant has established eligibility for asylum, the agency may deny the applicant’s application as a matter of discretion. See 8 C.F.R. §§ 208.14(a), 1208.14; Delgado v. Mukasey, 508 F.3d 702, 705 (2d Cir.2007). The agency’s “discretionary judgment whether to grant [asylum relief] shall be conclusive unless manifestly contrary to the law and an abuse of discretion.” 8 U.S.C. § 1252(b)(4)(D); see also Wu Zheng Huang v. INS, 436 F.3d 89, 96-97 & n. 9 (2d Cir.2006).
Here, despite finding that Wang established her eligibility for asylum based on her violation of China’s family planning policy with the birth of her U.S. citizen children, the IJ denied Wang’s application for asylum as a matter of discretion. The IJ found that although Wang’s two U.S.citizen children were a positive factor, it was outweighed by other negative factors, including: (1) Wang’s false claim of U.S. citizenship when she attempted to enter the United States; (2) her false testimony before an immigration officer; (3) her initial, false asylum application; (4) her receipt of government funds to pay for her children’s medical care; and (5) her husband’s continued presence in the United States in violation of his final removal order. The BIA found that the IJ’s discretionary denial was supported by the totality of the circumstances. We find no abuse of discretion in the agency’s determination.
Before this Court, Wang argues that the agency failed to consider her explanation for her false testimony and asylum application — that the snakehead who smuggled her into the United States told her that if she failed to present the false claim, she would be returned to China, but would still have to pay the smuggling fee. To the contrary, the IJ considered and rejected Wang’s explanation and did not abuse her discretion in doing so. Indeed Wang’s explanation confirmed only that she was willing to lie in order to receive an immigration benefit. With respect to Wang’s argument that the agency failed to consider the totality of the circumstances in denying her asylum application as a matter of discretion, we are similarly unpersuaded. Ultimately, where Wang claimed U.S. citizenship and lied to immigration author*617ities by asserting that she feared persecution at a time when she did not, we cannot find an abuse of discretion in the agency’s decision. See Ke Zhen Zhao v. U.S. Dep’t of Justice, 265 F.3d 83, 93 (2d Cir.2001); cf. Wu Zheng Huang, 436 F.3d at 100.
II. Withholding of Removal
Wang also argues that the agency erred in concluding that she failed to demonstrate her eligibility for withholding of removal. However, this argument fails where we have previously reviewed the agency’s consideration of similar evidence and have found no error in its conclusion that such evidence was insufficient to establish an objectively reasonable fear of persecution. See Jian Hui Shao v. Mukasey, 546 F.3d 138, 156-65 (2d Cir.2008). Further, despite Wang’s argument to the contrary, there is nothing in the BIA’s decision compelling the conclusion that it failed to take into account all of her evidence. See Xiao Ji Chen v. U.S. Dep’t of Justice, 471 F.3d 315, 337 n. 17 (2d Cir.2006) (stating that we “presume that [the agency] has taken into account all of the evidence before [it], unless the record compellingly suggests otherwise.”).
For the foregoing reasons, the petition for review is DENIED. As we have completed our review, any pending motion for a stay of removal in this petition is DISMISSED as moot. Any pending request DENIED in accordance Procedure 34(a)(2), for oral argument in this petition is with Federal Rule of Appellate and Second Circuit Local Rule 34(b).
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SUMMARY ORDER
Petitioner Jin Zhu Jiang, a native and citizen of the People’s Republic of China, seeks review of an August 27, 2008 order of the BIA affirming the January 3, 2007 decision of Immigration Judge (“IJ”) Barbara A. Nelson denying Jiang’s application for asylum, withholding of removal, and relief under the Convention Against Torture (“CAT”). In re Jin Zhu Jiang, No. A095 716 682 (B.I.A. Aug. 27, 2008), aff'g No. A095 716 682 (Immig. Ct. N.Y. City Jan. 3, 2007). We assume the parties’ familiarity with the underlying facts and procedural history in this case.
When the BIA summarily affirms the decision of the IJ without issuing an opinion, see 8 C.F.R. § 1003.1(e)(4), we review the IJ’s decision as the final agency determination. See Shunfu Li v. Mukasey, 529 F.3d 141, 146 (2d Cir.2008). We review the agency’s factual findings, including adverse credibility determinations, under the substantial evidence standard. See 8 U.S.C. § 1252(b)(4)(B); see, e.g., Corovic v. Mukasey, 519 F.3d 90, 95 (2d Cir.2008).
We conclude that substantial evidence supports the IJ’s determination that Jiang was not credible. In her decision, the IJ noted that while Jiang testified that she fears returning to China because she began practicing Falun Gong in the United States, she failed to include that assertion in her asylum application. This was a significant omission, as it provides, on its own, the basis for an asylum claim. Cf. Xiu Xia Lin v. Mukasey, 534 F.3d 162, 166 (2d Cir.2008) (holding that, for cases such as Jiang’s, filed after May 11, 2005, even non-material inconsistencies or omissions may support an adverse credibility determination as long as the cumulative effect of such discrepancies establishes that the applicant is not credible). While Jiang explained that she believed that she was only supposed to focus on what happened in China in her asylum application, and that she did not think of putting that assertion in her application, the IJ did not err in rejecting those explanations. See Majidi v. Gonzales, 430 F.3d 77, 80-81 (2d Cir.2005).
The IJ further found that Jiang’s testimony on direct examination that her mother and neighbors helped her escape from the police in July 2002 was inconsistent with her testimony on cross-examination that both her parents were present at the time. Moreover, the IJ found implausible Jiang’s claim that her parents have suffered no adverse consequences for their alleged actions. On the basis of the entire record, we will not disturb these findings. See Ying Li v. B.C.I.S., 529 F.3d 79, 82-83 (2d Cir.2008).
In addition, the IJ found that Jiang was “extremely evasive and unresponsive” when answering difficult questions posed to her, as when she was unable to explain why she did not include in her asylum application her assertion that she practiced Falun Gong in the United States. The IJ *619also noted that Jiang testified as if she “memorized her story for recitation to the Court.” We afford such assessments of demeanor particular deference. See Majidi, 430 F.3d at 81 n. 1.
While the IJ’s decision was not without error,2 the “totality of the circumstances” provides sufficient support for the IJ’s conclusion that Jiang was not credible. 8 U.S.C. § 1158(b)(1)(B)(iii); Xiu Xia Lin, 534 F.3d at 166. Moreover, because the only evidence of a threat to Jiang’s life or freedom depended upon her credibility, the adverse credibility determination in this case necessarily precludes success on her claims for asylum, withholding of removal, and CAT relief, where all of Jiang’s claims were based on the same factual predicate. See Paul v. Gonzales, 444 F.3d 148, 156 (2d Cir.2006).
For the foregoing reasons, the petition for review is DENIED. As we have completed our review, any stay of removal that the Court previously granted in this petition is VACATED, and any pending motion for a stay of removal in this petition is DISMISSED as moot. Any pending request for oral argument in this petition is DENIED in accordance with Federal Rule of Appellate Procedure 34(a)(2), and Second Circuit Local Rule 34(b).
. We cannot agree with the IJ that Jiang's testimony that the police came to visit her home weekly was inconsistent with her father's letter stating that they came “several times.”
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SUMMARY ORDER
Ahmed Choullam was convicted of conspiring to import 1,000 kilograms or more of hashish in violation of 21 U.S.C. §§ 960(b)(1)(G), 963 and of conspiring to distribute or possess with intent to distribute 100 kilograms or more of hashish in violation of 21 U.S.C. §§ 841(b)(l)(B)(vii), 846. The facts and procedural history underlying this action have been fully set forth by the District Court in a prior
Following the jury verdict against him, Appellant moved for a judgment of acquittal pursuant to Rule 29 of the Federal Rules of Criminal Procedure or, in the alternative, for a new trial pursuant to Rule 33 of the Federal Rules of Criminal Procedure. Fed.R.Crim.P. 29, 33. Choullam also challenged the sufficiency of the evidence presented by the Government to implicate him in the conspiratorial activities described in the indictment on which he was tried. The District Court denied Appellant’s motion in its entirety. On appeal, Choullam challenges the District Court’s denial of his request for a jury instruction concerning multiple conspiracies, and argues that there was an improper constructive amendment of his indictment, or, alternatively, a prejudicial variance from the indictment.
Appellant is not entitled to a new trial on the ground that the District Court improperly denied his request for a jury instruction on multiple conspiracies. In our view, the instruction given was not error. But, even if it were, there was no prejudice to Appellant because “there was ample proof before the jury for it to find beyond a reasonable doubt that [the] defendant was a member of the conspiracy charged in the indictment.” United States v. Vazquez, 113 F.3d 383, 386 (2d Cir.1997). The District Court properly concluded that because Appellant stood trial alone, there was “no danger that the jury would confuse the possible involvement of other co-defendants with conspiracies not alleged in the indictment with the conspiracy for which Defendant was charged.” United States v. Choullam, No. 05 Cr. 523(LTS), 2008 WL 3861356, at *4 (S.D.N.Y. Aug. 19, 2008); see United States v. Corey, 566 F.2d 429, 431 n. 3 (2d Cir.1977).
Appellant’s contentions that his indictment was constructively amended or that there was a prejudicial variance to the indictment are unfounded. Appellant had clear “notice of the core of criminality to be proven at trial.” United States v. Delano, 55 F.3d 720, 729 (2d Cir.1995) (internal quotation marks omitted). Additionally, the redacted indictment that was present*621ed to the jury in no way “modif[ied] essential elements of the offense charged.” Id.
We have considered the remaining issues raised by Appellant and find them to be without merit.
Accordingly, the judgment of the District Court is hereby AFFIRMED.
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*623
SUMMARY ORDER
Petitioner Shusil Thapa, a native and citizen of Nepal, seeks review of the October 31, 2008 order of the BIA affirming the July 31, 2007 decision of Immigration Judge (“IJ”) Thomas J. Mulligan, denying his application for asylum, withholding of removal, and relief under the Convention Against Torture (“CAT”). In re Shusil Thapa, No. A099 686 064 (B.I.A. Oct. 31, 2008), aff'g No. A099 686 064 (Immig. Ct. N.Y. City July 31, 2007). We assume the parties’ familiarity with the underlying facts and procedural history of the case.
When the BIA adopts the decision of the IJ and supplements the IJ’s decision, we review the decision of the IJ as supplemented by the BIA. See Yan Chen v. Gonzales, 417 F.3d 268, 271 (2d Cir.2005). We review the agency’s factual findings, including adverse credibility determinations, under the substantial evidence standard. See 8 U.S.C. § 1252(b)(4)(B); Dong Gao v. BIA, 482 F.3d 122, 126 (2d Cir.2007). We review de novo questions of law and the application of law to undisputed fact. See Salimatou Bah v. Mukasey, 529 F.3d 99, 110 (2d Cir.2008).
As an initial matter, Thapa concedes that he did not file his asylum application within one year of his arrival in the United States and thus is ineligible for asylum. See Pet’r Br. 15. Thapa’s petition for review therefore is limited to the agency’s decision regarding his application for withholding of removal and CAT relief. See Yueqing Zhang v. Gonzales, 426 F.3d 540, 541 n. 1, 545 n. 7 (2d Cir.2005).
Our review of the agency’s decision with respect to Thapa’s application for withholding of removal is frustrated because the basis for the BIA’s decision to affirm the IJ is unclear. See, e.g., Dong Zhong Zheng v. Mukasey, 552 F.3d 277, 285 (2d Cir.2009); Mohammad Zaman v. Mukasey, 514 F.3d 233, 237 (2d Cir.2008) (per curiam). Regarding his asylum application, the IJ found that Thapa lacked credibility and that, even if he were credible, he failed to demonstrate that he had suffered past persecution on account of a protected ground. The IJ found also that Thapa had not demonstrated a well-founded fear of future persecution. See Ramsameachire v. Ashcroft, 357 F.3d 169, 178 (2d Cir.2004). Specifically, although the IJ stated that Thapa had shown an objectively reasonable fear of future persecution based on the U.S. State Department’s 2006 Report on Human Rights Practices in Nepal, he had not shown that his fear was subjectively reasonable.
The IJ then went on to find that Thapa “ha[d] failed to meet the higher burden for a Withholding of Removal claim,” and rejected that claim “for all of the reasons previously stated.” But in contrast to asylum claims, “[wjithholding [of removal] claims ... lack a subjective component and are concerned only with objective evidence of future persecution.” Paul v. Gonzales, 444 F.3d 148, 155-56 (2d Cir.2006).
The BIA appears to have affirmed the IJ’s decision regarding withholding of removal on the ground that Thapa failed to identify any harm that would amount to persecution on the basis of a protected ground. If that indeed was the basis for its decision, then the BIA should have explained why it disagreed with the IJ’s finding that Thapa’s fear of future persecution was objectively reasonable. On the other hand, if the BIA intended to affirm the IJ’s denial of Thapa’s application for withholding of removal on the ground that the Country Report did not establish that it is “more likely than not” that Thapa’s “life or freedom would be threatened” on account of a protected ground, 8 C.F.R. § 1208.16(b)(l)(iii), it should have made that plain, see id. § 1003.1(d)(3)© (“Facts determined by the immigration judge ... shall be reviewed [by the BIA] only to *624determine whether the findings of the immigration judge are clearly erroneous.”). Accordingly, we remand for the BIA to clarify the basis for this aspect of its decision.
The agency denied Thapa’s application for relief under the CAT on the ground that there was no evidence in the record to support Thapa’s argument that he would more likely than not be tortured if returned to Nepal. This finding is supported by substantial evidence. Thus, this aspect of Thapa’s petition for review is denied.
For the foregoing reasons, the petition for review is GRANTED in part and DENIED in part. We VACATE the BIA’s decision insofar as it affirmed the IJ’s denial of Thapa’s application for withholding of removal and REMAND to the BIA for it to clarify the basis for its decision regarding that application. As we have completed our review, the pending motion for a stay of removal in this petition is DENIED as moot.
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SUMMARY ORDER
Petitioner Mei Ping Zheng, a native and citizen of China, seeks review of an October 23, 2008 order of the BIA affirming the April 26, 2007 decision of Immigration Judge (“IJ”) Paul A. DeFonzo denying her application for asylum, withholding of removal, and CAT relief. In re Mei Ping Zheng, No. A 099 667 773 (B.I.A. Oct. 23, 2008), aff'g No. A 099 667 773 (Immig. Ct. N.Y. City Apr. 26, 2007). We assume the parties’ familiarity with the underlying facts and procedural history in this case.
When the BIA agrees with the IJ’s conclusion that a petitioner is not credible and, without rejecting any of the IJ’s grounds for decision, emphasizes particular aspects of that decision, this Court reviews both the BIA’s and IJ’s opinions— or more precisely, the Court reviews the IJ’s decision including the portions not explicitly discussed by the BIA.2 Yun-Zui Guan v. Gonzales, 432 F.3d 391, 394 (2d Cir.2005). We review the agency’s factual findings, including adverse credibility determinations, under the substantial evidence standard. 8 U.S.C. § 1252(b)(4)(B); see also Corovic v. Mukasey, 519 F.3d 90, 95 (2d Cir.2008). For asylum applications governed by the REAL ID Act of 2005, the agency may, considering the totality of the circumstances, base a credibility finding on an asylum applicant’s demeanor, the plausibility of his or her account, and inconsistencies in his or her statements, without regard to whether they go “to the heart of the applicant’s claim.” 8 U.S.C. § 1158(b)(1)(B)(iii). Thus, we “defer to an IJ’s credibility determination unless, from the totality of the circumstances, it is plain that no reasonable fact-finder could make such an adverse credibility ruling.” Xiu Xia Lin v. Mukasey, 534 F.3d 162, 167 (2d Cir.2008).
I. Religious Persecution Claim
The IJ reasonably found that Zheng failed to establish eligibility for relief on the basis of religion. The IJ observed that even if Zheng was a Christian, she failed to present any evidence that she suffered past persecution or had a well-founded fear of future persecution on that basis. Indeed, Zheng admitted that her prior claim that she practiced Christianity in China was false and she did not testify that she suffered or feared persecution on account of her religious activities.3 Therefore, the IJ’s burden finding was not in error. See Matter of Acosta, 19 I. & N. Dec. 211, 222 (BIA 1985) (defining persecution as a “threat to the life or freedom of, or the infliction of suffering or harm upon, those who differ in a way regarded as offensive”); Ivanishvili v. U.S. Dep’t, 433 F.3d 332, 342 (2d Cir.2006).
II. Family Planning Claim
Substantial evidence supports the agency’s adverse credibility determination. As an initial matter, in her brief, Zheng does not challenge the IJ’s finding that her testimony that Chinese authorities failed to take action after she filed complaints against her fiancé was inconsistent with her asylum application, which indicated *626that they had taken action. Because Zheng has waived any challenge to that finding, it stands as a valid basis for the IJ’s adverse credibility determination, see Shunfu Li v. Mukasey, 529 F.3d 141, 146-147 (2d Cir.2008).
The IJ also reasonably found that: (1) while Zheng told a border patrol agent that she fled China to escape religious persecution, she later testified that she lied to the border patrol agent; (2) although Zheng testified that her alleged forced abortion occurred at Kulo hospital in the Fuzhou district, the abortion certificate that she presented indicated that the procedure occurred at Bi Hoo Ting hospital, in the Cangshan district; (3) although Zheng testified that her boyfriend threatened her after she filed an official complaint against him, she omitted this information from her application; (4) while Zheng testified that she learned from her mother that her flaneé had visited her mother’s home and caused problems after Zheng left China, a letter from Zheng’s mother made no such assertion; and (5) based on the multiple inconsistencies in Zheng’s case, it was likely that some of the documents that she submitted were fraudulent. While Zheng offered explanations before the agency that were responsive to each of these findings, the agency did not err in rejecting them. See Majidi v. Gonzales, 430 F.3d 77, 80-81 (2d Cir.2005). We are similarly unpersuaded by the arguments Zheng makes in this Court.
To the extent Zheng challenges the IJ’s other credibility findings, we decline to consider these arguments. Even if the IJ’s remaining findings were in error, remand would be futile as we can be confidently predict that the agency would reach the same conclusion on remand. See Xiao Ji Chen v. U.S. Dep’t of Justice, 471 F.3d 315, 342 (2d Cir.2006). Ultimately, because substantial evidence supported the IJ’s adverse credibility determination, the IJ properly denied Zheng’s application for asylum and withholding of removal because the only evidence that she would be persecuted depended on her credibility. See Paul v. Gonzales, 444 F.3d 148, 156 (2d Cir.2006).
For the foregoing reasons, the petition for review is DENIED. As we have completed our review, any pending motion for a stay of removal in this petition is DISMISSED as moot. Any pending request for oral argument, in this petition is DENIED in accordance with Federal Rule of Appellate Procedure 34(a)(2), and Second Circuit Local Rule 34(b).
. Zheng argues that the BIA's decision was "muddled” because it was unclear whether the BIA was conducting a de novo review or affirming the IJ’s decision. We disagree. The BIA’s decision clearly affirms the IJ's. Indeed, it essentially reiterates the IJ's adverse credibility findings.
. Given Zheng’s admission, it is unclear what aspects of her religion claim, if any, the IJ believed.
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MEMORANDUM **
Gonzalo Vicente Alvarado-Matul, a native and citizen of Guatemala, petitions for review of the Board of Immigration Appeals’ order dismissing his appeal from an immigration judge’s decision denying his application for withholding of removal and relief under the Convention Against Torture (“CAT”). We have jurisdiction under 8 U.S.C. § 1252. We review for substantial evidence, Don v. Gonzales, 476 F.3d 738, 741 (9th Cir.2007), and we deny the petition for review.
Substantial evidence supports the agency’s adverse credibility determination based on both Alvarado-Matul’s inconsistent testimony regarding the timing and circumstances of the government agents’ visit to his uncle, see Chebchoub v. INS, 257 F.3d 1038, 1043-44 (9th Cir.2001), and Alvarado-Matul’s admission he lied to immigration officials about his date of entry, see Don, 476 F.3d at 742. In the absence of credible testimony, Alvarado-Matul’s withholding of removal claim fails. See Farah v. Ashcroft, 348 F.3d 1153, 1156 (9th Cir.2003).
*320Because Alvarado-Matul’s CAT claim is based on testimony the agency found not credible, and there is no evidence in the record that compels a finding that it is more likely than not he would be tortured if returned to Guatemala, his CAT claim fails. See id. at 1156-57.
We reject Alvarado-Matul’s contentions that the BIA’s decision violated due process. See Lata v. INS, 204 F.3d 1241, 1246 (9th Cir.2000) (requiring error for due process 'violation).
PETITION FOR REVIEW DENIED.
This disposition is not appropriate for publication and is not precedent except as provided by 9th Cir. R. 36-3. '
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SUMMARY ORDER
Petitioner Rafiq Lalani Mohammed (“petitioner” or “Mohammed”), a native and citizen of India, appeals from a final removal order by the Board of Immigration Appeals (“BIA”) of August 21, 2008. Petitioner argues that the BIA erred when it denied his application to adjust status on the ground that the BIA lacks jurisdiction over the adjustment application. We assume the parties’ familiarity with the facts and procedural history of this case.
We review legal and constitutional questions decided by the BIA de novo. See Nguyen v. Chertoff, 501 F.3d 107, 111 (2d Cir.2007).
Petitioner argues that the BIA’s reasoning in affirming the IJ’s denial of adjustment of status was unresponsive to the relief he sought, see Sheng Gao Ni v. BIA 520 F.3d 125 (2d Cir.2008), in that it simply noted the IJ’s lack of jurisdiction to grant adjustment of status, and failed to recognize that regulations promulgated after the IJ’s decision permitted arriving aliens to seek adjustment by applying to the USCIS. Petitioner argues that the BIA should have remanded the matter to the IJ with instructions to stay the removal proceedings to permit him to make such an application. However, petitioner never asked the BIA for such relief; he simply appealed the IJ’s own decision, which de*605nied petitioner’s application for lack of jurisdiction.
Accordingly, although the BIA erred in citing a superseded regulation, 8 C.F.R. § 1245.1(c)(8), the BIA’s decision affirming the IJ was both correct, in that the jurisdictional bar remains intact, see 8 C.F.R. § 1245.2(a)(i )(ii), and fully responsive, in that the IJ lacked jurisdiction to consider petitioner’s application for adjustment of status, and petitioner requested no other relief. Under these circumstances, the BIA did not err in dismissing petitioner’s appeal.
We note, however, that under the regulations now in effect (and in effect at the time of the BIA’s decision) petitioner is eligible to apply to the USCIS for adjustment. See 8 C.F.R. § 245.2(a)(1). It is not clear that the BIA, which cited only the prior regulation, was aware of this possibility. Accordingly, while the petition for review is denied, we grant petitioner’s motion for a stay of removal to allow petitioner to file a proper motion to reopen with the BIA, if he wishes to do so, in order to permit him to proceed with an application to the USCIS for adjustment of status. Of course, we intimate no view on the timeliness or merits of any such motion.
CONCLUSION
For the foregoing reasons, the petition for review is DENIED. The pending motion for a stay of removal in this petition is GRANTED. The stay shall be in effect from the date of entry of this order until December 1, 2009 to allow petitioner to proceed to file a proper motion to reopen with the BIA, if he wishes to do so, in order to permit him to proceed with an application to USCIS for adjustment of status. If petitioner files such a motion on or before that date, the stay shall continue in effect until the BIA decides any such motion to reopen.
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SUMMARY ORDER
Petitioner Hung Liang Lin, a native and citizen of the People’s Republic of China, seeks review of: (1) the May 5, 2008 order of the BIA denying his second motion to reopen; and (2) the November 17, 2008 order of the BIA denying his third motion to reopen. In re Hung Liang Lin, No. A072 483 889 (B.I.A. May 5, 2008); In re Hung Liang Lin, No. A072 483 889 (B.I.A. Nov. 17, 2008). We assume the parties’ familiarity with the underlying facts and procedural history of this case.
We review the BIA’s denial of a motion to reopen for abuse of discretion. See Kaur v. BIA, 413 F.3d 232, 233 (2d Cir.2005) (per curiam). There is no dispute that Lin’s second and third motions to reopen were untimely and number-barred. See 8 C.F.R. § 1003.2(c)(2) (providing that an alien seeking to reopen proceedings may file one motion to reopen no later than 90 days after the date on which the final administrative decision was rendered). However, there are no time and number limitations for filing a motion to reopen where the motion is “based on changed circumstances arising in the country of nationality or in the country to which deportation has been ordered, if such evidence is material and was not available and could not have been discovered or presented at the previous hearing.” 8 C.F.R. § 1003.2(e)(3)(ii).
The BIA did not abuse its discretion in denying Lin’s second and third motions to reopen where it reasonably *607found that he failed to proffer material evidence that would have established his prima facie eligibility for relief. See 8 C.F.R. § 1003.2(c)(1); see also Poradisova v. Gonzales, 420 F.3d 70, 78 (2d Cir.2005). Further, we note that the translation errors, which Lin argues constituted the functional equivalent of changed country conditions, would not materially alter the meaning of the country-conditions evidence by demonstrating a risk of forced sterilization.
With respect to Lin’s due process argument, Lin has no due process right in seeking a discretionary grant of a motion to reopen. Cf. Yuen Jin v. Mukasey, 538 F.3d 143, 157 (2d Cir.2008) (holding that “an alien who has already filed one asylum application, been adjudicated removable and ordered deported, and who has nevertheless remained in the country illegally for several years, does not have a liberty or property interest in a discretionary grant of asylum”); see Gomez-Palacios v. Holder, 560 F.3d 354, 361 n. 2 (5th Cir.2009); Iglesias v. Mukasey, 540 F.3d 528, 531 (7th Cir.2008). Lin has remained in this country illegally for over sixteen years—eleven of those after his final order of removal. In that time he has filed, and has had adjudicated, an asylum application and three motions to reopen. He has received ample process. See Yuen Jin, 538 F.3d at 157; see also Wei Guang Wang v. BIA, 437 F.3d 270, 273-74 (2d Cir.2006).
Additionally, contrary to Lin’s argument, the BIA did not err in declining to reopen his removal proceedings based on his eligibility for adjustment of status because that eligibility would not excuse the untimely filing of his motion to reopen. See 8 C.F.R. § 1003.2(c)(3).
Finally, the BIA also properly determined that Lin was not eligible to file a successive asylum application based solely on his changed personal circumstances. See Yuen Jin, 538 F.3d at 156; Matter of C-W-L, 24 I. & N. Dec. 346 (B.I.A.2007).
For the foregoing reasons, Lin’s petitions for review are DENIED. As we have completed our review, any stay of removal that the Court previously granted in these petitions is VACATED, and any pending motion for a stay of removal in these petitions is DISMISSED as moot. Any pending request for oral argument in these petitions is DENIED in accordance with Federal Rule of Appellate Procedure 34(a)(2), and Second Circuit Local Rule 34(b).
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SUMMARY ORDER
Li Rong Zhuo, a native and citizen of the People’s Republic of China, seeks review of a July 31, 2008 order of the BIA, which: (1) affirmed the April 18, 2007 decision of Immigration Judge (“IJ”) Javier Balasquide denying her application for asylum, withholding of removal, and relief under the Convention Against Torture (“CAT”); and (2) denied her motion to remand. In re Li Rong Zhuo, No. A094 048 517 (B.I.A. July 31, 2008), aff'g No. A094 048 517 (Immig. Ct. N.Y. City Apr. 18, 2007). We assume the parties’ familiarity with the underlying facts and procedural history in this case.
I. Asylum and Withholding of Removal
When the BIA adopts the decision of the IJ and supplements the IJ’s decision, we review the decision of the IJ as supplemented by the BIA. See Yan Chen v. Gonzales, 417 F.3d 268, 271 (2d Cir.2005). We review the agency’s factual findings, including adverse credibility findings, under the substantial evidence standard. See 8 U.S.C. § 1252(b)(4)(B); see also Xiu Xia Lin v. Mukasey, 534 F.3d 162, 165-66 (2d Cir.2008). We “defer[s] to an IJ’s credibility determination unless, from the totality of the circumstances, it is plain that no reasonable fact-finder could make such an adverse credibility ruling.” Xiu Xia Lin, 534 F.3d at 165-66. For asylum applications governed by the REAL ID *609Act, the agency may, considering the totality of the circumstances, base a credibility finding on an asylum applicant’s demeanor, the plausibility of her account, and inconsistencies in her statements, without regard to whether they go “to the heart of the applicant’s claim.” 8 U.S.C. § 1158(b)(l)(B)(iii).
Substantial evidence supports the agency’s adverse credibility determination. In finding Zhuo not credible, the agency reasonably relied in part on inconsistencies in her testimony. See 8 U.S.C. § 1158(b)(1)(B)(iii). Indeed, although Zhuo testified that her mother-in-law had paid a fine for her release from detention, the receipt for such payment indicated that Zhuo and her husband had paid the fine. Before the IJ, Zhuo could not provide an explanation for this inconsistency. Moreover, a reasonable fact-finder would not be compelled to credit her explanation before the BIA, that there was no basis for the IJ’s finding. Contrary to Zhuo’s argument, the fine receipt did not indicate that Zhuo and her husband were simply beneficiaries of the fine payment, but specifically provided that they were the individuals who had paid the fine. See Majidi v. Gonzales, 430 F.3d 77, 80-81 (2d Cir.2005).
The IJ also reasonably relied on discrepancies in Zhuo’s testimony regarding her daughter’s death certificate. See 8 U.S.C. § 1158(b)(1)(B)(iii). Zhuo initially testified that she could not produce her daughter’s death certificate because it had been submitted as evidence in her husband’s removal proceedings. However, after being questioned as to why she had not shown family planning officials the death certificate when they purportedly sought to sterilize her for having two children, she changed her testimony to state that no death certificate existed. Because Zhuo does not challenge this particular finding, we will not disturb it. See Shunfu, Li v. Mukasey, 529 F.3d 141, 146-47 (2d Cir.2008).
In finding Zhuo not credible, the agency also reasonably relied in part on Zhuo’s demeanor. See 8 U.S.C. § 1158(b)(1)(B)(iii); see also Majidi, 430 F.3d at 81 n. 1. Indeed, as the IJ found, Zhuo’s responses to certain questions were vague and evasive. Finally, the agency reasonably relied on Zhuo’s failure to submit sufficient evidence corroborating either her claim that her daughter had been ill and died or her assertion that family planning officials had not sterilized her because she was anemic. See Biao Yang v. Gonzales, 496 F.3d 268, 273 (2d Cir.2007) (recognizing that an applicant’s failure to corroborate his or her testimony may bear on credibility because the absence of corroboration in general makes an applicant unable to rehabilitate testimony that has already been called into question); see also Maladho Djehe Diallo v. Gonzales, 445 F.3d 624, 633-34 (2d Cir.2006).
Ultimately, because a reasonable fact-finder would not be compelled to conclude to the contrary, the agency’s adverse credibility determination was supported by substantial evidence. See Xiu Xia Lin, 534 F.3d at 166-67. Thus, the agency’s denial of Zhuo’s applications for asylum and withholding of removal was proper.2 See Paul v. Gonzales, 444 F.3d 148, 156 (2d Cir.2006). Accordingly, we decline to consider the agency’s alternative bases for denying Zhuo’s applications for asylum and withholding of removal. See 8 C.F.R. § 1208.13(b); 8 C.F.R. § 1208.16(b).
II. Motion to Remand
We review the BIA’s denial of a motion to remand for abuse of discretion. *610Li Yong Cao v. U.S. Dep’t of Justice, 421 F.3d 149, 157 (2d Cir.2005). A motion to remand that relies on newly available evidence is held to the substantive requirements of a motion to reopen. Id. at 156. The movant’s failure to submit previously unavailable material evidence or to establish a prima facie case for the underlying substantive relief sought are proper grounds on which the BIA may deny such a motion. See INS v. Abudu, 485 U.S. 94, 104-05, 108 S.Ct. 904, 99 L.Ed.2d 90 (1988).
In this case, the BIA reasonably found that the majority of Zhuo’s evidence was available prior to the IJ’s April 2007 decision. Zhuo proffers no support for her eonclusory assertion that such evidence, most of which was available online, was not available to her. Indeed, the record reveals that she submitted most of that evidence before the IJ. See 8 U.S.C. § 1229a.
Likewise, contrary to Zhuo’s argument, the record does not compel the conclusion that the BIA failed to consider evidence that post-dated her merits hearing. We have rejected the notion that the agency must “expressly parse or refute on the record each individual argument or piece of evidence offered by the petitioner,” Jian Hui Shao v. Mukasey, 546 F.3d 138, 169 (2d Cir.2008) (internal quotation marks omitted), and we presume that the agency “has taken into account all of the evidence before [it], unless the record compellingly suggests otherwise,” Xiao Ji Chen v. U.S. Dep’t of Justice, 471 F.3d 315, 337 n. 17 (2d Cir.2006). Moreover, the BIA did not err in finding that Zhuo failed to demonstrate her prima facie eligibility for relief based on a well-founded fear of forced sterilization because she did not submit any previously unavailable evidence demonstrating that similarly situated individuals are subjected to forced sterilizations. See Jian Hui Shao, 546 F.3d at 159-62, 169-70. Accordingly, the BIA did not abuse its discretion in denying Zhuo’s motion to remand. See Abudu, 485 U.S. at 104-05, 108 S.Ct. 904.3
For the foregoing reasons, the petition for review is DENIED. As we have completed our review, any stay of removal that the Court previously granted in this petition is VACATED, and any pending motion for a stay of removal in this petition is DISMISSED as moot. Any pending request for oral argument in this petition is DENIED in accordance with Federal Rule of Appellate Procedure 34(a)(2), and Second Circuit Local Rule 34(b).
. The agency denied Zhuo's application for-CAT relief based solely on her failure to satisfy her burden of proof, but Zhuo has abandoned before this Court any challenge to the agency's denial of that application.
. We need not consider Zhuo's argument that the BIA erred by failing to consider the timeliness of her motion to remand because her motion, which was filed during the pendency of her appeal, was timely. Cf. 8 C.F.R. § 1003.2(c)(2) (requiring an alien seeking to reopen proceedings to file a motion to reopen no later than 90 days after the date on which the final administrative decision was rendered).
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SUMMARY ORDER
Jiabing Gao, a native and citizen of the People’s Republic of China, seeks review of a July 30, 2008 order of the BIA, affirming the March 27, 2003 decision of Immigration Judge (“IJ”) Joanna Miller Bukszpan, which denied her application for asylum and withholding of removal. In re Jiabing Gao, No. A076 120 028 (B.I.A. July 30, 2008), aff'g No. A076 120 028 (Immig. Ct. N.Y. City Mar. 27, 2003). We assume the parties’ familiarity with the underlying facts and procedural history of this case.
When the BIA adopts the decision of the IJ and supplements the IJ’s decision, this Court reviews the decision of the IJ as supplemented by the BIA. See Yan Chen v. Gonzales, 417 F.3d 268, 271 (2d Cir.2005). We review the agency’s factual findings, including adverse credibility determinations, under the substantial evidence standard. 8 U.S.C. § 1252(b)(4)(B); see Dong Gao v. BIA, 482 F.3d 122, 126 (2d Cir.2007). We review de novo questions of law and the application of law to undisputed fact. Salimatou Bah v. Mukasey, 529 F.3d 99, 110 (2d Cir.2008).
I. Asylum and Withholding of Removal
A. Past Persecution
With respect to Gao’s claim of past persecution, substantial evidence supports the agency’s adverse credibility determination. See Liang Chen v. U.S. Att’y Gen., 454 *612F.3d 103, 106-07 (2d Cir.2006). For example, as the IJ found, while Gao claimed that she underwent an abortion in China after the birth of her daughter, Gao’s medical records indicate she had an abortion before the birth of her daughter. When confronted with the discrepancy, Gao failed to provide a compelling explanation. See Majidi v. Gonzales, 430 F.3d 77, 80 (2d Cir.2005). Although Gao argues that this inconsistency is immaterial, the circumstances of Gao’s abortions bear a legitimate nexus to her claim. See Secaida-Rosales v. INS, 331 F.3d 297, 307 (2d Cir.2003).
The IJ further observed that although Gao’s asylum application listed her husband as having entered the U.S. on January 23, 1999, Gao testified that her husband has never been to the U.S. and remains in China. Similarly, although Gao stated on her asylum application that birth control officials came to her house and informed her that she must have an abortion, she testified that the officials informed her mother-in-law of the required abortion. Gao argues that these inconsistencies are too minor to support an adverse credibility determination. We disagree. Yet, even if these inconsistencies were minor, together they served to undermine Gao’s credibility. See Tu Lin v. Gonzales, 446 F.3d 395, 402 (2d Cir.2006).
Ultimately, the IJ’s adverse credibility determination was “based upon neither a misstatement of the facts in the record nor bald speculation or caprice,” and was thus supported by substantial evidence. Zhou Yun Zhang v. INS, 386 F.3d 66, 74 (2d Cir.2004), overruled in part on other grounds by Shi Liang Lin v. Dep’t of Justice, 494 F.3d 296, 305 (2d Cir.2007) (en banc).
B. Well-Founded Fear
With respect to Gao’s well-founded fear of persecution claim, she argues that the agency erred in concluding that she failed to demonstrate eligibility for relief based on the fact that she has two children. While Gao stated that she violated China’s family planning policy by failing to obtain a birth permit for her second child, the IJ found that Gao had not corroborated that claim. Gao fails to identify any error in the IJ’s decision and does not point to anything in the record that the IJ failed to consider that would compel a contrary conclusion. Thus, the IJ did not err in finding that Gao failed to establish eligibility for relief based on the birth of her children. See Jian Hui Shao v. Mukasey, 546 F.3d 138, 158-73 (2d Cir.2008); see also Wei Guang Wang v. BIA 437 F.3d 270, 274-76 (2d Cir.2006); Jian Xing Huang v. INS, 421 F.3d 125, 128-29 (2d Cir.2005).
Because substantial evidence supports the agency’s adverse credibility determination and because Gao otherwise failed to meet her burden of proof, the agency properly denied her application for asylum and withholding of removal where both claims were based on the same factual predicate. See Paul v. Gonzales, 444 F.3d 148, 156 (2d Cir.2006); Xue Hong Yang v. Dep’t of Justice, 426 F.3d 520, 523 (2d Cir.2005).
II. CAT Relief
Under 8 U.S.C. § 1252(d)(1), “[a] court may review a final order of removal only if ... the alien has exhausted all administrative remedies available to the alien as of right.” This jurisdictional rule is absolute with respect to the requirement that the alien raise in her appeal to the BIA each category of relief she subsequently raises in this Court. See Karaj v. Gonzales, 462 F.3d 113, 119 (2d Cir.2006) (citing Beharry v. Ashcroft, 329 F.3d 51, 59 (2d Cir.2003)). *613Here, although Gao explicitly declined to seek CAT relief before the IJ and the IJ found that she had waived any such claim, the BIA purported to “agree” with the IJ’s denial of CAT relief. Ordinarily, when the BIA addresses an issue that an individual did not raise in her brief to the BIA, that issue is considered exhausted and may be reviewed by this Court. See Xian Tuan Ye v. Dep’t of Homeland Sec., 446 F.3d 289, 296-97 (2d Cir.2006); Waldron v. INS, 17 F.3d 511, 515 n. 7 (2d Cir.1994). However, as Gao explicitly declined to seek CAT relief before the IJ, the BIA’s misstatement of the record cannot revive a claim that Gao never made. See Li Hua Lin v. Dep’t of Justice, 453 F.3d 99, 107 (2d Cir.2006). Thus, to the extent Gao argues in this Court that she is eligible for CAT relief, her arguments are unexhausted.
For the foregoing reasons, the petition for review is DENIED. As we have completed our review, any stay of removal that the Court previously granted in this petition is VACATED, and any pending motion for a stay of removal in this petition is DISMISSED as moot. Any pending request for oral argument in this petition is DENIED in accordance with Federal Rule of Appellate Procedure 34(a)(2), and Second Circuit Local Rule 34(b).
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SUMMARY ORDER
Petitioner Anani Ore-Omolere Komi Dos-Reis, a native and citizen of Togo, seeks review of the September 10, 2008 order of the BIA affirming the December 18, 2006 decision of Immigration Judge (“IJ”) William Van Wyke pretermitting his application for asylum and denying his application for withholding of removal and relief under the Convention Against Torture (“CAT”).2 In re Anani Ore-Omolere Komi Dos-Reis, No. A 098 166 714 (B.I.A. Sept. 10, 2008), aff'g No. A 098 166 714 (Immig. Ct. N.Y. City Dec. 18, 2006). We assume the parties’ familiarity with the underlying facts and procedural history in this case.
When the BIA adopts the decision of the IJ and supplements the IJ’s decision, this Court reviews the decision of the IJ as supplemented by the BIA. See Yan Chen v. Gonzales, 417 F.3d 268, 271 (2d Cir.2005). This Court reviews the agency’s factual findings, including adverse credibility determinations, under the substantial evidence standard. 8 U.S.C. § 1252(b)(4)(B); see also Corovic v. Mukasey, 519 F.3d 90, 95 (2d Cir.2008). We review de novo questions of law and the application of law to undisputed fact. See Salimatou Bah v. Mukasey, 529 F.3d 99, 110 (2d Cir.2008).
Substantial evidence supports the agency’s adverse credibility determination. In his brief, Dos-Reis does not challenge the IJ’s findings that: (1) his testimony was internally inconsistent because he testified both that his wife received three summonses at their home in Togo, and also that she was in Ghana at the time; and (2) the original basis of his claim — that he was targeted because he objected to his supervisor’s request that he secretly withdraw ministry funds for the President of Togo— was implausible. Because Dos-Reis does not challenge those findings, they stand as valid bases for the IJ’s adverse credibility determination. See Shunfu Li v. Mukasey, 529 F.3d 141, 146-147 (2d Cir.2008).
We also find no error in the findings that Dos-Reis does challenge. The IJ reasonably found that: (1) Dos-Reis’s testimony that he was in the hospital for four days after he was beaten by the police was inconsistent with medical records and his asylum application, which both indicated that he was in the hospital for a month and four days; (2) Dos-Reis testified implausibly when he claimed that, after fleeing to Ghana, his wife returned to Togo because the couple could not find housing together in Ghana; and (3) Dos-Reis gave evasive answers during his merits hearing. While Dos-Reis offered explanations before the agency that were responsive to each of *615these findings, the agency did not err in rejecting them. See Majidi v. Gonzales, 430 F.3d 77, 80-81 (2d Cir.2005). We are similarly unpersuaded by the arguments Dos-Reis makes in this Court.
Ultimately, substantial evidence supported the IJ’s adverse credibility determination. See 8 U.S.C. § 1252(b)(4)(B); Corovic, 519 F.3d at 95. Accordingly, the IJ properly denied Dos-Reis’s application for withholding of removal and CAT relief because the only evidence that he was likely to be persecuted or tortured depended on his credibility. See Paul v. Gonzales, 444 F.3d 148, 156 (2d Cir.2006).
For the foregoing reasons, the petition for review is DENIED. As we have completed our review, any pending motion for a stay of removal in this petition is DISMISSED as moot. Any pending request for oral argument in this petition is DENIED in accordance with Federal Rule of Appellate Procedure 34(a)(2), and Second Circuit Local Rule 34(b).
. Dos-Reis challenges only the agency's denial of his application for withholding of removal and CAT relief.
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SUMMARY ORDER
Ahmed Choullam was convicted of conspiring to import 1,000 kilograms or more of hashish in violation of 21 U.S.C. §§ 960(b)(1)(G), 963 and of conspiring to distribute or possess with intent to distribute 100 kilograms or more of hashish in violation of 21 U.S.C. §§ 841(b)(l)(B)(vii), 846. The facts and procedural history underlying this action have been fully set forth by the District Court in a prior
Following the jury verdict against him, Appellant moved for a judgment of acquittal pursuant to Rule 29 of the Federal Rules of Criminal Procedure or, in the alternative, for a new trial pursuant to Rule 33 of the Federal Rules of Criminal Procedure. Fed.R.Crim.P. 29, 33. Choullam also challenged the sufficiency of the evidence presented by the Government to implicate him in the conspiratorial activities described in the indictment on which he was tried. The District Court denied Appellant’s motion in its entirety. On appeal, Choullam challenges the District Court’s denial of his request for a jury instruction concerning multiple conspiracies, and argues that there was an improper constructive amendment of his indictment, or, alternatively, a prejudicial variance from the indictment.
Appellant is not entitled to a new trial on the ground that the District Court improperly denied his request for a jury instruction on multiple conspiracies. In our view, the instruction given was not error. But, even if it were, there was no prejudice to Appellant because “there was ample proof before the jury for it to find beyond a reasonable doubt that [the] defendant was a member of the conspiracy charged in the indictment.” United States v. Vazquez, 113 F.3d 383, 386 (2d Cir.1997). The District Court properly concluded that because Appellant stood trial alone, there was “no danger that the jury would confuse the possible involvement of other co-defendants with conspiracies not alleged in the indictment with the conspiracy for which Defendant was charged.” United States v. Choullam, No. 05 Cr. 523(LTS), 2008 WL 3861356, at *4 (S.D.N.Y. Aug. 19, 2008); see United States v. Corey, 566 F.2d 429, 431 n. 3 (2d Cir.1977).
Appellant’s contentions that his indictment was constructively amended or that there was a prejudicial variance to the indictment are unfounded. Appellant had clear “notice of the core of criminality to be proven at trial.” United States v. Delano, 55 F.3d 720, 729 (2d Cir.1995) (internal quotation marks omitted). Additionally, the redacted indictment that was present*621ed to the jury in no way “modif[ied] essential elements of the offense charged.” Id.
We have considered the remaining issues raised by Appellant and find them to be without merit.
