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https://www.courtlistener.com/api/rest/v3/opinions/8481653/ | Daniel, J.
It seems to me that the plaintiff in error has failed to show good ground for reversing the judgment, in the refusal of the County court to continue the. cause on his motion.
It is not to be denied that the fact, which the plaintiff in error, through his ’counsel, stated he expected to prove by the witness in court, if an opportunity was afforded him to refer to certain books to which he could not then have access, was one which might have a very material bearing on the case. Proof that the defendant in error, at, or a short time before the date of his leaving the county of Warren, had received a large sum of money, might, in the absence of proof that he had honestly paid it to his creditors, or other explanation, obviously go far towards establishing that the plaintiff in error had proper grounds for suing out his attachment. It appears, however, from the certificate of the judge, that there was no proof that the witness had been informed what he was to be examined about, or that he had been requested to examine the books; that, on its being demanded of the counsel of the plaintiff in error.what they expected to prove by the books in respect to the amount of the money aforesaid and the date of its payment, they replied that they were not able to tell the exact day nor the exact amount; and that the counsel for the defendant in error thereupon expressed their willingness to admit that their client received a large estimate a few days before he left the county; which the counsel for the plaintiff in error stated they were unwilling to receive in place of the fact stated by the entry itself.
It does not appear that the plaintiff in error was present. It does not appear that he had informed his counsel of the date and amount of the payment in question; or that he indeed knew himself what the books would disclose in respect to that matter. It is not stated that the witness had been expected to be *385able to prove the exact date and amount of the payment without a reference to the books; nor is any reason suggested why there should or might have any such expectation.
Under such circumstances, I cannot undertake to say that the County court has not properly exercised its discretion. The plaintiff in error was plainly remiss in not notifying the witness what he expected to prove by him, so that he might refer to the books if necessary ; and when we take into consideration the further fact that the plaintiff in error had already been indulged with two continuances of the cause, the fail-conclusion is that if he has lost the benefit of any important fact on the trial of his case, such loss is due, not to any injustice or harshness in the ruling of the court, but to his own culpable negligence.
It seems to me further, that the County court did not err in overruling the motion of the plaintiff in error to remove the case to the Circuit court of Warren county.
It must be conceded that the words of the law under which the motion was made seem to be very plain, and to leave but little room for construction. It simply declares that when any suit shall have remained pending in a County or Corporation court more than a year without being determined, such court, on the motion of any party to such suit or his representative (without notice), shall order it to be removed to the Circuit court having jurisdiction over such county or corporation. Code, ch. 174, § 1, p. 657. The pendency of the suit for more than a year without being determined, would, giving to the words of the section their full ordinary meaning, seem to be all that is required to make it imperative upon the court to remove it. Yet it would be absurd to suppose that such could have been the real intention of the legislature. It is manifest that in some instances a rigid enforce*386ment of the law according to the letter, would conflict with other laws, and do violence to rights which