Accordingly, the judgment of the District Court is hereby AFFIRMED.
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*623
SUMMARY ORDER
Petitioner Shusil Thapa, a native and citizen of Nepal, seeks review of the October 31, 2008 order of the BIA affirming the July 31, 2007 decision of Immigration Judge (“IJ”) Thomas J. Mulligan, denying his application for asylum, withholding of removal, and relief under the Convention Against Torture (“CAT”). In re Shusil Thapa, No. A099 686 064 (B.I.A. Oct. 31, 2008), aff'g No. A099 686 064 (Immig. Ct. N.Y. City July 31, 2007). We assume the parties’ familiarity with the underlying facts and procedural history of the case.
When the BIA adopts the decision of the IJ and supplements the IJ’s decision, we review the decision of the IJ as supplemented by the BIA. See Yan Chen v. Gonzales, 417 F.3d 268, 271 (2d Cir.2005). We review the agency’s factual findings, including adverse credibility determinations, under the substantial evidence standard. See 8 U.S.C. § 1252(b)(4)(B); Dong Gao v. BIA, 482 F.3d 122, 126 (2d Cir.2007). We review de novo questions of law and the application of law to undisputed fact. See Salimatou Bah v. Mukasey, 529 F.3d 99, 110 (2d Cir.2008).
As an initial matter, Thapa concedes that he did not file his asylum application within one year of his arrival in the United States and thus is ineligible for asylum. See Pet’r Br. 15. Thapa’s petition for review therefore is limited to the agency’s decision regarding his application for withholding of removal and CAT relief. See Yueqing Zhang v. Gonzales, 426 F.3d 540, 541 n. 1, 545 n. 7 (2d Cir.2005).
Our review of the agency’s decision with respect to Thapa’s application for withholding of removal is frustrated because the basis for the BIA’s decision to affirm the IJ is unclear. See, e.g., Dong Zhong Zheng v. Mukasey, 552 F.3d 277, 285 (2d Cir.2009); Mohammad Zaman v. Mukasey, 514 F.3d 233, 237 (2d Cir.2008) (per curiam). Regarding his asylum application, the IJ found that Thapa lacked credibility and that, even if he were credible, he failed to demonstrate that he had suffered past persecution on account of a protected ground. The IJ found also that Thapa had not demonstrated a well-founded fear of future persecution. See Ramsameachire v. Ashcroft, 357 F.3d 169, 178 (2d Cir.2004). Specifically, although the IJ stated that Thapa had shown an objectively reasonable fear of future persecution based on the U.S. State Department’s 2006 Report on Human Rights Practices in Nepal, he had not shown that his fear was subjectively reasonable.
The IJ then went on to find that Thapa “ha[d] failed to meet the higher burden for a Withholding of Removal claim,” and rejected that claim “for all of the reasons previously stated.” But in contrast to asylum claims, “[wjithholding [of removal] claims ... lack a subjective component and are concerned only with objective evidence of future persecution.” Paul v. Gonzales, 444 F.3d 148, 155-56 (2d Cir.2006).
The BIA appears to have affirmed the IJ’s decision regarding withholding of removal on the ground that Thapa failed to identify any harm that would amount to persecution on the basis of a protected ground. If that indeed was the basis for its decision, then the BIA should have explained why it disagreed with the IJ’s finding that Thapa’s fear of future persecution was objectively reasonable. On the other hand, if the BIA intended to affirm the IJ’s denial of Thapa’s application for withholding of removal on the ground that the Country Report did not establish that it is “more likely than not” that Thapa’s “life or freedom would be threatened” on account of a protected ground, 8 C.F.R. § 1208.16(b)(l)(iii), it should have made that plain, see id. § 1003.1(d)(3)© (“Facts determined by the immigration judge ... shall be reviewed [by the BIA] only to *624determine whether the findings of the immigration judge are clearly erroneous.”). Accordingly, we remand for the BIA to clarify the basis for this aspect of its decision.
The agency denied Thapa’s application for relief under the CAT on the ground that there was no evidence in the record to support Thapa’s argument that he would more likely than not be tortured if returned to Nepal. This finding is supported by substantial evidence. Thus, this aspect of Thapa’s petition for review is denied.
For the foregoing reasons, the petition for review is GRANTED in part and DENIED in part. We VACATE the BIA’s decision insofar as it affirmed the IJ’s denial of Thapa’s application for withholding of removal and REMAND to the BIA for it to clarify the basis for its decision regarding that application. As we have completed our review, the pending motion for a stay of removal in this petition is DENIED as moot.
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SUMMARY ORDER
Petitioner Mei Ping Zheng, a native and citizen of China, seeks review of an October 23, 2008 order of the BIA affirming the April 26, 2007 decision of Immigration Judge (“IJ”) Paul A. DeFonzo denying her application for asylum, withholding of removal, and CAT relief. In re Mei Ping Zheng, No. A 099 667 773 (B.I.A. Oct. 23, 2008), aff'g No. A 099 667 773 (Immig. Ct. N.Y. City Apr. 26, 2007). We assume the parties’ familiarity with the underlying facts and procedural history in this case.
When the BIA agrees with the IJ’s conclusion that a petitioner is not credible and, without rejecting any of the IJ’s grounds for decision, emphasizes particular aspects of that decision, this Court reviews both the BIA’s and IJ’s opinions— or more precisely, the Court reviews the IJ’s decision including the portions not explicitly discussed by the BIA.2 Yun-Zui Guan v. Gonzales, 432 F.3d 391, 394 (2d Cir.2005). We review the agency’s factual findings, including adverse credibility determinations, under the substantial evidence standard. 8 U.S.C. § 1252(b)(4)(B); see also Corovic v. Mukasey, 519 F.3d 90, 95 (2d Cir.2008). For asylum applications governed by the REAL ID Act of 2005, the agency may, considering the totality of the circumstances, base a credibility finding on an asylum applicant’s demeanor, the plausibility of his or her account, and inconsistencies in his or her statements, without regard to whether they go “to the heart of the applicant’s claim.” 8 U.S.C. § 1158(b)(1)(B)(iii). Thus, we “defer to an IJ’s credibility determination unless, from the totality of the circumstances, it is plain that no reasonable fact-finder could make such an adverse credibility ruling.” Xiu Xia Lin v. Mukasey, 534 F.3d 162, 167 (2d Cir.2008).
I. Religious Persecution Claim
The IJ reasonably found that Zheng failed to establish eligibility for relief on the basis of religion. The IJ observed that even if Zheng was a Christian, she failed to present any evidence that she suffered past persecution or had a well-founded fear of future persecution on that basis. Indeed, Zheng admitted that her prior claim that she practiced Christianity in China was false and she did not testify that she suffered or feared persecution on account of her religious activities.3 Therefore, the IJ’s burden finding was not in error. See Matter of Acosta, 19 I. & N. Dec. 211, 222 (BIA 1985) (defining persecution as a “threat to the life or freedom of, or the infliction of suffering or harm upon, those who differ in a way regarded as offensive”); Ivanishvili v. U.S. Dep’t, 433 F.3d 332, 342 (2d Cir.2006).
II. Family Planning Claim
Substantial evidence supports the agency’s adverse credibility determination. As an initial matter, in her brief, Zheng does not challenge the IJ’s finding that her testimony that Chinese authorities failed to take action after she filed complaints against her fiancé was inconsistent with her asylum application, which indicated *626that they had taken action. Because Zheng has waived any challenge to that finding, it stands as a valid basis for the IJ’s adverse credibility determination, see Shunfu Li v. Mukasey, 529 F.3d 141, 146-147 (2d Cir.2008).
The IJ also reasonably found that: (1) while Zheng told a border patrol agent that she fled China to escape religious persecution, she later testified that she lied to the border patrol agent; (2) although Zheng testified that her alleged forced abortion occurred at Kulo hospital in the Fuzhou district, the abortion certificate that she presented indicated that the procedure occurred at Bi Hoo Ting hospital, in the Cangshan district; (3) although Zheng testified that her boyfriend threatened her after she filed an official complaint against him, she omitted this information from her application; (4) while Zheng testified that she learned from her mother that her flaneé had visited her mother’s home and caused problems after Zheng left China, a letter from Zheng’s mother made no such assertion; and (5) based on the multiple inconsistencies in Zheng’s case, it was likely that some of the documents that she submitted were fraudulent. While Zheng offered explanations before the agency that were responsive to each of these findings, the agency did not err in rejecting them. See Majidi v. Gonzales, 430 F.3d 77, 80-81 (2d Cir.2005). We are similarly unpersuaded by the arguments Zheng makes in this Court.
To the extent Zheng challenges the IJ’s other credibility findings, we decline to consider these arguments. Even if the IJ’s remaining findings were in error, remand would be futile as we can be confidently predict that the agency would reach the same conclusion on remand. See Xiao Ji Chen v. U.S. Dep’t of Justice, 471 F.3d 315, 342 (2d Cir.2006). Ultimately, because substantial evidence supported the IJ’s adverse credibility determination, the IJ properly denied Zheng’s application for asylum and withholding of removal because the only evidence that she would be persecuted depended on her credibility. See Paul v. Gonzales, 444 F.3d 148, 156 (2d Cir.2006).
For the foregoing reasons, the petition for review is DENIED. As we have completed our review, any pending motion for a stay of removal in this petition is DISMISSED as moot. Any pending request for oral argument, in this petition is DENIED in accordance with Federal Rule of Appellate Procedure 34(a)(2), and Second Circuit Local Rule 34(b).
. Zheng argues that the BIA's decision was "muddled” because it was unclear whether the BIA was conducting a de novo review or affirming the IJ’s decision. We disagree. The BIA’s decision clearly affirms the IJ's. Indeed, it essentially reiterates the IJ's adverse credibility findings.
. Given Zheng’s admission, it is unclear what aspects of her religion claim, if any, the IJ believed.
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MEMORANDUM **
Mark Allen MeMillion appeals from the 188-month sentence imposed by the district court, following his jury-trial conviction for violations of the Mann and Transportation Acts, 18 U.S.C. §§ 1952, 2421, 2422(a), 2423(a). We have jurisdiction under 28 U.S.C. § 1291. We affirm.
The record supports the conclusion that the district court found unique vulnerability and did not clearly err in imposing the U.S.S.G § 3A1.1 enhancement given the victim’s small size and stature and history of sexual assault and abandonment. See United States v. Williams, 291 F.3d 1180, 1196 (9th Cir.2002) (per curiam), overruled on other grounds by United States v. Gonzales, 506 F.3d 940 (9th Cir.2007).
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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SUMMARY ORDER
Petitioner Fu Zheng, a native and citizen of the People’s Republic of China, has filed a timely petition for review of the BIA’s October 15, 2008 order denying his motion to reopen his removal proceedings. In re Fu Zheng, No. A78 864 409 (B.I.A. Oct. 15, 2008). We assume the parties’ familiarity with the underlying facts and procedural history of the case.
We review the BIA’s denial of a motion to reopen for abuse of discretion. See Ali v. Gonzales, 448 F.3d 515, 517 (2d Cir.2006). Even broadly construing the arguments made in Zheng’s pro se brief, however, he fails to challenge the only order properly before us, namely, the BIA’s denial of his motion to reopen. Rather, Zheng’s brief to this Court challenges the merits of his underlying asylum claim. We have already addressed these contentions in denying an earlier petition for review. See Fu Zheng v. Mukasey, 270 Fed.Appx. 11 (2d Cir.2008). Because Zheng fails to challenge the BIA’s denial of his motion to reopen, we deem any such challenge to have been abandoned. See Yueqing Zhang v. Gonzales, 426 F.3d 540, 541 n. 1, 545 n. 7 (2d Cir.2005). In any event, having reviewed the record of the proceedings below, we identify no error in the BIA’s October 15, 2008 order.
For the foregoing reasons, the petition for review is DISMISSED. As we have completed our review, the pending motion for a stay of removal in this petition is DISMISSED as moot.
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SUMMARY ORDER
Petitioners Nen Mei Lin and Chao Rui Lin, natives and citizens of the People’s Republic of China, seek review of the September 18, 2008 order of the BIA, which: (1) affirmed the February 7, 2007 decision of Immigration Judge (“IJ”) Steven R. Abrams insofar as he denied their applications for asylum; (2) reversed the IJ’s decision insofar as he granted their applications for withholding of removal; and (8) remanded to the IJ for consideration of their applications for relief under the Convention Against Torture (“CAT”) and for entry of a new decision. In re Nen Mei Lin, Chao Rui Lin, Nos. A078 226 476, A075 998 110 (B.I.A. Sept. 18, 2008), rev’g in part Nos. A078 226 476, A075 998 110 (Immig. Ct. N.Y. City Feb. 7, 2007). We assume the parties’ familiarity with the underlying facts and procedural history of the case.
We lack jurisdiction to review the instant petition for review because the agency has not yet issued a final order of removal in the petitioners’ proceedings. See Arias Chupina v. Holder, 570 F.3d 99, 103 (2d Cir.2009) (holding that no appeal-able “final order of removal” entered where BIA remands to IJ for consideration of petitioner’s withholding of removal and CAT claims). The BIA returned jurisdiction to the IJ by remanding for consideration of petitioners’ application for CAT relief. There will be no “final order of removal” until the agency addresses that claim, see id. at 104 (noting under similar circumstances that either grant or denial of CAT relief will result in appeal-able “final order of removal”), after which the arguments raised in the instant petition will be reviewable on appeal.
For the foregoing reasons, the petition for review is DISMISSED.
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SUMMARY ORDER
Petitioner Mao Lin Zhang, a native and citizen of the People’s Republic of China, seeks review of a September 30, 2008 order of the BIA denying his motion to reopen. In re Mao Lin Zhang, No. A077 309 222 (B.I.A. Sept. 30, 2008). We assume the parties’ familiarity with the underlying facts and procedural history of the case.
We review the BIA’s denial of a motion to reopen for abuse of discretion. See Kaur v. BIA, 413 F.3d 232, 233 (2d Cir.2005) (per curiam). Here, Zhang concedes that his June 2008 motion to reopen was untimely where the IJ issued an order of removal in absentia in July 2000. See 8 C.F.R. § 1003.2(c)(2). However, he argues for the first time that the BIA should have equitably tolled the time limitation for filing his motion to reopen. Because Zhang failed to exhaust before the BIA his *633equitable tolling argument, and because the government has raised this failure to exhaust in its brief, we decline to consider this issue and conclude that the BIA did not abuse its discretion in denying Zhang’s motion to reopen as untimely. See Lin Zhong v. U.S. Dep’t of Justice, 480 F.3d 104, 119-20 (2d Cir.2007) (describing the issue exhaustion requirement as an “affirmative defense subject to waiver”).
Moreover, contrary to Zhang’s argument, nothing in the BIA’s decision in Matter of Velarde-Pacheco suggests that it abused its discretion in denying his motion to reopen as untimely. See 23 I & N Dec. 253, 256 (BIA 2002) (providing that a motion to reopen may be granted in the exercise of discretion to allow an alien the opportunity to apply for adjustment of status where, inter alia, the motion is timely filed).
Finally, to the extent Zhang argues that the BIA erred in declining to reopen his proceedings sua sponte, we lack jurisdiction to consider that “entirely discretionary” decision. Ali v. Gonzales, 448 F.3d 515, 518 (2d Cir.2006).
For the foregoing reasons, the petition for review is DENIED. As we have completed our review, any stay of removal that the Court previously granted in this petition is VACATED, and any pending motion for a stay of removal in this petition is DISMISSED as moot. Any pending request for oral argument in this petition is DENIED in accordance with Federal Rule of Appellate Procedure 34(a)(2), and Second Circuit Local Rule 34(b).
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SUMMARY ORDER
Petitioner Guo Heng Huang, a native and citizen of the People’s Republic of China, seeks review of a September 24, 2008 order of the BIA affirming the July 23, 2007 decision of Immigration Judge (“IJ”) Joanna Miller Bukszpan denying Huang’s application for asylum, withholding of removal, and relief under the Convention Against Torture (“CAT”). In re Guo Heng Huang, No. A076 505 794 (B.I.A. Sept. 24, 2008), aff'g No. A076 505 794 (Immig. Ct. N.Y. City July 23, 2007). We assume the parties’ familiarity with the underlying facts and procedural history in this case.
When the BIA adopts and supplements the IJ’s decision, we review the decision of the IJ as supplemented by the BIA. See Yan Chen v. Gonzales, 417 F.3d 268, 271 (2d Cir.2005). We review the agency’s factual findings under the substantial evidence standard. See 8 U.S.C. § 1252(b)(4)(B). We review de novo questions of law and the application of law to undisputed fact. See Passi v. Mukasey, 535 F.3d 98, 101 (2d Cir.2008).
We conclude that the agency properly denied Huang’s application for asylum, withholding of removal, and CAT relief. In Shi Liang Lin v. U.S. Dep’t of Justice, we held that the definition of “refugee” under 8 U.S.C. § 1101(a)(42) does not extend automatically to the partners of individuals who have been forcibly sterilized or forced to have an abortion. 494 F.3d 296, 314 (2d Cir.2007). Rather, those persons may qualify for refugee status if they can prove past persecution, or a well-founded fear of persecution, “for ‘resistance’ that is directly related to [their] own opposition to a coercive family planning policy.” Id. at 313. Thus, the agency properly determined that Lin is not eligible for relief based solely on his wife’s alleged forced sterilization. See id. at 314.
*635Nevertheless, Huang argues that the agency erred in denying his claim because he demonstrated “other resistance” to the family planning policy. That argument is unavailing. Even assuming, arguendo, that Huang demonstrated “other resistance” to the family planning policy by hiding from the Chinese government, he fails to establish that the Chinese government persecuted him, or seeks to persecute him, on account of such resistance. See Shi Liang Lin, 494 F.3d at 313. While he asserts that the authorities fined him and his wife, he fails to establish how such fines were persecutive in nature. See Guan Shan Liao v. U.S. Dep’t of Justice, 293 F.3d 61, 70 (2d Cir.2002). Accordingly, we cannot conclude that the agency erred in finding that Huang was not “persecuted for failure or refusal to undergo” an involuntary sterilization. See U.S.C. § 1101(a)(42).
Moreover, Huang’s own testimony indicates that the Chinese government stopped looking for him after his wife was sterilized. Because he has not identified anything in the record to demonstrate that the authorities have any continuing interest in him, he cannot establish that he has a well-founded fear of persecution. See Ramsameachire v. Ashcroft, 357 F.3d 169, 178 (2d Cir.2004). Finally, because Huang was unable to show the objective likelihood of persecution needed to make out an asylum claim, he was necessarily unable to meet the higher standard required to succeed on his claims for withholding of removal and CAT relief, as all three claims were based on the same set of facts. See Paul v. Gonzales, 444 F.3d 148, 156 (2d Cir.2006).
For the foregoing reasons, the petition for review is DENIED. As we have completed our review, any stay of removal that the Court previously granted in this petition is VACATED, and any pending motion for a stay of removal in this petition is DISMISSED as moot. Any pending request for oral argument in this petition is DENIED in accordance with Federal Rule of Appellate Procedure 34(a)(2), and Second Circuit Local Rule 34(b).
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SUMMARY ORDER
Petitioner Joseph Nick Bosquet, pro se, a native and citizen of Haiti, seeks review of the May 30, 2008 order of the BIA denying his motion to reconsider as untimely filed. We assume the parties’ familiarity with the underlying facts and the procedural history of the case.
This Court previously dismissed as untimely Bosquet’s petition for review of the January 18, 2008 order of the BIA denying his motion to reopen his removal proceedings. Accordingly, we review only the denial of reconsideration of that order.
This Court reviews the BIA’s denial of a motion to reconsider for abuse of discretion. Liu v. Gonzales, 439 F.3d 109, 111 (2d Cir.2006) (per curiam). Motions to reconsider must be filed •within thirty days of the date on which the BIA decision is mailed. 8 C.F.R. § 1003.2(b)(2). However, filing periods may be tolled based on equitable considerations if the alien shows due diligence during the period sought to be tolled. See Rashid v. Mukasey, 533 F.3d 127, 132 (2d Cir.2008); Ali v. Gonzales, 448 F.3d 515, 517 (2d Cir.2006) (per curiam).
It is undisputed that Petitioner did not file his motion to reconsider within thirty days of the BIA’s January 18, 2008 order. However, the Government concedes that there is evidence in the record indicating that Bosquet did not receive notice of the order until March 2008, due to an incorrect or insufficient address on the envelope in which the order was likely mailed to him. The record indicates that Petitioner filed his motion to reconsider within thirty days of his alleged receipt of the January 18, 2008 order. Therefore, on the recommendation of the Government, we remand this matter to the BIA to consider in the first instance whether the time limitation on motions to reconsider should be equitably tolled.
For the foregoing reasons, the petition for review is GRANTED, the BIA’s decision is VACATED, and the case is REMANDED for further proceedings consistent with this order. As we have completed our review, we hereby ORDER a stay of removal pending the issuance of a new decision by the BIA. Any pending request for oral argument in this petition is DENIED in accordance with Federal Rule of Appellate Procedure 34(a)(2), and Second Circuit Local Rule 34(b).
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SUMMARY ORDER
Petitioners Zanyu Jin and Dongchun Cui, natives and citizens of the People’s Republic of China, seek review of the May 30, 2008 order of the BIA dismissing for lack of jurisdiction their appeal from the January 17, 2006 decision of Immigration Judge (“IJ”) Robert D. Weisel: (1) granting Jin’s application for withholding of removal; and (2) entering a final order of removal against Cui. See In re Zanyu Jin and Dongchun Cui, Nos. A78 410 634/98 974 037 (B.I.A. May 30, 2008); see also Nos. A78 410 634/98 974 037 (Immig. Ct. N.Y. City Jan. 17, 2006). We assume the parties’ familiarity with the underlying facts and procedural history of the case.
“We review de novo constitutional challenges to a decision by the BIA ánd legal conclusions drawn by the BIA, such as the determination that the BIA lacks jurisdiction.” Mirza Ali v. Mukasey, 525 F.3d 171, 173 (2d Cir.2008). However, “[w]e review the BIA’s factual findings under the substantial evidence standard.” Id. The question of a “knowing and intelligent waiver [of the right to appeal] is inevitably a fact-specific inquiry.” Id. at 174.
We conclude that the BIA did not err in dismissing Jin and Cui’s appeal for lack of jurisdiction. See Matter of Patino, 23 I. & N. Dec. 74, 76 (BIA 2001) (holding “that the [BIA] may not exercise jurisdiction over a case once the right to appeal has been waived”). As the BIA noted, before the conclusion of their hearing, the IJ asked Jin and Cui’s former attorney whether both of her clients wished to accept his decision as final, to which she replied affirmatively. This amounted to “an effective waiver of appeal” where the record supports the conclusion that Jin and Cui’s former attorney understood what it meant to accept the IJ’s decision as “final.” Mirza Ali, 525 F.3d at 174 (holding that an appeal waiver is effective where the record “fairly supports the conclusion that the alien or his counsel understood the nature of the waiver”). Jin and Cui do not argue that their former attorney misunderstood what the IJ meant by “final.”2
Moreover, we find that the BIA properly concluded that Jin and Cui were' bound by their former attorney’s appeal waiver, and withdrawal of Jin’s asylum application, where her decisions were reasonably strategic, and did not amount to ineffective assistance of counsel. See Changxu Jiang v. Mukasey, 522 F.3d 266, 270-71 (2d Cir.2008). Having reached an agreement with the IJ and counsel for the U.S. Department of Homeland Security, their former attorney ensured that, by withdrawing Cui’s asylum application and waiving appeal, the grant of withholding of removal as to Jin would go unchallenged before the BIA.3 Jiang v. Mukasey, 522 *639F.3d 266, 271 (2d Cir.2008) (“[T]he attorney’s decision, even if unwise in hindsight, was a tactical decision that did not constitute ineffective assistance.”)
The BIA reasonably determined that Jin and Cui’s former attorney’s actions were not so egregious as to undermine the fundamental fairness of their hearing. See id. at 270; see also Matter of B-B-, 22 I. & N. Dec. 309, 310-11 (BIA 1998) (“The respondents opted for a particular strategy and form of relief, and although they might wish to fault their former attorney and recant that decision, they are nonetheless bound by it, unless they can show ... that the conduct of former counsel was so egregious that it rendered their hearing unfair.”). Therefore, the BIA properly dismissed their appeal for lack of jurisdiction where their former attorney’s appeal waiver was binding on them. See Mirza Ali, 525 F.3d at 173-74.
As a final matter, Jin and Cui argue that the waiver of their appeal should not be binding because one of the IJ’s remarks during their hearing was misleading and prejudiced the outcome of their case. The record does not suggest that the IJ’s remarks affected their former attorney’s binding decision to waive appeal. Moreover, this argument is waived because, as the government notes in its brief, Jin and Cui failed to raise this issue before the BIA until their reply brief, and then only in a footnote. See Lin Zhong v. U.S. Dep’t of Justice, 480 F.3d 104, 119-20, 124 (2d Cir.2007); F.T.C. v. Verity Intern., Ltd., 443 F.3d 48, 65 (2d Cir.2006) (“Because the defendants-appellants did not [raise this issue] until their reply brief, and then only cursorily, we deem it waived on appeal.”). In any event, we conclude that Jin and Cui were afforded due process, including a full and fair hearing with a reasonable opportunity to be heard. See Burger v. Gonzales, 498 F.3d 131, 134 (2d Cir.2007) (noting that “[t]o establish a violation of due process, [petitioner] must show that she was denied a full and fair opportunity to present her claims or that the IJ or BIA otherwise deprived her of fundamental fairness.” (internal quotations omitted)).
For the foregoing reasons, the petition for review is DENIED. Petitioner’s pending request for oral argument in this petition is DENIED in accordance with Federal Rule of Appellate Procedure 34(a)(2), and Second Circuit Local Rule 34(b).
. We reject Jin and Cui's argument that their attorney's waiver was invalid under Mirza Ali because they did not receive "written notification” of their right to appeal. 525 F.3d at 174. As we observed in that case, Notices to Appear — which were properly served on Jin and Cui — provide notice of an alien’s right to appeal an adverse IJ decision. See id. at 172 ("The Notice [to Appear] also stated that '[a]t the conclusion of [his] hearing, [Ali would] have a right to appeal an adverse decision by the [IJ].’ ”).
. We decline to consider Jin and Cui’s argument that their former attorney (and the IJ) misrepresented the likelihood that Jin could seek adjustment of status because (as the government notes in its brief to this Court) they did not properly exhaust that argument before the BIA. See Lin Zhong v. U.S. Dep’t of Justice, 480 F.3d 104, 119-20, 124 (2d Cir.2007). In addition, we conclude that Cui’s arguments challenging his former attorney’s waiver of his own right to appeal have no merit where *639he did not file any independent applications for relief.
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SUMMARY ORDER
William A. Bonilla (“Bonilla”) seeks review of a final order of deportation of the Board of Immigration Appeals (“BIA”). Bonilla contends that the Immigration Judge (“IJ”) and the BIA committed errors of law and constitutional errors in determining that he did not warrant relief under former section 212(e) of the Immigration and Nationality Act.
We assume the parties’ familiarity with the underlying facts, the procedural history, and the issues presented for review.
The petition raises four arguments:
(1) the IJ committed legal error when he required Bonilla to show that he had achieved “full and complete” rehabilitation by “clear, convincing evidence” and that his family would suffer “exceptional and extremely unusual hardship” if he were deported;
(2) the IJ committed legal error when he found that Bonilla was on parole as of the date of his hearing;
(3) the IJ committed legal error when he found that Bonilla had intentionally failed to pay child support; and
(4) the IJ committed constitutional error when he allowed into evidence a statement inculpating Bonilla and made by Bonilla’s co-defendant in a 1989 armed robbery investigation.
The parties dispute whether the proper object of our review is the IJ’s August 17, 2001 decision; the BIA’s August 5, 2003 affirmance; or the BIA’s April 8, 2008 re-affirmance of the IJ’s decision (the BIA’s 2003 decision had since been vacated). The BIA’s two decisions agreed with the IJ’s conclusion denying relief and highlighted several of the same factors that the IJ emphasized in his opinion. “Where, as here, the BIA agrees with the IJ’s- conclusion ... and, without rejecting any of the IJ’s grounds for decision, emphasizes particular aspects of that decision,” we review both the IJ’s and the BIA’s opinions. See Guan v. Gonzales, 432 F.3d 391, 394 (2d Cir.2005). Accordingly, we review both the IJ’s and the BIA’s opinions.
Our jurisdiction over 212(c) petitions is limited to review of colorable “constitutional claims or questions of law”; we otherwise have no jurisdiction to review an IJ’s discretionary factual determinations. See 8 U.S.C. § 1252(a)(2)(D); see also Saloum v. U.S. Citizenship & Immigration Servs., 437 F.3d 238, 243 (2d Cir.2006).
We therefore closely scrutinize the claims to ensure that the petitioner is not simply raising issues of fact and couching them in legal or constitutional terms. See Saloum, 437 F.3d at 243. It is often difficult to determine what constitutes a question of law. See Chen v. U.S. Dep’t of Justice, 471 F.3d 315, 324 (2d Cir.2006) (hereinafter “Chen II”). However, a petitioner raises a question of law when he argues that the IJ relied on the existence of a particular fact even where the record “unambiguously” reveals that the IJ erred in finding that fact. Id. at 329; see also Carcamo v. U.S. Dep’t of Justice, 498 F.3d 94, 98 (2d Cir.2007). Additionally, a claim that the IJ’s discretionary decision was “based on a legally erroneous standard” also constitutes a question of law. Chen II, 471 F.3d at 329; Carcamo, 498 F.3d at 98.
Bonilla raises colorable arguments that the IJ applied improper legal standards, found facts that were unambiguously con*642tradicted by the record, and violated his constitutional rights. Accordingly, we have jurisdiction over Bonilla’s claims.
Bonilla argues that the IJ applied erroneously stringent standards requiring a showing of “full and complete” rehabilitation by “clear, convincing evidence,” and requiring him to establish that, if he were deported, his family would suffer “exceptional and extremely unusual hardship.” This argument presumes that the IJ interpreted governing precedent to require that all 212(c) petitioners meet these heightened burdens. Bonilla misreads the IJ’s opinion. Rather than imposing categorical burdens, the IJ required Bonilla to make heightened showings in this case because the equities otherwise weighed heavily against granting relief-in particular, Bonilla’s extensive criminal past and his ongoing child support obligations. This determination, premised as it was on the facts of this particular case, falls clearly within the IJ’s discretion.
Bonilla next argues that the IJ committed legal error by concluding that, at the time of the hearing, he was still on parole. The record makes clear, and the government admits, that Bonilla was in fact not on parole at the time of his hearing before the IJ. Because the IJ found a fact that was unambiguously contradicted by the record, the IJ is deemed to have committed legal error. See Chen II, 471 F.3d at 329.
However, remand is unnecessary “(1) where the IJ explicitly relie[d] on a valid alternative ground for relief that is not tainted by error, (2) where the error is so tangential to the ultimate ruling that there is no realistic possibility of a different result on remand, or (3) where the untainted evidence in support of the IJ’s conclusion is so overwhelming that there is no realistic possibility of a different result on appeal.” Id. at 338 (internal quotation marks omitted).
We conclude that remand for this error is unnecessary. The reference to Bonilla’s parole status came in the part of the opinion that summarized the relevant factual findings, not where the 212(c) balance was weighed and the explanation given for denying 212(c) relief. Furthermore, the IJ’s discretionary decision was based on multiple factors, including Bonilla’s criminal past and child support defaults. Given this other evidence, we see no “realistic possibility of a different result” on remand.
Bonilla argues that there was absolutely no record support for the IJ’s finding that Bonilla intentionally avoided his child support obligations. However, the IJ’s finding was arguably supported by the record. There was evidence, for example, that Bonilla owed child support, that he was sued by the State for owing child support, and that there was a garnishment order on his wages. The IJ’s conclusions are not so unambiguously contradicted by the record that they constitute legal error.
Finally, Bonilla argues that his constitutional rights were violated when the IJ admitted into evidence a statement made by Bonilla’s co-defendant in the 1989 robbery case to the effect that Bonilla provided the gun used in that robbery.
Hearsay evidence is admissible in deportation proceedings. See Felzcerek v. I.N.S., 75 F.3d 112, 115 (2d Cir.1996). However, due process requires that the hearsay evidence be “probative” and that “its use be fundamentally fair.” Id. Fundamental fairness, in turn, “is closely related to the reliability and trustworthiness of the evidence.” Id. We have previously recognized (albeit in the criminal context) that “inculpatory hearsay statements made by an accomplice ... during formal police *643interrogation” are untrustworthy. See United States v. Morgan, 385 F.3d 196, 208 (2d Cir.2004).
In this case, we need not and do not decide whether Bonilla suffered a constitutional deprivation, because in any event, remand would not be warranted. The IJ deduced from the hearsay statement — which said that Bonilla did give his co-defendant the gun — only that Bonilla “may” have provided the gun. The IJ thus recognized the potential unreliability of the statement. Moreover, in light of all the other factors emphasized by the IJ in deciding to deny Bonilla 212(c) relief, there is no indication that the co-defendant’s statement was an appreciable factor in the IJ’s decision.
Based on the foregoing reasons, we hereby DENY Bonilla’s petition for relief.
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SUMMARY ORDER
Mei Zheng, a native and citizen of the People’s Republic of China (“China”), seeks review of an April 1, 2008 order of the BIA, affirming the May 18, 2006. decision of Immigration Judge (“IJ”) Steven R. Abrams, which denied her application for asylum, withholding of removal, and relief under the Convention Against Torture (“CAT”). In re Mei Zheng, No. A095 467 017 (B.I.A. Apr. 1, 2008), aff'g No. A095 467 017 (Immig. Ct. N.Y. City May 18, 2006). We assume the parties’ familiarity with the underlying facts and procedural history in this case.
When the BIA adopts the decision of the IJ and supplements the IJ’s decision, this Court reviews the decision of the IJ as supplemented by the BIA. See Yan Chen v. Gonzales, 417 F.3d 268, 271 (2d Cir.2005). We review the agency’s factual findings, including adverse credibility determinations, under the substantial evidence standard. 8 U.S.C. § 1252(b)(4)(B); see Dong Gao v. BIA, 482 F.3d 122, 126 (2d Cir.2007). We review de novo questions of law and the application of law to undisputed fact. Bah v. Mukasey, 529 F.3d 99, 110 (2d Cir.2008).
With respect to Zheng’s claim of past persecution, substantial evidence supports the agency’s adverse credibility determination. The IJ properly relied on discrepancies in the record. See Liang Chen v. U.S. Att’y Gen., 454 F.3d 103, 106-107 (2d Cir.2006) (stating that an IJ may conduct an overall evaluation of testimony in light of its rationality or internal consistency and the manner in which it hangs together with other evidence). While Zheng claimed that she suffered a forced abortion in China, her U.S. medical records omitted this information. When asked to explain the discrepancy, Zheng testified that during her first appointment in the U.S. in 2001 she did not tell her doctor because her husband was with her and he did not yet know about the forced abortion. When asked why she did not disclose it during her appointment four years later, Zheng testified that she went back to the same clinic and because she did not tell them during her first pregnancy, she declined to tell them and no one asked her. However, when confronted with her medical records, which indicated that she was asked whether she had previously had an abortion, Zheng claimed to have tried to tell a nurse about her abortion in China but that the nurse told her she could not change her records in the computer. The IJ reasonably declined to credit these explanations. See Majidi v. Gonzales, 430 F.3d 77, 80 (2d Cir.2005). Although Zheng argues that the discrepancies were minor, they bear a legitimate nexus to her claim because her alleged forced abortion was the basis of her past persecution claim. See Secaida-Rosales v. INS, 331 F.3d 297, 307 (2d Cir.2003).
Further, as the IJ did not find Zheng’s testimony credible, he properly noted the *645absence of documentary evidence that may have corroborated her claim. See Xiao Ji Chen v. U.S. Dep’t of Justice, 471 F.3d 315, 341 (2d Cir.2006). Ultimately, the agency’s adverse credibility finding was “based upon neither a misstatement of the facts in the record nor bald speculation or caprice,” and was thus supported by substantial evidence. Zhou Yun Zhang v. INS, 386 F.3d 66, 74 (2d Cir.2004), abrogated in part on other grounds by Shi Liang Lin v. U.S. Dep’t of Justice, 494 F.3d 296, 305 (2d Cir.2007).
With respect to her prospective fear of persecution, Zheng argues that the agency erred in concluding that she failed to demonstrate eligibility for asylum, withholding of removal, and CAT relief based on the birth of her U.S. citizen children. However, while the agency credited Zheng’s claim that she had two children, her argument fails. We have previously reviewed the agency’s consideration of evidence similar to that which Zheng presented and have found no error in its conclusion that such evidence was insufficient to establish an objectively reasonable fear of persecution. See Jian Hui Shao v. Mukasey, 546 F.3d 138, 156-65 (2d Cir.2008).
Additionally, because substantial evidence supports the agency’s adverse credibility determination and because Zheng otherwise failed to meet her burden of proof, the agency properly denied her application for withholding of removal and CAT relief. See Paul v. Gonzales, 444 F.3d 148, 156 (2d Cir.2006); Xue Hong Yang v. U.S. Dep’t of Justice, 426 F.3d 520, 523 (2d Cir.2005).
For the foregoing reasons, the petition for review is DENIED. As we have completed our review, any stay of removal that the Court previously granted in this petition is VACATED, and any pending motion for a stay of removal in this petition is DISMISSED as moot. Any pending request for oral argument in this petition is DENIED in accordance with Federal Rule of Appellate Procedure 34(a)(2), and Second Circuit Local Rule 34(b).
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SUMMARY ORDER
Petitioner Yang Fa Chen, a native and citizen of the People’s Republic of China, seeks review of the February 4, 2008 order of the BIA, affirming the October 30, 2007 decision of Immigration Judge (I J) Gabriel C. Videla, denying his motion to reopen. In re Yang Fa Chen, No. A070 122 473 (B.I.A. Feb. 4, 2008), aff'g No. A070 122 473 (Immig. Ct. N.Y. City Oct. 30, 2007). We assume the parties’ familiarity with the case’s underlying facts and procedural history.
As an initial matter, motions to reopen in absentia deportation orders are governed by different rules depending on whether the movant seeks to rescind the order or present new evidence. See Song Jin Wu v. INS, 436 F.3d 157, 163 (2d Cir.2006); In re M-S-, 22 I. & N. Dec. 349, 353-55 (BIA 1998) (en banc). Accordingly, where, as here, an alien files a motion that seeks both rescission of an in absentia deportation order, as well as reopening of removal proceedings based on new evidence, we treat the motion as comprising distinct motions to rescind and to reopen. Alrefae v. Chertoff, 471 F.3d 353, 357 (2d Cir.2006); see also Maghradze v. Gonzales, 462 F.3d 150, 152 n. 1 (2d Cir.2006).
When the BIA does not adopt the decision of the IJ to any extent, we review only the decision of the BIA. See Yan Chen v. Gonzales, 417 F.3d 268, 271 (2d Cir.2005); Jin Yu Lin v. U.S. Dep’t of Justice, 413 F.3d 188, 191 n. 4 (2d Cir.2005). We review the denial of a motion to rescind an in absentia removal order under the same abuse of discretion standard applicable to motions to reopen. See Alrefae, 471 F.3d at 357; see also Kaur v. BIA, *647413 F.3d 232, 233 (2d Cir.2005) (per curiam).
A. Motion to Rescind
The Agency’s regulations provide that “[a]n order entered in absentia in deportation proceedings may be rescinded upon a motion to reopen filed ... [a]t any time if the alien demonstrates that he or she did not receive notice[.]” 8 C.F.R. § 1003.23(b)(4)(iii)(A). The BIA has stated that “where service of a notice of a deportation proceeding is sent by certified mail through the United States Postal Service and there is proof of attempted delivery and notification of certified mail, a strong presumption of effective service arises.” Matter of Grijalva, 21 I. & N. Dec. 27, 37 (BIA 1995). Such presumption “may be overcome ... [where the movant] presentís] substantial and probative evidence such as documentary evidence from the Postal Service, third party affidavits, or other similar evidence demonstrating that there was improper delivery or that nondelivery was not due to the respondent’s failure to provide an address where he could receive mail.” Matter of Grijalva, 21 I. & N. Dec. at 37.
In this case, the record indicates that the Immigration Court sent notice of Chen’s July 1994 hearing by certified mail to Chen’s address of record and, aside from Chen’s conclusory assertion in his affidavit that he did not receive such notice, he did not submit evidence demonstrating nondelivery or improper delivery. Thus, because “the BIA may reasonably accord less weight to an affidavit of non-receipt than to its own records establishing that the order was in fact mailed,” Ping Chen v. U.S. Att’y General, 502 F.3d 73, 77 (2d Cir.2007), Chen has failed to rebut the “strong presumption of effective service” and the BIA did not abuse its discretion in declining to rescind his in absentia deportation order, Matter of Grijalva, 21 I. & N. Dec. at 37. Moreover, contrary to Chen’s assertion, his former attorney’s request to withdraw as counsel does not indicate whether Chen received notice of the hearing.
B. Motion to Reopen
The agency did not abuse its discretion in denying Chen’s motion to reopen. The agency’s regulations require an alien seeking to reopen proceedings with the IJ to file a motion to reopen “within 90 days of the date of entry of a final administrative order of removal, deportation, or exclusion, or on or before September 31, 1996, whichever is later.” 8 C.F.R. § 1003.23(b)(1). Thus, there is no dispute that Chen’s October 2007 motion to reopen was untimely where it was filed more than eleven years after September 31, 1996. Id. But there is no time limit for filing a motion to reopen if it is “based on changed country conditions arising in the country of nationality or the country to which removal has been ordered.” 8 C.F.R. § 1003.23(b)(4)(i). The BIA properly found that Chen failed to establish such circumstances based on the birth of his U.S. citizen children. See Li Yong Zheng v. U.S. Dep’t of Justice, 416 F.3d 129, 130-31 (2d Cir.2005); see also Wei Guang Wang v. BIA, 437 F.3d 270, 273-74 (2d Cir.2006).
Likewise, the Agency did not err in determining that Chen failed to demonstrate material changed country conditions in China. Indeed, we have previously reviewed the agency’s analysis of evidence similar to that in the record of this case and concluded that it does not err in finding that such evidence does not demonstrate changed country conditions or a reasonable possibility of forced sterilization. See Jian Hui Shao v. Mukasey, 546 F.3d 138, 158-73 (2d Cir.2008). Accordingly, as Chen failed to demonstrate material changed country conditions, the *648agency did not abuse its discretion in denying his motion to reopen as untimely. See 8 C.F.R. § 1003.23(b)(4)(i); see also Wei Guang Wang, 487 F.3d at 273-74. Because Chen failed to demonstrate material changed country conditions excusing the time limitation for filing his motion to reopen, the BIA reasonably denied his motion to reopen as untimely without considering his eligibility for withholding of removal or for relief under the Convention Against Torture. Cf. 8 C.F.R. § 1003.23(b)(4)(i) (providing that “[t]he time and numerical limitations set forth in ... this section shall not apply if the basis of the motion is to apply for asylum ... or withholding of removal under section 241(b)(3) of the Act or withholding of removal under the Convention Against Torture, and is based on changed country conditions arising in the country of nationality”).
Finally, we lack jurisdiction to consider Chen’s argument that the BIA abused its discretion in declining to reopen his proceedings sua sponte, PB at 30-31. See Ali v. Gonzales, 448 F.3d 515, 518 (2d Cir.2006).
For the foregoing reasons, the petition for review is DENIED. As we have completed our review, any stay of removal that the Court previously granted in this petition is VACATED, and any pending motion for a stay of removal in this petition is DISMISSED as moot. Any pending request for oral argument in this petition is DENIED in accordance with Federal Rule of Appellate Procedure 34(a)(2), and Second Circuit Local Rule 34(b).
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SUMMARY ORDER
Petitioner Fu Zheng, a native and citizen of the People’s Republic of China, has filed a timely petition for review of the BIA’s October 15, 2008 order denying his motion to reopen his removal proceedings. In re Fu Zheng, No. A78 864 409 (B.I.A. Oct. 15, 2008). We assume the parties’ familiarity with the underlying facts and procedural history of the case.
We review the BIA’s denial of a motion to reopen for abuse of discretion. See Ali v. Gonzales, 448 F.3d 515, 517 (2d Cir.2006). Even broadly construing the arguments made in Zheng’s pro se brief, however, he fails to challenge the only order properly before us, namely, the BIA’s denial of his motion to reopen. Rather, Zheng’s brief to this Court challenges the merits of his underlying asylum claim. We have already addressed these contentions in denying an earlier petition for review. See Fu Zheng v. Mukasey, 270 Fed.Appx. 11 (2d Cir.2008). Because Zheng fails to challenge the BIA’s denial of his motion to reopen, we deem any such challenge to have been abandoned. See Yueqing Zhang v. Gonzales, 426 F.3d 540, 541 n. 1, 545 n. 7 (2d Cir.2005). In any event, having reviewed the record of the proceedings below, we identify no error in the BIA’s October 15, 2008 order.
For the foregoing reasons, the petition for review is DISMISSED. As we have completed our review, the pending motion for a stay of removal in this petition is DISMISSED as moot.
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SUMMARY ORDER
Petitioner Mao Lin Zhang, a native and citizen of the People’s Republic of China, seeks review of a September 30, 2008 order of the BIA denying his motion to reopen. In re Mao Lin Zhang, No. A077 309 222 (B.I.A. Sept. 30, 2008). We assume the parties’ familiarity with the underlying facts and procedural history of the case.
We review the BIA’s denial of a motion to reopen for abuse of discretion. See Kaur v. BIA, 413 F.3d 232, 233 (2d Cir.2005) (per curiam). Here, Zhang concedes that his June 2008 motion to reopen was untimely where the IJ issued an order of removal in absentia in July 2000. See 8 C.F.R. § 1003.2(c)(2). However, he argues for the first time that the BIA should have equitably tolled the time limitation for filing his motion to reopen. Because Zhang failed to exhaust before the BIA his *633equitable tolling argument, and because the government has raised this failure to exhaust in its brief, we decline to consider this issue and conclude that the BIA did not abuse its discretion in denying Zhang’s motion to reopen as untimely. See Lin Zhong v. U.S. Dep’t of Justice, 480 F.3d 104, 119-20 (2d Cir.2007) (describing the issue exhaustion requirement as an “affirmative defense subject to waiver”).
Moreover, contrary to Zhang’s argument, nothing in the BIA’s decision in Matter of Velarde-Pacheco suggests that it abused its discretion in denying his motion to reopen as untimely. See 23 I & N Dec. 253, 256 (BIA 2002) (providing that a motion to reopen may be granted in the exercise of discretion to allow an alien the opportunity to apply for adjustment of status where, inter alia, the motion is timely filed).
Finally, to the extent Zhang argues that the BIA erred in declining to reopen his proceedings sua sponte, we lack jurisdiction to consider that “entirely discretionary” decision. Ali v. Gonzales, 448 F.3d 515, 518 (2d Cir.2006).
For the foregoing reasons, the petition for review is DENIED. As we have completed our review, any stay of removal that the Court previously granted in this petition is VACATED, and any pending motion for a stay of removal in this petition is DISMISSED as moot. Any pending request for oral argument in this petition is DENIED in accordance with Federal Rule of Appellate Procedure 34(a)(2), and Second Circuit Local Rule 34(b).
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https://www.courtlistener.com/api/rest/v3/opinions/8472186/
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SUMMARY ORDER
Petitioners Zanyu Jin and Dongchun Cui, natives and citizens of the People’s Republic of China, seek review of the May 30, 2008 order of the BIA dismissing for lack of jurisdiction their appeal from the January 17, 2006 decision of Immigration Judge (“IJ”) Robert D. Weisel: (1) granting Jin’s application for withholding of removal; and (2) entering a final order of removal against Cui. See In re Zanyu Jin and Dongchun Cui, Nos. A78 410 634/98 974 037 (B.I.A. May 30, 2008); see also Nos. A78 410 634/98 974 037 (Immig. Ct. N.Y. City Jan. 17, 2006). We assume the parties’ familiarity with the underlying facts and procedural history of the case.
“We review de novo constitutional challenges to a decision by the BIA ánd legal conclusions drawn by the BIA, such as the determination that the BIA lacks jurisdiction.” Mirza Ali v. Mukasey, 525 F.3d 171, 173 (2d Cir.2008). However, “[w]e review the BIA’s factual findings under the substantial evidence standard.” Id. The question of a “knowing and intelligent waiver [of the right to appeal] is inevitably a fact-specific inquiry.” Id. at 174.
We conclude that the BIA did not err in dismissing Jin and Cui’s appeal for lack of jurisdiction. See Matter of Patino, 23 I. & N. Dec. 74, 76 (BIA 2001) (holding “that the [BIA] may not exercise jurisdiction over a case once the right to appeal has been waived”). As the BIA noted, before the conclusion of their hearing, the IJ asked Jin and Cui’s former attorney whether both of her clients wished to accept his decision as final, to which she replied affirmatively. This amounted to “an effective waiver of appeal” where the record supports the conclusion that Jin and Cui’s former attorney understood what it meant to accept the IJ’s decision as “final.” Mirza Ali, 525 F.3d at 174 (holding that an appeal waiver is effective where the record “fairly supports the conclusion that the alien or his counsel understood the nature of the waiver”). Jin and Cui do not argue that their former attorney misunderstood what the IJ meant by “final.”2
Moreover, we find that the BIA properly concluded that Jin and Cui were' bound by their former attorney’s appeal waiver, and withdrawal of Jin’s asylum application, where her decisions were reasonably strategic, and did not amount to ineffective assistance of counsel. See Changxu Jiang v. Mukasey, 522 F.3d 266, 270-71 (2d Cir.2008). Having reached an agreement with the IJ and counsel for the U.S. Department of Homeland Security, their former attorney ensured that, by withdrawing Cui’s asylum application and waiving appeal, the grant of withholding of removal as to Jin would go unchallenged before the BIA.3 Jiang v. Mukasey, 522 *639F.3d 266, 271 (2d Cir.2008) (“[T]he attorney’s decision, even if unwise in hindsight, was a tactical decision that did not constitute ineffective assistance.”)
The BIA reasonably determined that Jin and Cui’s former attorney’s actions were not so egregious as to undermine the fundamental fairness of their hearing. See id. at 270; see also Matter of B-B-, 22 I. & N. Dec. 309, 310-11 (BIA 1998) (“The respondents opted for a particular strategy and form of relief, and although they might wish to fault their former attorney and recant that decision, they are nonetheless bound by it, unless they can show ... that the conduct of former counsel was so egregious that it rendered their hearing unfair.”). Therefore, the BIA properly dismissed their appeal for lack of jurisdiction where their former attorney’s appeal waiver was binding on them. See Mirza Ali, 525 F.3d at 173-74.
As a final matter, Jin and Cui argue that the waiver of their appeal should not be binding because one of the IJ’s remarks during their hearing was misleading and prejudiced the outcome of their case. The record does not suggest that the IJ’s remarks affected their former attorney’s binding decision to waive appeal. Moreover, this argument is waived because, as the government notes in its brief, Jin and Cui failed to raise this issue before the BIA until their reply brief, and then only in a footnote. See Lin Zhong v. U.S. Dep’t of Justice, 480 F.3d 104, 119-20, 124 (2d Cir.2007); F.T.C. v. Verity Intern., Ltd., 443 F.3d 48, 65 (2d Cir.2006) (“Because the defendants-appellants did not [raise this issue] until their reply brief, and then only cursorily, we deem it waived on appeal.”). In any event, we conclude that Jin and Cui were afforded due process, including a full and fair hearing with a reasonable opportunity to be heard. See Burger v. Gonzales, 498 F.3d 131, 134 (2d Cir.2007) (noting that “[t]o establish a violation of due process, [petitioner] must show that she was denied a full and fair opportunity to present her claims or that the IJ or BIA otherwise deprived her of fundamental fairness.” (internal quotations omitted)).
For the foregoing reasons, the petition for review is DENIED. Petitioner’s pending request for oral argument in this petition is DENIED in accordance with Federal Rule of Appellate Procedure 34(a)(2), and Second Circuit Local Rule 34(b).
. We reject Jin and Cui's argument that their attorney's waiver was invalid under Mirza Ali because they did not receive "written notification” of their right to appeal. 525 F.3d at 174. As we observed in that case, Notices to Appear — which were properly served on Jin and Cui — provide notice of an alien’s right to appeal an adverse IJ decision. See id. at 172 ("The Notice [to Appear] also stated that '[a]t the conclusion of [his] hearing, [Ali would] have a right to appeal an adverse decision by the [IJ].’ ”).
. We decline to consider Jin and Cui’s argument that their former attorney (and the IJ) misrepresented the likelihood that Jin could seek adjustment of status because (as the government notes in its brief to this Court) they did not properly exhaust that argument before the BIA. See Lin Zhong v. U.S. Dep’t of Justice, 480 F.3d 104, 119-20, 124 (2d Cir.2007). In addition, we conclude that Cui’s arguments challenging his former attorney’s waiver of his own right to appeal have no merit where *639he did not file any independent applications for relief.
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SUMMARY ORDER
William A. Bonilla (“Bonilla”) seeks review of a final order of deportation of the Board of Immigration Appeals (“BIA”). Bonilla contends that the Immigration Judge (“IJ”) and the BIA committed errors of law and constitutional errors in determining that he did not warrant relief under former section 212(e) of the Immigration and Nationality Act.
We assume the parties’ familiarity with the underlying facts, the procedural history, and the issues presented for review.
The petition raises four arguments:
(1) the IJ committed legal error when he required Bonilla to show that he had achieved “full and complete” rehabilitation by “clear, convincing evidence” and that his family would suffer “exceptional and extremely unusual hardship” if he were deported;
(2) the IJ committed legal error when he found that Bonilla was on parole as of the date of his hearing;
(3) the IJ committed legal error when he found that Bonilla had intentionally failed to pay child support; and
(4) the IJ committed constitutional error when he allowed into evidence a statement inculpating Bonilla and made by Bonilla’s co-defendant in a 1989 armed robbery investigation.
The parties dispute whether the proper object of our review is the IJ’s August 17, 2001 decision; the BIA’s August 5, 2003 affirmance; or the BIA’s April 8, 2008 re-affirmance of the IJ’s decision (the BIA’s 2003 decision had since been vacated). The BIA’s two decisions agreed with the IJ’s conclusion denying relief and highlighted several of the same factors that the IJ emphasized in his opinion. “Where, as here, the BIA agrees with the IJ’s- conclusion ... and, without rejecting any of the IJ’s grounds for decision, emphasizes particular aspects of that decision,” we review both the IJ’s and the BIA’s opinions. See Guan v. Gonzales, 432 F.3d 391, 394 (2d Cir.2005). Accordingly, we review both the IJ’s and the BIA’s opinions.
Our jurisdiction over 212(c) petitions is limited to review of colorable “constitutional claims or questions of law”; we otherwise have no jurisdiction to review an IJ’s discretionary factual determinations. See 8 U.S.C. § 1252(a)(2)(D); see also Saloum v. U.S. Citizenship & Immigration Servs., 437 F.3d 238, 243 (2d Cir.2006).
We therefore closely scrutinize the claims to ensure that the petitioner is not simply raising issues of fact and couching them in legal or constitutional terms. See Saloum, 437 F.3d at 243. It is often difficult to determine what constitutes a question of law. See Chen v. U.S. Dep’t of Justice, 471 F.3d 315, 324 (2d Cir.2006) (hereinafter “Chen II”). However, a petitioner raises a question of law when he argues that the IJ relied on the existence of a particular fact even where the record “unambiguously” reveals that the IJ erred in finding that fact. Id. at 329; see also Carcamo v. U.S. Dep’t of Justice, 498 F.3d 94, 98 (2d Cir.2007). Additionally, a claim that the IJ’s discretionary decision was “based on a legally erroneous standard” also constitutes a question of law. Chen II, 471 F.3d at 329; Carcamo, 498 F.3d at 98.
Bonilla raises colorable arguments that the IJ applied improper legal standards, found facts that were unambiguously con*642tradicted by the record, and violated his constitutional rights. Accordingly, we have jurisdiction over Bonilla’s claims.
Bonilla argues that the IJ applied erroneously stringent standards requiring a showing of “full and complete” rehabilitation by “clear, convincing evidence,” and requiring him to establish that, if he were deported, his family would suffer “exceptional and extremely unusual hardship.” This argument presumes that the IJ interpreted governing precedent to require that all 212(c) petitioners meet these heightened burdens. Bonilla misreads the IJ’s opinion. Rather than imposing categorical burdens, the IJ required Bonilla to make heightened showings in this case because the equities otherwise weighed heavily against granting relief-in particular, Bonilla’s extensive criminal past and his ongoing child support obligations. This determination, premised as it was on the facts of this particular case, falls clearly within the IJ’s discretion.
Bonilla next argues that the IJ committed legal error by concluding that, at the time of the hearing, he was still on parole. The record makes clear, and the government admits, that Bonilla was in fact not on parole at the time of his hearing before the IJ. Because the IJ found a fact that was unambiguously contradicted by the record, the IJ is deemed to have committed legal error. See Chen II, 471 F.3d at 329.
However, remand is unnecessary “(1) where the IJ explicitly relie[d] on a valid alternative ground for relief that is not tainted by error, (2) where the error is so tangential to the ultimate ruling that there is no realistic possibility of a different result on remand, or (3) where the untainted evidence in support of the IJ’s conclusion is so overwhelming that there is no realistic possibility of a different result on appeal.” Id. at 338 (internal quotation marks omitted).
We conclude that remand for this error is unnecessary. The reference to Bonilla’s parole status came in the part of the opinion that summarized the relevant factual findings, not where the 212(c) balance was weighed and the explanation given for denying 212(c) relief. Furthermore, the IJ’s discretionary decision was based on multiple factors, including Bonilla’s criminal past and child support defaults. Given this other evidence, we see no “realistic possibility of a different result” on remand.
Bonilla argues that there was absolutely no record support for the IJ’s finding that Bonilla intentionally avoided his child support obligations. However, the IJ’s finding was arguably supported by the record. There was evidence, for example, that Bonilla owed child support, that he was sued by the State for owing child support, and that there was a garnishment order on his wages. The IJ’s conclusions are not so unambiguously contradicted by the record that they constitute legal error.
Finally, Bonilla argues that his constitutional rights were violated when the IJ admitted into evidence a statement made by Bonilla’s co-defendant in the 1989 robbery case to the effect that Bonilla provided the gun used in that robbery.
Hearsay evidence is admissible in deportation proceedings. See Felzcerek v. I.N.S., 75 F.3d 112, 115 (2d Cir.1996). However, due process requires that the hearsay evidence be “probative” and that “its use be fundamentally fair.” Id. Fundamental fairness, in turn, “is closely related to the reliability and trustworthiness of the evidence.” Id. We have previously recognized (albeit in the criminal context) that “inculpatory hearsay statements made by an accomplice ... during formal police *643interrogation” are untrustworthy. See United States v. Morgan, 385 F.3d 196, 208 (2d Cir.2004).
In this case, we need not and do not decide whether Bonilla suffered a constitutional deprivation, because in any event, remand would not be warranted. The IJ deduced from the hearsay statement — which said that Bonilla did give his co-defendant the gun — only that Bonilla “may” have provided the gun. The IJ thus recognized the potential unreliability of the statement. Moreover, in light of all the other factors emphasized by the IJ in deciding to deny Bonilla 212(c) relief, there is no indication that the co-defendant’s statement was an appreciable factor in the IJ’s decision.
Based on the foregoing reasons, we hereby DENY Bonilla’s petition for relief.
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SUMMARY ORDER
Mei Zheng, a native and citizen of the People’s Republic of China (“China”), seeks review of an April 1, 2008 order of the BIA, affirming the May 18, 2006. decision of Immigration Judge (“IJ”) Steven R. Abrams, which denied her application for asylum, withholding of removal, and relief under the Convention Against Torture (“CAT”). In re Mei Zheng, No. A095 467 017 (B.I.A. Apr. 1, 2008), aff'g No. A095 467 017 (Immig. Ct. N.Y. City May 18, 2006). We assume the parties’ familiarity with the underlying facts and procedural history in this case.
When the BIA adopts the decision of the IJ and supplements the IJ’s decision, this Court reviews the decision of the IJ as supplemented by the BIA. See Yan Chen v. Gonzales, 417 F.3d 268, 271 (2d Cir.2005). We review the agency’s factual findings, including adverse credibility determinations, under the substantial evidence standard. 8 U.S.C. § 1252(b)(4)(B); see Dong Gao v. BIA, 482 F.3d 122, 126 (2d Cir.2007). We review de novo questions of law and the application of law to undisputed fact. Bah v. Mukasey, 529 F.3d 99, 110 (2d Cir.2008).
With respect to Zheng’s claim of past persecution, substantial evidence supports the agency’s adverse credibility determination. The IJ properly relied on discrepancies in the record. See Liang Chen v. U.S. Att’y Gen., 454 F.3d 103, 106-107 (2d Cir.2006) (stating that an IJ may conduct an overall evaluation of testimony in light of its rationality or internal consistency and the manner in which it hangs together with other evidence). While Zheng claimed that she suffered a forced abortion in China, her U.S. medical records omitted this information. When asked to explain the discrepancy, Zheng testified that during her first appointment in the U.S. in 2001 she did not tell her doctor because her husband was with her and he did not yet know about the forced abortion. When asked why she did not disclose it during her appointment four years later, Zheng testified that she went back to the same clinic and because she did not tell them during her first pregnancy, she declined to tell them and no one asked her. However, when confronted with her medical records, which indicated that she was asked whether she had previously had an abortion, Zheng claimed to have tried to tell a nurse about her abortion in China but that the nurse told her she could not change her records in the computer. The IJ reasonably declined to credit these explanations. See Majidi v. Gonzales, 430 F.3d 77, 80 (2d Cir.2005). Although Zheng argues that the discrepancies were minor, they bear a legitimate nexus to her claim because her alleged forced abortion was the basis of her past persecution claim. See Secaida-Rosales v. INS, 331 F.3d 297, 307 (2d Cir.2003).
Further, as the IJ did not find Zheng’s testimony credible, he properly noted the *645absence of documentary evidence that may have corroborated her claim. See Xiao Ji Chen v. U.S. Dep’t of Justice, 471 F.3d 315, 341 (2d Cir.2006). Ultimately, the agency’s adverse credibility finding was “based upon neither a misstatement of the facts in the record nor bald speculation or caprice,” and was thus supported by substantial evidence. Zhou Yun Zhang v. INS, 386 F.3d 66, 74 (2d Cir.2004), abrogated in part on other grounds by Shi Liang Lin v. U.S. Dep’t of Justice, 494 F.3d 296, 305 (2d Cir.2007).
With respect to her prospective fear of persecution, Zheng argues that the agency erred in concluding that she failed to demonstrate eligibility for asylum, withholding of removal, and CAT relief based on the birth of her U.S. citizen children. However, while the agency credited Zheng’s claim that she had two children, her argument fails. We have previously reviewed the agency’s consideration of evidence similar to that which Zheng presented and have found no error in its conclusion that such evidence was insufficient to establish an objectively reasonable fear of persecution. See Jian Hui Shao v. Mukasey, 546 F.3d 138, 156-65 (2d Cir.2008).
Additionally, because substantial evidence supports the agency’s adverse credibility determination and because Zheng otherwise failed to meet her burden of proof, the agency properly denied her application for withholding of removal and CAT relief. See Paul v. Gonzales, 444 F.3d 148, 156 (2d Cir.2006); Xue Hong Yang v. U.S. Dep’t of Justice, 426 F.3d 520, 523 (2d Cir.2005).
For the foregoing reasons, the petition for review is DENIED. As we have completed our review, any stay of removal that the Court previously granted in this petition is VACATED, and any pending motion for a stay of removal in this petition is DISMISSED as moot. Any pending request for oral argument in this petition is DENIED in accordance with Federal Rule of Appellate Procedure 34(a)(2), and Second Circuit Local Rule 34(b).
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SUMMARY ORDER
Omar Farooq petitions this Court for review of the September 3, 2008 order of the BIA which denied his petition for a continuance of his removal proceedings pending the adjudication of his application for adjustment of status, which application is based upon his wife’s United States citizenship, pursuant to Section 245 of the Immigration and Nationality Act (“INA”). The BIA’s decision affirmed the order, dated May 1, 2007, of Immigration Judge Michael W. Straus (“the IJ”), of the U.S. Immigration Court, Hartford, Connecticut.
Farooq was born in Pakistan, on February 26, 1981, and remains a Pakistani citizen. Farooq arrived at Denver, Colorado, on September 30, 1999, without a valid travel document, and was therefore immediately put in removal proceedings. He filed an application for asylum, dated August 22, 2000, based upon the allegation that he faced persecution in Pakistan because of his membership in the Pakistan Peoples Party. Farooq withdrew this application on August 22, 2005.
In the meantime, Farooq began to reside in Connecticut, and, on April 5, 2001, married Jazmín Torres, an American citizen. Based upon this marriage, Farooq filed an application for adjustment of status, on July 11, 2001. Farooq subsequently faded to attend an April 20, 2003 hearing on the application and, in any event, he was divorced from Torres, by order of the Connecticut Superior Court, on August 18, 2003.
On August 22, 2003, Farooq married Melissa Dawn Kent, also an American citizen. The following month, Farooq filed a new application for adjustment of status. Farooq appeared in Immigration Court, on August 22, 2005, to request a continuance of his removal proceedings pending the adjudication of the new application. In response, Immigration Judge Matthew J. D’Angelo ordered briefing on the question of his jurisdiction to issue a continuance.
In an oral decision, dated May 1, 2007, the IJ determined that, “under 8 C.F.R. Section 1245.2(a)(l)(ii), an Immigration Judge does not have jurisdiction to adjudicate an application for adjustment of status filed [by] an arriving alien.... Accordingly, the Court cannot continue the matter any further since [Farooq] is not eligible for adjustment of status.” On the same day, the IJ issued a written order which ordered Farooq removed to Pakistan.
The BIA affirmed the IJ, on September 3, 2008. First, the BIA held that, “[a]s an arriving alien, [Farooq] is ineligible to pursue adjustment of status in these removal proceedings pursuant to 8 C.F.R. § 1245.2(a)(1)(h). While [Farooq] argues that this regulation contravenes section 245 of the Immigration and Nationality Act, 8 U.S.C. § 1255, he has identified no case law from the United States Court of Appeals for the Second Circuit ... finding the regulation invalid____In general, arriving aliens must instead pursue adjustment of status before United States Citizenship and Immigration Services (“USCIS”). See 8 C.F.R. § 245.2(a)(1).” The BIA therefore concluded that “the Immigration Judge lacks authority to resolve any questions pertaining to the merits of [Farooq’s] claims and it is therefore proper for any issues respecting those claims, including any stay that may be *650warranted, to be addressed by the agency with jurisdiction.”
When the BIA affirms the decision of an IJ, employing the same reasoning as the IJ, we review the decisions of the BIA and the IJ together. See Baba v. Holder, 569 F.3d 79, 84 (2d Cir.2009). We review de novo questions of law and the application of law to undisputed fact. See Salimatou Bah v. Mukasey, 529 F.3d 99, 110 (2d Cir.2008).
As set forth in the discussion contained in this Court’s decision in Brito v. Mukasey, 521 F.3d 160 (2d Cir.2008), Farooq is challenging a regulation that no longer exists. This Court noted in Brito that “the regulations governing the IJ’s jurisdiction over applications for adjustment of status, prior to their recent amendment, have been the subject of a considerable amount of litigation concerning them validity.... ” Id. at 164 (emphasis added). The opinion sets forth the following history regarding the development of the law:
Prior to 1960, any alien in the United States no longer in possession of a valid immigrant visa but eligible for adjustment of status had to go abroad to apply for permanent resident status. In 1960, Congress eliminated that burden by expanding eligibility for adjustment of status to include all aliens “inspected and admitted or paroled,” allowing aliens in the United States, with or without valid visas, to apply for immigrant status without having to depart. 8 U.S.C. § 1255(a).... Section 1255(a) commits to the discretion of the United States Attorney General, “and under such regulations as he may prescribe,” the granting of applications for adjustment of status. 8 U.S.C. § 1255(a)....
In 1997, following the enactment of the Illegal Immigrant Reform and Immigration Responsibility Act (“IIRIRA”), the Attorney General issued new regulations to implement IIRIRA.... [T]he Attorney General promulgated 8 C.F.R. § 245.1(c)(8), which rendered certain categories of aliens, including any arriving alien in removal proceedings, ineligible to apply for adjustment of status....
Id. at 165 (citations omitted).
This new regulation “soon engendered a Circuit split on the resolution of the inherent tension in a statutory scheme that explicitly defines who is eligible to apply for adjustment of status but gives the Attorney General unreviewable discretion to review the applications.” Id. (internal brackets and quotation marks omitted). In 2006, “[rjecognizing the Circuit split over the issue ... the Attorney General decided to resolve the conflict through rulemaking and amended the disputed regulations. The regulations as amended provide USCIS with jurisdiction to adjudicate adjustment of status applications for all arriving aliens, even those in removal proceedings.” Id. at 166 (internal quotation marks and citation omitted). Thus, under the new regulation, 8 C.F.R. § 1245.2(a)(1)(h), Immigration Judges “remain without jurisdiction to adjudicate adjustment of status applications for arriving aliens in removal proceedings.” Id.
Farooq’s brief is dedicated to addressing the “direct conflict between statute and regulation” caused by the Attorney General’s 1997 regulations which subsequently engendered the Circuit split discussed in Brito. That is, he argues that “[o]n the one hand, Congress is allowing aliens who have been paroled into the Country to adjust their status. On the other hand, the Attorney General is carving out an exception to th[e] statute for aliens in removal proceedings. It just doesn’t make sense.”
*651But nowhere does Farooq acknowledge the 2006 amendment by which the Attorney General, as the Government says, “ha[s] restored arriving aliens with the ability to adjust their status before the Agency, while ... [still] precluding immigration judges from exercising jurisdiction over arriving aliens’ applications for adjustment of status.” As set forth above, the BIA based its decision upon the amended regulation, and because Farooq posits no challenge to the amended regulation, this Court has no ground upon which to reverse the BIA.
Finally, even if Farooq’s arguments were construed as challenging the amended regulation, this challenge would fail because the amended regulation is a permissible construction of, and does not conflict with the statute. See, e.g., Scheerer v. U.S. Attorney Gen., 513 F.3d 1244, 1250-52 (11th Cir.2008).
For the reasons stated above, the petition for review is hereby DENIED.
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*652SUMMARY ORDER
Robert W. Murray, Jr. appeals from: (1) the February 20, 2008, 536 F.Supp.2d 225, ruling of the district court granting defendants’ motion for summary judgment on Murray’s claim that his removal from office as the Business Manager/Financial Secretary of International Brotherhood of Electrical Workers (“IBEW”) Local Union 35 violated the IBEW Constitution; (2) the July 8, 2008 ruling of the district court granting defendants’ motion for summary judgment on Murray’s claim that his removal from office violated Section 101(a)(2) of the Labor-Management Reporting and Disclosure Act (“LMRDA”), 29 U.S.C. § 411(a)(2); and (3) the district court’s July 18, 2008 judgment dismissing his case. We assume the parties’ familiarity with the underlying facts, procedural history, and specification of issues for review.
As an initial matter, we assume, without deciding, that Murray has presented sufficient evidence to defeat summary judgment on his claim that he engaged in protected speech under Section 101(a)(2) of the LMRDA. The district court concluded, however, that Murray had not established a causal connection between his exercise of speech and his removal from office. We agree with the district court that “[Murrayj’s evidence fails to raise an inference of a retaliatory animus based on ... alleged conflicts” between Murray and defendant Frank Carroll. On the contrary, after Murray engaged in his allegedly protected speech, defendants acted in a manner consistent with an intent to keep Murray in office, taking steps to remove Murray only after he had been sentenced to a term of incarceration that would prevent him from performing the duties of his office. Murray’s theory of retaliation is therefore implausible.
Drawing all inferences in favor of Murray, a reasonable jury could not conclude that Murray’s removal was the result of any protected speech. Murray conceded that his incarceration would have prevented him from fulfilling his job duties. Murray argues that defendants could have granted him a leave of absence, as they did for a union employee with a medical condition. But Murray does not claim he requested a leave of absence. Moreover, the IBEW Constitution does not grant defendants’ the authority to grant an extended leave of absence to an officer absent a “satisfactory excuse.” Murray argues that defendants offered shifting justifications for his termination, supporting an inference that their stated justification was mere pretext. We agree with the district court that the allegedly shifting statements “all coneern[ed] the ramifications of plaintiffs sentence ... upon his ability to perform as a business manager.”
We also reject Murray’s claim that the district court erred in deferring to the union’s interpretation of its constitution due to the union’s bad faith, because, for the reasons previously stated, a jury could not infer bad faith from these facts.
We have considered Murray’s remaining arguments and conclude that they are without merit. Accordingly, the judgment of the district court hereby is AFFIRMED.
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SUMMARY ORDER
Plaintiffs-Appellants Employers Insurance of Wausau and National Casualty Company appeal from a September 29, 2008, 2008 WL 4443899, order of the United States District Court for the Southern District of New York (Scheindlin, J.) granting the defendants’ motion to transfer the action pursuant to 28 U.S.C. § 1404(a) to the Central District of California. We assume the parties’ familiarity with the underlying facts and procedural history of the case.
An order of venue transfer pursuant to 28 U.S.C. § 1404(a) is a nonreviewable interlocutory order. Fort Knox Music Inc. v. Baptiste, 257 F.3d 108, 112 (2d Cir.2001). We therefore do not have jurisdiction over this appeal. To the extent that Appellants’ argue that, the district court denied their purported motion for injunctive relief on July 22, 2008 and such denial of relief is appealable under 28 U.S.C. § 1292(a)(1), the record clearly shows that Appellants never made such a motion, nor were denied the opportunity to do so. Appellants’ argument that the September 29, 2008 transfer order had the “practical ef*654feet” of denying them injunctive relief is also to no avail. Finally, Appellants’ arguments in favor of jurisdiction by way of the extraordinary remedy of mandamus are without merit.
Accordingly, this appeal is hereby DISMISSED, and insofar as it might be construed as a petition for a writ of mandamus, DENIED.
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SUMMARY ORDER
Plaintiffs-appellants Timothy J. Deebs and William Drake appeal from the judgment, dated April 30, 2008, of the United States District Court for the Western District of New York (Larimer, J.), granting the summary judgment motion of defendant-appellant ALSTOM Transportation, Inc. (“ALSTOM”) as to all of their claims. The judgment memorializes the district court’s decision and order, dated April 29, 2008, which granted the summary judgment motion. See Deebs v. ALSTOM Transportation, Inc., 550 F.Supp.2d 385 (W.D.N.Y.2008).
We assume the parties’ familiarity with the events giving rise to the instant suit and we therefore set forth no detailed recitation of the facts. This is an age discrimination action brought pursuant to the Age Discrimination in Employment Act (“ADEA”), 29 U.S.C. Section 62 et seq., and New York Human Rights Law, N.Y. Exec. Law Section 290 et seq. There is no dispute that both of the plaintiffs are of sufficient age to invoke the protection of these statutes and that they both properly exhausted their administrative remedies before filing suit.
*656Both plaintiffs were formerly employed by ALSTOM, a firm that manufactures railway cars. According to the first amended complaint, Drake worked for ALSTOM and its predecessor firm from 1985 until his termination, on May 25, 2005, at which time he held the position of Production Line Supervisor. The responsibilities of this position included the supervision of craft workers. ALSTOM’s central response to Drake’s claim of discrimination is that his termination, which occurred as part of a general force reduction, was proper because Drake had significant shortcomings with respect to meeting the challenges of his supervisory role.
Deebs was initially offered employment by ALSTOM for the position of Test Technician on May 29, 2002. This offer was made in spite of the fact that Deebs had received a failing grade of 55% — a pass required a score of 65% — on a test of electronics knowledge. The supervisor who hired Deebs, Gerald W. Van Dyke, stated in an affidavit that he decided to hire Deebs in spite of his failing grade because ALSTOM “was in desperate need of test technicians on the second shift at that time.” Deebs re-took the electronics knowledge test on July 6, 2005 and this time received the failing grade of 38%. Van Dyke decided to terminate Deebs on July 27, 2005. ALSTOM contends, inter alia, that Deebs was terminated because of his failing grades on the test, and in turn, his failure to improve his work performance in response to criticism by supervisors. In March 2006 an employment agency hired Deebs and assigned him to work in ALSTOM’s warehouse performing quality control functions. In slightly over a week, however, Deebs was removed from the position. Deebs alleges that this firing was an act of retaliation by ALSTOM for his having filed a discrimination complaint with the EEOC.
“We review a grant of summary judgment de novo.” Roe v. City of Waterbury, 542 F.3d 31, 35 (2d Cir.2008). As did the district court, we analyze the plaintiffs’ ADEA claims under the familiar standard set forth , in McDonnell Douglas Corp. v. Green, 411 U.S. 792, 802-04, 93 S.Ct. 1817, 36 L.Ed.2d 668 (1973). See Abdu-Brisson v. Delta Air Lines, Inc., 239 F.3d 456, 466-67 (2d Cir.2001) (applying McDonnell Douglas test to ADEA claim). The plaintiffs’ claims under New York State Human Rights Law are subject to the same analysis. See id. at 466.
The district court’s well-reasoned opinion should be affirmed. We first note that both plaintiffs rely almost exclusively upon their own deposition testimony in order to support their claims. We therefore think ALSTOM correctly asserts that “the only ‘evidence’ cited in plaintiffs’ brief is their own self-serving testimony” and that the plaintiffs have “made no attempt ... to square their own speculative, and subjective, testimony with the hard evidence adduced during discovery.” Such evidence is insufficient to defeat summary judgment. See Meiri v. Dacon, 759 F.2d 989, 998 (2d Cir.1985) (allowing “a party to defeat a motion for summary judgment by offering purely conclusory allegations of discrimination, absent any concrete particulars, would necessitate a trial” in all employment discrimination actions). Even if this Court assumes that both plaintiffs have made out a prima facie case under the ADEA, both of them have failed to adduce sufficient evidence to raise a material issue of fact as to whether ALSTOM’s asserted reasons for their terminations are pretextual subterfuges for discriminatory conduct.
With respect to Drake’s claim, the record amply demonstrates that, long before his termination, his superiors were concerned with his brusque manner in *657dealing with those employees he was charged with supervising. Most importantly, this Court has long held that ADEA claims arising from the results of a firm’s force reduction will generally not lie where the record “demonstrate[s] that the reorganization was a business decision made on a rational basis.” Parcinski v. Outlet Co., 673 F.2d 34, 37 (2d Cir.1982). The record plainly so demonstrates here.
It is of no moment that Drake “was never informed about a reduction in force” before he was terminated. And Drake’s vague assertion that “younger employees were hired during the time of [his] termination is insufficient to raise a material issue of fact as to whether Drake’s position was eliminated pursuant to a legitimate reduction in force. First, ALSTOM provides unrebutted evidence of Drake’s history of performance issues regarding his relations with other employees. Second, and more importantly, Drake does nothing to counter ALSTOM’s demonstration that the reduction in force left a considerable number of ADEA-protected employees in their jobs, while claiming the jobs of a number of younger employees, facts which the district court correctly found were highly indicative of a lack of discriminatory intent. See, e.g., Parcinski, 673 F.2d at 36-37 (fact that 75% of work force left after force reduction was under ADEA protection demonstrates lack of age-based animus).
If anything, Deebs’s claims are even weaker. The record amply demonstrates that Deebs’s performance evaluations were sub-standard from the date of his employment with ALSTOM. It is undisputed that he twice failed ALSTOM’s test of basic electronics knowledge— achieving a significantly lower score the second time he took the exam—and Deebs does not dispute that the exam is relevant to the assessment of an employee’s qualifications, nor does he cite any evidence which would suggest otherwise. Rather, he asserts that at least one younger employee was allowed to cheat so that he could pass the test. But Deebs bases this assertion upon his own deposition testimony that this younger employee disclosed the cheating to him. The younger employee, in his own deposition testimony, flatly denies that any cheating took place or that he made any such statement to Deebs. Moreover, while Deebs asserts in his brief on this appeal that he has tape-recorded proof to support this claim, his deposition testimony avers only that he taped a conversation with the younger employee. The testimony makes no reference to the content of the taped conversation, and the recording itself has not been placed in the record. The record therefore contains no admissible evidence to support Deebs’s claims. In sum, ALSTOM has made the case that Deebs was terminated because “he lacked competence, he failed basic electronics skills tests that were administered to assess those skills, and he failed to successfully complete” a term of probationary employment.
Finally, Deebs’s claim that his second termination by ALSTOM—the termination from the warehouse position—was retaliatory also fails. Even assuming that the firm can be charged with knowledge that Deebs had filed a discrimination complaint with the EEOC prior to the second termination, Deebs supports his claim of retaliation with nothing but the proximity between his administrative filing and his second firing. But the law is clear that “[w]here timing is the only basis for a claim of retaliation, and gradual adverse job actions began well before the plaintiff had ever engaged in any protected activity, an inference of retaliation does not arise.” Slattery v. Swiss Reinsurance America Corp., 248 F.3d 87, 95 (2d Cir.2001) (no inference of retaliation where plaintiff was *658placed on probation and fired a short time after filing an EEOC complaint since the adverse employment actions were part of an extensive period of discipline which began five months prior to the filing). Because of Deebs’s poor performance record, and subsequent legitimate firing on the basis of that record, Deebs’s second firing does not raise an inference of retaliation because ALSTOM had a basis to believe he would be a poor employee.
For the reasons stated above, the judgment the district court is hereby AFFIRMED.
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SUMMARY ORDER
Plaintiff-Appellant Susan N. Burgess appeals from the judgment, dated March 31, 2008, of the United States District Court for the Western District of New York which granted the defendants’ motions to dismiss her federal law claims. The judgment memorializes Judge Siragusa’s decision and order, dated March 28, 2008, 2008 WL 850336, which granted the motions and declined to exercise jurisdiction over Burgess’s common law claims.
We assume the parties’ familiarity with the complicated events giving rise to the instant suit. According to her complaint, which was filed on June 5, 2007, Burgess is “a solo practitioner attorney,” residing in Brockport, New York. In 2003, Burgess filed an employment discrimination complaint in the U.S. District Court for the Western District of New York on behalf of Rene Wood (“the Wood action”), a part-time special education co-teacher who had been employed by the Pittsford Central School Distinct (“the District”). Named as defendants in that complaint were the District, the Board of Education of the Pitts-ford Central School District (“the Board”), and John P. Schiess, the District’s Director of Human Resources (collectively “the School Defendants”). The School Defendants were represented in the Wood action by Harris Beach PLLC, a law firm located in Pittsford which employed Rayne Hammond Benz as an associate (collectively “Harris Beach”).
The instant suit concerns allegations of discovery abuse in the Wood action, which Burgess contends amounted to “a calculated scheme among defendants to frame” her in the eyes of the district court and to call into question her “fitness as an attorney.” Briefly, these allegations involve Burgess’s interactions with a potential third-party witness in the Wood action, “Jane Doe.” Burgess asserts that the concerted actions of the School Defendants and Harris Beach with respect to her contacts with Doe amounted to a plan
designed not only to prevent plaintiff from having further contact with Doe, who was upset with the District and had expressed that she might sue the District, but [also] to prevent plaintiff from speaking to any other District employee who might either have information that would further plaintiffs case in [the Wood action] or who might have claims of their own against the District.
Based upon these allegations, Burgess asserts federal law claims for violation of her rights under the First Amendment and 42 U.S.C. Section 1983, and for retaliation under Title IX of the Education Amendments, 20 U.S.C. Section 1681, and Section 504 of the Rehabilitation Act, 29 U.S.C. Section 794. Burgess also asserts New York state law claims of defamation, false light, prima facie tort, intentional infliction of emotional distress, tortious in*660terference with prospective business relations, and malicious prosecution.
“We review de novo a district court’s dismissal of a complaint pursuant to Rule 12(b)(6), construing the complaint liberally, accepting all factual allegations in the complaint as true, and drawing all reasonable inferences in the plaintiff’s favor.” Chambers v. Time Warner, Inc., 282 F.3d 147, 152 (2d Cir.2002). On the other hand, “ ‘[l]egal conclusions, deductions or opinions couched as factual allegations are not given a presumption of truthfulness.’ ” U.S. v. Bonanno Organized Crime Family of La Cosa Nostra, 879 F.2d 20, 27 (2d Cir.1989) (quoting 2A J. Moore, Moore’s Federal Practice, ¶ 12.07[2-5] at 63-64 (2d ed.1987)).
A. First Amendment/Section 1983 Claims. The district court correctly construed Burgess’s First Amendment claim as being brought under 42 U.S.C. Section 1983. In order to survive a motion to dismiss a First Amendment claim, a plaintiff must allege, inter alia, “that the speech or conduct at issue was protected.” Davis v. Goord, 320 F.3d 346, 352 (2d Cir.2003). Burgess asserts in her complaint that she “had a right and an obligation to question potential witnesses in [the Wood action] and was exercising her constitutional right to free speech in doing so.” But she has cited no authority — and we are aware of none — that supports the legal conclusion that an attorney’s capacity to effectively represent her client through unfettered contact with third party witnesses implicates any constitutional right of the attorney’s.1
B. Title IX/Rehabilitation Act Claims. The Supreme Court has held that Title IX implies a private cause of action which encompasses “Retaliation against a person because that person has complained of sex discrimination.” Jackson v. Birmingham Bd. of Educ., 544 U.S. 167, 173, 125 S.Ct. 1497, 161 L.Ed.2d 361 (2005). These standards also apply to employment discrimination claims brought under Title VII and Title IX. See Weinstock v. Columbia Univ., 224 F.3d 33, 42 n. 1 (2d Cir.2000) (citations omitted). The elements of á retaliation claim under the Rehabilitation Act are the same as the Americans with Disability Act, see Weixel v. Bd. of Educ. of New York, 287 F.3d 138, 148-49 (2d Cir.2002), which makes it unlawful for an employer to “discriminate against any individual because such individual has opposed any act or practice made unlawful by this chapter or because such individual made a charge, testified, assisted, or participated in any manner in an investigation, proceeding, or hearing under this chapter.” 42 U.S.C. § 12203(a).
“Title VII, by its terms, applies only to employees.” Salamon v. Our Lady of Victory Hosp., 514 F.3d 217, 226 (2d Cir.2008). Neither the Rehabilitation Act nor Title IX, however, are limited to discrimination against employees. See, e.g., Murray v. New York Univ. College of Dentistry, 57 F.3d 243, 248 (2d Cir.1995) (noting that “Title IX has been construed to prohibit gender discrimination against both students enrolled in federally supported educational programs and employees involved in such programs”); J.S. ex rel. N.S. v. Attica Cent. Schs., 386 F.3d 107 (2d Cir.2004) (disabled students brought action alleging violation of Rehabilitation Act against school district). Nevertheless, the district court properly dismissed Burgess’s retaliation claims because she does not have a relationship with any of the defendants that would allow her to invoke the protections of these statutes.
*661Burgess was not employed by any of the defendants, nor was she a student in the District. Instead, Burgess was an attorney who had brought an employment discrimination action on behalf of a client against the District, which was defended by Harris Beach. Without a direct relationship between herself and any of the defendants, there was no materially adverse action that any of the defendants could have taken against Burgess and therefore no way for them to have retaliated against her. See Burlington N. & Santa Fe Ry. Co. v. White, 548 U.S. 53, 68, 126 S.Ct. 2405, 165 L.Ed.2d 345 (2006) (noting that for action to be materially adverse it would “dissuade ... a reasonable worker from making or supporting a charge of discrimination”). Accordingly, the district court correctly dismissed Burgess’s retaliation claims.
Burgess argues that a regulation promulgated by the U.S. Department of Education indicates that even individuals without a direct relationship to a school district may bring a Title IX claim. See 34 C.F.R. Section 100.7(c) (“No recipient or other person shall intimidate, threaten, coerce, or discriminate against any individual for the purpose of interfering with any right or privilege secured by section 601 of the Act or this part, or because he has made a complaint, testified, assisted, or participated in any manner in an investigation, proceeding or hearing under this part.”; emphasis added). Assuming arguendo that Burgess’s interpretation of the regulation is correct, the Supreme Court made clear in Jackson that the private right of action it recognized for Title IX retaliation did not depend on the regulations and instead arose directly from the statute. See Jackson, 544 U.S. at 178, 125 S.Ct. 1497 (“We do not rely on regulations extending Title IX’s protection beyond its statutory limits; indeed, we do not rely on the Department of Education’s regulation at all, because the statute itself contains the necessary prohibition.”). The regulation therefore does not save Burgess’s claim, because there is no private right of action to enforce the regulation to the extent that it extends Title IX protections beyond the plain meaning of the statute. See id. at 178 n. 2, 125 S.Ct. 1497 (“[P]laintiffs may not assert claims under Title IX for conduct not prohibited by that statute.”).
C. Supplemental Jurisdiction. We review the district court’s decision regarding the exercise of supplemental jurisdiction over state law claims for abuse of discretion. See Marcus v. AT & T Corp., 138 F.3d 46, 57 (2d Cir.1998); 28 U.S.C. § 1367(c). In general, where the federal claims are dismissed before trial, the state claims should be dismissed as well. See Purgess v. Sharrock, 33 F.3d 134, 138 (2d Cir.1994). Burgess has not posited any reason warranting a departure from this rule. Accordingly, we affirm the district court’s decision declining to exercise supplemental jurisdiction.
D. Motion to Amend the Complaint. Finally, the district court did not abuse its discretion by not allowing Burgess to amend her complaint. See Jones v. N.Y. State Div. of Military & Naval Affairs, 166 F.3d 45, 49 (2d Cir.1999).
For the foregoing reasons, the judgment of the district court is hereby AFFIRMED
. Burgess’s Section 1983 claim against Harris Beach also fails because Harris Beach is not a state actor within the meaning of the statute. See Polk County v. Dodson, 454 U.S. 312, 318, 102 S.Ct. 445, 70 L.Ed.2d 509 (1981).
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https://www.courtlistener.com/api/rest/v3/opinions/8472203/
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SUMMARY ORDER
Plaintiff appeals the decision granting Defendants’ motion for summary judgment on her employment discrimination claim pursuant to the Age Discrimination in Employment Act (“ADEA”), 29 U.S.C. § 621 et seq. Plaintiff also challenges the district court’s separate dismissal of her state-law defamation claim pursuant to Rule 12(b)(6) of the Federal Rules of Civil Procedui’e, as well as the court’s subsequent denial of her motion for leave to amend the complaint. We presume the parties’ familiarity with the underlying facts, the procedural history of the case, and the issues on appeal.
With respect to Plaintiffs age discrimination claim, a district court’s order granting summary judgment is reviewed de novo, and all reasonable inferences are drawn in favor of the non-movant, Ms. Wellesley. See Miller v. Wolpoff & Abramson, L.L.P., 321 F.3d 292, 300 (2d Cir.2003). In this Circuit, ADEA claims are evaluated under the three-step burden-shifting framework set forth in McDonnell Douglas Corp. v. Green, 411 U.S. 792, 802, 93 S.Ct. 1817, 36 L.Ed.2d 668 (1973). See, *663e.g., D’Cunha v. Genovese/Eckerd Corp., 479 F.3d 193, 194-95 (2d Cir.2007) (per curiam). To prevail on such a claim, the plaintiff must establish by a preponderance of the evidence that age discrimination was the “but-for” cause of the challenged adverse employment action. Gross v. FBL Fin. Servs., Inc., — U.S. -, 129 S.Ct. 2343, 2351, 174 L.Ed.2d 119 (2009).
The district court properly applied the legal standards governing the ADEA claim. Assuming, arguendo, that Plaintiff established a prima facie case of age discrimination, Defendants articulated legitimate, non-discriminatory reasons for her termination. Defendants’ proffered explanations were supported by, inter alia, Plaintiffs admission that she was often tardy to work, and evidence that she fell asleep at her desk while at the office. Put simply, Plaintiff provided no evidence to support her conclusory assertions that Defendants’ explanations were pretextual. Consistent with that conclusion, the record lacks evidence from which a fact finder could conclude that age-related animus was the “but-for” cause of Plaintiffs termination. See id. at 2351. Accordingly, the district court’s grant of summary judgment on Plaintiffs ADEA claim is affirmed.
Turning to Plaintiffs New York law based defamation claim, this Court reviews de novo the application of the relevant statute of limitations. See, e.g., Somoza v. New York City Dep’t of Educ., 538 F.3d 106, 112 (2d Cir.2008). The eomplained-of conduct occurred on July 5, 2005; Plaintiffs complaint was not received by the district court’s Pro Se Office until July 10, 2006. Therefore, the one-year limitations period set forth in section 215(3) of New York’s Civil Practice Law and Rules bars Plaintiffs defamation claim.
Lastly, the district court’s decisions regarding Plaintiffs equitable tolling arguments and her motion for leave to amend the complaint are reviewed for abuse of discretion. See United States v. All Funds Distributed To, or on Behalf of, Weiss, 345 F.3d 49, 54 (2d Cir.2003); Pangburn v. Culbertson, 200 F.3d 65, 70 (2d Cir.1999). “Equitable tolling applies only in the ‘rare and exceptional circumstance[ ].’ ” Smith v. McGinnis, 208 F.3d 13, 18 (2d Cir.2000) (alteration in original) (quoting Turner v. Johnson, 177 F.3d 390, 391-92 (5th Cir.1999)). The district court was well within the bounds of its discretion when it declined to toll the statute of limitations on Plaintiffs defamation claim. Moreover, the decision to deny as futile Plaintiffs proposed amendment to the complaint was legally sound and supported by the record.
The Court has reviewed Plaintiffs remaining arguments and finds them to be without merit. Accordingly, the judgment of the district court is hereby AFFIRMED.
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SUMMARY ORDER
This is an insider trading case brought by the Securities and Exchange Commission (“SEC”) pursuant to section 17(a) of the Securities Act of 1933 and Section *66510(b) of the Securities and Exchange Act of 1934. Defendant Mitchell Drucker is the former Associate General Counsel of NBTY, Inc., a publicly traded company. Defendant Ronald Drucker is Mitchell Drucker’s father, and “relief’ Defendant William V. Minerva is an acquaintance of Mitchell Drucker.1 The SEC’s theory of the case was that, during the course of his employment, Mitchell Drucker obtained confidential information relating to NBTY’s failure to meet one of its quarterly earnings targets, and then engaged in illegal trading activity based on that material, non-public information.
Defendants appeal the judgment that was entered against them following a jury trial. They raise two principal challenges to the proceedings below: (1) the district court erred in denying their motion for judgment as a matter of law relating to the sufficiency of the evidence; and (2) the posttrial relief ordered by the district court was excessive. We presume the parties’ familiarity with the underlying facts, the procedural history of the case, and the issues on appeal.
With respect to Defendants’ challenge to the sufficiency of the evidence, we review de novo a district court’s ruling on a motion for judgment as a matter of law. See, e.g., Advance Pharm., Inc. v. United States, 391 F.3d 377, 390 (2d Cir.2004). In doing so, the record is reviewed “in the light most favorable to the opposing party, assuming all reasonable inferences were drawn and all credibility disputes resolved in its favor.” Id.
The crux of Defendants’ argument is that there was insufficient evidence to support the jury’s conclusion that Mitchell Drucker possessed confidential information relating to NBTY prior to the time of the illicit trades on the afternoon of October 18, 2001. However, the SEC offered evidence of two sets of circumstances through which Mitchell Drucker could have obtained the information in question.
First, there was evidence to support a reasonable inference that, on the afternoon of October 18, 2001, Mitchell Drucker overheard a phone call relating to the manner in which NBTY would disclose its earnings shortfall. Second, there was witness testimony that “close to lunchtime” on October 18, NBTY’s Chief Financial Officer held a meeting with Mitchell Drucker and NBTY’s General Counsel, during which they began to draft the press release regarding NBTY’s quarterly earnings. Although there was conflicting evidence relating to both of these events, the jury was entitled to credit the testimony supporting the SEC’s position. Therefore, Judge McMahon did not err by denying Defendants’ motion for judgment as a matter of law with respect to the sufficiency of the evidence.
Following the jury’s verdict, Judge McMahon entered a judgment and order that: (1) required Defendants to pay $201,146.34 in disgorgement and pre-judgment interest; (2) imposed a $394,486 civil penalty upon Mitchell Drucker; (3) enjoined both Mitchell and Ronald Drucker from violating the federal securities laws; *666and (4) barred Mitchell Drucker from serving as an officer or director of a publicly traded company. Defendants argue that the terms of this judgment are excessive and unduly punitive.
A district court’s imposition of posttrial relief in this context is reviewed for abuse of discretion. See SEC v. Lorin, 76 F.3d 458, 461-62 (2d Cir.1996) (disgorgement and injunctive relief); SEC v. Kern, 425 F.3d 143, 153-54 (2d Cir.2005) (civil penalties). As to the disgorgement calculation, we concur with Judge McMahon’s finding that the decline in the price of NBTY’s stock between October 18 and 22, 2001 was sufficiently “connected to the news (first rumored, then confirmed) about the shortfall in NBTY’s earnings.” Based on that finding, Judge McMahon did not abuse her discretion by ordering Defendants to disgorge the value of the approximately 41% that NBTY’s stock price declined when the market learned of the company’s earnings shortfall. The related civil penalty imposed upon Mitchell Drucker — amounting to twice the total disgorgement amount— was within the statutory limitations and reasonable based on the record. See 15 U.S.C. § 78u-l(a)(2). Lastly, Judge McMahon’s findings with respect to the injunctive relief entered against Mitchell Drucker are not inconsistent with the standards previously articulated by this Court. See, e.g., SEC v. Patel, 61 F.3d 137, 140-42 (2d Cir.1995). Therefore, the Court finds no error in the posttrial relief ordered by Judge McMahon.
The Court has reviewed Defendants’ remaining arguments and finds them to be without merit. Accordingly, the judgment of the district court is hereby AFFIRMED.
. The SEC typically names "relief” or "nominal” defendants in enforcement actions in order to facilitate disgorgement and other types of recovery sought by the Commission, even if these defendants are not alleged to have engaged in wrongdoing. See SEC v. Cavanagh, 155 F.3d 129, 136 (2d Cir.1998) ("Federal courts may order equitable relief against a person who is not accused of wrongdoing in a securities enforcement action where that person: (1) has received ill-gotten funds; and (2) does not have a legitimate claim to those funds.”). Minerva, who is pursuing this appeal on a pro se basis, submitted a letter to the Court joining the other Defendants’ arguments in their entirety, and he raises no independent contentions challenging the proceedings below.
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SUMMARY ORDER
Petitioner, a native and citizen of El Salvador, seeks review of a November 10, 2008 order of the Board of Immigration Appeals (“BIA”), which affirmed a June 5, 2007 decision by an Immigration Judge (“IJ”) denying Petitioner’s application for cancellation of removal. We presume the parties’ familiarity with the underlying facts, the procedural history of the case, and the issues raised in the petition.
The IJ denied Petitioner’s application based on the finding that Petitioner had not demonstrated that his removal would result in “exceptional and extremely unusual hardship” to his two children. In reaching that conclusion, the IJ noted that Petitioner “admitted that he did not ... make an effort to secure any corroborative documentary evidence from El Salvador to establish the lack of medical services or speech services for his son,” and that his children would “continue to have family and community support of other relatives” if they remained in the United States. The IJ also found that “[ejmotional hardship caused by severing family and communities ties” was insufficient to justify cancellation, and that Petitioner had not demonstrated that “needed medical and educational services are unavailable” to his children in El Salvador. Before denying the application, the IJ also offered the following observation:
Moreover, it would appear that respondent has the legal means to return to the U.S. in the near future given the approved relative petition filed on his behalf by his [lawful permanent resident] father with a priority date of Aug[ust] 30, 1993 which appears to be current and available in accord with the latest U.S. [Department] of State Visa Bulletin issued for June 2007....
This language serves as the primary basis for Petitioner’s challenge to the IJ’s decision, which he raised on appeal to the BIA and in his petition with this Court.
The BIA denied Petitioner’s appeal, holding that he “failed to demonstrate that his removal would result in exceptional and extremely unusual hardship to his qualifying children, ages 11 and 7 years at the time of the hearing [before the IJ].” The BIA offered three primary reasons in support of this conclusion. First, it noted that Petitioner had not presented “any evidence to support his assertion that comparable medical treatment and educational services would not be available in El Salvador for his son who suffers from asthma and re*670quires speech therapy.” Second, the BIA found that concerns of financial hardship were insufficient to justify cancellation, and that the children’s “relatively young age may make it easier for them to adjust to life in El Salvador.” Finally, the BIA noted that Petitioner’s “siblings and father have legal status in the United States,” which provided the children with the alternative of “remaining] in this country with the familial, medical, and educational support to which they are accustomed.” Notably, Petitioner does not contest the factual bases for any of the BIA’s findings.
After conducting its review of the record, the BIA also rejected Petitioner’s arguments regarding the challenged language in the IJ’s decision:
It is clear that the denial of cancellation of removal was based on the proper legal standard, and not on whether the respondent could immigrate through alternate means. The latter seems more a passing observation, regardless of whether that observation is accurate, rather than an analysis. supporting the denial of the respondent’s request for relief.
Before this Court, Petitioner presents two primary contentions: (1) the IJ’s ruling was tainted by “a clear and unquestionable error of fact and glaring mistake of law”; and (2) the BIA “committed reversible error in guessing that the IJ did not rely on ... erroneous factual finding in rendering [its] decision.”
The scope of this Court’s jurisdiction to consider Petitioner’s arguments is defined by section 242 of the Immigration and Nationality Act, 8 U.S.C. § 1252. Under section 242,
the determination of whether “exceptional and extremely unusual hardship” is present for the purposes of cancellation of removal is beyond our jurisdiction to review, except in those rare cases where the BIA decision on whether this kind of hardship exists is made “without rational justification or based on an erroneous legal standard,” or rests on fact-finding “which is flawed by an error of law.”
Mendez v. Holder, 566 F.3d 316, 322 (2d Cir.2009) (citations omitted) (quoting Barco-Sandoval v. Gonzales, 516 F.3d 35, 39 (2d Cir.2008)). Fact finding “is flawed by an error of law” where “some facts important to the subtle determination of ‘exceptional and extremely unusual hardship’ have been totally overlooked and others have been seriously mischaracterized.” Id. at 323.
Notwithstanding the apparent merit of Petitioner’s objection to the challenged language in the IJ’s decision, this Court lacks jurisdiction to review the BIA’s conclusion unless an error occurred that rose to the level of those described in Mendez. Having reviewed Petitioner’s arguments, the Court concludes that the BIA’s decision does not present one of the “rare cases” in which an administrative removal determination is sufficiently flawed to vest appellate jurisdiction with this tribunal. Id. at 322. Irrespective of the accuracy of the IJ’s comment, it was couched in cautious and indefinite terms; rather than making specific findings, the IJ twice used the word “appear.” By contrast, the IJ’s conclusion in the preceding paragraph of the decision is both direct and specific: “[T]he court finds that the respondent has failed to establish and meet his burden of proof to show that the needed medical and educational services are unavailable to [his] children in El Salvador.” Therefore, although the conclusion reached in the challenged portion of the IJ’s decision is dubious, the language of the decision does not indicate that the IJ relied on this reasoning as a basis for denying Petitioner’s application.
*671In any event, the BIA reviewed de novo the IJ’s conclusion as to exceptional and extremely unusual hardship, see 8 C.F.R. § 1003.1(d)(3)(h), and found that the evidence in the record supported the result reached by the IJ. In doing so, the BIA did not rely on the challenged portion of the IJ’s decision. Moreover, contrary to Petitioner’s assertion, there is no indication that the BIA engaged in “de novo fact finding” while reviewing the IJ’s conclusion. “[A] review of the factual record by the BIA does not convert its discretionary determination as to whether a petitioner warrants [relief] into improper factfinding.” Wallace v. Gonzales, 463 F.3d 135, 141 (2d Cir.2006) (per curiam). Finally, Petitioner’s attempt to transform his challenge to the BIA’s conclusion into a constitutional question is likewise unavailing. Mere invocation of the Due Process Clause is insufficient to circumvent the INA’s jurisdictional bar. See Barco-Sandoval, 516 F.3d at 40-41 & n. 6. Therefore, the Court lacks jurisdiction under the INA to review Petitioner’s challenge to the BIA’s decision.
The Court has considered Petitioner’s remaining arguments and finds them to be without merit. Accordingly, the petition for review is DISMISSED.
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SUMMARY ORDER
Asaiah Neptune petitions this Court for review of the July 29, 2008 order of the BIA which denied his application, pursuant to Section 245(e)(2)(B) of the Immigration and Nationality Act (“INA”), for adjustment of status based upon his wife’s United States citizenship, and which ordered him removed from the United States. The BIA’s decision affirmed the order, dated January 9, 2007, of Immigration Judge Alan Vomacka (“the IJ”).
Neptune was born in Port of Spain, Trinidad, on February 27, 1986, and remains a Trinidadian citizen. He married Natalie McIntosh, a United States citizen, on November 14, 2005. Neptune entered the United States, in June 2001, on a six-month visa, but did not return to Trinidad upon the expiration of the visa. Neptune currently lives with his wife in Brooklyn.
At his merits hearing before the IJ, on November 17, 2006, Neptune testified to his prior involvement in selling drugs, admitting that he had sold crack cocaine “[l]ess than 10 times.” On December 2, 2003, when he was seventeen years old, Neptune was arrested on Astor Place in Manhattan for selling crack. He was subsequently charged with possession and sale of a controlled substance. Neptune pleaded guilty to these charges, on December 18, 2003, in New York Supreme Court, New York County, and was sentenced to a term of four months’ imprisonment based upon his status as a youthful offender.
In his oral ruling, the IJ denied Neptune’s application for adjustment of status because of his inadmissibility pursuant to Section 1182(a)(2)(c)(i) of the INA, which provides that an alien shall be deemed inadmissible if the Attorney General “knows or has reason to believe” that the alien “is or has been an illicit trafficker in any controlled substance.” The IJ specifically found that Neptune’s status as a youthful offender was irrelevant to his eligibility for relief because a “reason to believe” that an alien has been involved in drug trafficking “does not require the existence of a conviction. In fact, [it] does not require that a conviction or even a criminal prosecution have ever commenced, occurred, etcetera.” Thus, the IJ continued, given his admittance of his involvement in drug trafficking, Neptune’s status as a youthful offender “is not sufficient to insulate [him] from the Federal immigration law requirements for a person seeking adjustment of status.” The IJ concluded that “because I believe the relief [of adjustment of status] is not available to the respondent as a matter of law, because of the reason to believe that he has been involved in drug trafficking, I do find that the application for adjustment must be denied.” The BIA affirmed the IJ, and specifically upheld the IJ’s reliance upon Matter of Favela, 16 I. & N. Dec. 753 (BIA 1979).
“Where the BIA adopts the decision of the IJ and merely supplements the IJ’s *673decision, ... we review the decision of the IJ as supplemented by the BIA.” Yan Chen v. Gonzales, 417 F.3d 268, 271 (2d Cir.2005). We review de novo questions of law and the application of law to undisputed fact. See Salimatou Bah v. Mukasey, 529 F.3d 99, 110 (2d Cir.2008).
Neptune’s sole cognizable argument concerns the agency’s reliance upon Matter of Favela. That case concerned the exclusion proceedings of a Mexican alien, who had been convicted of attempting to smuggle marijuana into the United States, but whose conviction had been expunged under the terms of the Federal Youth Corrections Act (FYCA”). 16 I. & N. Dec. at 755. The BIA held that exclusion was still proper because of the alien’s involvement in drug trafficking, and specifically rejected the contention that “expungement [pursuant to the FYCA] destroys the conviction as a basis for deportation or exclusion” pursuant to the INA. Id.
Neptune argues that “Favela is no longer good law due to changes in the manner in which juvenile delinquents are dealt with ... with respect to federal crimes.” Specifically, Neptune contends that “the FYCA has been repealed” and that, under current law, “although a juvenile who commits an offense is adjudicated a juvenile delinquent, he cannot be convicted of a crime.” Thus, Neptune concludes, the BIA here “relied on an antiquated interpretation of a juvenile delinquent status that has been repealed by an act of Congress to hold that [he] is inadmissable to the United States.”
The obvious rejoinder to this argument is that it in no way addresses the plain terms of Section 1182(a)(2)(c)(i) of the INA which, as the Government points out, do not “require that an alien be convicted of a drug trafficking offense in order to be found inadmissable.” As already noted, that section allows for denial of adjustment of status when the agency “knows or has reason to believe” that the alien “is or has been an illicit trafficker in any controlled substance.” The statute places no qualification upon the basis of knowledge or belief that an alien has engaged in drug trafficking.
Because of Neptune’s testimony before the IJ to the effect that he had been involved in selling crack cocaine, let alone the fact of his arrest and guilty plea, there is no basis for arguing that “reason to believe” within the meaning of Section 1182(a)(2)(c)(i) does not exist here. More importantly, it exists regardless of the fact that Neptune’s conviction under New York law was adjudicated pursuant to his status as a youthful offender. As the Government correctly argues, the “reason to believe” language evidences a clear Congressional intent “not to limit inadmissability ... to those who have been charged or convicted of [a drug trafficking] offense. Rather it ties inadmissability to the act of drug trafficking, irrespective of whether that conduct was ever charged as a criminal offense or not.” Neptune has admitted to the act of drug trafficking; he is therefore subject to being held inadmissable and his petition for adjustment of status was therefore properly denied.
For the reasons stated above, the petition for review is hereby DENIED.
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SUMMARY ORDER
Petitioner Maryia Vladimirovna Simonchyk, a native and citizen of Belarus, seeks review of a July 8, 2008 order of the BIA denying her motion to reopen her removal proceedings. In re Maryia, Vladimirovna Simonchyk, No. A79 326 070 (B.I.A. July 8, 2008). We assume the parties’ familiarity with the underlying facts and procedural history of the case.
We review the BIA’s denial of a motion to reopen for abuse of discretion. *675Ali v. Gonzales, 448 F.3d 515, 517 (2d Cir.2006) (per curiam). Here, the BIA properly denied Simonchyk’s motion to reopen as untimely where she filed it over three years after her 2004 final order of removal. See 8 C.F.R. § 1003.2(c)(2) (providing that an applicant must file a motion to reopen within ninety days of the final administrative decision). The BIA did not abuse its discretion in finding that Simonchyk failed to present material evidence of changed country conditions sufficient to be exempt from the time limitation. See 8 U.S.C. § 1229a(c)(7)(C)(ii); 8 C.F.R. § 1003.2(c)(3)(h); INS v. Abudu, 485 U.S. 94, 104-05, 108 S.Ct. 904, 99 L.Ed.2d 90 (1988). While the documents she submitted indicate that “religions other than the Belarusian Orthodox Church are not treated with equality in Belarus,” we cannot find that the BIA abused its discretion in concluding that such evidence did not show a likelihood of persecution or otherwise demonstrate changed country conditions sufficient to warrant reopening her proceedings. Accordingly, the BIA properly denied her motion to reopen.
For the foregoing reasons, the petition for review is DENIED. As we have completed our review, any stay of removal that the Court previously granted in this petition is VACATED, and any pending motion for a stay of removal in this petition is DISMISSED as moot. Any pending request for oral argument in this petition is DENIED in accordance with Federal Rule of Appellate Procedure 34(a)(2), and Second Circuit Local Rule 34(b).
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SUMMARY ORDER
Xhevdet Nuzi, a native and citizen of Albania, seeks review of a June 30, 2008 order of the BIA affirming the July 24, 2006 decision of Immigration Judge (“IJ”) Sandy K. Horn, which denied his application for asylum, withholding of removal, and relief under the Convention Against Torture (“CAT”). In re Xhevdet Nuzi No. A 79 307 558 (B.I.A. June 30, 2008), aff'g No. A 79 307 558 (Immig. Ct. N.Y. City July 24, 2006). We assume the parties’ familiarity with the underlying facts and procedural history in this case.
When the BIA does not expressly “adopt” the IJ’s decision, but its brief opinion closely tracks the IJ’s reasoning, the Court may consider both the IJ’s and the BIA’s opinions for the sake of completeness if doing so does not affect the Court’s ultimate conclusion. Jigme Wangchuck v. DHS, 448 F.3d 524, 528 (2d Cir.2006). This Court reviews the agency’s factual findings under the substantial evidence standard. 8 U.S.C. § 1252(b)(4)(B); see also Manzur v. U.S. Dep’t of Homeland Sec., 494 F.3d 281, 289 (2d Cir.2007). We review de novo questions of law and the application of law to undisputed fact. See Salimatou Bah v. Mukasey, 529 F.3d 99, 110 (2d Cir.2008).
Substantial evidence supports the agency’s conclusion that conditions in Albania have fundamentally changed such that Nuzi does not have a well-founded fear of future persecution. Even if an applicant establishes that he suffered past persecution, the presumption of a well-founded fear that arises upon such a showing may be rebutted where the agency finds that there has been a fundamental change in circumstances such that the ap*677plicant no longer has a wellfounded fear of persecution in his country of nationality. 8 C.F.R. § 1208.13(b)(1). When determining whether conditions in a country “that is the subject of an appreciable proportion of asylum claims,” such as Albania, have changed, the agency “need not enter specific findings premised on record evidence.” Hoxhallari v. Gonzales, 468 F.3d 179, 187 (2d Cir.2006); see id. (affirming the agency’s finding that an applicant was ineligible for asylum or withholding of removal based on changed country conditions in Albania).
Here, the IJ considered the expert testimony that Nuzi submitted in support of his application, but concluded that it was “not helpful” in “explaining] away the ... substantial political changes that have occurred in [Albania] that [have] resulted in the dissipation of his claim of persecution .... ” While Nuzi argues that the agency erred in failing to consider the “deeply political nature” of Nuzi’s family’s land dispute, the IJ properly found that the expert testimony failed to indicate that, given the Democratic Party’s control of the Albanian government, Nuzi would have an objectively reasonable fear of persecution on account of his previous land feud with local police and members of the Socialist Party.
Finally, to the extent Nuzi argues that the IJ erred in failing to consider expert testimony indicating that corruption and violence in Albania remain major problems which would cause “serious problems for his safety” if he were to return to Albania, this argument fails, as “[g]eneral violence” and civil strife do not “form a basis for petitioner’s well-founded fear of persecution.” Melgar de Torres v. Reno, 191 F.3d 307, 314 n. 3 (2d Cir.1999).
Because we find no error in the agency’s changed country conditions finding, the agency properly denied Nuzi’s application for asylum, withholding of removal, and CAT relief, where all three claims were based on the same factual predicate.2 See Hoxhallari, 468 F.3d at 187; see also Paul v. Gonzales, 444 F.3d 148, 156 (2d Cir.2006).
For the foregoing reasons, the petition for review is DENIED. As we have completed our review, any stay of removal that the Court previously granted in this petition is VACATED, and any pending motion for a stay of removal in this petition is DISMISSED as moot. Any pending request for oral argument in this petition is DENIED in accordance with Federal Rule of Appellate Procedure 34(a)(2), and Second Circuit Local Rule 34(b).
. To the extent that Nuzi argues for the first time that he is entitled to humanitarian asylum, we decline to consider his argument because he failed to raise it to the BIA. See Lin Zhong v. U.S. Dep’t of Justice, 480 F.3d 104, 119-20 (2d Cir.2007).
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SUMMARY ORDER
Xiu Mei Chen, a native and citizen of the People’s Republic of China, seeks review of a May 15, 2008 order of the BIA denying her motion to reopen. In re Xiu Mei Chen, No. A98 255 788 (B.I.A. May 15, 2008). We assume the parties’ familiarity with the underlying facts and procedural history of the case.
Insofar as Chen challenges the Immigration Judge’s (“IJ”) decision, our review is limited only to the BIA’s denial of Chen’s motion to reopen. See Ke Zhen Zhao v. U.S. Dep’t of Justice, 265 F.3d 83, 90 (2d Cir.2001). We review the BIA’s denial of a motion to reopen for abuse of discretion. See Ali v. Gonzales, 448 F.3d 515, 517 (2d Cir.2006).
A motion to reopen must be supported by evidence that is “material and was not available and could not have been discovered or presented” at the movant’s former hearing. 8 C.F.R. § 1003.2(c)(1). Here, Chen argues that the BIA abused its discretion when it refused, based on the IJ’s prior adverse credibility determination, to credit the evidence Chen submitted with her motion. Chen asserts that while her application for asylum was based on a claim of past persecution, her motion to reopen “shifted to fear of future persecution,” and therefore, the prior adverse credibility determination was an insufficient basis upon which to deny her motion. This argument, however, is unavailing.
“[A]n applicant may prevail on a theory of future persecution despite an IJ’s adverse credibility ruling as to past persecution, so long as the factual predicate of the applicant’s claim of future persecution is independent of the testimony that the IJ found not to be credible.” Paul v. Gonzales, 444 F.3d 148, 154 (2d Cir.2006) (emphasis omitted). Despite her arguments to the contrary, Chen’s claim of future persecution rests on the same factual predicate that the IJ found not to be credible— her claim that Chinese authorities seek her arrest because she violated the family *679planning policy. It was thus proper for where, as it found, the evidence was no more credible than that previously submitted. See Kaur v. BIA, 413 F.3d 232, 234 (2d Cir.2005) (finding no abuse of discretion where the BIA denied a motion to reopen because the petitioner failed to rebut the underlying adverse credibility determination); Paul, 444 F.3d at 154. Because Chen alleges no other basis for her fear of persecution, we cannot conclude that the BIA abused its discretion in denying Chen’s motion to reopen.
For the foregoing reasons, the petition for review is DENIED. As we have completed our review, the pending motion for a stay of removal in this petition is DISMISSED as moot.
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SUMMARY ORDER
Petitioner An Guoc Chun, a native and citizen of China, seeks review of the June 5, 2008 order of the BIA denying his motion to reopen. In re An Guoc Chun, No. A29 554 086 (B.I.A. June 5, 2008). We assume the parties’ familiarity with the underlying facts and procedural history of the case.
We review the BIA’s denial of a motion to reopen for abuse of discretion, mindful of the Supreme Court’s admonition that such motions are “disfavored.” Ali v. Gonzales, 448 F.3d 515, 517 (2d Cir.2006) (citing INS v. Doherty, 502 U.S. 314, 322-23, 112 S.Ct. 719, 116 L.Ed.2d 823 (1992)). Here, we conclude that the BIA did not abuse its discretion in denying Chun’s second motion to reopen as untimely. An alien may only file one motion to reopen and must do so within 90 days of the final administrative decision. 8 C.F.R. § 1003.2(c)(2). It is beyond dispute that Chun’s motion was both untimely and number barred.
Moreover, the BIA properly found that Chun’s motion did not qualify for the “changed country conditions” exception to the time and number limitations on motions to reopen. See 8 C.F.R. § 1003.2(c)(3)(h). It is well-settled that a change in personal circumstances, such as Chun’s recent involvement with pro-democracy activities, is not evidence of changed country conditions. See Wei Guang Wang v. BIA, 437 F.3d 270, 273-274 (2d Cir.2006); Li Yong Zheng v. U.S. Dep’t of Justice, 416 F.3d 129, 130-31 (2d Cir.2005). Furthermore, the BIA reasonably found that persecution of pro-democracy activists has been ongoing in China and that Chun failed to establish that this type of persecution had changed since his last hearing in 2003.
Further, while Chun suggests that the BIA erred in failing to consider all his evidence, a review of the record reveals that the BIA reasonably considered that evidence and found that it failed to overcome the adverse credibility determination *683made by the IJ during Chun’s initial immigration proceedings. See Wei Guang Wang, 437 F.3d at 273-275; Qin Wen Zheng v. Gonzales, 500 F.3d 143, 147 (2d Cir.2007). Accordingly, the BIA’s denial of Chun’s motion to reopen was not an abuse of discretion. See 8 C.F.R. § 1003.2(c); Wei Guang Wang, 437 F.3d at 275.
Finally, insofar as Chun argues that the court should remand to the BIA “for a full hearing on the merits of [his] new claim for asylum and withholding of deportation based upon political opinion,” that argument also fails. Chun never asked the BIA to consider a “new claim for asylum and withholding of deportation,” but only requested reopening of his initial immigration proceedings based on changed country circumstances, which is an independent form of relief separate and distinct from a successive, untimely asylum application based on changed circumstances. Compare 8 C.F.R. § 1003.2(c)(3)(ii), with 8 U.S.C. § 1158(a)(2)(D). See also Guan v. BIA, 345 F.3d 47, 49 (2d Cir.2003) (concluding that, although petitioner failed to show that the agency abused its discretion in denying her motion to reopen, there was another potential “administrative remedy open to [petitioner]” in the form of a “successive, untimely asylum application”). Thus, the BIA never considered this request, and we cannot review it on appeal. However, “[w]hile the government argues that this Court lacks jurisdiction to review the discretionary denial of permission to file a successive petition under 8 U.S.C. § 1158(a)(3), [Chun] may still pursue this relief even if further judicial review is unavailable.” Id.
For the foregoing reasons, the petition for review is DENIED. As we have completed our review, any stay of removal that the Court previously granted in this petition is VACATED, and any pending motion for a stay of removal in this petition is DISMISSED as moot. Any pending request for oral argument in this petition is DENIED in accordance with Federal Rule of Appellate Procedure 34(a)(2), and Second Circuit Local Rule 34(b).
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SUMMARY ORDER
Appellant Walter Spagnola appeals from a final judgment of the district court after a June 21, 2007 jury verdict awarding Appellee Julia Basile $150,000.00 in compensatory damages and $50,000.00 in punitive damages in her action against Spagnola pursuant to 42 U.S.C. § 1983. We assume the parties’ familiarity with the underlying facts, the procedural history of the case, and the issues on appeal.
Spagnola argues that the district court erred by denying his motion for judgment as a matter of law under Federal Rule of Civil Procedure Rule 50. We review the court’s denial de novo, requiring the movant to show that there is no legally sufficient evidentiary basis for a reasonable jury to find in favor of the nonmovant. Cross v. N.Y. City Transit Auth., 417 F.3d 241, 247-48 (2d Cir.2005). In reviewing the sufficiency of the evidence, we draw all inferences in favor of the non-moving party; this means we cannot determine the credibility of witnesses, weigh conflicting evidence, or substitute our judgment for that of the jury. Gronowski v. Spencer, 424 F.3d 285, 291-92 (2d Cir. 2005). We may not retry the case ourselves. Id. at 292. We may only overturn a jury’s verdict when no evidence exists to support that result, or there exists such overwhelming evidence in favor of the appellant that the verdict is unreasonable. LeBlanc-Sternberg v. Fletcher, 67 F.3d 412, 429 (2d Cir.1995).
In this case, Basile presented testimony from herself and two other witnesses about multiple incidents of inappropriate behavior by Spagnola. These witnesses detailed inappropriate behavior by Spagnola, including touching Basile’s thighs and breasts, offering her job security in return for sex, and showing up uninvited at Basic’s residence. Based on the offensive behavior described, the jury’s conclusion was reasonable. The evidence was sufficient to find that there was a hostile work environment because such conduct was hostile, severe, and abusive. See Quinn v. Green Tree Credit Corp., 159 F.3d 759, 767-68 (2d Cir.1998). The court properly denied Spagnola’s Rule 50 motion.
Spagnola also argues that the district court erred in denying his in limine motions regarding Basile’s prior sexual conduct and a conviction for petit larceny. We review the district court’s evidentiary rulings for abuse of discretion. United States v. Fell, 531 F.3d 197, 209 (2d Cir.2008).
The district court did not abuse its discretion when it denied Spagnola’s motion in limine concerning Basile’s sexual conduct at the workplace. Under Federal Rule of Evidence 412, evidence of a plaintiff’s sexual behavior or sexual predisposition is inadmissible except in limited circumstances when the prejudicial effect of the evidence is substantially outweighed by its probative value. FedR.Evid. 412.
We have previously held that Rule 412 applies to sexual harassment lawsuits. *690Wolak v. Spucci, 217 F.3d 157, 160 (2d Cir.2000). We have also established that a plaintiffs private sexual behavior does not change her expectations or entitlement to a workplace free of sexual harassment. Id. Spagnola sought to introduce testimony that Basile had flashed her breasts at the workplace when Basile was off-duty. Spagnola did not witness the event himself, relying on hearsay from a co-worker. The court declined to admit the evidence, finding that the prejudicial effect of the evidence outweighed the probative value. However, the court stated that the ruling was merely a preliminary one, and provided Spagnola the opportunity to produce eyewitnesses who could testify as to the incident. He failed to do so. In light of this, it was not an abuse of discretion for the court to deny Spagnola’s motion in limine and preclude evidence of Basile’s sexual conduct.
The district court also did not err when it refused to admit evidence of Basile’s prior conviction for petit larceny. Spagnola wished to use Basile’s conviction to impeach her, alleging she had misrepresented her criminal history on her job application. The court provided Spagnola with the opportunity to glean the impeachment value of the conviction through a specific question targeted at uncovering her alleged deceit, not the fact of the conviction itself. Spagnola took the opportunity to do so. He now alleges that this was insufficient and that Basile’s prior conviction should have been automatically admissible.
Prior convictions may be admissible in order to impeach a witness’s credibility. Fed.R.Evid. 609. However, where the record indicates that Spagnola did not provide sufficient evidence for the district court to determine the facts underlying the petit larceny conviction or whether the date of conviction was more than ten years earlier, the district court could not properly engage in the analysis required by Rule 609. The court did allow Spagnola to attack Basile’s credibility more generally. The court did not abuse its discretion.
Accordingly, the district court judgments denying the Rule 50 motion and denying the motions in limine are hereby AFFIRMED.
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SUMMARY ORDER
Plaintiffs-appellants Timothy J. Deebs and William Drake appeal from the judgment, dated April 30, 2008, of the United States District Court for the Western District of New York (Larimer, J.), granting the summary judgment motion of defendant-appellant ALSTOM Transportation, Inc. (“ALSTOM”) as to all of their claims. The judgment memorializes the district court’s decision and order, dated April 29, 2008, which granted the summary judgment motion. See Deebs v. ALSTOM Transportation, Inc., 550 F.Supp.2d 385 (W.D.N.Y.2008).
We assume the parties’ familiarity with the events giving rise to the instant suit and we therefore set forth no detailed recitation of the facts. This is an age discrimination action brought pursuant to the Age Discrimination in Employment Act (“ADEA”), 29 U.S.C. Section 62 et seq., and New York Human Rights Law, N.Y. Exec. Law Section 290 et seq. There is no dispute that both of the plaintiffs are of sufficient age to invoke the protection of these statutes and that they both properly exhausted their administrative remedies before filing suit.
*656Both plaintiffs were formerly employed by ALSTOM, a firm that manufactures railway cars. According to the first amended complaint, Drake worked for ALSTOM and its predecessor firm from 1985 until his termination, on May 25, 2005, at which time he held the position of Production Line Supervisor. The responsibilities of this position included the supervision of craft workers. ALSTOM’s central response to Drake’s claim of discrimination is that his termination, which occurred as part of a general force reduction, was proper because Drake had significant shortcomings with respect to meeting the challenges of his supervisory role.
Deebs was initially offered employment by ALSTOM for the position of Test Technician on May 29, 2002. This offer was made in spite of the fact that Deebs had received a failing grade of 55% — a pass required a score of 65% — on a test of electronics knowledge. The supervisor who hired Deebs, Gerald W. Van Dyke, stated in an affidavit that he decided to hire Deebs in spite of his failing grade because ALSTOM “was in desperate need of test technicians on the second shift at that time.” Deebs re-took the electronics knowledge test on July 6, 2005 and this time received the failing grade of 38%. Van Dyke decided to terminate Deebs on July 27, 2005. ALSTOM contends, inter alia, that Deebs was terminated because of his failing grades on the test, and in turn, his failure to improve his work performance in response to criticism by supervisors. In March 2006 an employment agency hired Deebs and assigned him to work in ALSTOM’s warehouse performing quality control functions. In slightly over a week, however, Deebs was removed from the position. Deebs alleges that this firing was an act of retaliation by ALSTOM for his having filed a discrimination complaint with the EEOC.
“We review a grant of summary judgment de novo.” Roe v. City of Waterbury, 542 F.3d 31, 35 (2d Cir.2008). As did the district court, we analyze the plaintiffs’ ADEA claims under the familiar standard set forth , in McDonnell Douglas Corp. v. Green, 411 U.S. 792, 802-04, 93 S.Ct. 1817, 36 L.Ed.2d 668 (1973). See Abdu-Brisson v. Delta Air Lines, Inc., 239 F.3d 456, 466-67 (2d Cir.2001) (applying McDonnell Douglas test to ADEA claim). The plaintiffs’ claims under New York State Human Rights Law are subject to the same analysis. See id. at 466.
The district court’s well-reasoned opinion should be affirmed. We first note that both plaintiffs rely almost exclusively upon their own deposition testimony in order to support their claims. We therefore think ALSTOM correctly asserts that “the only ‘evidence’ cited in plaintiffs’ brief is their own self-serving testimony” and that the plaintiffs have “made no attempt ... to square their own speculative, and subjective, testimony with the hard evidence adduced during discovery.” Such evidence is insufficient to defeat summary judgment. See Meiri v. Dacon, 759 F.2d 989, 998 (2d Cir.1985) (allowing “a party to defeat a motion for summary judgment by offering purely conclusory allegations of discrimination, absent any concrete particulars, would necessitate a trial” in all employment discrimination actions). Even if this Court assumes that both plaintiffs have made out a prima facie case under the ADEA, both of them have failed to adduce sufficient evidence to raise a material issue of fact as to whether ALSTOM’s asserted reasons for their terminations are pretextual subterfuges for discriminatory conduct.
With respect to Drake’s claim, the record amply demonstrates that, long before his termination, his superiors were concerned with his brusque manner in *657dealing with those employees he was charged with supervising. Most importantly, this Court has long held that ADEA claims arising from the results of a firm’s force reduction will generally not lie where the record “demonstrate[s] that the reorganization was a business decision made on a rational basis.” Parcinski v. Outlet Co., 673 F.2d 34, 37 (2d Cir.1982). The record plainly so demonstrates here.
It is of no moment that Drake “was never informed about a reduction in force” before he was terminated. And Drake’s vague assertion that “younger employees were hired during the time of [his] termination is insufficient to raise a material issue of fact as to whether Drake’s position was eliminated pursuant to a legitimate reduction in force. First, ALSTOM provides unrebutted evidence of Drake’s history of performance issues regarding his relations with other employees. Second, and more importantly, Drake does nothing to counter ALSTOM’s demonstration that the reduction in force left a considerable number of ADEA-protected employees in their jobs, while claiming the jobs of a number of younger employees, facts which the district court correctly found were highly indicative of a lack of discriminatory intent. See, e.g., Parcinski, 673 F.2d at 36-37 (fact that 75% of work force left after force reduction was under ADEA protection demonstrates lack of age-based animus).
If anything, Deebs’s claims are even weaker. The record amply demonstrates that Deebs’s performance evaluations were sub-standard from the date of his employment with ALSTOM. It is undisputed that he twice failed ALSTOM’s test of basic electronics knowledge— achieving a significantly lower score the second time he took the exam—and Deebs does not dispute that the exam is relevant to the assessment of an employee’s qualifications, nor does he cite any evidence which would suggest otherwise. Rather, he asserts that at least one younger employee was allowed to cheat so that he could pass the test. But Deebs bases this assertion upon his own deposition testimony that this younger employee disclosed the cheating to him. The younger employee, in his own deposition testimony, flatly denies that any cheating took place or that he made any such statement to Deebs. Moreover, while Deebs asserts in his brief on this appeal that he has tape-recorded proof to support this claim, his deposition testimony avers only that he taped a conversation with the younger employee. The testimony makes no reference to the content of the taped conversation, and the recording itself has not been placed in the record. The record therefore contains no admissible evidence to support Deebs’s claims. In sum, ALSTOM has made the case that Deebs was terminated because “he lacked competence, he failed basic electronics skills tests that were administered to assess those skills, and he failed to successfully complete” a term of probationary employment.
Finally, Deebs’s claim that his second termination by ALSTOM—the termination from the warehouse position—was retaliatory also fails. Even assuming that the firm can be charged with knowledge that Deebs had filed a discrimination complaint with the EEOC prior to the second termination, Deebs supports his claim of retaliation with nothing but the proximity between his administrative filing and his second firing. But the law is clear that “[w]here timing is the only basis for a claim of retaliation, and gradual adverse job actions began well before the plaintiff had ever engaged in any protected activity, an inference of retaliation does not arise.” Slattery v. Swiss Reinsurance America Corp., 248 F.3d 87, 95 (2d Cir.2001) (no inference of retaliation where plaintiff was *658placed on probation and fired a short time after filing an EEOC complaint since the adverse employment actions were part of an extensive period of discipline which began five months prior to the filing). Because of Deebs’s poor performance record, and subsequent legitimate firing on the basis of that record, Deebs’s second firing does not raise an inference of retaliation because ALSTOM had a basis to believe he would be a poor employee.
For the reasons stated above, the judgment the district court is hereby AFFIRMED.
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SUMMARY ORDER
Plaintiff-Appellant Susan N. Burgess appeals from the judgment, dated March 31, 2008, of the United States District Court for the Western District of New York which granted the defendants’ motions to dismiss her federal law claims. The judgment memorializes Judge Siragusa’s decision and order, dated March 28, 2008, 2008 WL 850336, which granted the motions and declined to exercise jurisdiction over Burgess’s common law claims.
We assume the parties’ familiarity with the complicated events giving rise to the instant suit. According to her complaint, which was filed on June 5, 2007, Burgess is “a solo practitioner attorney,” residing in Brockport, New York. In 2003, Burgess filed an employment discrimination complaint in the U.S. District Court for the Western District of New York on behalf of Rene Wood (“the Wood action”), a part-time special education co-teacher who had been employed by the Pittsford Central School Distinct (“the District”). Named as defendants in that complaint were the District, the Board of Education of the Pitts-ford Central School District (“the Board”), and John P. Schiess, the District’s Director of Human Resources (collectively “the School Defendants”). The School Defendants were represented in the Wood action by Harris Beach PLLC, a law firm located in Pittsford which employed Rayne Hammond Benz as an associate (collectively “Harris Beach”).
The instant suit concerns allegations of discovery abuse in the Wood action, which Burgess contends amounted to “a calculated scheme among defendants to frame” her in the eyes of the district court and to call into question her “fitness as an attorney.” Briefly, these allegations involve Burgess’s interactions with a potential third-party witness in the Wood action, “Jane Doe.” Burgess asserts that the concerted actions of the School Defendants and Harris Beach with respect to her contacts with Doe amounted to a plan
designed not only to prevent plaintiff from having further contact with Doe, who was upset with the District and had expressed that she might sue the District, but [also] to prevent plaintiff from speaking to any other District employee who might either have information that would further plaintiffs case in [the Wood action] or who might have claims of their own against the District.
Based upon these allegations, Burgess asserts federal law claims for violation of her rights under the First Amendment and 42 U.S.C. Section 1983, and for retaliation under Title IX of the Education Amendments, 20 U.S.C. Section 1681, and Section 504 of the Rehabilitation Act, 29 U.S.C. Section 794. Burgess also asserts New York state law claims of defamation, false light, prima facie tort, intentional infliction of emotional distress, tortious in*660terference with prospective business relations, and malicious prosecution.
“We review de novo a district court’s dismissal of a complaint pursuant to Rule 12(b)(6), construing the complaint liberally, accepting all factual allegations in the complaint as true, and drawing all reasonable inferences in the plaintiff’s favor.” Chambers v. Time Warner, Inc., 282 F.3d 147, 152 (2d Cir.2002). On the other hand, “ ‘[l]egal conclusions, deductions or opinions couched as factual allegations are not given a presumption of truthfulness.’ ” U.S. v. Bonanno Organized Crime Family of La Cosa Nostra, 879 F.2d 20, 27 (2d Cir.1989) (quoting 2A J. Moore, Moore’s Federal Practice, ¶ 12.07[2-5] at 63-64 (2d ed.1987)).
A. First Amendment/Section 1983 Claims. The district court correctly construed Burgess’s First Amendment claim as being brought under 42 U.S.C. Section 1983. In order to survive a motion to dismiss a First Amendment claim, a plaintiff must allege, inter alia, “that the speech or conduct at issue was protected.” Davis v. Goord, 320 F.3d 346, 352 (2d Cir.2003). Burgess asserts in her complaint that she “had a right and an obligation to question potential witnesses in [the Wood action] and was exercising her constitutional right to free speech in doing so.” But she has cited no authority — and we are aware of none — that supports the legal conclusion that an attorney’s capacity to effectively represent her client through unfettered contact with third party witnesses implicates any constitutional right of the attorney’s.1
B. Title IX/Rehabilitation Act Claims. The Supreme Court has held that Title IX implies a private cause of action which encompasses “Retaliation against a person because that person has complained of sex discrimination.” Jackson v. Birmingham Bd. of Educ., 544 U.S. 167, 173, 125 S.Ct. 1497, 161 L.Ed.2d 361 (2005). These standards also apply to employment discrimination claims brought under Title VII and Title IX. See Weinstock v. Columbia Univ., 224 F.3d 33, 42 n. 1 (2d Cir.2000) (citations omitted). The elements of á retaliation claim under the Rehabilitation Act are the same as the Americans with Disability Act, see Weixel v. Bd. of Educ. of New York, 287 F.3d 138, 148-49 (2d Cir.2002), which makes it unlawful for an employer to “discriminate against any individual because such individual has opposed any act or practice made unlawful by this chapter or because such individual made a charge, testified, assisted, or participated in any manner in an investigation, proceeding, or hearing under this chapter.” 42 U.S.C. § 12203(a).
“Title VII, by its terms, applies only to employees.” Salamon v. Our Lady of Victory Hosp., 514 F.3d 217, 226 (2d Cir.2008). Neither the Rehabilitation Act nor Title IX, however, are limited to discrimination against employees. See, e.g., Murray v. New York Univ. College of Dentistry, 57 F.3d 243, 248 (2d Cir.1995) (noting that “Title IX has been construed to prohibit gender discrimination against both students enrolled in federally supported educational programs and employees involved in such programs”); J.S. ex rel. N.S. v. Attica Cent. Schs., 386 F.3d 107 (2d Cir.2004) (disabled students brought action alleging violation of Rehabilitation Act against school district). Nevertheless, the district court properly dismissed Burgess’s retaliation claims because she does not have a relationship with any of the defendants that would allow her to invoke the protections of these statutes.
*661Burgess was not employed by any of the defendants, nor was she a student in the District. Instead, Burgess was an attorney who had brought an employment discrimination action on behalf of a client against the District, which was defended by Harris Beach. Without a direct relationship between herself and any of the defendants, there was no materially adverse action that any of the defendants could have taken against Burgess and therefore no way for them to have retaliated against her. See Burlington N. & Santa Fe Ry. Co. v. White, 548 U.S. 53, 68, 126 S.Ct. 2405, 165 L.Ed.2d 345 (2006) (noting that for action to be materially adverse it would “dissuade ... a reasonable worker from making or supporting a charge of discrimination”). Accordingly, the district court correctly dismissed Burgess’s retaliation claims.
Burgess argues that a regulation promulgated by the U.S. Department of Education indicates that even individuals without a direct relationship to a school district may bring a Title IX claim. See 34 C.F.R. Section 100.7(c) (“No recipient or other person shall intimidate, threaten, coerce, or discriminate against any individual for the purpose of interfering with any right or privilege secured by section 601 of the Act or this part, or because he has made a complaint, testified, assisted, or participated in any manner in an investigation, proceeding or hearing under this part.”; emphasis added). Assuming arguendo that Burgess’s interpretation of the regulation is correct, the Supreme Court made clear in Jackson that the private right of action it recognized for Title IX retaliation did not depend on the regulations and instead arose directly from the statute. See Jackson, 544 U.S. at 178, 125 S.Ct. 1497 (“We do not rely on regulations extending Title IX’s protection beyond its statutory limits; indeed, we do not rely on the Department of Education’s regulation at all, because the statute itself contains the necessary prohibition.”). The regulation therefore does not save Burgess’s claim, because there is no private right of action to enforce the regulation to the extent that it extends Title IX protections beyond the plain meaning of the statute. See id. at 178 n. 2, 125 S.Ct. 1497 (“[P]laintiffs may not assert claims under Title IX for conduct not prohibited by that statute.”).
C. Supplemental Jurisdiction. We review the district court’s decision regarding the exercise of supplemental jurisdiction over state law claims for abuse of discretion. See Marcus v. AT & T Corp., 138 F.3d 46, 57 (2d Cir.1998); 28 U.S.C. § 1367(c). In general, where the federal claims are dismissed before trial, the state claims should be dismissed as well. See Purgess v. Sharrock, 33 F.3d 134, 138 (2d Cir.1994). Burgess has not posited any reason warranting a departure from this rule. Accordingly, we affirm the district court’s decision declining to exercise supplemental jurisdiction.
D. Motion to Amend the Complaint. Finally, the district court did not abuse its discretion by not allowing Burgess to amend her complaint. See Jones v. N.Y. State Div. of Military & Naval Affairs, 166 F.3d 45, 49 (2d Cir.1999).
For the foregoing reasons, the judgment of the district court is hereby AFFIRMED
. Burgess’s Section 1983 claim against Harris Beach also fails because Harris Beach is not a state actor within the meaning of the statute. See Polk County v. Dodson, 454 U.S. 312, 318, 102 S.Ct. 445, 70 L.Ed.2d 509 (1981).
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SUMMARY ORDER
Plaintiff appeals the decision granting Defendants’ motion for summary judgment on her employment discrimination claim pursuant to the Age Discrimination in Employment Act (“ADEA”), 29 U.S.C. § 621 et seq. Plaintiff also challenges the district court’s separate dismissal of her state-law defamation claim pursuant to Rule 12(b)(6) of the Federal Rules of Civil Procedui’e, as well as the court’s subsequent denial of her motion for leave to amend the complaint. We presume the parties’ familiarity with the underlying facts, the procedural history of the case, and the issues on appeal.
With respect to Plaintiffs age discrimination claim, a district court’s order granting summary judgment is reviewed de novo, and all reasonable inferences are drawn in favor of the non-movant, Ms. Wellesley. See Miller v. Wolpoff & Abramson, L.L.P., 321 F.3d 292, 300 (2d Cir.2003). In this Circuit, ADEA claims are evaluated under the three-step burden-shifting framework set forth in McDonnell Douglas Corp. v. Green, 411 U.S. 792, 802, 93 S.Ct. 1817, 36 L.Ed.2d 668 (1973). See, *663e.g., D’Cunha v. Genovese/Eckerd Corp., 479 F.3d 193, 194-95 (2d Cir.2007) (per curiam). To prevail on such a claim, the plaintiff must establish by a preponderance of the evidence that age discrimination was the “but-for” cause of the challenged adverse employment action. Gross v. FBL Fin. Servs., Inc., — U.S. -, 129 S.Ct. 2343, 2351, 174 L.Ed.2d 119 (2009).
The district court properly applied the legal standards governing the ADEA claim. Assuming, arguendo, that Plaintiff established a prima facie case of age discrimination, Defendants articulated legitimate, non-discriminatory reasons for her termination. Defendants’ proffered explanations were supported by, inter alia, Plaintiffs admission that she was often tardy to work, and evidence that she fell asleep at her desk while at the office. Put simply, Plaintiff provided no evidence to support her conclusory assertions that Defendants’ explanations were pretextual. Consistent with that conclusion, the record lacks evidence from which a fact finder could conclude that age-related animus was the “but-for” cause of Plaintiffs termination. See id. at 2351. Accordingly, the district court’s grant of summary judgment on Plaintiffs ADEA claim is affirmed.
Turning to Plaintiffs New York law based defamation claim, this Court reviews de novo the application of the relevant statute of limitations. See, e.g., Somoza v. New York City Dep’t of Educ., 538 F.3d 106, 112 (2d Cir.2008). The eomplained-of conduct occurred on July 5, 2005; Plaintiffs complaint was not received by the district court’s Pro Se Office until July 10, 2006. Therefore, the one-year limitations period set forth in section 215(3) of New York’s Civil Practice Law and Rules bars Plaintiffs defamation claim.
Lastly, the district court’s decisions regarding Plaintiffs equitable tolling arguments and her motion for leave to amend the complaint are reviewed for abuse of discretion. See United States v. All Funds Distributed To, or on Behalf of, Weiss, 345 F.3d 49, 54 (2d Cir.2003); Pangburn v. Culbertson, 200 F.3d 65, 70 (2d Cir.1999). “Equitable tolling applies only in the ‘rare and exceptional circumstance[ ].’ ” Smith v. McGinnis, 208 F.3d 13, 18 (2d Cir.2000) (alteration in original) (quoting Turner v. Johnson, 177 F.3d 390, 391-92 (5th Cir.1999)). The district court was well within the bounds of its discretion when it declined to toll the statute of limitations on Plaintiffs defamation claim. Moreover, the decision to deny as futile Plaintiffs proposed amendment to the complaint was legally sound and supported by the record.
The Court has reviewed Plaintiffs remaining arguments and finds them to be without merit. Accordingly, the judgment of the district court is hereby AFFIRMED.
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SUMMARY ORDER
Plaintiff-Appellant Fernand Lalanne, pro se, appeals from the judgment of the United States District Court for the Southern District of New York (Buchwald, J.), granting summary judgment in favor of the defendant and dismissing Appellant’s complaint brought pursuant to Title VII, 42 U.S.C. §§ 2000e et seq. We assume the parties’ familiarity with the underlying facts, the procedural history of the case, and the issues on appeal.
We review an order granting summary judgment de novo, and ask whether the district court properly concluded that there were no genuine issues of material fact and that the moving party was entitled to judgment as a matter of law. See Miller v. Wolpoff & Abramson, L.L.P., 321 F.3d 292, 300 (2d Cir.2003).
To establish a prima facie case of retaliation under Title VII, a plaintiff must bring evidence sufficient to permit a rational trier of fact to find: (1) the plaintiff pai’ticipated in a protected activity; (2) the defendant knew of the protected activity; (3) the defendant took adverse employment action against the plaintiff; and (4) a causal connection exists between the protected activity and the adverse employment action. Cifra v. Gen. Elec. Co., 252 F.3d 205, 216 (2d Cir.2001). The burden shifting analysis established in McDonnell Douglas Corp. v. Green, 411 U.S. 792, 93 S.Ct. 1817, 36 L.Ed.2d 668 (1973), applies to retaliation claims brought pursuant to Title VII. See Terry v. Ashcroft, 336 F.3d 128, 140-41 (2d Cir.2003). Accordingly, if a plaintiff alleges a prima facie case of retaliation and the employer demonstrates a legitimate, non-retaliatory reason for the challenged employment decision, the plaintiff must present “evidence that would be sufficient to permit a rational factfinder to conclude that the employer’s explanation is merely a pretext for impermissible retaliation.” Cifra, 252 F.3d at 216.
Here, the district court properly found that, even if Appellant had established a prima facie case of retaliation, he failed to rebut the defendant’s legitimate, non-retaliatory explanation that he was terminated for a budgetary reason. Although the parties disagree as to when Appellant was informed that his position would be eliminated, the evidence demonstrates that the decision had been made by August 2003 (prior to Appellant engaging in protected activity in September 2003), when the funding allocated for Appellant’s position would run out. Appellant concedes that the defendant was able to keep him on longer only by paying him from vacant budget lines for unfilled positions. The record does not reflect that his position remained available to be filled after his termination, nor does it support his contention that others who participated in protected activity and kept their jobs did not provide any information in the investigation. Insofar as Appellant claims that the defendant failed to hire him for another position within the organization, Appellant asserts only that he sent a resume to the human resources department; he identifies no position for which he actually applied and was rejected. See Brown v. Coach Stores, Inc., 163 F.3d 706, 710 (2d Cir.1998) (holding that a Title VII plaintiff *668must allege that he applied for a specific position and was rejected therefrom, unless such a requirement would be “quixotic” under a particular set of facts). Appellant offered no evidence that would permit a reasonable fact-finder to infer that the defendant’s stated reason for dismissal was pretextual; the district court’s grant of summary judgment was therefore proper.
We have considered all of Appellant’s remaining arguments on appeal and find them to be without merit.
Accordingly, there is no basis on which to challenge the judgment of the district court, and it is hereby AFFIRMED.
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SUMMARY ORDER
Petitioner, a native and citizen of El Salvador, seeks review of a November 10, 2008 order of the Board of Immigration Appeals (“BIA”), which affirmed a June 5, 2007 decision by an Immigration Judge (“IJ”) denying Petitioner’s application for cancellation of removal. We presume the parties’ familiarity with the underlying facts, the procedural history of the case, and the issues raised in the petition.
The IJ denied Petitioner’s application based on the finding that Petitioner had not demonstrated that his removal would result in “exceptional and extremely unusual hardship” to his two children. In reaching that conclusion, the IJ noted that Petitioner “admitted that he did not ... make an effort to secure any corroborative documentary evidence from El Salvador to establish the lack of medical services or speech services for his son,” and that his children would “continue to have family and community support of other relatives” if they remained in the United States. The IJ also found that “[ejmotional hardship caused by severing family and communities ties” was insufficient to justify cancellation, and that Petitioner had not demonstrated that “needed medical and educational services are unavailable” to his children in El Salvador. Before denying the application, the IJ also offered the following observation:
Moreover, it would appear that respondent has the legal means to return to the U.S. in the near future given the approved relative petition filed on his behalf by his [lawful permanent resident] father with a priority date of Aug[ust] 30, 1993 which appears to be current and available in accord with the latest U.S. [Department] of State Visa Bulletin issued for June 2007....
This language serves as the primary basis for Petitioner’s challenge to the IJ’s decision, which he raised on appeal to the BIA and in his petition with this Court.
The BIA denied Petitioner’s appeal, holding that he “failed to demonstrate that his removal would result in exceptional and extremely unusual hardship to his qualifying children, ages 11 and 7 years at the time of the hearing [before the IJ].” The BIA offered three primary reasons in support of this conclusion. First, it noted that Petitioner had not presented “any evidence to support his assertion that comparable medical treatment and educational services would not be available in El Salvador for his son who suffers from asthma and re*670quires speech therapy.” Second, the BIA found that concerns of financial hardship were insufficient to justify cancellation, and that the children’s “relatively young age may make it easier for them to adjust to life in El Salvador.” Finally, the BIA noted that Petitioner’s “siblings and father have legal status in the United States,” which provided the children with the alternative of “remaining] in this country with the familial, medical, and educational support to which they are accustomed.” Notably, Petitioner does not contest the factual bases for any of the BIA’s findings.
After conducting its review of the record, the BIA also rejected Petitioner’s arguments regarding the challenged language in the IJ’s decision:
It is clear that the denial of cancellation of removal was based on the proper legal standard, and not on whether the respondent could immigrate through alternate means. The latter seems more a passing observation, regardless of whether that observation is accurate, rather than an analysis. supporting the denial of the respondent’s request for relief.
Before this Court, Petitioner presents two primary contentions: (1) the IJ’s ruling was tainted by “a clear and unquestionable error of fact and glaring mistake of law”; and (2) the BIA “committed reversible error in guessing that the IJ did not rely on ... erroneous factual finding in rendering [its] decision.”
The scope of this Court’s jurisdiction to consider Petitioner’s arguments is defined by section 242 of the Immigration and Nationality Act, 8 U.S.C. § 1252. Under section 242,
the determination of whether “exceptional and extremely unusual hardship” is present for the purposes of cancellation of removal is beyond our jurisdiction to review, except in those rare cases where the BIA decision on whether this kind of hardship exists is made “without rational justification or based on an erroneous legal standard,” or rests on fact-finding “which is flawed by an error of law.”
Mendez v. Holder, 566 F.3d 316, 322 (2d Cir.2009) (citations omitted) (quoting Barco-Sandoval v. Gonzales, 516 F.3d 35, 39 (2d Cir.2008)). Fact finding “is flawed by an error of law” where “some facts important to the subtle determination of ‘exceptional and extremely unusual hardship’ have been totally overlooked and others have been seriously mischaracterized.” Id. at 323.
Notwithstanding the apparent merit of Petitioner’s objection to the challenged language in the IJ’s decision, this Court lacks jurisdiction to review the BIA’s conclusion unless an error occurred that rose to the level of those described in Mendez. Having reviewed Petitioner’s arguments, the Court concludes that the BIA’s decision does not present one of the “rare cases” in which an administrative removal determination is sufficiently flawed to vest appellate jurisdiction with this tribunal. Id. at 322. Irrespective of the accuracy of the IJ’s comment, it was couched in cautious and indefinite terms; rather than making specific findings, the IJ twice used the word “appear.” By contrast, the IJ’s conclusion in the preceding paragraph of the decision is both direct and specific: “[T]he court finds that the respondent has failed to establish and meet his burden of proof to show that the needed medical and educational services are unavailable to [his] children in El Salvador.” Therefore, although the conclusion reached in the challenged portion of the IJ’s decision is dubious, the language of the decision does not indicate that the IJ relied on this reasoning as a basis for denying Petitioner’s application.
*671In any event, the BIA reviewed de novo the IJ’s conclusion as to exceptional and extremely unusual hardship, see 8 C.F.R. § 1003.1(d)(3)(h), and found that the evidence in the record supported the result reached by the IJ. In doing so, the BIA did not rely on the challenged portion of the IJ’s decision. Moreover, contrary to Petitioner’s assertion, there is no indication that the BIA engaged in “de novo fact finding” while reviewing the IJ’s conclusion. “[A] review of the factual record by the BIA does not convert its discretionary determination as to whether a petitioner warrants [relief] into improper factfinding.” Wallace v. Gonzales, 463 F.3d 135, 141 (2d Cir.2006) (per curiam). Finally, Petitioner’s attempt to transform his challenge to the BIA’s conclusion into a constitutional question is likewise unavailing. Mere invocation of the Due Process Clause is insufficient to circumvent the INA’s jurisdictional bar. See Barco-Sandoval, 516 F.3d at 40-41 & n. 6. Therefore, the Court lacks jurisdiction under the INA to review Petitioner’s challenge to the BIA’s decision.
The Court has considered Petitioner’s remaining arguments and finds them to be without merit. Accordingly, the petition for review is DISMISSED.
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SUMMARY ORDER
Asaiah Neptune petitions this Court for review of the July 29, 2008 order of the BIA which denied his application, pursuant to Section 245(e)(2)(B) of the Immigration and Nationality Act (“INA”), for adjustment of status based upon his wife’s United States citizenship, and which ordered him removed from the United States. The BIA’s decision affirmed the order, dated January 9, 2007, of Immigration Judge Alan Vomacka (“the IJ”).
Neptune was born in Port of Spain, Trinidad, on February 27, 1986, and remains a Trinidadian citizen. He married Natalie McIntosh, a United States citizen, on November 14, 2005. Neptune entered the United States, in June 2001, on a six-month visa, but did not return to Trinidad upon the expiration of the visa. Neptune currently lives with his wife in Brooklyn.
At his merits hearing before the IJ, on November 17, 2006, Neptune testified to his prior involvement in selling drugs, admitting that he had sold crack cocaine “[l]ess than 10 times.” On December 2, 2003, when he was seventeen years old, Neptune was arrested on Astor Place in Manhattan for selling crack. He was subsequently charged with possession and sale of a controlled substance. Neptune pleaded guilty to these charges, on December 18, 2003, in New York Supreme Court, New York County, and was sentenced to a term of four months’ imprisonment based upon his status as a youthful offender.
In his oral ruling, the IJ denied Neptune’s application for adjustment of status because of his inadmissibility pursuant to Section 1182(a)(2)(c)(i) of the INA, which provides that an alien shall be deemed inadmissible if the Attorney General “knows or has reason to believe” that the alien “is or has been an illicit trafficker in any controlled substance.” The IJ specifically found that Neptune’s status as a youthful offender was irrelevant to his eligibility for relief because a “reason to believe” that an alien has been involved in drug trafficking “does not require the existence of a conviction. In fact, [it] does not require that a conviction or even a criminal prosecution have ever commenced, occurred, etcetera.” Thus, the IJ continued, given his admittance of his involvement in drug trafficking, Neptune’s status as a youthful offender “is not sufficient to insulate [him] from the Federal immigration law requirements for a person seeking adjustment of status.” The IJ concluded that “because I believe the relief [of adjustment of status] is not available to the respondent as a matter of law, because of the reason to believe that he has been involved in drug trafficking, I do find that the application for adjustment must be denied.” The BIA affirmed the IJ, and specifically upheld the IJ’s reliance upon Matter of Favela, 16 I. & N. Dec. 753 (BIA 1979).
“Where the BIA adopts the decision of the IJ and merely supplements the IJ’s *673decision, ... we review the decision of the IJ as supplemented by the BIA.” Yan Chen v. Gonzales, 417 F.3d 268, 271 (2d Cir.2005). We review de novo questions of law and the application of law to undisputed fact. See Salimatou Bah v. Mukasey, 529 F.3d 99, 110 (2d Cir.2008).
Neptune’s sole cognizable argument concerns the agency’s reliance upon Matter of Favela. That case concerned the exclusion proceedings of a Mexican alien, who had been convicted of attempting to smuggle marijuana into the United States, but whose conviction had been expunged under the terms of the Federal Youth Corrections Act (FYCA”). 16 I. & N. Dec. at 755. The BIA held that exclusion was still proper because of the alien’s involvement in drug trafficking, and specifically rejected the contention that “expungement [pursuant to the FYCA] destroys the conviction as a basis for deportation or exclusion” pursuant to the INA. Id.
Neptune argues that “Favela is no longer good law due to changes in the manner in which juvenile delinquents are dealt with ... with respect to federal crimes.” Specifically, Neptune contends that “the FYCA has been repealed” and that, under current law, “although a juvenile who commits an offense is adjudicated a juvenile delinquent, he cannot be convicted of a crime.” Thus, Neptune concludes, the BIA here “relied on an antiquated interpretation of a juvenile delinquent status that has been repealed by an act of Congress to hold that [he] is inadmissable to the United States.”
The obvious rejoinder to this argument is that it in no way addresses the plain terms of Section 1182(a)(2)(c)(i) of the INA which, as the Government points out, do not “require that an alien be convicted of a drug trafficking offense in order to be found inadmissable.” As already noted, that section allows for denial of adjustment of status when the agency “knows or has reason to believe” that the alien “is or has been an illicit trafficker in any controlled substance.” The statute places no qualification upon the basis of knowledge or belief that an alien has engaged in drug trafficking.
Because of Neptune’s testimony before the IJ to the effect that he had been involved in selling crack cocaine, let alone the fact of his arrest and guilty plea, there is no basis for arguing that “reason to believe” within the meaning of Section 1182(a)(2)(c)(i) does not exist here. More importantly, it exists regardless of the fact that Neptune’s conviction under New York law was adjudicated pursuant to his status as a youthful offender. As the Government correctly argues, the “reason to believe” language evidences a clear Congressional intent “not to limit inadmissability ... to those who have been charged or convicted of [a drug trafficking] offense. Rather it ties inadmissability to the act of drug trafficking, irrespective of whether that conduct was ever charged as a criminal offense or not.” Neptune has admitted to the act of drug trafficking; he is therefore subject to being held inadmissable and his petition for adjustment of status was therefore properly denied.
For the reasons stated above, the petition for review is hereby DENIED.
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SUMMARY ORDER
Xhevdet Nuzi, a native and citizen of Albania, seeks review of a June 30, 2008 order of the BIA affirming the July 24, 2006 decision of Immigration Judge (“IJ”) Sandy K. Horn, which denied his application for asylum, withholding of removal, and relief under the Convention Against Torture (“CAT”). In re Xhevdet Nuzi No. A 79 307 558 (B.I.A. June 30, 2008), aff'g No. A 79 307 558 (Immig. Ct. N.Y. City July 24, 2006). We assume the parties’ familiarity with the underlying facts and procedural history in this case.
When the BIA does not expressly “adopt” the IJ’s decision, but its brief opinion closely tracks the IJ’s reasoning, the Court may consider both the IJ’s and the BIA’s opinions for the sake of completeness if doing so does not affect the Court’s ultimate conclusion. Jigme Wangchuck v. DHS, 448 F.3d 524, 528 (2d Cir.2006). This Court reviews the agency’s factual findings under the substantial evidence standard. 8 U.S.C. § 1252(b)(4)(B); see also Manzur v. U.S. Dep’t of Homeland Sec., 494 F.3d 281, 289 (2d Cir.2007). We review de novo questions of law and the application of law to undisputed fact. See Salimatou Bah v. Mukasey, 529 F.3d 99, 110 (2d Cir.2008).
Substantial evidence supports the agency’s conclusion that conditions in Albania have fundamentally changed such that Nuzi does not have a well-founded fear of future persecution. Even if an applicant establishes that he suffered past persecution, the presumption of a well-founded fear that arises upon such a showing may be rebutted where the agency finds that there has been a fundamental change in circumstances such that the ap*677plicant no longer has a wellfounded fear of persecution in his country of nationality. 8 C.F.R. § 1208.13(b)(1). When determining whether conditions in a country “that is the subject of an appreciable proportion of asylum claims,” such as Albania, have changed, the agency “need not enter specific findings premised on record evidence.” Hoxhallari v. Gonzales, 468 F.3d 179, 187 (2d Cir.2006); see id. (affirming the agency’s finding that an applicant was ineligible for asylum or withholding of removal based on changed country conditions in Albania).
Here, the IJ considered the expert testimony that Nuzi submitted in support of his application, but concluded that it was “not helpful” in “explaining] away the ... substantial political changes that have occurred in [Albania] that [have] resulted in the dissipation of his claim of persecution .... ” While Nuzi argues that the agency erred in failing to consider the “deeply political nature” of Nuzi’s family’s land dispute, the IJ properly found that the expert testimony failed to indicate that, given the Democratic Party’s control of the Albanian government, Nuzi would have an objectively reasonable fear of persecution on account of his previous land feud with local police and members of the Socialist Party.
Finally, to the extent Nuzi argues that the IJ erred in failing to consider expert testimony indicating that corruption and violence in Albania remain major problems which would cause “serious problems for his safety” if he were to return to Albania, this argument fails, as “[g]eneral violence” and civil strife do not “form a basis for petitioner’s well-founded fear of persecution.” Melgar de Torres v. Reno, 191 F.3d 307, 314 n. 3 (2d Cir.1999).
Because we find no error in the agency’s changed country conditions finding, the agency properly denied Nuzi’s application for asylum, withholding of removal, and CAT relief, where all three claims were based on the same factual predicate.2 See Hoxhallari, 468 F.3d at 187; see also Paul v. Gonzales, 444 F.3d 148, 156 (2d Cir.2006).
For the foregoing reasons, the petition for review is DENIED. As we have completed our review, any stay of removal that the Court previously granted in this petition is VACATED, and any pending motion for a stay of removal in this petition is DISMISSED as moot. Any pending request for oral argument in this petition is DENIED in accordance with Federal Rule of Appellate Procedure 34(a)(2), and Second Circuit Local Rule 34(b).
. To the extent that Nuzi argues for the first time that he is entitled to humanitarian asylum, we decline to consider his argument because he failed to raise it to the BIA. See Lin Zhong v. U.S. Dep’t of Justice, 480 F.3d 104, 119-20 (2d Cir.2007).
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*680
SUMMARY ORDER
Jian Yuan Wang, a native and citizen of the People’s Republic of China, seeks review of a May 27, 2008 order of the BIA, affirming the January 18, 2007 decision of Immigration Judge (“IJ”) Barbara A. Nelson, who denied Wang’s applications for asylum, -withholding of removal, and relief under the Convention Against Torture (“CAT”). In re Jian Yuan Wang, No. A99 670 388 (B.I.A. May 27, 2008), aff'g No. A99 670 338 (Immigr. Ct. N.Y. City Jan. 18, 2007). We assume the parties’ familiarity with the underlying facts and procedural history of the case.
When the BIA agrees with the IJ’s conclusion that a petitioner is not credible and, without rejecting any of the IJ’s grounds for decision, emphasizes particular aspects of that decision, this Court reviews both the BIA’s and IJ’s opinions— or more precisely, the Court reviews the IJ’s decision including the portions not explicitly discussed by the BIA. Yun-Zui Guan v. Gonzales, 432 F.3d 391, 394 (2d Cir.2005). This Court reviews the agency’s factual findings, including adverse credibility findings, under the substantial evidence standard. See 8 U.S.C. § 1252(b)(4)(B); see also Corovic v. Mukasey, 519 F.3d 90, 95 (2d Cir.2008).
As a preliminary matter, because Wang has failed to challenge before this Court the agency’s denial of his claims for withholding of removal and CAT relief, and because addressing those claims does not appear to be necessary to avoid manifest injustice, we deem those claims waived. See Yueqing Zhang v. Gonzales, 426 F.3d 540, 541 n. 1 (2d Cir.2005).
We find that substantial evidence supports the agency’s adverse credibility determination. As the IJ noted, Wang testified that he was arrested, detained, interrogated, and beaten on two occasions in China on account of his Falun Gong activities, but omitted this information in his asylum application. When asked to explain the omission, Wang gave several non-responsive answers before finally stating, “I did not mention it, did I.” The IJ then stated that Wang had in fact indicated in his asylum application that he had not been “arrested, detained, [or] interrogated” in China. When asked why his testimony contradicted his application, Wang failed to offer any explanation. The IJ reasonably concluded that this significant discrepancy undermined the very basis of Wang’s asylum claim. See Ramsameachire v. Ashcroft, 357 F.3d 169, 182 (2d Cir.2004); see also Yun-Zui Guan, 432 F.3d at 398 (“[Wjhere ... a petitioner has provided two distinct, non-overlapping accounts of persecution, .... an IJ must ... rely on the commonsense observation that it is inconsistent for a petitioner to respond to the same question about the nature of his asylum claim with two entirely different responses.”).1
The IJ’s adverse credibility determination also rested partly on the fact that, while Wang testified that he joined an organization in China where the practice of *681Falun Gong was discussed, he indicated on his asylum application that he was never a member of any organization in China. After being asked several times to explain this discrepancy, Wang testified, “I very seldom joined and very seldom went.” Likewise, Wang testified that he never practiced Falun Gong in China because he was too busy with school. However, he also testified that he stopped attending school 10 months before he departed for China for the United States. When asked why he did not practice Falun Gong during the 10 months he remained in China after he left school, he replied, “I hung out at home ... and with my friends, too.” Standing alone, these additional discrepancies may not necessarily be indicative of a lack of credibility. However, “[cjonsidering the totality of the circumstances,” they become more substantial. See 8 U.S.C. § 1158(b)(1)(B)(iii). Thus, the IJ’s decision to weigh these discrepancies in reaching her adverse credibility determination was not in error. See id.; see also Tu Lin v. Gonzales, 446 F.3d 395, 402 (2d Cir.2006). Substantial evidence supports the agency’s adverse credibility determination. See 8 U.S.C. § 1252(b)(4)(B); see also Xiu Xia Lin v. Mukasey, 534 F.3d 162, 167 (2d Cir.2008).
For the foregoing reasons, the petition for review is DENIED. As we have completed our review, the pending motion for a stay of removal in this petition is DISMISSED as moot.
. Wang argues that the addendum he submitted to the IJ on the day of his merits hearing contains information regarding his two arrests in China, and that the discrepancy relied upon by the agency is, therefore, non-existent. We find this argument unavailing because the IJ properly exercised her discretion in refusing to admit the addendum into evidence, as its submission was untimely and Wang offered no reason, much less a good one, for its lateness. Cf. Dedji v. Mukasey, 525 F.3d 187, 192-93 (2d Cir.2008). Moreover, the IJ reasonably found that the addendum served only to further undermine Wang's credibility. See Xu Duan Dong v. Ashcroft, 406 F.3d 110, 111-12 (2d Cir.2005) (holding that where petitioner eventually alleged, in a brief affidavit supplementing his asylum application, a previously omitted material fact, such a delay "strains credulity.'' (ellipses omitted)).
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https://www.courtlistener.com/api/rest/v3/opinions/8472222/
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SUMMARY ORDER
Petitioner An Guoc Chun, a native and citizen of China, seeks review of the June 5, 2008 order of the BIA denying his motion to reopen. In re An Guoc Chun, No. A29 554 086 (B.I.A. June 5, 2008). We assume the parties’ familiarity with the underlying facts and procedural history of the case.
We review the BIA’s denial of a motion to reopen for abuse of discretion, mindful of the Supreme Court’s admonition that such motions are “disfavored.” Ali v. Gonzales, 448 F.3d 515, 517 (2d Cir.2006) (citing INS v. Doherty, 502 U.S. 314, 322-23, 112 S.Ct. 719, 116 L.Ed.2d 823 (1992)). Here, we conclude that the BIA did not abuse its discretion in denying Chun’s second motion to reopen as untimely. An alien may only file one motion to reopen and must do so within 90 days of the final administrative decision. 8 C.F.R. § 1003.2(c)(2). It is beyond dispute that Chun’s motion was both untimely and number barred.
Moreover, the BIA properly found that Chun’s motion did not qualify for the “changed country conditions” exception to the time and number limitations on motions to reopen. See 8 C.F.R. § 1003.2(c)(3)(h). It is well-settled that a change in personal circumstances, such as Chun’s recent involvement with pro-democracy activities, is not evidence of changed country conditions. See Wei Guang Wang v. BIA, 437 F.3d 270, 273-274 (2d Cir.2006); Li Yong Zheng v. U.S. Dep’t of Justice, 416 F.3d 129, 130-31 (2d Cir.2005). Furthermore, the BIA reasonably found that persecution of pro-democracy activists has been ongoing in China and that Chun failed to establish that this type of persecution had changed since his last hearing in 2003.
Further, while Chun suggests that the BIA erred in failing to consider all his evidence, a review of the record reveals that the BIA reasonably considered that evidence and found that it failed to overcome the adverse credibility determination *683made by the IJ during Chun’s initial immigration proceedings. See Wei Guang Wang, 437 F.3d at 273-275; Qin Wen Zheng v. Gonzales, 500 F.3d 143, 147 (2d Cir.2007). Accordingly, the BIA’s denial of Chun’s motion to reopen was not an abuse of discretion. See 8 C.F.R. § 1003.2(c); Wei Guang Wang, 437 F.3d at 275.
Finally, insofar as Chun argues that the court should remand to the BIA “for a full hearing on the merits of [his] new claim for asylum and withholding of deportation based upon political opinion,” that argument also fails. Chun never asked the BIA to consider a “new claim for asylum and withholding of deportation,” but only requested reopening of his initial immigration proceedings based on changed country circumstances, which is an independent form of relief separate and distinct from a successive, untimely asylum application based on changed circumstances. Compare 8 C.F.R. § 1003.2(c)(3)(ii), with 8 U.S.C. § 1158(a)(2)(D). See also Guan v. BIA, 345 F.3d 47, 49 (2d Cir.2003) (concluding that, although petitioner failed to show that the agency abused its discretion in denying her motion to reopen, there was another potential “administrative remedy open to [petitioner]” in the form of a “successive, untimely asylum application”). Thus, the BIA never considered this request, and we cannot review it on appeal. However, “[w]hile the government argues that this Court lacks jurisdiction to review the discretionary denial of permission to file a successive petition under 8 U.S.C. § 1158(a)(3), [Chun] may still pursue this relief even if further judicial review is unavailable.” Id.
For the foregoing reasons, the petition for review is DENIED. As we have completed our review, any stay of removal that the Court previously granted in this petition is VACATED, and any pending motion for a stay of removal in this petition is DISMISSED as moot. Any pending request for oral argument in this petition is DENIED in accordance with Federal Rule of Appellate Procedure 34(a)(2), and Second Circuit Local Rule 34(b).
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https://www.courtlistener.com/api/rest/v3/opinions/8472224/
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*685SUMMARY ORDER
Defendant-Appellant Nadine Whittingham appeals from her conviction following a jury trial in the United States District Court for the Southern District of New York (McMahon, J.) for (1) conspiring to commit bank fraud, in violation of 18 U.S.C. § 1349; and (2) the substantive offense of bank fraud, in violation of 18 U.S.C. § 1344. We assume the parties’ familiarity with the factual and procedural history of this case, as well as the issues raised on appeal.
At trial, the district court admitted a series of still images printed from surveillance videos that allegedly show Whittingham at her desk at approximately the times when the government argued she was illegally accessing customer accounts. Whittingham raises two specific objections to the admission of this evidence. First, she argues that the admission of the photographs violated Federal Rule of Evidence 1002, widely known as the “best evidence rule,” because the original videotapes had been lost and were not available at trial. Second, she argues that the photographs were not properly authenticated under Federal Rule of Evidence 901(a).
We review a district court’s evidentiary rulings for abuse of discretion. See United States v. Anglin, 169 F.3d 154, 162 (2d Cir.1999). We find both of Whittingham’s arguments to be without merit. First, although Rule 1002 provides that “[t]o prove the content of a writing, recording, or photograph, the original writing, recording, or photograph is required,” Fed.R.Evid. 1004(1) waives this requirement if “[a]ll originals are lost or have been destroyed, unless the proponent lost or destroyed them in bad faith.” Here, there are no allegations that the government lost or destroyed the originals in bad faith, and indeed, it was the Bank of America fraud investigator, not the government, who lost the videotapes. Therefore, we see no error in their admission.
We also conclude that the district court did not abuse its discretion in ruling that the evidence had been properly authenticated. Under Rule 901(a), “[t]he requirement of authentication or identification as a condition precedent to admissibility is satisfied by evidence sufficient to support a finding that the matter in question is what its proponent claims.” Rule 901 is satisfied “if sufficient proof has been introduced so that a reasonable juror could find in favor of authenticity or identification.” United States v. Tin Yat Chin, 371 F.3d 31, 38 (2d Cir.2004) (internal quotation marks and citation omitted).
We conclude that the government adequately authenticated the photographs through the testimony of the bank employees regarding how the videos were recorded, collected, and time-stamped, as well as the circumstantial evidence placing the defendant at her desk during those times. Although there was testimony that the time-stamp the video was off by as much as five minutes, this slight discrepancy does not prove fatal; indeed, this testimony may make the evidence less credible to the jury, but it does not make it inadmissible. Therefore, we cannot say that the district court abused its discretion in admitting this evidence.
Next, Whittingham argues that the evidence at trial was insufficient to establish venue in the Southern District for her substantive bank fraud conviction. We have determined that “venue is proper in a district where (1) the defendant intentionally or knowingly causes an act in furtherance of the charged offense to occur in the district of venue or (2) it is foreseeable that such an act would occur in the district of venue.” United States v. Svoboda, 347 F.3d 471, 483 (2d Cir.2003). However, where the liability of the substantive of*686fense is premised on an aiding and abetting theory, as in this case, “[v]enue is proper where the defendant’s accessorial acts were committed or where the underlying crime occurred.” United States v. Smith, 198 F.3d 377, 383 (2d Cir.1999) (“Even if Smith committed all of his accessorial acts in the Eastern District of New York, Smith nevertheless would be triable in the Southern District because 18 U.S.C. § 2 alters the common law rule to provide for an additional venue where [the principal] acted.”) Therefore, Whittingham’s challenge to venue on this count fails; although she may only have committed acts in the Eastern District, because the principals acted in Manhattan, venue properly lay in the Southern District. See id. (“Because the government proved that [the principal] acted in the Southern District, the government was not required to prove that Smith also committed accessorial acts in the Southern District.”).
Next, Whittingham argues that her sentence was procedurally erroneous because the district court improperly concluded that the defendant was subject to a two-level enhancement to her offense level for abusing a position of trust pursuant to United States Sentencing Guideline § 3B1.3. Application Note 2(B) provides that an adjustment under this guideline applies to “[a] defendant who exceeds or abuses the authority of his or her position in order to obtain unlawfully, or use without authority, any means of identification.” We have no hesitation in concluding that Whittingham, who abused her position as a personal banker by accessing customers’ profiles to abuse their accounts, qualifies for this enhancement.
Finally, Whittingham argues that the district court committed procedural error by predetermining her sentence before calculating the applicable Guidelines range or reviewing her Pre-Sentence Report. Specifically, the district court stated, inter alia, that after reviewing the evidence in the trial, before she reviewed the Guidelines or Pre-Sentence Report, her reaction was to give the defendant five years imprisonment. We cannot say that this alone amounted to plain error in this case. The district court carefully calculated the Guidelines range, considered the § 3553 factors at length, and imposed a sentence that was in line with the Guidelines range.
For the foregoing reasons, we AFFIRM the judgment of the district court.
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https://www.courtlistener.com/api/rest/v3/opinions/8472226/
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SUMMARY ORDER
Defendant appeals from his conviction entered by the United States District Court for the Southern District of New York (Kaplan, J.). We assume the parties’ familiarity with the facts, procedural history, and scope of the issues presented on appeal.
Defendant argues: (1) the District Court erred in admitting post-arrest statements because (a) his untimely motion to suppress should have been considered, (b) the statements were taken in violation of his right to counsel, and (c) the statements constituted impermissible evidence of prior bad acts; (2) the District Court erred by denying leave to depose a foreign witness; (3) the Government violated his constitutional rights by not disclosing information about a Government witness; (4) there was insufficient evidence to establish guilt; (5) the jury was improperly instructed in light of the possibility of multiple conspiracies; and (6) the District Court’s forfeiture calculation was incorrect. We affirm for substantially the reasons expressed by the District Court. To the extent some of these arguments, e.g. the jury instruction about conspiracy, were properly raised before us in the first instance, we find them to be unavailing. See United States v. Medina, 944 F.2d 60, 64 (2d Cir.1991).
We have reviewed all of Appellant’s claims and find them meritless. Accordingly, the judgment of the District Court is AFFIRMED.
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https://www.courtlistener.com/api/rest/v3/opinions/8472228/
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SUMMARY ORDER
Appellant Walter Spagnola appeals from a final judgment of the district court after a June 21, 2007 jury verdict awarding Appellee Julia Basile $150,000.00 in compensatory damages and $50,000.00 in punitive damages in her action against Spagnola pursuant to 42 U.S.C. § 1983. We assume the parties’ familiarity with the underlying facts, the procedural history of the case, and the issues on appeal.
Spagnola argues that the district court erred by denying his motion for judgment as a matter of law under Federal Rule of Civil Procedure Rule 50. We review the court’s denial de novo, requiring the movant to show that there is no legally sufficient evidentiary basis for a reasonable jury to find in favor of the nonmovant. Cross v. N.Y. City Transit Auth., 417 F.3d 241, 247-48 (2d Cir.2005). In reviewing the sufficiency of the evidence, we draw all inferences in favor of the non-moving party; this means we cannot determine the credibility of witnesses, weigh conflicting evidence, or substitute our judgment for that of the jury. Gronowski v. Spencer, 424 F.3d 285, 291-92 (2d Cir. 2005). We may not retry the case ourselves. Id. at 292. We may only overturn a jury’s verdict when no evidence exists to support that result, or there exists such overwhelming evidence in favor of the appellant that the verdict is unreasonable. LeBlanc-Sternberg v. Fletcher, 67 F.3d 412, 429 (2d Cir.1995).
In this case, Basile presented testimony from herself and two other witnesses about multiple incidents of inappropriate behavior by Spagnola. These witnesses detailed inappropriate behavior by Spagnola, including touching Basile’s thighs and breasts, offering her job security in return for sex, and showing up uninvited at Basic’s residence. Based on the offensive behavior described, the jury’s conclusion was reasonable. The evidence was sufficient to find that there was a hostile work environment because such conduct was hostile, severe, and abusive. See Quinn v. Green Tree Credit Corp., 159 F.3d 759, 767-68 (2d Cir.1998). The court properly denied Spagnola’s Rule 50 motion.
Spagnola also argues that the district court erred in denying his in limine motions regarding Basile’s prior sexual conduct and a conviction for petit larceny. We review the district court’s evidentiary rulings for abuse of discretion. United States v. Fell, 531 F.3d 197, 209 (2d Cir.2008).
The district court did not abuse its discretion when it denied Spagnola’s motion in limine concerning Basile’s sexual conduct at the workplace. Under Federal Rule of Evidence 412, evidence of a plaintiff’s sexual behavior or sexual predisposition is inadmissible except in limited circumstances when the prejudicial effect of the evidence is substantially outweighed by its probative value. FedR.Evid. 412.
We have previously held that Rule 412 applies to sexual harassment lawsuits. *690Wolak v. Spucci, 217 F.3d 157, 160 (2d Cir.2000). We have also established that a plaintiffs private sexual behavior does not change her expectations or entitlement to a workplace free of sexual harassment. Id. Spagnola sought to introduce testimony that Basile had flashed her breasts at the workplace when Basile was off-duty. Spagnola did not witness the event himself, relying on hearsay from a co-worker. The court declined to admit the evidence, finding that the prejudicial effect of the evidence outweighed the probative value. However, the court stated that the ruling was merely a preliminary one, and provided Spagnola the opportunity to produce eyewitnesses who could testify as to the incident. He failed to do so. In light of this, it was not an abuse of discretion for the court to deny Spagnola’s motion in limine and preclude evidence of Basile’s sexual conduct.
The district court also did not err when it refused to admit evidence of Basile’s prior conviction for petit larceny. Spagnola wished to use Basile’s conviction to impeach her, alleging she had misrepresented her criminal history on her job application. The court provided Spagnola with the opportunity to glean the impeachment value of the conviction through a specific question targeted at uncovering her alleged deceit, not the fact of the conviction itself. Spagnola took the opportunity to do so. He now alleges that this was insufficient and that Basile’s prior conviction should have been automatically admissible.
Prior convictions may be admissible in order to impeach a witness’s credibility. Fed.R.Evid. 609. However, where the record indicates that Spagnola did not provide sufficient evidence for the district court to determine the facts underlying the petit larceny conviction or whether the date of conviction was more than ten years earlier, the district court could not properly engage in the analysis required by Rule 609. The court did allow Spagnola to attack Basile’s credibility more generally. The court did not abuse its discretion.
Accordingly, the district court judgments denying the Rule 50 motion and denying the motions in limine are hereby AFFIRMED.
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https://www.courtlistener.com/api/rest/v3/opinions/8472234/
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SUMMARY ORDER
Petitioner, Xin Hua Pan, a native and citizen of the People’s Republic of China, seeks review of a February 13, 2008 order of the BIA affirming the March 31, 2006 decision of Immigration Judge (“IJ”) Annette S. Elstein denying petitioner’s application for asylum, withholding of removal, and relief under the Convention Against Torture (“CAT”). In re Xin Hua Pan, No. A 072 837 308 (B.I.A. Feb. 13, 2008), aff'g No. A 072 837 308 (Immig. Ct. N.Y. City Mar. 31, 2006). We assume the parties’ familiarity with the underlying facts and procedural history of the case.
When the BIA adopts the decision of the IJ and supplements the IJ’s decision, this Court reviews the decision of the IJ as supplemented by the BIA. See Yan Chen v. Gonzales, 417 F.3d 268, 271 (2d Cir.2005). We review the agency’s factual findings, including adverse credibility findings, under the substantial evidence standard. 8 U.S.C. § 1252(b)(4)(B); see also Corovic v. Mukasey, 519 F.3d 90, 95 (2d Cir.2008). We review de novo questions of law and the application of law to undisputed fact. See, e.g., Bah v. Mukasey, 529 F.3d 99, 110 (2d Cir.2008).
Substantial evidence supports the agency’s adverse credibility determination. Pan did not challenge either before the BIA or this Court the IJ’s findings that: (1) his testimony that he traveled out of the country using his passport was inconsistent with his later testimony that he did not use his passport to exit China; and (2) his direct testimony omitted any reference that the police continued to search for him. Therefore, we deem any challenge to those findings abandoned, see Gui Yin Liu v. INS, 508 F.3d 716, 723 n. 6 (2d Cir.2007), and they stand as valid bases for the IJ’s adverse credibility determination. See Shunfu Li v. Mukasey, 529 F.3d 141, 146 (2d Cir.2008).
This Court has found that omissions may form the proper basis of an adverse credibility finding. See, e.g., Singh v. BIA, 438 F.3d 145, 148 (2d Cir.2006). The IJ properly found that Pan omitted any reference to his April 1993 detention in his first application, and his explanations for this omission would not compel a reasonable factfinder to credit them. See Majidi v. Gonzales, 430 F.3d 77, 80-81 (2d Cir.2005). Although Pan argues that the IJ erred in finding that he omitted any reference to his dismissal from employment due to his *696democratic activities, substantial evidence supports the IJ’s conclusion since his applications indicated only that he received disciplinary sanctions. See id. Contrary to Pan’s argument that these omissions and inconsistencies were minor, the IJ properly found that they involved significant factual assertions underlying his claim. Cf. Diallo v. INS, 232 F.3d 279, 288 (2d Cir.2000).
The IJ also reasonably found implausible Pan’s testimony that he was able to leave China using his own passport given that his credibility was already placed in question by several omissions in his applications and testimony. See Ying Li v. BCIS, 529 F.3d 79, 82 (2d Cir.2008) (finding that this Court reviews implausibility findings in the context of the entire record and “not whether each unusual or implausible feature of the account can be explained or rationalized”). Finally, the IJ properly found that the lack of corroboration of Pan’s detention rendered him unable to rehabilitate his testimony that had already been called into question. See Xiao Ji Chen v. U.S. Dep’t of Justice, 471 F.3d 315, 341 (2d Cir.2006).
Those proper findings notwithstanding, the IJ erred in finding that Pan inconsistently testified that he was arrested in 1995 and in failing to consider Pan’s explanations for the consular report’s conclusion that the sterilization certificate he submitted was fraudulent where the report’s conclusion is inconsistent with the translation of the letter from the Chinese government. Nonetheless, remand would be futile as it can be confidently predicted that the agency would reach the same conclusion on remand. See id. at 338-39. As the IJ found, the discrepancies upon which she properly relied place into question the entirety of Pan’s claim because of “the peculiar manner in which his claims developed from his original arrival.” Accordingly, the IJ properly denied Pan’s application for asylum, withholding of removal, and CAT relief where the only evidence that he would be persecuted or tortured depended on his credibility. See Paul v. Gonzales, 444 F.3d 148, 156 (2d Cir.2006); Xue Hong Yang v. U.S. Dep’t of Justice, 426 F.3d 520, 523 (2d Cir.2005).
Pan argues that the government’s submission of his wife’s sterilization certificate to the Chinese government violated his confidentiality under 8 C.F.R. § 208.6. However — especially given Pan’s credibility problems — the record supports the BIA’s finding that the government did not violate Pan’s confidentiality.
For the foregoing reasons, the petition for review is DENIED. As we have completed our review, any pending motion for a stay of removal in this petition is DISMISSED as moot. Any pending request for oral argument in this petition is DENIED in accordance with Federal Rule of Appellate Procedure 34(a)(2), and Second Circuit Local Rule 34(b).
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01-04-2023
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https://www.courtlistener.com/api/rest/v3/opinions/8472236/
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SUMMARY ORDER
Petitioner, Mohamed Djoulde Barry, a native and citizen of Guinea, seeks review of the June 30, 2008 order of the BIA affirming the October 11, 2006 decision of Immigration Judge (IJ) Sandy K. Horn pretermitting his application for asylum and denying his application for withholding of removal and relief under the Convention Against Torture (CAT). In re Mohamed Djoulde Barry, No. A 097 587 484 (B.I.A. June 30, 2008), aff'g No. A 097 587 484 (Immig. Ct. N.Y. City Oct. 11, 2006). We assume the parties’ familiarity with this case’s underlying facts and procedural history.
When the BIA adopts the decision of the IJ and supplements the IJ’s decision, this Court reviews the decision of the IJ as supplemented by the BIA. See Yan Chen v. Gonzales, 417 F.3d 268, 271 (2d Cir.2005). This Court reviews the agency’s factual findings, including adverse credibility findings, under the substantial evidence standard. 8 U.S.C. § 1252(b)(4)(B); see also Corovic v. Mukasey, 519 F.3d 90, 95 (2d Cir.2008).
We find that the IJ’s adverse credibility finding was not supported by substantial evidence. The inconsistencies in Barry’s testimony, considered both alone and together, do not go to the heart of the claim. Under our pre-REAL ID Act standard, which the BIA correctly noted governs this case, minor inconsistencies are not an adequate basis for an adverse credibility finding. See Secaida-Rosales v. INS, 331 F.3d 297, 308 (2d Cir.2003).
For the foregoing reasons, the petition for review is GRANTED and the case REMANDED for further proceedings consistent with this opinion.
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SUMMARY ORDER
Petitioner, Su-Mei Li, a native and citizen of the People’s Republic of China, seeks review of the April 22, 2008 order of the BIA affirming the May 25, 2006 decision of Immigration Judge (“IJ”) Helen Sichel denying Li’s application for asylum, withholding of removal, and relief under the Convention Against Torture (“CAT”). In re Su-Mei Li, No. A 78 842 945 (B.I.A. Apr. 22, 2008), aff'g No. A 78 842 945 (Immig. Ct. N.Y. City May 25, 2006). We assume the parties’ familiarity with the underlying facts and procedural history of the case.
When the BIA issues an opinion that fully adopts the IJ’s decision, this Court reviews the IJ’s decision. See Mei Chai Ye v. U.S. Dep’t of Justice, 489 F.3d 517, 523 (2d Cir.2007). This Court reviews the agency’s factual findings, including adverse credibility determinations, under the substantial evidence standard. 8 U.S.C. § 1252(b)(4)(B); see also Manzur v. U.S. Dep’t of Homeland Sec., 494 F.3d 281, 289 *699(2d Cir.2007). “We review de novo questions of law and the application of law to undisputed fact.” Salimatou Bah v. Mukasey, 529 F.3d 99, 110 (2d Cir.2008).
We find that there are several errors in the IJ’s adverse credibility determination. First, the IJ found Li’s testimony regarding how frequently he practiced Falun Gong to be “highly inconsistent.” Li stated that he practices “[w]henever I have time,” which he explained meant when he had a day off work, when he got up in the morning, or before bed. Li explained that he got two days off work each week. The IJ asked whether Li practiced every day, and Li responded that he practiced “probably four, five occasions a week.” The IJ then asked about the discrepancy between his testimony that he practices four or five times a week and his earlier testimony that he practices on his days off and only gets two days off a week. Li responded, “When I have a day off and also in the morning. What I meant was whenever I have time.” The IJ does not adequately explain why Li’s testimony was discrepant as to this point, and a review of the record does not reveal any inconsistency. The record instead demonstrates that the IJ misunderstood the last portion of Li’s testimony. Li testified that he practiced Falun Gong “whenever” he had time, which meant when he had a day off, in the morning, or before bed. He did not testify that he only practiced on his days off. Moreover, it is clear from the transcript that when Li testified that he practiced “once” he was referring to, as he later explained, that he only participated in a “big event” once — when there was a collective Falun Gong practice to remember the victims of September 11. The IJ erred in finding that Li’s testimony about the frequency of his practice was inconsistent.
Additionally, the IJ found that Li’s testimony that his home was “destroyed” when police came to his home to arrest him was inconsistent with his father’s letter, which only stated that the home was “ransacked.” Li testified that police destroyed his home and submitted a photograph of authorities standing over a building that was in ruins. The IJ made much of the discrepancy in the words used to describe what happened. We find, however, that under the circumstances, the words “destroyed” and “ransacked” are sufficiently similar that this cannot be considered an inconsistency. Moreover, “[t]he more central an errant finding was to the IJ’s adverse credibility determination, ... the less confident we can be that remand would be futile.” Li Hua Lin v. U.S. Dep’t of Justice, 453 F.3d 99, 111 (2d Cir.2006).
Although there was other evidence to support the IJ’s adverse credibility determination, we cannot be confident that upon reconsideration cleansed of the errors identified above, the IJ would have reached the same conclusion. Cao He Lin v. U.S. Dep’t of Justice, 428 F.3d 391, 395, 401-02 (2d Cir.2005). We therefore GRANT the petition for review, and REMAND the case for proceedings consistent with this opinion.
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https://www.courtlistener.com/api/rest/v3/opinions/8472240/
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SUMMARY ORDER
Petitioner Hui Ming Lin, a native and citizen of the People’s Republic of China, seeks review of the October 31, 2008 order of the BIA affirming the June 11, 2007 decision of Immigration Judge (“IJ”) Sandy K. Horn denying his applications for asylum, -withholding of removal, and relief under the Convention Against Torture (“CAT”). In re Hui Ming Lin, No. A079 305 618 (B.I.A. Oct. 31, 2008), aff'g No. A079 305 618 (Immig. Ct. N.Y. City June 11, 2007). We assume the parties’ familiarity with the underlying facts and procedural history of the case.
When the BIA does not adopt the decision of the IJ to any extent, we review only the decision of the BIA. See Yan Chen v. Gonzales, 417 F.3d 268, 271 (2d Cir.2005). We review the agency’s factual findings under the substantial evidence standard. 8 U.S.C. § 1252(b)(4)(B); see Manzur v. U.S. Dep’t of Homeland Sec., *702494 F.3d 281, 289 (2d Cir.2007). Questions of law and the application of law to undisputed fact are reviewed de novo. See Salimatou Bah v. Mukasey, 529 F.3d 99, 110 (2d Cir.2008). Here, the IJ denied Lin’s application for relief on credibility grounds, yet the BIA assumed Lin’s credibility and denied relief based on Lin’s failure to meet his burden of proof under Shi Liang Lin v. U.S. Dep’t of Justice, 494 F.3d 296 (2d Cir.2007). Accordingly, we review only the BIA decision, and assume Lin’s credibility. See Yan Chen, 417 F.3d at 271 (declining to consider IJ’s credibility findings where the BIA assumed the petitioner’s credibility and did not adopt the IJ’s decision to any extent).
We have previously determined that, under 8 U.S.C. § 1101(a)(42), an individual is not per se eligible for asylum based on the forced abortion or sterilization of a spouse or partner. Shi Liang Lin, 494 F.3d at 308. Rather, “applicants can become candidates for asylum relief only based on persecution that they themselves have suffered or must suffer.” Id. Thus, because Lin is not eligible for relief based on the harm suffered by his wife, he was required to show that: “(1) he resisted China’s family planning policy; (2) he was persecuted (or has a well-founded fear of persecution); and (3) the persecution was or would be because of [his] ... resistance to the policy.” Matter of M-F-W & L-G-, 24 I. & N. Dec. 633, 641 (BIA 2008).
Even assuming, as the BIA appears to have done, that Lin’s actions constituted “resistance” to China’s family planning policy, the agency reasonably concluded that he was not persecuted on account of those actions. Here, Lin asserts that his arrest and brief detention by family planning officials rose to the level of persecution. However, this argument is unavailing, as we have previously held that a brief detention and release, without more, does not constitute persecution. See Joaquin-Ponus v. Gonzales, 435 F.3d 172, 182 (2d Cir.2006) (upholding agency’s determination that applicant was not eligible for withholding of removal based on “brief’ detention, after which he was released “without harm”). Moreover, because Lin admitted that, apart from his arrest and brief detention, he faced no other repercussions for stating his opposition to China’s coercive family planning policy during the ten years after his wife’s sterilization, the BIA also correctly determined that Lin failed to show a well-founded fear of future persecution. See Ramsameachire v. Ashcroft, 357 F.3d 169, 178 (2d Cir.2004) (to establish asylum eligibility based on future persecution, applicant must show that he subjectively fears persecution and that this fear is objectively reasonable). Thus, the BIA’s denial of Lin’s asylum and withholding of removal claims was appropriate. See Paul v. Gonzales, 444 F.3d 148, 156 (2d Cir.2006) (failure to establish eligibility for asylum necessarily precludes eligibility for withholding of removal because of the latter’s higher standard of proof).
While Lin argues that the BIA erred by denying his claim for CAT relief based on his illegal departure and alleged resistance to China’s family planning policy, the agency correctly found that Lin failed to demonstrate that it was more likely than not he would be tortured if returned to China. It is well-settled that the agency does not err in finding that a petitioner is not “entitled to CAT protection based solely on the fact that she is part of the large class of persons who have illegally departed China,” see Mu Xiang Lin v. U.S. Dep’t of Justice, 432 F.3d 156, 160 (2d Cir.2005). And, as already observed, the fact that Lin lived in China for ten years after his wife’s sterilization, without incident, confirms the agency’s determination that he would not likely be tortured if returned.
*703Lin’s remaining arguments are unavailing. First, Lin’s assertion that the BIA erred by remanding his case to the IJ following this Court’s stipulation and order is without merit. That order instructed the BIA to make clear and complete findings regarding Lin’s credibility and the plausibility of his claims, and the BIA reasonably determined that further factfinding was necessary to assess these issues. See 8 C.F.R. § 1003.1(d)(3)(iv) (mandating that the BIA “will not engage in factfinding in the course of deciding appeals,” and that, “[i]f further factfinding is needed in a particular case, the Board may remand the proceeding to the [IJ]”).
Second, the BIA did not abuse its discretion in denying Lin’s request for an additional remand to the IJ to consider evidence in light of Shi Liang Lin. The record shows that Lin had a full opportunity to present evidence in his original hearing concerning his actions incident to his wife’s sterilization, and he affirmatively testified that, apart from his arrest and bi’ief detention, he faced no other repercussions for voicing his objection to China’s family planning policies. See Shu Wen Sun v. BIA, 510 F.3d 377, 381 n. 5 (2d Cir.2007) (no remand needed to introduce additional evidence of “other resistance” where factual record was “adequately developed” as to this issue). Moreover, Lin failed to identify any additional evidence in support of his claims-not previously considered by the IJ-that he could present were his case remanded. Cf. Gui Yin Liu v. INS, 508 F.3d 716, 723 (2d Cir.2007) (remand to agency for consideration of additional evidence as to “other resistance” appropriate where no such evidence was introduced or considered at original hearing).
Third, the BIA’s application of Shi Liang Lin to Lin’s claims did not violate his due process rights or warrant remand to the agency for a nunc pro tunc order. Shi Liang Lin was decided prior to the BIA’s dismissal of Lin’s appeal, and, as a general rule, the BIA applies the law in effect at the time it enters a decision. See 8 C.F.R. § 1003.1(d)(3)(ii)(BIA has the authority on appeal to apply the law as it exists at the time it renders its decision); NLRB v. Coca-Cola Bottling Co., 55 F.3d 74, 78 (2d Cir.1995)(“Appellate courts ordinarily apply the law in effect at the time of the appellate decision”).
For the foregoing reasons, the petition for review is DENIED. As we have completed our review, any stay of removal that the Court previously granted in this petition is VACATED, and any pending motion for a stay of removal in this petition is DISMISSED as moot. Any pending request for oral argument in this petition is DENIED in accordance with Federal Rule of Appellate Procedure 34(a)(2), and Second Circuit Local Rule 34(b).
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SUMMARY ORDER
Bao Ying Cai, a native and citizen of the People’s Republic of China, seeks review of an August 21, 2008 order of the BIA, affirming the April 25, 2007 decision of Immigration Judge (“IJ”) Javier Balasquide, which denied his application for asylum, withholding of removal, and relief under the Convention Against Torture (CAT). In re Bao Ying Cai, No. A99 026 073 (B.I.A. Aug. 21, 2008), aff'g No. A99 026 073 (Immig. Ct. N.Y. City Apr. 25, 2007). We assume the parties’ familiarity with the underlying facts and procedural history in this case.
When the BIA agrees with the IJ’s conclusion that a petitioner is not credible and, without rejecting any of the IJ’s grounds for decision, emphasizes particular aspects of that decision, this Court reviews both the BIA’s and IJ’s opinions— or more precisely, the Court reviews the IJ’s decision including the portions not explicitly discussed by the BIA. Yun-Zui Guan v. Gonzales, 432 F.3d 391, 394 (2d Cir.2005). We “defer [] to an IJ’s credibility determination unless, from the totality of the circumstances, it is plain that no reasonable fact-finder could make such an adverse credibility ruling.” Xiu Xia Lin v. Mukasey, 534 F.3d 162, 167 (2d Cir.2008). For asylum applications governed by the amendments made to the Immigration and Nationality Act by the REAL ID Act, the agency may, considering the totality of the circumstances, base a credibility *705finding on an asylum applicant’s “demean- or, candor, or responsiveness,” the plausibility of his or her account, and inconsistencies in his or her statements, without regard to whether they go “to the heart of the applicant’s claim.” 8 U.S.C. § 1158(b)(1)(B)(iii).
In concluding that petitioner was not credible, the agency relied on several inconsistencies in his hearing testimony as well as discrepancies between his asylum application and testimony. First, Cai initially testified that he had custody of his three children and that they all resided with him. When confronted with documentary evidence suggesting that his ex-wife had custody of his daughter, however, Cai then claimed that the daughter lived with her maternal grandmother. See Liang Chen v. U.S. Att’y Gen., 454 F.3d 103, 106-107 (2d Cir.2006). Second, while Cai testified that he was married to his first wife in 1992, his asylum application states that they married in 1990. See id. Additionally, Cai testified that his wife did not receive a certificate from family planning officials indicating that she was unfit for sterilization, even though he had submitted a document into evidence making exactly that representation.
While Cai argues that the IJ erred by not excusing these discrepancies in light of his explanations, ie., that he was “nervous and confused,” Petr. Br. at 21, and that he “didn’t know what [he] was thinking,” Tr. at 36, we conclude that the IJ acted within his discretion in declining to credit Cai’s explanations. See Majidi v. Gonzales, 430 F.3d 77, 80-81 (2d Cir.2005). We ultimately conclude that no reasonable fact-finder would be compelled to credit Cai’s testimony. Because the IJ’s adverse credibility determination was supported by substantial evidence, see Xiu Xia Lin, 534 F.3d at 165-66, the agency properly denied Cai’s application for asylum. Moreover, because the only evidence of a threat of persecution or torture depended on Cai’s credibility, the adverse credibility determination in this case necessarily precludes success on his claims for withholding of removal and CAT relief. See Paul v. Gonzales, 444 F.3d 148, 156 (2d Cir.2006).
For the foregoing reasons, the petition for review is DENIED. As we have completed our review, the pending motion for a stay of removal in this petition is DISMISSED as moot. Any pending request for oral argument in this petition is DENIED in accordance with Federal Rule of Appellate Procedure 34(a)(2) and Second Circuit Local Rule 34(b).
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SUMMARY ORDER
Petitioners Agim, Fljorije, and Benjamin Balidemaj, all natives and citizens of the former Serbia and Montenegro,2 seek review of the October 20, 2008 order of the BIA affirming the December 13, 2005 decision of Immigration Judge (“IJ”) Adam Opaciueh denying their application for asylum, withholding of removal, and relief under the Convention Against Torture (“CAT”).3 In re Agim Balidemaj et al., Nos. A077 567 992/993/994 (B.I.A. Oct. 20, 2008), aff'g Nos. A077 567 992/993/994 (Immig. Ct. N.Y. City Dec. 13, 2005). We assume the parties’ familiarity with the underlying facts and procedural history of the case.
As an initial matter, because Petitioners failed to challenge the IJ’s denial of their CAT claim in their brief to the BIA, we lack jurisdiction to consider the arguments they raise in this Court in the first instance. See 8 U.S.C. § 1252(d)(1); Karaj v. Gonzales, 462 F.3d 113, 119 (2d Cir.2006) (citing Beharry v. Ashcroft, 329 F.3d 51, 59 (2d Cir.2003)) (on appeal to the BIA, the applicant must raise each category of relief subsequently raised in this Court). We dismiss the petition to that extent.
When the BIA issues an opinion that fully adopts the IJ’s decision, we review the IJ’s decision. See Mei Chai Ye v. U.S. Dep’t of Justice, 489 F.3d 517, 523 (2d Cir.2007). We review the agency’s factual findings under the substantial evidence standard. 8 U.S.C. § 1252(b)(4)(B); see Manzur v. U.S. Dep’t of Homeland Sec., 494 F.3d 281, 289 (2d Cir.2007). Questions of law and the application of law to undisputed fact are reviewed de novo. See Salimatou Bah v. Mukasey, 529 F.3d 99, 110 (2d Cir.2008).
Where an applicant establishes that he has suffered past persecution, he is entitled to a presumption of a well-founded fear of future persecution. 8 C.F.R. § 1208.13(b)(1). However, applicable regulations require IJs to exercise the Attorney General’s discretion to deny asylum to applicants who establish eligibility based solely on past persecution when the government establishes a fundamental change in circumstances sufficient to rebut the presumption of a well-founded fear of future persecution. 8 C.F.R. § 1208.13(b)(l)(i). It is the Government’s burden to rebut this presumption. See 8 C.F.R. § 1208.13(b)(l)(ii). Here, the IJ found that, although Agim Balidemaj endured past persecution, conditions in his country had changed such that he no longer had a well-founded fear of future persecution.
Petitioners argue that the IJ erred by failing to shift the burden to the Government as required under 8 C.F.R. § 1208.13(b)(l)(ii). We agree. The record reveals that, having found that Balidemaj endured past persecution, the IJ erred by requiring that he affirmatively prove that *708he had a well-founded fear of future persecution. Indeed, the IJ stated that Petitioners “ha[d] not submitted any evidence that ... established that [t]he[y] ha[d] a well-founded fear of future persecution.”
Nonetheless, remand is not warranted because we can confidently predict that, absent this error, the IJ would have reached the same conclusion. See Niang v. Mulcasey, 511 F.3d 138, 149-50 (2d Cir.2007); Xiao Ji Chen v. U.S. Dep’t of Justice, 471 F.3d 315, 335 (2d Cir.2006). After considering the evidence Petitioners submitted, the IJ determined that changed country conditions rebutted any presumption of a well-founded fear because the evidence showed that: (1) the government in Serbia and Montenegro “generally respected the human rights of its citizens,” and there were no reports of politically motivated violence; (2) there were only “a few reports [of] police inattention to the security of the ethnic Albanian population” in South Serbia, and that, in Kosovo, the only reports of ethnically-motivated violence concerned the treatment of ethnic Serbs; (3) although certain reports documented the use of torture in Serbia and Montenegro, there was no evidence that these incidents involved ethnic Albanians; and (4) although Balidemaj’s expert witness’s report indicated that violence against ethnic Albanians was on the rise in Serbian jails, this assessment was based on information from 2001, and the expert’s allegation of possible retribution against Petitioners by Kosovar extremist groups was not credible.
We are not compelled to conclude, as Petitioners argue, that the IJ failed to consider other probative evidence in the record. While we have held that the agency must consider an applicant’s country conditions evidence, see Yan Chen v. Gonzales, 417 F.3d 268, 272 (2d Cir.2005), nothing in the record suggests that the IJ ignored the evidence submitted in this case, see Xiao Ji Chen, 471 F.3d at 338 n. 17 (“[W]e presume that an IJ has taken into account all of the evidence before him, unless the record compellingly suggests otherwise.”).
In effect, Petitioners’ own evidence served to rebut their presumption of a well-founded fear. In such circumstances, remanding would “be an idle and useless formality” because, were the Government simply to produce the same evidence Petitioners submitted, the IJ could find that the Government had met its burden to rebut the presumption. See NLRB v. Wyman-Gordon Co., 394 U.S. 759, 766 n. 6, 89 S.Ct. 1426, 22 L.Ed.2d 709 (1969); see also Li Zu Guan v. INS, 453 F.3d 129, 135-38 (2d Cir.2006) (discussing futility standards).
Finally, Petitioners assert that the agency erred by refusing to grant them humanitarian asylum. This argument is unavailing. To be eligible for humanitarian asylum, a petitioner must demonstrate “compelling reasons for being unwilling or unable to return ... [that] aris[e] out of the severity of the past persecution.” 8 C.F.R. § 1208.13(b)(1)(iii)(A); see In re N-M-A-, 22 I. & N. Dec. 312, 326 (B.I.A. 1998) (petitioner must show “severe harm and the long-lasting effects of that harm”). We may overturn a discretionary denial of humanitarian asylum only if it is “manifestly contrary to the law and an abuse of discretion.” 8 U.S.C. § 1252(b)(4)(D); Wu Zheng Huang v. INS, 436 F.3d 89, 96 (2d Cir.2006).
As the BIA has observed, humanitarian asylum is reserved for only the most “atrocious” forms of persecution. See Matter of Chen, 20 I. & N. Dec. 16, 19 (B.I.A.1989). We cannot find that the BIA abused its discretion in finding that, although deplorable, Petitioners’ mistreatment did not reach that level. See Jalloh v. Gonzales, 498 F.3d 148, 152 (2d Cir.2007)(holding *709that humanitarian asylum requires a showing of “long-lasting physical or mental effects” arising from an applicant’s past persecution); see also Matter of Chen, 20 I. & N. Dec. at 20 (finding that humanitarian asylum was appropriate where alien’s persecution resulted in permanent disability, constant anxiousness and fearfulness, and suicidal thoughts).
Because the agency correctly determined that the Petitioners failed to satisfy the lower burden of proof for asylum, it also properly denied their application for withholding of removal. Paul v. Gonzales, 444 F.3d 148, 156 (2d Cir.2006) (Where both claims are based on the same factual predicate, failure to establish eligibility for asylum necessarily precludes eligibility for withholding of removal because of the latter’s higher standard of proof.).
For the foregoing reasons, the petition for review is DENIED in part and DISMISSED in part. As we have completed our review, any stay of removal that the Court previously granted in this petition is VACATED, and any pending motion for a stay of removal in this petition is DISMISSED as moot. Any pending request for oral argument in this petition is DENIED in accordance with Federal Rule of Appellate Procedure 34(a)(2), and Second Circuit Local Rule 34(b).
. At the time Petitioners filed their application, Serbia and Montenegro was a unified republic. However, after the IJ issued his decision in 2005, Serbia and Montenegro became distinct, independent countries.
. We retain jurisdiction to consider the instant petition for review despite the fact that petitioners were placed in "asylum-only” proceedings. See Kanacevic v. INS, 448 F.3d 129, 134 (2d Cir.2006).
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SUMMARY ORDER
Thauo Lin, a native and citizen of the People’s Republic of China, seeks review of an October 31, 2008 order of the BIA, affirming the August 2, 2007 decision of Immigration Judge (“IJ”) Barbara A. Nelson, which denied his application for asylum, withholding of removal, and relief under the Convention Against Torture (“CAT”). In re Thauo Lin, No. A094 798 090 (B.I.A. Oct. 31, 2008), aff'g No. A094 798 090 (Immig. Ct. N.Y. City Aug. 2, 2007). We assume the parties’ familiarity with the underlying facts and procedural history in this case.
When the BIA agrees with the IJ’s conclusion that a petitioner is not credible and, without rejecting any of the IJ’s grounds for decision, emphasizes particular aspects of that decision, this Court reviews both the BIA’s and IJ’s opinions— or more precisely, the Court reviews the IJ’s decision including the portions not explicitly discussed by the BIA. Yun-Zui Guan v. Gonzales, 432 F.3d 391, 394 (2d Cir.2005). We review the agency’s factual findings, including adverse credibility findings, under the substantial evidence standard. 8 U.S.C. § 1252(b)(4)(B); see also Xiu Xia Lin v. Mukasey, 534 F.3d 162, 165-66 (2d Cir.2008).2
Substantial evidence supports the IJ’s adverse credibility determination. In finding Lin not credible, the IJ reasonably relied on Lin’s failure to include in his asylum application any assertion that he was arrested and detained by Chinese authorities for his alleged “other resistance” to the family planning policy. See Xian Tuan Ye v. DHS, 446 F.3d 289, 295-96 (2d Cir.2006) (holding that an applicant’s failure to include any reference to his alleged detention and beating in his 1-589 form is a “self evident” inconsistency that the agency may rely on without first soliciting an explanation). Although we have held that “asylum applicants are not required to list every incident of persecution on their 1-589 statements,” Pavlova v. INS, 441 F.3d 82, 90 (2d Cir.2006), Lin’s omission of this assertion was sufficient to undermine his credibility. See Xiu Xia Lin, 534 F.3d at 165-66. The IJ found the omission particularly suspicious because the details Lin added in his testimony appeared to have been in response to a decision of this Court, the holding of which undermined the claim Lin had made in his asylum application. Further, the IJ reasonably declined to credit Lin’s explanations that he did not consider his arrest and detention a “big thing” and that “he forgot” to write it on his application. See Majidi v. Gonzales, 430 F.3d 77, 80-81 (2d Cir.2005).
Additionally, while Lin testified that his wife was forcibly sterilized in November *7112003, his asylum application stated that she was sterilized in November 2006. Further, although Lin testified that his wife was forced to have an abortion during the third month of her pregnancy, his asylum application indicated that she had the abortion when she was “one month pregnant.” Ultimately, because a reasonable fact-finder would not be compelled to conclude to the contrary, we find that the IJ’s adverse credibility determination was supported by substantial evidence. See Xiu Xia Lin, 534 F.3d at 165-66. Thus, the agency’s denial of Lin’s application for asylum was proper. See 8 U.S.C. § 1158(b)(1)(B)(iii). Moreover, because Lin based his claims for withholding of removal and CAT relief on the same factual predicate as his asylum claim, those claims necessarily fail. See Paul v. Gonzales, 444 F.3d 148, 156 (2d Cir.2006); Xue Hong Yang v. U.S. Dep’t of Justice, 426 F.3d 520, 523 (2d Cir.2005).
For the foregoing reasons, the petition for review is DENIED. As we have completed our review, any stay of removal that the Court previously granted in this petition is VACATED, and any pending motion for a stay of removal in this petition is DISMISSED as moot. Any pending request for oral argument in this petition is DENIED in accordance with Federal Rule of Appellate Procedure 34(a)(2), and Second Circuit Local Rule 34(b).
. The asylum application in this case is governed by the amendments made to the Immigration and Nationality Act by the REAL ID Act of 2005, Pub.L. No. 109-13, 119 Stat. 231 (2005). See Title I, § 101(a)(3) of the Act, 119 Stat. 231, 303 (amending 8 U.S.C. § 1158); see also Xiu Xia Lin, 534 F.3d at 165.
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SUMMARY ORDER
E.E. Cruz, NAB Construction Corporation, Frontier-Kemper Construction, Inc., AETNA Casualty & Surety Company, and Travelers Casualty and Surety Company, appeal from a judgment of the United States District Court for the Southern District of New York. To the extent not discussed below, we assume the parties’ and counsel’s familiarity with the facts and procedural history of this case, and the issues presented on this appeal.
On March 18, 1998, contractors E.E. Cruz, Nab Construction Corporation, and Frontier Kemper Construction, Inc., (collectively, the “Joint Venture”) executed a subcontract with Bauer of America Corporation, predecessor in interest to Coastal Caisson Corporation, (collectively “Coastal”) to build a large caisson and jet grout retaining wall, known as an Earth Support System (“ESS”), around a construction site in Flushing, Queens. Pursuant to the agreement, the Joint Venture was to provide labor, equipment, materials, and certain other services to aid the subcontractor’s work. The parties were soon mired in various disputes related to the contract. Litigation, two arbitrations, and this appeal followed.
On June 24, 2005, an arbitral panel from the American Arbitration Association awarded Coastal $791,731.27 in damages. Thereafter, Coastal petitioned the district court to vacate the award in part and confirm in part. The Joint Venture petitioned the district court to modify the award for a material miscalculation. The district court consolidated the two petitions. By Oral Decision of October 14, 2005, the court granted Coastal’s petition to vacate the award on the basis that the arbitral panel had manifestly disregarded New York law and denied the Joint Venture’s petition as moot. Transcript of Bench Opinion, Coastal Caisson Corp. v. E.E. Cruz & Co., Inc., NAB, No. 05 Civ. 7462 (S.D.N.Y. Oct. 14, 2005) (“Bench Opinion”).
Thereafter, by decision dated April 13, 2007, the arbitral panel, with one member dissenting, awarded Coastal an additional $1,197,735.67 in damages, for a total award of $1,989,466.94. The panel declined to award pre-judgment interest. The dissenting panel member, by separate opinion, concluded that the district court had improperly vacated the June 2005 award. Thereafter, Coastal petitioned the court to confirm the April 2007 award but amend it to award prejudgment interest. The Joint Venture petitioned the district court to vacate the April 2007 award and confirm the June 2005 award, with modifications.
By written opinion dated August 10, 2007, the district court confirmed the April 2007 award in its entirety and denied Coastal’s motion for prejudgment interest. Coastal Caisson Corp. v. E.E. Cruz/NAB/Frontier-Kemper, Nos. 05 Civ. 7462, 7466, 2007 WL 2285936, 2007 U.S. Dist. LEXIS 58114 (S.D.N.Y. Aug. 10, 2007).
On appeal, the Joint Venture urges us to vacate the April 2007 award and confirm the June 2005 award after correcting it for a material miscalculation. Coastal cross-appeals asking us to confirm the April 2007 award, with the addition of interest.
*719“When a party challenges the district court’s review of an arbitral award under the manifest disregard standard, we review the district court’s application of the standard de novo.” Wallace v. Buttar, 378 F.3d 182, 189 (2d Cir.2004) (internal quotation marks omitted).
In light of intervening precedent, see Stolt-Nielsen SA v. AnimalFeeds Int’l Corp., 548 F.3d 85 (2d Cir.2008), cert. granted on other grounds, — U.S.-, 129 S.Ct. 2793, 174 L.Ed.2d 289 (2009), it has become clear that the district court erred in vacating the first award for “manifest disregard” of New York law. We will vacate for manifest disregard of the law only where “the arbitrator knew of the relevant [legal] principle, appreciated that this principle controlled the outcome of the disputed issue, and nonetheless willfully flouted the governing law by refusing to apply it.” Id. at 95 (internal quotation marks omitted); see also id. at 93 (“[W]e look to a subjective element, that is, the knowledge actually possessed by the arbitrators” to see whether the arbitrators “intentionally disregarded] the law.” (internal quotation marks omitted)); Wallace, 378 F.3d at 190 (vacatur for manifest disregard appropriate “only if a reviewing court ... find[s] ... that (1) the arbitrators knew of a governing legal principle yet refused to apply it or ignored it altogether, and (2) the law ignored by the arbitrators was well defined, explicit, and clearly applicable to the case.” (internal quotation marks omitted, alteration in original)).
Here, the district court vacated the June 2005 arbitral award based on the arbitrators’ purported refusal to apply New York’s total cost method of calculating damages. A review of the award indicates, however, that the arbitrators did not ignore New York law in this regard. They specifically embraced the total cost method of damages, explicitly rejecting the Joint Venture’s argument that New York’s total cost method should not apply, concluding that the panel “cannot ignore the numerous New York cases that have found circumstances appropriate to apply it.” Coastal Caisson Corp. v. E.E. Cruz/NAB/Frontier-Kemper, No. 13 Y 110 00384 03, Slip Op. at 7 (Am. Arbitration Ass’n June 24, 2005).
The arbitration panel ruled “as a matter of law [that] a total cost claim can[] be maintained” in such a circumstance, noting that “[w]e believe that the cases teach that whether or not such damages are available in a given case is a factual question dependent on the nature and quality of the proof presented, particularly on the issue of causation.” Id. (emphasis added). The “fundamental question,” according to the arbitrators, was whether “the factual record made by Bauer in this case supported] [its] claim for total cost damages?” Id.
The arbitrators then concluded that Bauer’s claim of delay was, “if not invented, at least greatly inflated.” Id. at 11. Bauer failed to produce records of delay, and where Bauer did submit evidence of delay, its calculations were inaccurate and unreliable. Id. at 12-13. Moreover, Bauer failed to prove what factors actually harmed it. Id. at 14-15. Because Bauer did not submit adequate proof as to what delay, if any, it suffered, the arbitrators held that determining costs attributable to the alleged delay was impossible.
This was not an improper application of New York law:
It is well settled that in calculating contract damages due to delays “[a] contractor wrongfully delayed by its employer must establish the extent to which its costs were increased by the improper acts because its recovery will be limited to damages actually sustained.” ... [D]amages are limited to awards based upon “a definite and logi*720cal connection between what is proven and the damages sought to be recovered” and cannot be speculative or conjectural.
Clifford R. Gray Inc. v. State, 251 A.D.2d 728, 674 N.Y.S.2d 440, 442 (App.Div.1998) (quoting Berley Indus. v. City of New York, 45 N.Y.2d 683, 412 N.Y.S.2d 589, 385 N.E.2d 281, 283 (1978) and Mid-State Precast Sys. v. Corbetta Constr. Co., 202 A.D.2d 702, 608 N.Y.S.2d 546, 548 (App.Div.1994)). Moreover, New York courts have rejected total cost claims for lack of evidence. See, e.g., F.W. Sims, Inc. v. T. Moriarty & Son, Inc., 265 A.D.2d 234, 696 N.Y.S.2d 453, 453-54 (App.Div.1999) (agreeing with the trial court that the “ ‘total cost’ method of calculating construction delay damages was inapplicable under the particular circumstances of this case, and that plaintiff did not otherwise sufficiently prove delay-caused labor costs by non-speculative evidence”); Mid-State Precast Sys., 608 N.Y.S.2d at 548 (rejecting plaintiffs total cost claim for delay where plaintiffs proof consisted of a letter stating that it had sustained damages of $1,065,982 without supporting documentation or verification). Therefore, we conclude that the arbitrators did not manifestly disregard the law in failing to award total cost damages. Cf. Stoltr-Nielsen, 548 F.3d at 98 (noting that “federal courts may not review [findings of fact] even for manifest disregard”); accord Wallace, 378 F.3d at 193.
The Joint Venture also asks that the June 2005 award be modified to account for about $548,000 that it claims should have been debited against Coastal’s award. But as the district court noted in rejecting that argument:
These issues were raised directly with the arbitrators, who denied them through an order issued on August 11, 2005.... The arbitrators would have had the power to correct any computational errors, nothing suggests that they misapprehended their authority in that regard, and they declined to make any alteration in the First Award.... [T]he arbitrators decided these issues in [Coastal’s] favor on the merits.
Bench Opinion at 17-18. We agree.
We therefore reverse the district court’s vacatur of the June 2005 arbitral award.
We note that the Joint Venture also seeks vacatur of the April 2007 arbitral award. Pursuant to the Federal Arbitration Act (“FAA”), 9 U.S.C. § 1 et seq., when a party moves a court for an order confirming an arbitral award, such as the April 2007 award, “the court must grant such an order unless the award is vacated, modified, or corrected as prescribed in [Sections 10-11 of the FAA.]” 9 U.S.C. § 9. And as the Supreme Court has noted, Sections 10 and 11 “provide the FAA’s exclusive grounds for expedited vacatur and modification.” Hall Street Assocs., L.L.C. v. Mattel, Inc., 552 U.S. 576, 128 S.Ct. 1396, 1403, 170 L.Ed.2d 254 (2008).
The parties assume that vacatur of the April 2007 award follows as a necessary result of our reversal of the vacatur of the June 2005 arbitral award; on the basis of that assumption they fail to address the authority by which a court can vacate the April 2007 award.
With respect to the district court’s vacatur of the June 2005 arbitral award, we reverse and remand with instructions to confirm that award in its entirety. With respect to the district court’s confirmation of the April 2007 arbitral award, we vacate and remand with instructions for the court to proceed in light of our reversal of the June 2005 arbitral award, which conflicts with the April 2007 award.
We have considered all of the parties’ other arguments and find them to be without merit. For the foregoing reasons, the *721judgment is hereby REVERSED in part and VACATED and REMANDED in part.
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SUMMARY ORDER
Dong Jiang, a native and citizen of China, seeks review of a September 11, 2008, order of the BIA affirming the June 21, 2006, decision of Immigration Judge (“IJ”) Sandy K. Horn, which denied his application for asylum, withholding of removal, and relief under the Convention Against Torture (“CAT”). In re Dong Jiang, No. A200 023 601 (B.I.A. Sept. 11, 2008), aff'g No. A200 023 601 (Immig. Ct. N.Y. City June 21, 2006). We assume the parties’ familiarity with the underlying facts and procedural history in this case.
When the BIA affirms the IJ’s decision in some respects but not others, this Court reviews the IJ’s decision as modified by the BIA decision, i.e., minus the arguments for denying relief that the BIA rejected. See Xue Hong Yang v. U.S. Dep’t of Justice, 426 F.3d 520, 522 (2d Cir.2005). In its decision, the BIA declined to adopt or affirm the IJ’s adverse credibility determination. The BIA did, however, affirm the IJ’s finding that Jiang failed to satisfy his burden of proof. Because the BIA assumed Jiang’s credibility for purposes of *725its analysis, we do the same. See Yan Chen v. Gonzales, 417 F.3d 268, 271-72 (2d Cir.2005).
This Court reviews the agency’s factual findings under the substantial evidence standard. 8 U.S.C. § 1252(b)(4)(B); see also Manzur v. U.S. Dep’t of Homeland Sec., 494 F.3d 281, 289 (2d Cir.2007). We review de novo questions of law and the application of law to undisputed fact. See, e.g., Salimatou Bah v. Mukasey, 529 F.3d 99, 110 (2d Cir.2008).2
The agency denied Jiang’s application for asylum because it found that he did not provide sufficient evidence to establish that he had a well-founded fear of future persecution in China based on his practice of Falun Gong. The agency found that Jiang did not adequately demonstrate: (1) Chinese officials’ awareness of and continuing interest in him on account of his past practice of Falun Gong; or (2) Jiang’s continued practice of Falun Gong.
Jiang argues that the agency erred in finding that the record did not contain sufficient evidence of the Chinese government’s awareness of his Falun Gong practice, pointing to letters from his mother and friend. He argues that the agency failed to consider these letters for that purpose. That argument misunderstands the agency’s decision. Rather than ignoring the letters, the agency accorded them limited evidentiary weight because of certain material omissions. It did not err in doing so. See Xiao Ji Chen v. U.S. Dep’t of Justice, 471 F.3d 315, 342 (2d Cir.2006) (finding that the weight afforded to the applicant’s evidence lies largely within the IJ’s discretion).
Jiang further argues that the agency did not adequately consider the State Department’s 2005 Country Report on Human Rights Practices for China which reveals ongoing persecution against Falun Gong practitioners. Again, this argument misapprehends the agency’s decision. The agency did not dispute that Falun Gong practitioners face persecution in China. Indeed, the IJ conceded as much. Rather, the agency found that Jiang had not shown that the Chinese government was or would become aware of his practice. We find no error in that determination. Hongsheng Leng v. Mukasey, 528 F.3d 135, 143 (2d Cir.2008) (finding that, to establish a well-founded fear in the absence of any past persecution, “an alien must make some showing that authorities in his country of nationality are either aware of his activities or likely to become aware of his activities”).
As we have held, while an applicant’s credible testimony alone may suffice to carry his burden of proof, 8 U.S.C. § 1158(b)(1)(B)(ii), an IJ may “require that credible testimony ... be corroborated in circumstances in which one would expect corroborating evidence to be available and presented in the immigration hearing.” Chuilu Liu v. Holder, 575 F.3d 193, 196 (2d Cir.2009) (internal citation omitted). Here, the agency reasonably found that Jiang failed to provide adequate evidence to corroborate his claim that he continues to practice Falun Gong, thus leaving him without a basis for a well-founded fear of future persecution. See id. at 198 (finding that an IJ may reasonably rely on a lack of corroborating evidence where there is “no indication on the record that such evidence was unavailable, and [petitioner] has not provided an explanation on appeal for his failure to present such corroborating evidence”).
*726Because Jiang based his claim for withholding of removal on the same factual predicate as his asylum claim, and the IJ found that Jiang did not meet his burden of proof, that claim necessarily fails. See Paul v. Gonzales, 444 F.3d 148, 156 (2d Cir.2006) (noting that a withholding claim necessarily fails if the applicant is unable to show the objective likelihood of persecution needed to make out an asylum claim). Jiang does not challenge the agency’s denial of his CAT claim before this Court.
For the foregoing reasons, the petition for review is DENIED. As we have completed our review, any stay of removal that the Court previously granted in this petition is VACATED, and any pending motion for a stay of removal in this petition is DISMISSED as moot. Any pending request for oral argument in this petition is DENIED in accordance with Federal Rule of Appellate Procedure 34(a)(2), and Second Circuit Local Rule 34(b).
. The asylum application at issue in this case is governed by the amendments made to the Immigration and Nationality Act by the REAL ID Act of 2005, Pub.L. No. 109-13, 119 Stat. 231 (2005). See Title I, § 101(a)(3) of the Act, 119 Stat. 231, 303 (amending 8 U.S.C. § 1158); see also Xiu Xia Lin v. Mukasey, 534 F.3d 162, 165 (2d Cir.2008).
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MEMORANDUM **
Mersen Georgievich Maryanyan, his wife, Marina Nikolayevna Maryanyan, and their children, natives of the former Soviet Union and citizens of Russia, petition for review of the Board of Immigration Appeals’ decision dismissing their appeal from an immigration judge’s order denying their application for asylum, withholding of removal, and protection under the Convention Against Torture (“CAT”). Our jurisdiction is governed by 8 U.S.C. § 1252. We review for substantial evidence the agency’s adverse credibility determination. Gui v. INS, 280 F.3d 1217, 1225 (9th Cir. 2002). We dismiss in part and deny in part the petition for review.
We lack jurisdiction to review Maryanyan’s challenge to the BIA’s denial of the request for voluntary departure for the lead petitioner. See 8 U.S.C. § 1229c(f) (no court shall have jurisdiction over an appeal from the denial of voluntary departure). Accordingly, we dismiss the petition as to his voluntary departure claim.
Substantial evidence supports the agency’s adverse credibility determination based on the inconsistencies between Maryanyan’s testimony and his asylum application with respect to the 1995 and 1999 arrests. See Kohli v. Gonzales, 473 F.3d 1061, 1071 (9th Cir.2007) (discrepancies between petitioner’s testimony and declaration, inter alia, substantially support adverse credibility finding). In the absence of credible testimony, Maryanyan failed to establish eligibility for asylum or withholding of removal. See Farah v. Ashcroft, 348 F.3d 1153, 1156 (9th Cir.2003).
Finally, because Maryanyan’s CAT claim is based on the same testimony that agency found not credible, and he points to no other evidence the agency should have considered, substantial evidence supports the agency’s denial of CAT relief. See id. at 1156-57.
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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SUMMARY ORDER
Plaintiff-Appellant Vincent F. Rivera, pro se, appeals from an order denying reconsideration of the District Court’s earlier order dismissing his complaint as frivolous pursuant to the Prison Litigation Reform Act (“PLRA”), 28 U.S.C. § 1915(e)(2)(B)(i). We assume the parties’ familiarity with the underlying facts, the procedural history of the case, and the issues on appeal.
We affirm because the District Court was indisputably correct to deem Rivera’s claims frivolous on the ground that his allegations are entirely “the product of delusion or fantasy.” Livingston v. Adirondack Beverage Co., 141 F.3d 434, 437 (2d Cir.1998) (internal quotation marks omitted). Furthermore, we warn Rivera that the filing of frivolous appeals, motions, petitions or other documents in the future may result in the imposition of monetary sanctions or the requirement that he obtain permission of the Court before making future filings. See In re Martin-Trigona, 9 F.3d 226, 227, 229 (2d Cir.1993); Sassower v. Sansverie, 885 F.2d 9, 10 (2d Cir.1989).
We have considered all of Rivera’s remaining arguments on appeal and find them to be without merit. Accordingly, the judgment of the District Court is hereby AFFIRMED, and Rivera is hereby WARNED regarding the possible consequences of future frivolous submissions.
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SUMMARY ORDER
Petitioner, Mohamed Djoulde Barry, a native and citizen of Guinea, seeks review of the June 30, 2008 order of the BIA affirming the October 11, 2006 decision of Immigration Judge (IJ) Sandy K. Horn pretermitting his application for asylum and denying his application for withholding of removal and relief under the Convention Against Torture (CAT). In re Mohamed Djoulde Barry, No. A 097 587 484 (B.I.A. June 30, 2008), aff'g No. A 097 587 484 (Immig. Ct. N.Y. City Oct. 11, 2006). We assume the parties’ familiarity with this case’s underlying facts and procedural history.
When the BIA adopts the decision of the IJ and supplements the IJ’s decision, this Court reviews the decision of the IJ as supplemented by the BIA. See Yan Chen v. Gonzales, 417 F.3d 268, 271 (2d Cir.2005). This Court reviews the agency’s factual findings, including adverse credibility findings, under the substantial evidence standard. 8 U.S.C. § 1252(b)(4)(B); see also Corovic v. Mukasey, 519 F.3d 90, 95 (2d Cir.2008).
We find that the IJ’s adverse credibility finding was not supported by substantial evidence. The inconsistencies in Barry’s testimony, considered both alone and together, do not go to the heart of the claim. Under our pre-REAL ID Act standard, which the BIA correctly noted governs this case, minor inconsistencies are not an adequate basis for an adverse credibility finding. See Secaida-Rosales v. INS, 331 F.3d 297, 308 (2d Cir.2003).
For the foregoing reasons, the petition for review is GRANTED and the case REMANDED for further proceedings consistent with this opinion.
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SUMMARY ORDER
Petitioner, Su-Mei Li, a native and citizen of the People’s Republic of China, seeks review of the April 22, 2008 order of the BIA affirming the May 25, 2006 decision of Immigration Judge (“IJ”) Helen Sichel denying Li’s application for asylum, withholding of removal, and relief under the Convention Against Torture (“CAT”). In re Su-Mei Li, No. A 78 842 945 (B.I.A. Apr. 22, 2008), aff'g No. A 78 842 945 (Immig. Ct. N.Y. City May 25, 2006). We assume the parties’ familiarity with the underlying facts and procedural history of the case.
When the BIA issues an opinion that fully adopts the IJ’s decision, this Court reviews the IJ’s decision. See Mei Chai Ye v. U.S. Dep’t of Justice, 489 F.3d 517, 523 (2d Cir.2007). This Court reviews the agency’s factual findings, including adverse credibility determinations, under the substantial evidence standard. 8 U.S.C. § 1252(b)(4)(B); see also Manzur v. U.S. Dep’t of Homeland Sec., 494 F.3d 281, 289 *699(2d Cir.2007). “We review de novo questions of law and the application of law to undisputed fact.” Salimatou Bah v. Mukasey, 529 F.3d 99, 110 (2d Cir.2008).
We find that there are several errors in the IJ’s adverse credibility determination. First, the IJ found Li’s testimony regarding how frequently he practiced Falun Gong to be “highly inconsistent.” Li stated that he practices “[w]henever I have time,” which he explained meant when he had a day off work, when he got up in the morning, or before bed. Li explained that he got two days off work each week. The IJ asked whether Li practiced every day, and Li responded that he practiced “probably four, five occasions a week.” The IJ then asked about the discrepancy between his testimony that he practices four or five times a week and his earlier testimony that he practices on his days off and only gets two days off a week. Li responded, “When I have a day off and also in the morning. What I meant was whenever I have time.” The IJ does not adequately explain why Li’s testimony was discrepant as to this point, and a review of the record does not reveal any inconsistency. The record instead demonstrates that the IJ misunderstood the last portion of Li’s testimony. Li testified that he practiced Falun Gong “whenever” he had time, which meant when he had a day off, in the morning, or before bed. He did not testify that he only practiced on his days off. Moreover, it is clear from the transcript that when Li testified that he practiced “once” he was referring to, as he later explained, that he only participated in a “big event” once — when there was a collective Falun Gong practice to remember the victims of September 11. The IJ erred in finding that Li’s testimony about the frequency of his practice was inconsistent.
Additionally, the IJ found that Li’s testimony that his home was “destroyed” when police came to his home to arrest him was inconsistent with his father’s letter, which only stated that the home was “ransacked.” Li testified that police destroyed his home and submitted a photograph of authorities standing over a building that was in ruins. The IJ made much of the discrepancy in the words used to describe what happened. We find, however, that under the circumstances, the words “destroyed” and “ransacked” are sufficiently similar that this cannot be considered an inconsistency. Moreover, “[t]he more central an errant finding was to the IJ’s adverse credibility determination, ... the less confident we can be that remand would be futile.” Li Hua Lin v. U.S. Dep’t of Justice, 453 F.3d 99, 111 (2d Cir.2006).
Although there was other evidence to support the IJ’s adverse credibility determination, we cannot be confident that upon reconsideration cleansed of the errors identified above, the IJ would have reached the same conclusion. Cao He Lin v. U.S. Dep’t of Justice, 428 F.3d 391, 395, 401-02 (2d Cir.2005). We therefore GRANT the petition for review, and REMAND the case for proceedings consistent with this opinion.
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SUMMARY ORDER
Petitioner Hui Ming Lin, a native and citizen of the People’s Republic of China, seeks review of the October 31, 2008 order of the BIA affirming the June 11, 2007 decision of Immigration Judge (“IJ”) Sandy K. Horn denying his applications for asylum, -withholding of removal, and relief under the Convention Against Torture (“CAT”). In re Hui Ming Lin, No. A079 305 618 (B.I.A. Oct. 31, 2008), aff'g No. A079 305 618 (Immig. Ct. N.Y. City June 11, 2007). We assume the parties’ familiarity with the underlying facts and procedural history of the case.
When the BIA does not adopt the decision of the IJ to any extent, we review only the decision of the BIA. See Yan Chen v. Gonzales, 417 F.3d 268, 271 (2d Cir.2005). We review the agency’s factual findings under the substantial evidence standard. 8 U.S.C. § 1252(b)(4)(B); see Manzur v. U.S. Dep’t of Homeland Sec., *702494 F.3d 281, 289 (2d Cir.2007). Questions of law and the application of law to undisputed fact are reviewed de novo. See Salimatou Bah v. Mukasey, 529 F.3d 99, 110 (2d Cir.2008). Here, the IJ denied Lin’s application for relief on credibility grounds, yet the BIA assumed Lin’s credibility and denied relief based on Lin’s failure to meet his burden of proof under Shi Liang Lin v. U.S. Dep’t of Justice, 494 F.3d 296 (2d Cir.2007). Accordingly, we review only the BIA decision, and assume Lin’s credibility. See Yan Chen, 417 F.3d at 271 (declining to consider IJ’s credibility findings where the BIA assumed the petitioner’s credibility and did not adopt the IJ’s decision to any extent).
We have previously determined that, under 8 U.S.C. § 1101(a)(42), an individual is not per se eligible for asylum based on the forced abortion or sterilization of a spouse or partner. Shi Liang Lin, 494 F.3d at 308. Rather, “applicants can become candidates for asylum relief only based on persecution that they themselves have suffered or must suffer.” Id. Thus, because Lin is not eligible for relief based on the harm suffered by his wife, he was required to show that: “(1) he resisted China’s family planning policy; (2) he was persecuted (or has a well-founded fear of persecution); and (3) the persecution was or would be because of [his] ... resistance to the policy.” Matter of M-F-W & L-G-, 24 I. & N. Dec. 633, 641 (BIA 2008).
Even assuming, as the BIA appears to have done, that Lin’s actions constituted “resistance” to China’s family planning policy, the agency reasonably concluded that he was not persecuted on account of those actions. Here, Lin asserts that his arrest and brief detention by family planning officials rose to the level of persecution. However, this argument is unavailing, as we have previously held that a brief detention and release, without more, does not constitute persecution. See Joaquin-Ponus v. Gonzales, 435 F.3d 172, 182 (2d Cir.2006) (upholding agency’s determination that applicant was not eligible for withholding of removal based on “brief’ detention, after which he was released “without harm”). Moreover, because Lin admitted that, apart from his arrest and brief detention, he faced no other repercussions for stating his opposition to China’s coercive family planning policy during the ten years after his wife’s sterilization, the BIA also correctly determined that Lin failed to show a well-founded fear of future persecution. See Ramsameachire v. Ashcroft, 357 F.3d 169, 178 (2d Cir.2004) (to establish asylum eligibility based on future persecution, applicant must show that he subjectively fears persecution and that this fear is objectively reasonable). Thus, the BIA’s denial of Lin’s asylum and withholding of removal claims was appropriate. See Paul v. Gonzales, 444 F.3d 148, 156 (2d Cir.2006) (failure to establish eligibility for asylum necessarily precludes eligibility for withholding of removal because of the latter’s higher standard of proof).
While Lin argues that the BIA erred by denying his claim for CAT relief based on his illegal departure and alleged resistance to China’s family planning policy, the agency correctly found that Lin failed to demonstrate that it was more likely than not he would be tortured if returned to China. It is well-settled that the agency does not err in finding that a petitioner is not “entitled to CAT protection based solely on the fact that she is part of the large class of persons who have illegally departed China,” see Mu Xiang Lin v. U.S. Dep’t of Justice, 432 F.3d 156, 160 (2d Cir.2005). And, as already observed, the fact that Lin lived in China for ten years after his wife’s sterilization, without incident, confirms the agency’s determination that he would not likely be tortured if returned.
*703Lin’s remaining arguments are unavailing. First, Lin’s assertion that the BIA erred by remanding his case to the IJ following this Court’s stipulation and order is without merit. That order instructed the BIA to make clear and complete findings regarding Lin’s credibility and the plausibility of his claims, and the BIA reasonably determined that further factfinding was necessary to assess these issues. See 8 C.F.R. § 1003.1(d)(3)(iv) (mandating that the BIA “will not engage in factfinding in the course of deciding appeals,” and that, “[i]f further factfinding is needed in a particular case, the Board may remand the proceeding to the [IJ]”).
Second, the BIA did not abuse its discretion in denying Lin’s request for an additional remand to the IJ to consider evidence in light of Shi Liang Lin. The record shows that Lin had a full opportunity to present evidence in his original hearing concerning his actions incident to his wife’s sterilization, and he affirmatively testified that, apart from his arrest and bi’ief detention, he faced no other repercussions for voicing his objection to China’s family planning policies. See Shu Wen Sun v. BIA, 510 F.3d 377, 381 n. 5 (2d Cir.2007) (no remand needed to introduce additional evidence of “other resistance” where factual record was “adequately developed” as to this issue). Moreover, Lin failed to identify any additional evidence in support of his claims-not previously considered by the IJ-that he could present were his case remanded. Cf. Gui Yin Liu v. INS, 508 F.3d 716, 723 (2d Cir.2007) (remand to agency for consideration of additional evidence as to “other resistance” appropriate where no such evidence was introduced or considered at original hearing).
Third, the BIA’s application of Shi Liang Lin to Lin’s claims did not violate his due process rights or warrant remand to the agency for a nunc pro tunc order. Shi Liang Lin was decided prior to the BIA’s dismissal of Lin’s appeal, and, as a general rule, the BIA applies the law in effect at the time it enters a decision. See 8 C.F.R. § 1003.1(d)(3)(ii)(BIA has the authority on appeal to apply the law as it exists at the time it renders its decision); NLRB v. Coca-Cola Bottling Co., 55 F.3d 74, 78 (2d Cir.1995)(“Appellate courts ordinarily apply the law in effect at the time of the appellate decision”).
For the foregoing reasons, the petition for review is DENIED. As we have completed our review, any stay of removal that the Court previously granted in this petition is VACATED, and any pending motion for a stay of removal in this petition is DISMISSED as moot. Any pending request for oral argument in this petition is DENIED in accordance with Federal Rule of Appellate Procedure 34(a)(2), and Second Circuit Local Rule 34(b).
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SUMMARY ORDER
Bao Ying Cai, a native and citizen of the People’s Republic of China, seeks review of an August 21, 2008 order of the BIA, affirming the April 25, 2007 decision of Immigration Judge (“IJ”) Javier Balasquide, which denied his application for asylum, withholding of removal, and relief under the Convention Against Torture (CAT). In re Bao Ying Cai, No. A99 026 073 (B.I.A. Aug. 21, 2008), aff'g No. A99 026 073 (Immig. Ct. N.Y. City Apr. 25, 2007). We assume the parties’ familiarity with the underlying facts and procedural history in this case.
When the BIA agrees with the IJ’s conclusion that a petitioner is not credible and, without rejecting any of the IJ’s grounds for decision, emphasizes particular aspects of that decision, this Court reviews both the BIA’s and IJ’s opinions— or more precisely, the Court reviews the IJ’s decision including the portions not explicitly discussed by the BIA. Yun-Zui Guan v. Gonzales, 432 F.3d 391, 394 (2d Cir.2005). We “defer [] to an IJ’s credibility determination unless, from the totality of the circumstances, it is plain that no reasonable fact-finder could make such an adverse credibility ruling.” Xiu Xia Lin v. Mukasey, 534 F.3d 162, 167 (2d Cir.2008). For asylum applications governed by the amendments made to the Immigration and Nationality Act by the REAL ID Act, the agency may, considering the totality of the circumstances, base a credibility *705finding on an asylum applicant’s “demean- or, candor, or responsiveness,” the plausibility of his or her account, and inconsistencies in his or her statements, without regard to whether they go “to the heart of the applicant’s claim.” 8 U.S.C. § 1158(b)(1)(B)(iii).
In concluding that petitioner was not credible, the agency relied on several inconsistencies in his hearing testimony as well as discrepancies between his asylum application and testimony. First, Cai initially testified that he had custody of his three children and that they all resided with him. When confronted with documentary evidence suggesting that his ex-wife had custody of his daughter, however, Cai then claimed that the daughter lived with her maternal grandmother. See Liang Chen v. U.S. Att’y Gen., 454 F.3d 103, 106-107 (2d Cir.2006). Second, while Cai testified that he was married to his first wife in 1992, his asylum application states that they married in 1990. See id. Additionally, Cai testified that his wife did not receive a certificate from family planning officials indicating that she was unfit for sterilization, even though he had submitted a document into evidence making exactly that representation.
While Cai argues that the IJ erred by not excusing these discrepancies in light of his explanations, ie., that he was “nervous and confused,” Petr. Br. at 21, and that he “didn’t know what [he] was thinking,” Tr. at 36, we conclude that the IJ acted within his discretion in declining to credit Cai’s explanations. See Majidi v. Gonzales, 430 F.3d 77, 80-81 (2d Cir.2005). We ultimately conclude that no reasonable fact-finder would be compelled to credit Cai’s testimony. Because the IJ’s adverse credibility determination was supported by substantial evidence, see Xiu Xia Lin, 534 F.3d at 165-66, the agency properly denied Cai’s application for asylum. Moreover, because the only evidence of a threat of persecution or torture depended on Cai’s credibility, the adverse credibility determination in this case necessarily precludes success on his claims for withholding of removal and CAT relief. See Paul v. Gonzales, 444 F.3d 148, 156 (2d Cir.2006).
For the foregoing reasons, the petition for review is DENIED. As we have completed our review, the pending motion for a stay of removal in this petition is DISMISSED as moot. Any pending request for oral argument in this petition is DENIED in accordance with Federal Rule of Appellate Procedure 34(a)(2) and Second Circuit Local Rule 34(b).
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SUMMARY ORDER
Petitioners Agim, Fljorije, and Benjamin Balidemaj, all natives and citizens of the former Serbia and Montenegro,2 seek review of the October 20, 2008 order of the BIA affirming the December 13, 2005 decision of Immigration Judge (“IJ”) Adam Opaciueh denying their application for asylum, withholding of removal, and relief under the Convention Against Torture (“CAT”).3 In re Agim Balidemaj et al., Nos. A077 567 992/993/994 (B.I.A. Oct. 20, 2008), aff'g Nos. A077 567 992/993/994 (Immig. Ct. N.Y. City Dec. 13, 2005). We assume the parties’ familiarity with the underlying facts and procedural history of the case.
As an initial matter, because Petitioners failed to challenge the IJ’s denial of their CAT claim in their brief to the BIA, we lack jurisdiction to consider the arguments they raise in this Court in the first instance. See 8 U.S.C. § 1252(d)(1); Karaj v. Gonzales, 462 F.3d 113, 119 (2d Cir.2006) (citing Beharry v. Ashcroft, 329 F.3d 51, 59 (2d Cir.2003)) (on appeal to the BIA, the applicant must raise each category of relief subsequently raised in this Court). We dismiss the petition to that extent.
When the BIA issues an opinion that fully adopts the IJ’s decision, we review the IJ’s decision. See Mei Chai Ye v. U.S. Dep’t of Justice, 489 F.3d 517, 523 (2d Cir.2007). We review the agency’s factual findings under the substantial evidence standard. 8 U.S.C. § 1252(b)(4)(B); see Manzur v. U.S. Dep’t of Homeland Sec., 494 F.3d 281, 289 (2d Cir.2007). Questions of law and the application of law to undisputed fact are reviewed de novo. See Salimatou Bah v. Mukasey, 529 F.3d 99, 110 (2d Cir.2008).
Where an applicant establishes that he has suffered past persecution, he is entitled to a presumption of a well-founded fear of future persecution. 8 C.F.R. § 1208.13(b)(1). However, applicable regulations require IJs to exercise the Attorney General’s discretion to deny asylum to applicants who establish eligibility based solely on past persecution when the government establishes a fundamental change in circumstances sufficient to rebut the presumption of a well-founded fear of future persecution. 8 C.F.R. § 1208.13(b)(l)(i). It is the Government’s burden to rebut this presumption. See 8 C.F.R. § 1208.13(b)(l)(ii). Here, the IJ found that, although Agim Balidemaj endured past persecution, conditions in his country had changed such that he no longer had a well-founded fear of future persecution.
Petitioners argue that the IJ erred by failing to shift the burden to the Government as required under 8 C.F.R. § 1208.13(b)(l)(ii). We agree. The record reveals that, having found that Balidemaj endured past persecution, the IJ erred by requiring that he affirmatively prove that *708he had a well-founded fear of future persecution. Indeed, the IJ stated that Petitioners “ha[d] not submitted any evidence that ... established that [t]he[y] ha[d] a well-founded fear of future persecution.”
Nonetheless, remand is not warranted because we can confidently predict that, absent this error, the IJ would have reached the same conclusion. See Niang v. Mulcasey, 511 F.3d 138, 149-50 (2d Cir.2007); Xiao Ji Chen v. U.S. Dep’t of Justice, 471 F.3d 315, 335 (2d Cir.2006). After considering the evidence Petitioners submitted, the IJ determined that changed country conditions rebutted any presumption of a well-founded fear because the evidence showed that: (1) the government in Serbia and Montenegro “generally respected the human rights of its citizens,” and there were no reports of politically motivated violence; (2) there were only “a few reports [of] police inattention to the security of the ethnic Albanian population” in South Serbia, and that, in Kosovo, the only reports of ethnically-motivated violence concerned the treatment of ethnic Serbs; (3) although certain reports documented the use of torture in Serbia and Montenegro, there was no evidence that these incidents involved ethnic Albanians; and (4) although Balidemaj’s expert witness’s report indicated that violence against ethnic Albanians was on the rise in Serbian jails, this assessment was based on information from 2001, and the expert’s allegation of possible retribution against Petitioners by Kosovar extremist groups was not credible.
We are not compelled to conclude, as Petitioners argue, that the IJ failed to consider other probative evidence in the record. While we have held that the agency must consider an applicant’s country conditions evidence, see Yan Chen v. Gonzales, 417 F.3d 268, 272 (2d Cir.2005), nothing in the record suggests that the IJ ignored the evidence submitted in this case, see Xiao Ji Chen, 471 F.3d at 338 n. 17 (“[W]e presume that an IJ has taken into account all of the evidence before him, unless the record compellingly suggests otherwise.”).
In effect, Petitioners’ own evidence served to rebut their presumption of a well-founded fear. In such circumstances, remanding would “be an idle and useless formality” because, were the Government simply to produce the same evidence Petitioners submitted, the IJ could find that the Government had met its burden to rebut the presumption. See NLRB v. Wyman-Gordon Co., 394 U.S. 759, 766 n. 6, 89 S.Ct. 1426, 22 L.Ed.2d 709 (1969); see also Li Zu Guan v. INS, 453 F.3d 129, 135-38 (2d Cir.2006) (discussing futility standards).
Finally, Petitioners assert that the agency erred by refusing to grant them humanitarian asylum. This argument is unavailing. To be eligible for humanitarian asylum, a petitioner must demonstrate “compelling reasons for being unwilling or unable to return ... [that] aris[e] out of the severity of the past persecution.” 8 C.F.R. § 1208.13(b)(1)(iii)(A); see In re N-M-A-, 22 I. & N. Dec. 312, 326 (B.I.A. 1998) (petitioner must show “severe harm and the long-lasting effects of that harm”). We may overturn a discretionary denial of humanitarian asylum only if it is “manifestly contrary to the law and an abuse of discretion.” 8 U.S.C. § 1252(b)(4)(D); Wu Zheng Huang v. INS, 436 F.3d 89, 96 (2d Cir.2006).
As the BIA has observed, humanitarian asylum is reserved for only the most “atrocious” forms of persecution. See Matter of Chen, 20 I. & N. Dec. 16, 19 (B.I.A.1989). We cannot find that the BIA abused its discretion in finding that, although deplorable, Petitioners’ mistreatment did not reach that level. See Jalloh v. Gonzales, 498 F.3d 148, 152 (2d Cir.2007)(holding *709that humanitarian asylum requires a showing of “long-lasting physical or mental effects” arising from an applicant’s past persecution); see also Matter of Chen, 20 I. & N. Dec. at 20 (finding that humanitarian asylum was appropriate where alien’s persecution resulted in permanent disability, constant anxiousness and fearfulness, and suicidal thoughts).
Because the agency correctly determined that the Petitioners failed to satisfy the lower burden of proof for asylum, it also properly denied their application for withholding of removal. Paul v. Gonzales, 444 F.3d 148, 156 (2d Cir.2006) (Where both claims are based on the same factual predicate, failure to establish eligibility for asylum necessarily precludes eligibility for withholding of removal because of the latter’s higher standard of proof.).
For the foregoing reasons, the petition for review is DENIED in part and DISMISSED in part. As we have completed our review, any stay of removal that the Court previously granted in this petition is VACATED, and any pending motion for a stay of removal in this petition is DISMISSED as moot. Any pending request for oral argument in this petition is DENIED in accordance with Federal Rule of Appellate Procedure 34(a)(2), and Second Circuit Local Rule 34(b).
. At the time Petitioners filed their application, Serbia and Montenegro was a unified republic. However, after the IJ issued his decision in 2005, Serbia and Montenegro became distinct, independent countries.
. We retain jurisdiction to consider the instant petition for review despite the fact that petitioners were placed in "asylum-only” proceedings. See Kanacevic v. INS, 448 F.3d 129, 134 (2d Cir.2006).
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https://www.courtlistener.com/api/rest/v3/opinions/8472246/
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SUMMARY ORDER
Thauo Lin, a native and citizen of the People’s Republic of China, seeks review of an October 31, 2008 order of the BIA, affirming the August 2, 2007 decision of Immigration Judge (“IJ”) Barbara A. Nelson, which denied his application for asylum, withholding of removal, and relief under the Convention Against Torture (“CAT”). In re Thauo Lin, No. A094 798 090 (B.I.A. Oct. 31, 2008), aff'g No. A094 798 090 (Immig. Ct. N.Y. City Aug. 2, 2007). We assume the parties’ familiarity with the underlying facts and procedural history in this case.
When the BIA agrees with the IJ’s conclusion that a petitioner is not credible and, without rejecting any of the IJ’s grounds for decision, emphasizes particular aspects of that decision, this Court reviews both the BIA’s and IJ’s opinions— or more precisely, the Court reviews the IJ’s decision including the portions not explicitly discussed by the BIA. Yun-Zui Guan v. Gonzales, 432 F.3d 391, 394 (2d Cir.2005). We review the agency’s factual findings, including adverse credibility findings, under the substantial evidence standard. 8 U.S.C. § 1252(b)(4)(B); see also Xiu Xia Lin v. Mukasey, 534 F.3d 162, 165-66 (2d Cir.2008).2
Substantial evidence supports the IJ’s adverse credibility determination. In finding Lin not credible, the IJ reasonably relied on Lin’s failure to include in his asylum application any assertion that he was arrested and detained by Chinese authorities for his alleged “other resistance” to the family planning policy. See Xian Tuan Ye v. DHS, 446 F.3d 289, 295-96 (2d Cir.2006) (holding that an applicant’s failure to include any reference to his alleged detention and beating in his 1-589 form is a “self evident” inconsistency that the agency may rely on without first soliciting an explanation). Although we have held that “asylum applicants are not required to list every incident of persecution on their 1-589 statements,” Pavlova v. INS, 441 F.3d 82, 90 (2d Cir.2006), Lin’s omission of this assertion was sufficient to undermine his credibility. See Xiu Xia Lin, 534 F.3d at 165-66. The IJ found the omission particularly suspicious because the details Lin added in his testimony appeared to have been in response to a decision of this Court, the holding of which undermined the claim Lin had made in his asylum application. Further, the IJ reasonably declined to credit Lin’s explanations that he did not consider his arrest and detention a “big thing” and that “he forgot” to write it on his application. See Majidi v. Gonzales, 430 F.3d 77, 80-81 (2d Cir.2005).
Additionally, while Lin testified that his wife was forcibly sterilized in November *7112003, his asylum application stated that she was sterilized in November 2006. Further, although Lin testified that his wife was forced to have an abortion during the third month of her pregnancy, his asylum application indicated that she had the abortion when she was “one month pregnant.” Ultimately, because a reasonable fact-finder would not be compelled to conclude to the contrary, we find that the IJ’s adverse credibility determination was supported by substantial evidence. See Xiu Xia Lin, 534 F.3d at 165-66. Thus, the agency’s denial of Lin’s application for asylum was proper. See 8 U.S.C. § 1158(b)(1)(B)(iii). Moreover, because Lin based his claims for withholding of removal and CAT relief on the same factual predicate as his asylum claim, those claims necessarily fail. See Paul v. Gonzales, 444 F.3d 148, 156 (2d Cir.2006); Xue Hong Yang v. U.S. Dep’t of Justice, 426 F.3d 520, 523 (2d Cir.2005).
For the foregoing reasons, the petition for review is DENIED. As we have completed our review, any stay of removal that the Court previously granted in this petition is VACATED, and any pending motion for a stay of removal in this petition is DISMISSED as moot. Any pending request for oral argument in this petition is DENIED in accordance with Federal Rule of Appellate Procedure 34(a)(2), and Second Circuit Local Rule 34(b).
. The asylum application in this case is governed by the amendments made to the Immigration and Nationality Act by the REAL ID Act of 2005, Pub.L. No. 109-13, 119 Stat. 231 (2005). See Title I, § 101(a)(3) of the Act, 119 Stat. 231, 303 (amending 8 U.S.C. § 1158); see also Xiu Xia Lin, 534 F.3d at 165.
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SUMMARY ORDER
Petitioner Abdourahamane Dia, a native and citizen of Guinea, seeks review of the November 5, 2008 order of the BIA affirming the July 9, 2007 decision of the Immigration Judge (“IJ”) Paul A. Defonzo, denying his applications for asylum, withholding of removal, and relief under the Convention Against Torture (“CAT”). In re Abdourahamane Dia, No. A098 690 617 (B.I.A. Nov. 5, 2008), aff'g No. A098 690 617 (Immig. Ct. N.Y. City July 9, 2007). We assume the parties’ familiarity with the underlying facts and procedural history of the case.
When the BIA agrees with the IJ that a petitioner is not credible and, without rejecting any of the IJ’s grounds for decision, emphasizes particular aspects of that decision, we review both decisions — or, more precisely, the we review the IJ’s decision including the portions not explicitly discussed by the BIA. See Yun-Zui Guan v. Gonzales, 432 F.3d 391, 394 (2d Cir.2005). We review the agency’s factual findings, including adverse credibility determinations, under the substantial evidence standard. 8 U.S.C. § 1252(b)(4)(B); see also Corovic v. Mukasey, 519 F.3d 90, 95 (2d Cir.2008). We review de novo questions of law and the application of law to undisputed fact. See Salimatou Bah v. Mukasey, 529 F.3d 99, 110 (2d Cir.2008).
The agency’s adverse credibility finding is supported by substantial evidence. Here, as the IJ found, Dia gave inconsistent testimony concerning: (1) his political support for the Union for Progress and Renewal (“UPR”), a Guinean opposition party; (2) whether his father was arrested and detained (or merely warned) after an incident in 2002, in which Dia was suspended from school; (3) the length of time after the death of a national UPR leader that Dia wore a shirt depicting the leader to school, resulting in his suspension; and (4) the length of Dia’s detention following his arrest in 2004. Moreover, the IJ correctly noted that, although Dia claimed he was persecuted at school for his political support of the UPR, his father affirmed in a sworn statement that it was his own political activities that precipitated Dia’s arrest.
Dia does not dispute these inconsistencies in the record; rather, he argues that they are minor and tangential to his claims. This argument is unavailing. Although inconsistencies need not be fatal if they are minor and isolated, and the applicant’s testimony is otherwise consistent, rational, and believable, see Diallo v. INS, 232 F.3d 279, 288 (2d Cir.2000), such inconsistencies may nonetheless support an adverse credibility finding if their “cumulative effect ... [is] deemed consequential by the fact-finder,” Tu Lin v. Gonzales, 446 F.3d 395, 402 (2d Cir.2006). Here, even assuming, arguendo, that the above inconsistencies were minor, the agency reasonably relied on their cumulative effect in finding Dia not credible. See id. Given the numerous discrepancies between Dia’s testimony and his written statement and supporting documents, substantial evidence supports the agency’s adverse credibility determination. See Liang Chen v. U.S. Att’y Gen., 454 F.3d 103, 106-07 (2d Cir.2006) (recognizing that an IJ can “rely *713on the cumulative impact of [an applicant’s] inconsistencies, and may conduct an overall evaluation of testimony in light of its rationality or internal consistency and the manner in which it hangs together with other evidence”).
Therefore, the agency did not err in denying Dia’s applications for asylum, withholding of removal, and CAT relief where all three claims were based upon the same factual predicate. See Paul v. Gonzales, 444 F.3d 148, 156-57 (2d Cir.2006); Xue Hong Yang v. U.S. Dep’t of Justice, 426 F.3d 520, 522 (2d Cir.2005).
For the foregoing reasons, the petition for review is DENIED. As we have completed our review, any stay of removal that the Court previously granted in this petition is VACATED, and any pending motion for a stay of removal in this petition is DISMISSED as moot. Any pending request for oral argument in this petition is DENIED in accordance with Federal Rule of Appellate Procedure 34(a)(2), and Second Circuit Local Rule 34(b).
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https://www.courtlistener.com/api/rest/v3/opinions/8472252/
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SUMMARY ORDER
Appellant Mary Viscusi, pro se, appeals from the district court’s grant of P & G— Clairol, Inc.’s (“P & G”) motion for summary judgment on Viscusi’s complaint alleging New York state law claims for strict *716products liability, negligence, and breach of warranty incident to injuries Viscusi allegedly sustained from her use of P & G’s hair dye product, Nice ‘N Easy. We assume the parties’ familiarity with the underlying facts, the procedural history of the case, and the issues on appeal.
We review orders granting summary judgment de novo and focus on whether the district court properly concluded that there was no genuine issue as to any material fact and the moving party was entitled to judgment as a matter of law. See Miller v. Wolpoff & Abramson, L.L.P., 321 F.3d 292, 300 (2d Cir.2003). “In determining whether there are genuine issues of material fact, we are required to resolve all ambiguities and draw all permissible factual inferences in favor of the party against whom summary judgment is sought.” Terry v. Ashcroft, 336 F.3d 128, 137 (2d Cir.2003) (citation and internal quotations omitted).
Under New York law, “[i]t is well settled that, whether [an] action is pleaded in strict products liability, breach of warranty or negligence, it is a consumer’s burden to show that a defect in the product was a substantial factor in causing the injury.” Fritz v. White Consol. Indus., Inc., 306 A.D.2d 896, 762 N.Y.S.2d 711, 714 (N.Y.App.Div.2003) (citation and internal quotations omitted); see Kosmynka v. Polaris Indus., Inc., 462 F.3d 74, 86 (2d Cir.2006) (“Both negligence and strict products liability ... require a showing of product ‘defect.’ ”). Although we assume, as the district court did, that genuine issues of material fact exist as to whether Viscusi sustained an allergic reaction from her use of Nice ‘N Easy, because she failed to present sufficient evidence of a defect in the product, all of her claims failed as a matter of law. Accordingly, summary judgment as to all of Viscusi’s claims was appropriate.
Viscusi argues that the district court erred by excluding the testimony of her expert witness, Dr. Leon Weinstein. We review the district court’s decision to admit or exclude expert testimony under Federal Rule of Evidence 702 for abuse of discretion. Kumho Tire Co. v. Carmichael, 526 U.S. 137, 152, 119 S.Ct. 1167, 143 L.Ed.2d 238 (1999); United States v. Salameh, 152 F.3d 88, 129 (2d Cir.1998). Here, Dr. Weinstein admitted that he was a primary care physician who lacked any specialization in dermatology, allergy neurology, or epidemiology, and that he never examined Viscusi’s scalp nor observed any burns, rashes, or blisters.
Based on these facts, the district court did not abuse its discretion in determining that, under Rule 702, Dr. Weinstein was unqualified to render an expert opinion, and that his opinion was insufficiently reliable. See Nimely v. City of New York, 414 F.3d 381, 395-96 & n. 11 (2d Cir.2005) (to satisfy Rule 702, expert must, inter alia, be “qualified as an expert by knowledge, skill, experience, training or education,” whose opinion has “the required indicia of scientific reliability”) (quoting Fed.R.Evid. 702).
Although she argues that she was unable to prove her case because she lacked experts on causation, that issue was not dispositive of her claims. Rather, the district court correctly granted summary judgment to P & G because Viscusi failed to present any evidence of a product defect.
We have reviewed Viscusi’s remaining claims and find that they are without merit.
For the foregoing reasons, the judgment of the district court is hereby AFFIRMED.
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SUMMARY ORDER
E.E. Cruz, NAB Construction Corporation, Frontier-Kemper Construction, Inc., AETNA Casualty & Surety Company, and Travelers Casualty and Surety Company, appeal from a judgment of the United States District Court for the Southern District of New York. To the extent not discussed below, we assume the parties’ and counsel’s familiarity with the facts and procedural history of this case, and the issues presented on this appeal.
On March 18, 1998, contractors E.E. Cruz, Nab Construction Corporation, and Frontier Kemper Construction, Inc., (collectively, the “Joint Venture”) executed a subcontract with Bauer of America Corporation, predecessor in interest to Coastal Caisson Corporation, (collectively “Coastal”) to build a large caisson and jet grout retaining wall, known as an Earth Support System (“ESS”), around a construction site in Flushing, Queens. Pursuant to the agreement, the Joint Venture was to provide labor, equipment, materials, and certain other services to aid the subcontractor’s work. The parties were soon mired in various disputes related to the contract. Litigation, two arbitrations, and this appeal followed.
On June 24, 2005, an arbitral panel from the American Arbitration Association awarded Coastal $791,731.27 in damages. Thereafter, Coastal petitioned the district court to vacate the award in part and confirm in part. The Joint Venture petitioned the district court to modify the award for a material miscalculation. The district court consolidated the two petitions. By Oral Decision of October 14, 2005, the court granted Coastal’s petition to vacate the award on the basis that the arbitral panel had manifestly disregarded New York law and denied the Joint Venture’s petition as moot. Transcript of Bench Opinion, Coastal Caisson Corp. v. E.E. Cruz & Co., Inc., NAB, No. 05 Civ. 7462 (S.D.N.Y. Oct. 14, 2005) (“Bench Opinion”).
Thereafter, by decision dated April 13, 2007, the arbitral panel, with one member dissenting, awarded Coastal an additional $1,197,735.67 in damages, for a total award of $1,989,466.94. The panel declined to award pre-judgment interest. The dissenting panel member, by separate opinion, concluded that the district court had improperly vacated the June 2005 award. Thereafter, Coastal petitioned the court to confirm the April 2007 award but amend it to award prejudgment interest. The Joint Venture petitioned the district court to vacate the April 2007 award and confirm the June 2005 award, with modifications.
By written opinion dated August 10, 2007, the district court confirmed the April 2007 award in its entirety and denied Coastal’s motion for prejudgment interest. Coastal Caisson Corp. v. E.E. Cruz/NAB/Frontier-Kemper, Nos. 05 Civ. 7462, 7466, 2007 WL 2285936, 2007 U.S. Dist. LEXIS 58114 (S.D.N.Y. Aug. 10, 2007).
On appeal, the Joint Venture urges us to vacate the April 2007 award and confirm the June 2005 award after correcting it for a material miscalculation. Coastal cross-appeals asking us to confirm the April 2007 award, with the addition of interest.
*719“When a party challenges the district court’s review of an arbitral award under the manifest disregard standard, we review the district court’s application of the standard de novo.” Wallace v. Buttar, 378 F.3d 182, 189 (2d Cir.2004) (internal quotation marks omitted).
In light of intervening precedent, see Stolt-Nielsen SA v. AnimalFeeds Int’l Corp., 548 F.3d 85 (2d Cir.2008), cert. granted on other grounds, — U.S.-, 129 S.Ct. 2793, 174 L.Ed.2d 289 (2009), it has become clear that the district court erred in vacating the first award for “manifest disregard” of New York law. We will vacate for manifest disregard of the law only where “the arbitrator knew of the relevant [legal] principle, appreciated that this principle controlled the outcome of the disputed issue, and nonetheless willfully flouted the governing law by refusing to apply it.” Id. at 95 (internal quotation marks omitted); see also id. at 93 (“[W]e look to a subjective element, that is, the knowledge actually possessed by the arbitrators” to see whether the arbitrators “intentionally disregarded] the law.” (internal quotation marks omitted)); Wallace, 378 F.3d at 190 (vacatur for manifest disregard appropriate “only if a reviewing court ... find[s] ... that (1) the arbitrators knew of a governing legal principle yet refused to apply it or ignored it altogether, and (2) the law ignored by the arbitrators was well defined, explicit, and clearly applicable to the case.” (internal quotation marks omitted, alteration in original)).
Here, the district court vacated the June 2005 arbitral award based on the arbitrators’ purported refusal to apply New York’s total cost method of calculating damages. A review of the award indicates, however, that the arbitrators did not ignore New York law in this regard. They specifically embraced the total cost method of damages, explicitly rejecting the Joint Venture’s argument that New York’s total cost method should not apply, concluding that the panel “cannot ignore the numerous New York cases that have found circumstances appropriate to apply it.” Coastal Caisson Corp. v. E.E. Cruz/NAB/Frontier-Kemper, No. 13 Y 110 00384 03, Slip Op. at 7 (Am. Arbitration Ass’n June 24, 2005).
The arbitration panel ruled “as a matter of law [that] a total cost claim can[] be maintained” in such a circumstance, noting that “[w]e believe that the cases teach that whether or not such damages are available in a given case is a factual question dependent on the nature and quality of the proof presented, particularly on the issue of causation.” Id. (emphasis added). The “fundamental question,” according to the arbitrators, was whether “the factual record made by Bauer in this case supported] [its] claim for total cost damages?” Id.
The arbitrators then concluded that Bauer’s claim of delay was, “if not invented, at least greatly inflated.” Id. at 11. Bauer failed to produce records of delay, and where Bauer did submit evidence of delay, its calculations were inaccurate and unreliable. Id. at 12-13. Moreover, Bauer failed to prove what factors actually harmed it. Id. at 14-15. Because Bauer did not submit adequate proof as to what delay, if any, it suffered, the arbitrators held that determining costs attributable to the alleged delay was impossible.
This was not an improper application of New York law:
It is well settled that in calculating contract damages due to delays “[a] contractor wrongfully delayed by its employer must establish the extent to which its costs were increased by the improper acts because its recovery will be limited to damages actually sustained.” ... [D]amages are limited to awards based upon “a definite and logi*720cal connection between what is proven and the damages sought to be recovered” and cannot be speculative or conjectural.
Clifford R. Gray Inc. v. State, 251 A.D.2d 728, 674 N.Y.S.2d 440, 442 (App.Div.1998) (quoting Berley Indus. v. City of New York, 45 N.Y.2d 683, 412 N.Y.S.2d 589, 385 N.E.2d 281, 283 (1978) and Mid-State Precast Sys. v. Corbetta Constr. Co., 202 A.D.2d 702, 608 N.Y.S.2d 546, 548 (App.Div.1994)). Moreover, New York courts have rejected total cost claims for lack of evidence. See, e.g., F.W. Sims, Inc. v. T. Moriarty & Son, Inc., 265 A.D.2d 234, 696 N.Y.S.2d 453, 453-54 (App.Div.1999) (agreeing with the trial court that the “ ‘total cost’ method of calculating construction delay damages was inapplicable under the particular circumstances of this case, and that plaintiff did not otherwise sufficiently prove delay-caused labor costs by non-speculative evidence”); Mid-State Precast Sys., 608 N.Y.S.2d at 548 (rejecting plaintiffs total cost claim for delay where plaintiffs proof consisted of a letter stating that it had sustained damages of $1,065,982 without supporting documentation or verification). Therefore, we conclude that the arbitrators did not manifestly disregard the law in failing to award total cost damages. Cf. Stoltr-Nielsen, 548 F.3d at 98 (noting that “federal courts may not review [findings of fact] even for manifest disregard”); accord Wallace, 378 F.3d at 193.
The Joint Venture also asks that the June 2005 award be modified to account for about $548,000 that it claims should have been debited against Coastal’s award. But as the district court noted in rejecting that argument:
These issues were raised directly with the arbitrators, who denied them through an order issued on August 11, 2005.... The arbitrators would have had the power to correct any computational errors, nothing suggests that they misapprehended their authority in that regard, and they declined to make any alteration in the First Award.... [T]he arbitrators decided these issues in [Coastal’s] favor on the merits.
Bench Opinion at 17-18. We agree.
We therefore reverse the district court’s vacatur of the June 2005 arbitral award.
We note that the Joint Venture also seeks vacatur of the April 2007 arbitral award. Pursuant to the Federal Arbitration Act (“FAA”), 9 U.S.C. § 1 et seq., when a party moves a court for an order confirming an arbitral award, such as the April 2007 award, “the court must grant such an order unless the award is vacated, modified, or corrected as prescribed in [Sections 10-11 of the FAA.]” 9 U.S.C. § 9. And as the Supreme Court has noted, Sections 10 and 11 “provide the FAA’s exclusive grounds for expedited vacatur and modification.” Hall Street Assocs., L.L.C. v. Mattel, Inc., 552 U.S. 576, 128 S.Ct. 1396, 1403, 170 L.Ed.2d 254 (2008).
The parties assume that vacatur of the April 2007 award follows as a necessary result of our reversal of the vacatur of the June 2005 arbitral award; on the basis of that assumption they fail to address the authority by which a court can vacate the April 2007 award.
With respect to the district court’s vacatur of the June 2005 arbitral award, we reverse and remand with instructions to confirm that award in its entirety. With respect to the district court’s confirmation of the April 2007 arbitral award, we vacate and remand with instructions for the court to proceed in light of our reversal of the June 2005 arbitral award, which conflicts with the April 2007 award.
We have considered all of the parties’ other arguments and find them to be without merit. For the foregoing reasons, the *721judgment is hereby REVERSED in part and VACATED and REMANDED in part.
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SUMMARY ORDER
Plaintiff-appellant Sly Magazine, LLC (“Plaintiff’) appeals from the December 18, 2007 judgment of the district court granting summary judgment to defendants-appellees Weider Publications L.L.C. and American Media, Inc. (“Defendants”). See SLY Magazine LLC v. Weider Publ’ns L.L.C., 529 F.Supp.2d 425 (S.D.N.Y.2007). We assume the parties’ familiarity with the facts and proceedings in the district court and on appeal.
“On appeal from a grant of summary judgment, the findings with respect to predicate facts underlying each Polaroid1 factor are reviewed with ‘considerable deference’ to the district court. The district court’s balancing of the Polaroid factors is subject to de novo review.” Playtex Prods., Inc. v. Georgiar-Pacific Corp., 390 F.3d 158, 162 (2d Cir.2004) (citations and footnote omitted). We review de novo a grant of summary judgment, construing the facts in the light most favorable to the nonmoving party. Am. Express Co. v. Goetz, 515 F.3d 156, 159 (2d Cir.2008).
Lanham Act Claims
The Lanham Act protects from infringement unregistered trademarks by prohibiting a person from using “in connection with any goods or services ... in commerce any word, term, name, symbol, or device ... which is likely to cause confusion, or to cause mistake, or to deceive as to the affiliation, connection, or association of such person with another person, or as to the origin, sponsorship, or approval of his or her goods, services, or commercial activities by another person.” 15 U.S.C. § 1125(a)(1)(A). In determining trademark infringement, courts consider: (1) whether the plaintiffs mark merits protection; and (2) whether the defendant’s use of a mark is likely to cause consumer confusion. Gruner + Jahr USA Publ’g v. Meredith Corp., 991 F.2d 1072, 1075 (2d Cir.1993). In analyzing the likelihood of customer confusion, courts apply the nonexclusive test set forth in Polaroid Corp. v. Polarad Electronics Coip., 287 F.2d 492, 495 (2d Cir.1961), considering: (1) the strength of the plaintiffs mark; (2) the similarity of the marks; (3) the proximity of the products in the market place; (4) actual confusion between the marks; (5) the likelihood of plaintiffs bridging the gap between the products; (6) defendant’s good faith in adopting its mark; (7) the quality of defendant’s product; and (8) the sophistication of the relevant consumer group. Playtex Prods., Inc., 390 F.3d at 162.
We agree with the Plaintiff that we do not defer to the district court’s finding of “long use” of the “Sly” nickname by Sylvester Stallone, see SLY Magazine LLC, 529 F.Supp.2d at 438, because there is no evidence in the record that Stallone used “Sly” as his nickname prior to the time of the alleged infringement.2 To the extent that this is a disputed fact, we conclude that it is not material. Miner v. Clinton County, 541 F.3d 464, 471 (2d Cir.2008) (“A fact is material when it might affect the outcome of the suit under governing law.”). Excluding this fact from consider*723ation does not affect the district court’s findings with respect to the other predicate facts underlying the mark’s strength, and we defer to them.
Although giving considerable deference to the district court’s remaining predicate factual findings underlying the analysis of each Polaroid factor, we also conclude that it improperly weighed the “quality of the product” and “sophistication of customers” factors in favor of the Defendants. “Generally, quality is weighed as a factor when there is an allegation that a low quality product is taking unfair advantage of the public good will earned by a well-established high quality product.” Gruner + Jahr USA Publ’g, 991 F.2d at 1079. The court properly found that there was no allegation or evidence that the Defendants’ magazine is of inferior quality. Because there was no difference in quality of product, it was improper to weigh this factor in favor of the Defendants, see SLY Magazine, LLC, 529 F.Supp.2d at 441-42; this factor should be considered neutral. See Gruner + Jahr USA Publ’g, 991 F.2d at 1079. As for the sophistication of customers, “the more sophisticated the purchaser, the less likely he or she will be confused by the presence of similar marks in the marketplace.” Savin Corp. v. Savin Group, 391 F.3d 439, 461 (2d Cir.2004). The district court found that the different media used for the respective magazines “make it highly unlikely that consumers, sophisticated or not, would be confused.” SLY Magazine, LLC, 529 F.Supp.2d at 442. Based on the court’s finding, therefore, customer sophistication should have no bearing on the issue of confusion, and this factor, too, should have been considered neutral.
Notwithstanding that we find that two Polaroid factors—“quality of product” and “sophistication of customers”—should be considered as neutral in the Polaroid analysis, that fact does not affect our analysis of the six remaining factors, all of which weigh in the Defendants’ favor. We agree with the district court, therefore, that the overall balancing of the Polaroid factors does weigh in favor of the Defendants. For that reason, we affirm the grant of summary judgment in favor of the Defendants with respect to the Lanham Act claims.
State Law Claims
To prevail on a New York unfair competition claim, a plaintiff must show either actual confusion or a likelihood of confusion, and there must be “some showing of bad faith” on the part of the defendants. Jeffrey Milstein, Inc. v. Greger, Lawlor, Roth, Inc., 58 F.3d 27, 34-35 (2d Cir.1995). Because the Plaintiff failed to raise a genuine issue of material fact concerning bad faith, the district court’s dismissal of the Plaintiffs state law unfair competition claim is affirmed.
To prevail on a New York trademark dilution claim, a plaintiff must show that: (1) the trademark is “truly of distinctive quality”; and (2) there is a likelihood of dilution. Sally Gee, Inc. v. Myra Hogan, Inc., 699 F.2d 621, 625 (2d Cir.1983) (internal quotation marks omitted) (emphasis in original). Trademark dilution can be established through either blurring or tarnishment. See N.Y. Stock Exch. v. N.Y., N.Y. Hotel, LLC, 293 F.3d 550, 557 (2d Cir.2002). We find no evidence in the record that demonstrates either blurring or tarnishment, and thus we affirm the district court’s grant of summary judgment on that claim as well.
For the reasons stated above, the judgment of the district court is AFFIRMED.
. Polaroid Corp. v. Polarad Elees. Corp., 287 F.2d 492 (2d Cir.1961).
. The Defendants argue the statement contained in a declaration of Susan J. Kohlmann, submitted in support of the Defendants' summary judgment motion, and the biography of Sylvester Stallone published on the Internet Movie Database’s web site in 2005 evidence that "Mr. Stallone was known as 'Sly' since 1976.” Neither source, however, supports a conclusion that Sylvester Stallone has been known as "Sly” since as far back as 1976.
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SUMMARY ORDER
Dong Jiang, a native and citizen of China, seeks review of a September 11, 2008, order of the BIA affirming the June 21, 2006, decision of Immigration Judge (“IJ”) Sandy K. Horn, which denied his application for asylum, withholding of removal, and relief under the Convention Against Torture (“CAT”). In re Dong Jiang, No. A200 023 601 (B.I.A. Sept. 11, 2008), aff'g No. A200 023 601 (Immig. Ct. N.Y. City June 21, 2006). We assume the parties’ familiarity with the underlying facts and procedural history in this case.
When the BIA affirms the IJ’s decision in some respects but not others, this Court reviews the IJ’s decision as modified by the BIA decision, i.e., minus the arguments for denying relief that the BIA rejected. See Xue Hong Yang v. U.S. Dep’t of Justice, 426 F.3d 520, 522 (2d Cir.2005). In its decision, the BIA declined to adopt or affirm the IJ’s adverse credibility determination. The BIA did, however, affirm the IJ’s finding that Jiang failed to satisfy his burden of proof. Because the BIA assumed Jiang’s credibility for purposes of *725its analysis, we do the same. See Yan Chen v. Gonzales, 417 F.3d 268, 271-72 (2d Cir.2005).
This Court reviews the agency’s factual findings under the substantial evidence standard. 8 U.S.C. § 1252(b)(4)(B); see also Manzur v. U.S. Dep’t of Homeland Sec., 494 F.3d 281, 289 (2d Cir.2007). We review de novo questions of law and the application of law to undisputed fact. See, e.g., Salimatou Bah v. Mukasey, 529 F.3d 99, 110 (2d Cir.2008).2
The agency denied Jiang’s application for asylum because it found that he did not provide sufficient evidence to establish that he had a well-founded fear of future persecution in China based on his practice of Falun Gong. The agency found that Jiang did not adequately demonstrate: (1) Chinese officials’ awareness of and continuing interest in him on account of his past practice of Falun Gong; or (2) Jiang’s continued practice of Falun Gong.
Jiang argues that the agency erred in finding that the record did not contain sufficient evidence of the Chinese government’s awareness of his Falun Gong practice, pointing to letters from his mother and friend. He argues that the agency failed to consider these letters for that purpose. That argument misunderstands the agency’s decision. Rather than ignoring the letters, the agency accorded them limited evidentiary weight because of certain material omissions. It did not err in doing so. See Xiao Ji Chen v. U.S. Dep’t of Justice, 471 F.3d 315, 342 (2d Cir.2006) (finding that the weight afforded to the applicant’s evidence lies largely within the IJ’s discretion).
Jiang further argues that the agency did not adequately consider the State Department’s 2005 Country Report on Human Rights Practices for China which reveals ongoing persecution against Falun Gong practitioners. Again, this argument misapprehends the agency’s decision. The agency did not dispute that Falun Gong practitioners face persecution in China. Indeed, the IJ conceded as much. Rather, the agency found that Jiang had not shown that the Chinese government was or would become aware of his practice. We find no error in that determination. Hongsheng Leng v. Mukasey, 528 F.3d 135, 143 (2d Cir.2008) (finding that, to establish a well-founded fear in the absence of any past persecution, “an alien must make some showing that authorities in his country of nationality are either aware of his activities or likely to become aware of his activities”).
As we have held, while an applicant’s credible testimony alone may suffice to carry his burden of proof, 8 U.S.C. § 1158(b)(1)(B)(ii), an IJ may “require that credible testimony ... be corroborated in circumstances in which one would expect corroborating evidence to be available and presented in the immigration hearing.” Chuilu Liu v. Holder, 575 F.3d 193, 196 (2d Cir.2009) (internal citation omitted). Here, the agency reasonably found that Jiang failed to provide adequate evidence to corroborate his claim that he continues to practice Falun Gong, thus leaving him without a basis for a well-founded fear of future persecution. See id. at 198 (finding that an IJ may reasonably rely on a lack of corroborating evidence where there is “no indication on the record that such evidence was unavailable, and [petitioner] has not provided an explanation on appeal for his failure to present such corroborating evidence”).
*726Because Jiang based his claim for withholding of removal on the same factual predicate as his asylum claim, and the IJ found that Jiang did not meet his burden of proof, that claim necessarily fails. See Paul v. Gonzales, 444 F.3d 148, 156 (2d Cir.2006) (noting that a withholding claim necessarily fails if the applicant is unable to show the objective likelihood of persecution needed to make out an asylum claim). Jiang does not challenge the agency’s denial of his CAT claim before this Court.
For the foregoing reasons, the petition for review is DENIED. As we have completed our review, any stay of removal that the Court previously granted in this petition is VACATED, and any pending motion for a stay of removal in this petition is DISMISSED as moot. Any pending request for oral argument in this petition is DENIED in accordance with Federal Rule of Appellate Procedure 34(a)(2), and Second Circuit Local Rule 34(b).
. The asylum application at issue in this case is governed by the amendments made to the Immigration and Nationality Act by the REAL ID Act of 2005, Pub.L. No. 109-13, 119 Stat. 231 (2005). See Title I, § 101(a)(3) of the Act, 119 Stat. 231, 303 (amending 8 U.S.C. § 1158); see also Xiu Xia Lin v. Mukasey, 534 F.3d 162, 165 (2d Cir.2008).
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SUMMARY ORDER
Petitioner Eon Cox, a native and citizen of Guyana, seeks review of the November 6, 2008 order of the BIA affirming the September 21, 2006 decision of Immigration Judge (“IJ”) Philip J. Montante, Jr. finding him removable as an aggravated felon and denying his application for asylum, withholding of removal, and relief under the Convention Against Torture (“CAT”). In re Eon Cox, No. A074 977 350 (B.I.A. Nov. 6, 2008), aff'g A074 977 350 (Immig. Ct. Buffalo Sept. 21, 2006). We assume the parties’ familiarity with the underlying facts and procedural history of the case.
As an initial matter, because Cox was found removable on criminal grounds, our review is limited to constitutional claims and “questions of law.” See 8 U.S.C. § 1252(a)(2)(C), (D); Pierre v. Gonzales, 502 F.3d 109, 113 (2d Cir.2007).
After reviewing Cox’s arguments, we conclude that, as to the majority, we are without jurisdiction. Indeed, most of Cox’s purported due process arguments are, in fact, challenges to the agency’s discretionary decisions, which are not reviewable. 8 U.S.C. § 1252(a)(2)(C), (D); Xiao Ji Chen v. U.S. Dep’t of Justice, 471 F.3d 315, 329 (2d Cir.2006) (“regardless of the rhetoric employed in the petition,” we lack jurisdiction to consider claims of error as to the IJ’s “discretionary choices”). Similarly, the majority of Cox’s purported questions of law attack the agency’s purely factual determinations. An entirely unsupported assertion that the agency applied the wrong standard is insufficient to invoke our jurisdiction, as it is merely an attempt to challenge the agency’s application of the proper standard. See 8 U.S.C. § 1252(a)(C); Gui Yin Liu v. INS, 508 F.3d 716, 721-22 (2d Cir.2007) (no “question of law” where the agency articulates the correct legal standard, and then applies that same standard); Barco-Sandoval v. Gonzales, 516 F.3d 35, 40 (2d Cir.2008) (although the assertion that a discretionary decision “ ‘was based on a legally erroneous standard’ raises a ‘question of law’ ... [we lack] jurisdiction to review any legal argument that is so insubstantial and frivolous as to be inadequate to invoke federal-question jurisdiction”).
Nonetheless, we retain jurisdiction to consider some of Cox’s arguments.
*728I. Constitutional Claims
Cox argues that the IJ violated his due process rights by amending the Notice to Appear (“NTA”) to include a charge of removability under 8 U.S.C. § 1101(a)(43)(U) based on his conviction for the attempted sale of a controlled substance. As a preliminary matter, even if that amendment denied Cox the opportunity to contest whether his conviction constituted an aggravated felony under that section, and assuming, arguendo, that such error implicates Cox’s due process rights, that error was harmless because Cox’s pri- or conviction for a firearms offense independently rendered him removable under 8 U.S.C. § 1227(a)(2)(C) — a determination he has never contested before either the agency or this Court. Regardless, the unamended NTA explicitly alleged that Cox had been convicted for the attempted sale of a controlled substance. Nothing about the IJ’s amendment to the NTA altered that allegation; rather, the amendment merely specified that Cox was removable for having been convicted of an aggravated felony under both 8 U.S.C. § 1101(a)(43)(B) and (U), because he was convicted of that crime. See Reid, 478 F.3d at 512; Brown v. Ashcroft, 360 F.3d 346, 351 (2d Cir.2004); see also Matovski v. Gonzales, 492 F.3d 722 (6th Cir.2007) (clarifying that the significance of the charges set forth in the NTA as they relate to determinations of removability is distinct from their relevance with respect to adjudications of applications for discretionary relief).
Moreover, to the extent Cox asserts that the IJ’s amendment denied him the opportunity to contest whether his conviction for the attempted sale of a controlled substance rendered him ineligible for asylum under 8 U.S.C. § 1158(b)(2)(B)(i), that argument is unavailing. Although an NTA must identify with precision a petitioner’s basis for removability so as to provide a sufficient opportunity to meet that charge, there is no corresponding requirement that an NTA “must contain an analysis of whether an alien would be eligible for various forms of discretionary relief if deemed removable.” Reid v. Gonzales, 478 F.3d 510, 512 (2d Cir.2007). In other words, even if Cox had not been charged in the NTA as removable based on the aggravated felony drug charge, because he conceded his conviction for that offense, it was a proper basis upon which to find him ineligible for asylum.
II. Questions of Law
Although Cox raises two reviewable questions of law, both are without merit. See Khan v. Gonzales, 495 F.3d 31, 35 (2d Cir.2007) (“Our analysis of whether a petition presents reviewable claims focuses on the nature of the claims raised and not the merits of those claims”).
First, Cox argues that the BIA ignored his attempt to assert a reasonable fear of persecution based on his mother’s political support for the PNC. Although the BIA did observe that, as a general matter, “a child cannot assert persecution based on harm to a parent,” (citing Matter of A-K-, 24 I. & N. Dec. 275 (BIA 2007)), this proposition is entirely consistent with our precedent, see, e.g., Tao Jiang v. Gonzales, 500 F.3d 137, 141 (2d Cir.2007) (“[A]n asylum applicant cannot claim past persecution based solely on harm that was inflicted on a family member on account of that family member’s political opinion ...”); Shi Liang Lin v. U.S. Dep’t of Justice, 494 F.3d 296, 308 (2d Cir.2007) (“[T]he statutory scheme unambiguously dictates that applicants can become candidates for asylum relief only based on persecution that they themselves have suffered or must suffer.”). Moreover, the BIA did not ignore Cox’s attempt to make an imputed political opinion claim. See *729Chun Gao v. Gonzales, 424 F.3d 122, 129 (2d Cir.2005) (“[A]n imputed political opinion, whether correctly or incorrectly attributed, can constitute a ground of political persecution within the meaning of the Immigration and Nationality Act.”). Rather, the BIA proceeded to assess whether Cox’s mother’s political activities could be imputed to him so as to give rise to a clear probability of persecution.
Second, Cox asserts that, because he was found credible, the IJ could not require that he submit additional corroborating evidence without explaining why such evidence was necessary in order for him to sustain his burden of proof. This argument is unavailing. Because Cox filed his asylum application after May 11, 2005, the provisions of the REAL ID Act apply to his case, including those pertaining to corroborating evidence. See Matter of S-B-, 24 I. & N. Dec. 42, 45 (BIA 2006). Under those provisions, “an IJ, weighing the evidence to determine if the alien has met his burden, may rely on the absence of corroborating evidence adduced by an otherwise credible applicant unless such evidence cannot be reasonably obtained.” Chuilu Liu v. Holder, 575 F.3d 193, 197 (2d Cir.2009) (discussing 8 U.S.C. § 1158(b)(1)(B)(ii)).
We have recently made clear that in pre-REAL ID Act cases, while an IJ must identify pieces of missing evidence in making a corroboration finding, the IJ need not do so during the hearing. See id., at 197-99. Rather, because “a factfinder may not be able to decide [the] sufficiency of the evidence until all of the evidence is submitted,” an IJ may wait to identify gaps in the evidentiary record until issuing a decision. Id. Yet, in Chuilu Liu we left unanswered the question of whether there is a notice requirement under 8 U.S.C. § 1158(b)(1)(B)(ii) such that in post-REAL ID Act cases, an IJ must provide an applicant with an opportunity to explain prior to the issuance of a decision why certain evidence was unavailable, before relying on its absence to deny a claim for relief based on insufficient corroboration. See id. at 196-97 (declining to construe 8 U.S.C. § 1158(b)(1)(B)(ii) because that section did not apply). Here, however, we need not resolve that question because the IJ provided Cox with notice of the missing evidence.
When Cox was asked during the hearing whether he had any evidence apart from his testimony to support his claim, he responded only that he may be able to provide newspaper articles to corroborate his testimony. Moreover, prior to Cox’s testimony, the IJ raised his concern regarding the lack of corroborating evidence with Cox’s counsel, who responded that, apart from the documents she attempted to submit at the hearing (which were denied as untimely by the IJ), the only additional evidence she had were affidavits from Cox and his mother. Accordingly, the IJ did not err in relying on Cox’s failure to produce evidence corroborating his testimony in denying his application for withholding of removal. See 8 U.S.C. § 1158(b)(1)(B)(ii); Chuilu Liu, 575 F.3d at 197-98 (“[W]e review with substantial deference an IJ’s determination that corroborating evidence was reasonably available to the applicant.”).
In light of the foregoing, we deny Cox’s petition for review to the extent it raises arguments over which we have jurisdiction, and dismiss the remaining portions of the petition for lack of jurisdiction. See Khan, 495 F.3d at 37.
For the foregoing reasons, the petition for review is DISMISSED in part and DENIED in part. As we have completed our review, any stay of removal that the Court previously granted in this petition is VACATED, and any pending motion for a stay of removal in this petition is DIS*730MISSED as moot. Any pending request for oral argument in this petition is DENIED in accordance with Federal Rule of Appellate Procedure 34(a)(2), and Second Circuit Local Rule 34(b).
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SUMMARY ORDER
Petitioner Zou Qin Liang, a native and citizen of the People’s Republic of China, seeks review of a November 26, 2008 order of the BIA denying his motions to reconsider and reopen. In re Zou Qin Liang, No. A098 885 907 (B.I.A. Nov. 26, 2008). We assume the parties’ familiarity with the underlying facts and procedural history of the case.
We review the BIA’s denial of motions to reconsider and reopen for abuse of discretion. See Jin Ming Liu v. Gonzales, 439 F.3d 109, 111 (2d Cir.2006). In denying Liang’s motion to reconsider, the BIA found that he had shown no legal or factual error in its denial of his previous motion to reopen based on his failure to submit a new asylum application as required under *7318 C.F.R. § 1003.2(c)(1). It further noted that Liang did not challenge in his motion to reconsider its finding that the application was not in the record at the time it denied his motion to reopen. Liang now argues for the first time that the BIA abused its discretion in denying his previous motion to reopen “solely on the basis of a procedui’al error.” We decline to consider this unexhausted argument. See Lin Zhong v. U.S. Dep’t of Justice, 480 F.3d 104, 119-20, 124 (2d Cir.2007).
Moreover, to the extent the BIA construed Liang’s motion as a second and untimely motion to reopen,. Liang fails to challenge the BIA’s finding that he failed to demonstrate an exception to the applicable time and number bars. See 8 U.S.C. § 1229a(c)(7)(C)(ii). Because a showing of a material change in country conditions is required to excuse the untimely filing of a motion to reopen, we will not disturb the agency’s denial of his motion. See 8 U.S.C. § 1229a(c)(7)(C)(ii); 8 C.F.R. § 1003.2(c) (3) (ii); Wei Guang Wang v. B.I.A., 437 F.3d 270, 275-76 (2d Cir.2006); Jian Hui Shao v. Mukasey, 546 F.3d 138, 170 (2d Cir.2008).
For the foregoing reasons, the petition for review is DENIED. As we have completed our review, any stay of removal that the Court previously granted in this petition is VACATED, and any pending motion for a stay of removal in this petition is DISMISSED as moot. Any pending request for oral argument in this petition is DENIED in accordance with Federal Rule of Appellate Procedure 34(a)(2), and Second Circuit Local Rule 34(b).
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MEMORANDUM **
Pablo Colin-Silva, a native and citizen of Mexico, petitions pro se for review of the Board of Immigration Appeals’ order dismissing his appeal from an immigration judge’s order denying him adjustment of status under 8 U.S.C. § 1255®. We have jurisdiction pursuant to 8 U.S.C. § 1252. Reviewing de novo questions of law, Singh v. INS, 213 F.3d 1050, 1052 (9th Cir.2000), we deny the petition for review.
The agency properly deemed Colin-Silva inadmissible under 8 U.S.C. § 1182(a)(9)(C)® for unlawful presence after a prior removal and correctly noted that Colin-Silva was ineligible for a waiver under 8 U.S.C. § 1182(a)(9)(C)(ii). The agency therefore properly denied Colin-Silva’s application for adjustment of status under 8 U.S.C. § 1255®. See Matter of Briones, 24 I. & N. Dec. 355, 371 (BIA 2007); Gonzales v. Dep’t of Homeland Security, 508 F.3d 1227, 1242 (9th Cir.2007).
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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SUMMARY ORDER
Petitioner Ling Zheng, a native and citizen of the People’s Republic of China, seeks review of a February 6, 2009 order of the BIA denying her motion to reopen. In re Ling Zheng, No. A077 283 074 (B.I.A. Feb. 6, 2009). We assume the parties’ familiarity with the underlying facts and procedural history of the case.
We review the BIA’s denial of a motion to reopen for abuse of discretion. See Kaur v. BIA, 413 F.3d 232, 233 (2d Cir.2005) (per curiam). Here, the BIA did not err in denying Zheng’s motion to reopen as untimely and number-barred where it was her second motion to reopen and it was filed over six years after her 2002 final order of removal. See 8 C.F.R. § 1003.2(c)(2) (providing that an applicant may only file one motion to reopen and that motion must be filed within ninety days of the final administrative decision). There is no time limit on the filing of a motion to reopen alleging eligibility for asylum based on changed country conditions. 8 C.F.R. § 1003.2(c)(2). However, the BIA did not abuse its discretion in finding that Zheng’s motion was based only on a change in her personal circumstance — namely, her involvement with the Christian Democracy Party and her recent conversion to Christianity. It is well-settled that such a change in personal circumstances does not excuse the time limit for filing a motion to reopen. See Li Yong Zheng v. U.S. Dep’t of Justice, 416 F.3d 129, 130-31 (2d Cir.2005).
While Zheng asserts in her brief to this Court that she demonstrated changed *736country conditions, she made no such argument before the BIA. We decline to consider her unexhausted argument in the first instance. See Lin Zhong v. U.S. Dep’t of Justice, 480 F.3d 104, 119-20 (2d Cir.2007).
For the foregoing reasons, the petition for review is DENIED. As we have completed our review, any stay of removal that the Court previously granted in this petition is VACATED, and any pending motion for a stay of removal in this petition is DISMISSED as moot. Any pending request for oral argument in this petition is DENIED in accordance with Federal Rule of Appellate Procedure 34(a)(2), and Second Circuit Local Rule 34(b).
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SUMMARY ORDER
Petitioner Nasiba Zokirjon Qizi Madaminova, a native and citizen of Uzbekistan, seeks review of a July 22, 2008 order of the BIA affirming the January 8, 2007 decision of Immigration Judge (“IJ”) Steven R. Abrams, which denied her application for asylum, withholding of removal, and relief under the Convention Against Torture (“CAT”). In re Nasiba Zokirjon Qizi Madaminova, No. A099 560 266 (B.I.A. Jul. 22, 2008), aff'g No. A099 560 266 (Immig. Ct. N.Y. City Jan. 8, 2007). We assume the parties’ familiarity with the underlying facts and procedural history in this case.
When the BIA issues an opinion that fully adopts the IJ’s decision, this Court reviews the IJ’s decision. See Chun Gao v. Gonzales, 424 F.3d 122, 124 (2d Cir.2005). This Court reviews the agency’s factual findings under the substantial evidence standard. 8 U.S.C. § 1252(b)(4)(B); see also Manzur v. U.S. Dep’t of Homeland Sec., 494 F.3d 281, 289 (2d Cir.2007). We review de novo questions of law and the application of law to undisputed fact. Salimatou Bah v. Mukasey, 529 F.3d 99, 110 (2d Cir.2008).
In this case, the IJ’s conclusory determination that the incidents Madaminova described “didn’t rise to the reasons for asylum” is insufficient to permit meaningful review. See Beskovic v. Gonzales, 467 F.3d 223, 227 (2d Cir.2006). The IJ failed to identify the legal standard on which he relied in assessing whether the treatment Madaminova experienced constituted persecution. See id. Indeed, he failed to cite a single case in his decision.
Additionally, it is unclear whether the IJ considered the cumulative effect of Madaminova’s experiences as opposed to assessing them in isolation. See Poradisova v. Gonzales, 420 F.3d 70, 79-80 (2d Cir.2005). The IJ stated that he was reviewing “whether or not these particular incidents in and of themselves would rise to the level for asylum as being past persecution,” concluding that “they d[id] not.” However, we have explained that an IJ errs where he “considers] each of the incidents separately without determining how they affected the significance of the other incidents.” Manzur, 494 F.3d at 290. Our concerns with the IJ’s decision are exacerbated because it appears he disregarded much of Madaminova’s claim. In his decision, the IJ stated that “[t]he fact that she was picked on in school because of her looks, was one issue that she had; the fact that she was even attempted physical assault, even while she was in medical school, she had a professor who tried to take advantage of her sexually, but she stood her ground. On all of these occasions, nothing has ever happened to her since she has fought them off in all these matters, and has caused some injuries to her over a period of time.” Beyond the fact that this statement is difficult to parse, the IJ failed to acknowledge several additional incidents to which Madaminova testified, incidents that required her to seek medical treatment multiple times.
*738Thus, because the IJ failed to explain the standard he applied in evaluating whether Madaminova demonstrated past persecution, because he did not indicate that he evaluated the incidents she described cumulatively, and because he appears to have ignored some of those incidents, we find that his past persecution determination was erroneous. See Beskovic, 467 F.3d at 227.
Because a petitioner who has been found to have demonstrated past persecution is presumed to have a well-founded fear of persecution, 8 C.F.R. § 1208.13(b)(1), the Court cannot predict with confidence that the agency would reach the same conclusion absent its error. See Xiao Ji Chen v. U.S. Dep’t of Justice, 471 F.3d 315, 338 (2d Cir.2006).
For the foregoing reasons, the petition for review is GRANTED, and the case REMANDED for further proceedings consistent with this Order. As we have completed our review, any stay of removal that the Court previously granted in this petition is VACATED, and any pending motion for a stay of removal in this petition is DISMISSED as moot. Any pending request for oral argument in this petition is DENIED in accordance with Federal Rule of Appellate Procedure 34(a)(2), and Second Circuit Local Rule 34(b).
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SUMMARY ORDER
Plaintiff-Appellant Saundra V. White, pro se, appeals from the district court’s sua sponte dismissal of her complaint pursuant to 28 U.S.C. § 1915(e)(2). We assume the parties’ familiarity with the underlying facts, the procedural history of the case, and the issues on appeal.
We review de novo the district court’s sua sponte dismissal under § 1915(e). See Giano v. Goord, 250 F.3d 146, 149-50 (2d Cir.2001). Private actors and institutions generally are not proper defendants to a 42 U.S.C. § 1983 action, because they do not act under color of state law. See Am. Mfrs. Mut. Ins. Co. v. Sullivan, 526 U.S. 40, 49-50, 119 S.Ct. 977, 143 L.Ed.2d 130 (1999). However, a pri*741vate institution can be liable under § 1983 where “there is a sufficiently close nexus between the State and the challenged action of the [private institution] so that the action of the latter may be fairly treated as that of the State itself.” Jackson v. Metro. Edison Co., 419 U.S. 345, 351, 95 S.Ct. 449, 42 L.Ed.2d 477 (1974); see also Flagg v. Yonkers Sav. & Loan Ass’n, FA, 396 F.3d 178, 187 (2d Cir.2005). Here, White fails to state a claim against the private defendants because her allegations of a nexus between the private defendants and the State are vague and conclusory, and fail to demonstrate that the actions of the defendants should be treated as state action. See Jackson, 419 U.S. at 351, 95 S.Ct. 449.
With respect to White’s claim against the United States, the district court correctly found that sovereign immunity barred relief against the federal government. Insofar as White’s pro se complaint could be liberally construed as raising a claim under the Federal Tort Claims Act, 28 U.S.C. §§ 2671-80, she failed to allege that she had exhausted her administrative remedies as required to state a claim under that statute. See 28 U.S.C. § 2675(a); Keene Corp. v. United States, 700 F.2d 836, 840 (2d Cir.1983).
White also purported to raise claims under 42 U.S.C. § 1985(3); Title VII of the Civil Rights Act, 42 U.S.C. § 2000e; and 42 U.S.C. § 2000d. White provided merely “conclusory, vague, or general allegations of conspiracy to deprive [her] of constitutional rights,” which are insufficient to support a claim under § 1985. Sommer v. Dixon, 709 F.2d 173, 175 (2d Cir.1983); see also Webb v. Goord, 340 F.3d 105, 110-11 (2d Cir.2003). Moreover, Title VII applies only to employees, see Salamon v. Our Lady of Victory Hosp., 514 F.3d 217, 226 (2d Cir.2008), and White did not allege that she was an employee of a covered entity. Similarly, 42 U.S.C. § 2000d prohibits the exclusion of individuals from a federally funded program or activity on the basis of race, color, or national origin, and White failed to allege any such exclusion.
Lastly, the district court correctly determined that White failed to establish diversity jurisdiction, because the parties are not completely diverse. See 28 U.S.C. § 1332; E.R. Squibb & Sons, Inc. v. Accident & Cas. Ins. Co., 160 F.3d 925, 930 (2d Cir.1998). Both White and Crouse Irving Memorial Hospital are New York residents.
For the reasons stated above, the judgment of the district court is AFFIRMED.
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https://www.courtlistener.com/api/rest/v3/opinions/8472275/
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SUMMARY ORDER
Appellants Tyheem Keesh and Jesus Jova, pro se and incarcerated, appeal a judgment of the district court granting the Defendants’ motion for summary judgment and dismissing their 42 U.S.C. § 1983 complaint alleging violations of their rights under the First, Eighth, and Fourteenth Amendments, as well as the Religious Land Use and Institutionalized Persons Act (“RLUIPA”), 42 U.S.C. § 2000cc et seq. Appellants have also moved to expand the record on appeal to include two additional exhibits. In a separate per curiam opinion issued today, we address the Appellants’ RLUIPA claims. In this summary order, we review their other claims. We assume the parties’ familiarity with the underlying facts, the procedural history of the case, and the issues on appeal.
As a preliminary matter, because the Appellants did not raise below their arguments that the Defendants violated their rights a) by refusing them access to Tulukeesh materials in preparation for a state court proceeding and b) by failing to adhere to N.D.N.Y. Local Rules 7.1(a)(1) and (2), we -will not consider these claims. See Singleton v. Wulff, 428 U.S. 106, 120-21, 96 S.Ct. 2868, 49 L.Ed.2d 826 (1976); see also Virgilio v. City of New York, 407 F.3d 105, 116 (2d Cir.2005). Moreover, because Appellants do not challenge the district court’s dismissal of their equal protection claim under the Fourteenth Amendment, we deem that claim abandoned. See Lo-Sacco v. City of Middletown, 71 F.3d 88, 92-93 (2d Cir.1995).
The Appellants’ other claims of error are without merit. As an initial matter, Appellants’ argument that the district court erred by denying their motion to file a second amended complaint is unavailing, since the record shows that the court did not abuse its discretion in determining that the additional claims set forth in the proposed amended complaint were duplicative or barred by absolute immunity, or would unnecessarily delay the proceedings. See Patane v. Clark, 508 F.3d 106, 113 n. 6 (2d Cir.2007) (per curiam).
Regarding the Appellants’ free exercise claim, the Supreme Court has recognized that a prison regulation burdening a protected right will nonetheless withstand a constitutional challenge if the regulation is reasonably related to legitimate penological interests. See O’Lone v. Estate of Shabazz, 482 U.S. 342, 349, 107 S.Ct. 2400, 96 L.Ed.2d 282 (1987) (citing Turner v. Safley, 482 U.S. 78, 89, 107 S.Ct. 2254, 96 L.Ed.2d 64 (1987)). As to this claim, we must, therefore, consider: “(1) *744whether the practice asserted is religious in the person’s scheme of beliefs, and whether the belief is sincerely held; (2) whether the challenged practice of the prison officials infringes upon the religious belief; and (8) whether the challenged practice of the prison officials furthers, some legitimate penological objective.” Farid, v. Smith, 850 F.2d 917, 926 (2d Cir.1988).
Because the Defendants do not challenge the sincerity of the Appellants’ beliefs, and because the Defendants assume that their practices infringe on those beliefs, we, like the district court, need only consider whether those practices further some legitimate penological interest. A review of the record confirms the district court’s determination that all of the practices challenged by the Appellants promote the Defendants’ legitimate penological interests in maintaining institutional safety, security, and order, and therefore withstand the Appellants’ free exercise challenge. See O’Lone, 482 U.S. at 349, 107 S.Ct. 2400; Ford v. McGinnis, 352 F.3d 582, 595-96 (2d Cir.2003).
Appellants also argue that the challenged practices violated their rights under the Eighth Amendment. To set forth an Eighth Amendment claim, a plaintiff must show, inter alia, that the challenged conduct deprived him of the “minimal civilized measure of life’s necessities.” Rhodes v. Chapman, 452 U.S. 337, 347, 101 S.Ct. 2392, 69 L.Ed.2d 59 (1981); accord Phelps v. Kapnolas, 308 F.3d 180, 185 (2d Cir.2002). There is no evidence in the record suggesting that the Defendants’ conduct even approached this high threshold. Hence, the district court properly dismissed this claim.
Lastly, the Appellants’ argument that the Defendants retaliated against them based on their religious practice is unavailing. To show retaliation, an incarcerated plaintiff must demonstrate that his constitutionally protected conduct was a substantial or motivating factor for a prison official’s adverse action. See Bennett v. Goord, 343 F.3d 133, 137 (2d Cir.2003). Here, the record confirms a) that the Defendants’ initiation of disciplinary proceedings against the Appellants and the searches of their cells were in direct response to Keesh’s attempted proselytization of other inmates, and b) that such proselytizing was in contradiction of explicit prison regulations. Thus, the district court properly dismissed this claim.1
We have considered all of the Appellants’ remaining claims and find them to be without merit. The district court’s judgment with respect to all of the Appellants’ claims, except their RLUIPA claims, is hereby AFFIRMED.
. Because the exhibits identified by the Appellants are not material to their claims, and because Appellants fail to identify any extraordinary circumstances warranting their consideration, Appellants’ motion to expand the record dated January 16, 2009 is hereby DENIED. See Fed. R.App. P. 10(a).
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https://www.courtlistener.com/api/rest/v3/opinions/8472278/
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AMENDED SUMMARY ORDER
Kevin Waltzer and Stewart Grossman appeal from a judgement of the district court, affirming the judgement of the Bankruptcy Court for the Southern District of New York, finding that their claims for damages against the debtor, MarketXT Holdings, were subject to mandatory subordination pursuant to 11 U.S.C. 510(b). We assume parties familiarity with the facts, proceedings below, and specification of the issues on appeal. The standard of review in a bankruptcy appeal is plenary. We “review the bankruptcy court decision independently, accepting its factual findings unless clearly erroneous, but reviewing its conclusions of law de novo.” Ball v. A.O. Smith Corp., 451 F.3d 66, 69 (2d Cir.2006).
Appellants principally argue that the bankruptcy court judgement was inconsistent with the Second Circuit’s decision in Rombro v. Dufrayne, 461 F.3d 251 (2d Cir.2006) (“In re Med Diversified ”). Specifically, appellants contend that the bankruptcy court misread In re Med Diversified as imposing a “but-for” test for determining whether Waltzer’s claim should be subordinated pursuant to 11 *746U.S.C. 510(b). Appellants further argue that Waltzer did not adopt the risk and return expectations of a shareholder, and that his claim therefore should not be subordinated under In re Med Diversified.
We find that the bankruptcy court faithfully applied the standard set forth in In re Med Diversified. Id. at 255. First, the bankruptcy court determined that Waltzer’s claim fell within the plain meaning of the statute, that is a “claim ... for damages arising form the purchase or sale of ... a security.” 11 U.S.C. 510(b) (2006). The bankruptcy court correctly began with the plain meaning of the statute. See United States v. Ron Pair Enters., 489 U.S. 235, 241, 109 S.Ct. 1026, 103 L.Ed.2d 290 (1989); In re Med Diversified. Id. at 259. Furthermore, we agree with the bankruptcy court that Waltzer’s claim, based on a state court judgement for damages in connection with the sale of stock, fell within the plain meaning of the statute.
The district court’s finding that Waltzer’s claim was covered by the plain meaning of the statute was alone sufficient to require mandatory subordination. The district court, however, also correctly observed that Waltzer’s claim fell within the policy rationales cited by this Court in In re Med Diversified. In finding that mandatory subordination was appropriate in In re Med Diversified, we focused on the following policy considerations that had informed Congress in passing section 510(b): whether the claimant “1) took on the risk and return expectations of a shareholder, rather than a creditor, or 2) seeks to recover a contribution to the equity pool presumably relied upon by creditors in deciding whether to extend credit to the debtor.” Id. at 256.
A finding that subordination furthers either the risk-expectations or equity-pool rationale is sufficient for a court to require under In re Med Diversified. Id. at 259. In this case, by purchasing securities and then electing to sell them, Waltzer assumed risk that is fundamental to any securities transaction and that Congress put on a different footing than the claims of creditors in enacting section 510(b). Id. We therefore agree with the district court that Waltzer’s claim falls within the plain meaning of the statute, and also supports one of the central policy rationales that informed its enactment.
Finally, appellants challenge the bankruptcy court’s judgement on the grounds that it did not find that subordination further the equity-cushion rationale. This argument is unavailing, because In re Med Diversified holds that a finding that supports either of the two policy rationales is sufficient to require subordination, and because Waltzer’s claim is covered by the plain meaning of the statute.
For the reasons stated above, the judgment of the district court is AFFIRMED.
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https://www.courtlistener.com/api/rest/v3/opinions/8472280/
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SUMMARY ORDER
Petitioner Qing Duan Zheng, a native and citizen of the People’s Republic of China, seeks review of a February 27, 2009 order of the BIA denying his motion to reopen. In re Qing Duan Zheng, No. A077 354 304 (B.I.A. Feb. 27, 2009). We assume the parties’ familiarity with the underlying facts and procedural history in this case.
As a preliminary matter, as the government argues, we lack jurisdiction to consider Zheng’s arguments insofar as he challenges the agency’s underlying denial of his application for relief from removal. This is so because Zheng failed to file a timely petition for review of that decision. See 8 U.S.C. § 1252(b)(1); see also Malvoisin v. INS, 268 F.3d 74, 75 (2d Cir.2001) (“[Compliance with the time limit for filing a petitioner to review the BIA’s final order is a strict jurisdictional prerequisite.”). Thus, the only agency order before us is the BIA’s February 2009 denial of Zheng’s motion to reopen.
We review the BIA’s denial of a motion to reopen for abuse of discretion. Kaur v. BIA 413 F.3d 232, 233 (2d Cir.2005) (per curiam); Liu v. Gonzales, 439 F.3d 109, 111 (2d Cir.2006). The BIA did not abuse its discretion in denying Zheng’s motion to reopen as untimely. There can be no dispute that the motion to reopen Zheng filed in September 2008 was untimely because the BIA entered a final order of removal in July 2003. See 8 C.F.R. § 1003.2(c)(2) (providing that an alien seeking to reopen proceedings may file one motion to reopen no later than 90 days after the date on which the final administrative decision was rendered).
Furthermore, the BIA did not abuse its discretion in declining to equitably toll the time period for filing Zheng’s motion to reopen because he failed to demonstrate that he exercised due diligence in *748pursuing his ineffective assistance of counsel claim. See Cekic v. INS, 435 F.3d 167, 170 (2d Cir.2006). In order to warrant equitable tolling of the time period for filing a motion, even assuming that a movant demonstrated that prior counsel was ineffective, an alien is required to demonstrate “due diligence” in pursuing his claims during “both the period of time before the ineffective assistance of counsel was or should have been discovered and the period from that point until the motion to reopen is filed.” See Rashid v. Mukasey, 533 F.3d 127, 131, 132 (2d Cir.2008). In this case, as the BIA noted, Zheng never provided any explanation for the delay in filing his motion to reopen or described any actions that he took to preserve his claim during the more than five years between the BIA’s July 2003 decision dismissing his appeal and the filing of his September 2008 motion to reopen. See id.; see also Wang v. BIA, 508 F.3d 710, 715 (2d Cir.2007).
For the foregoing reasons, the petition for review is DENIED. As we have completed our review, any stay of removal that the Court previously granted in this petition is VACATED, and any pending motion for a stay of removal in this petition is DISMISSED as moot. Any pending request for oral argument in this petition is DENIED in accordance with Federal Rule of Appellate Procedure 34(a)(2), and Second Circuit Local Rule 34(b).
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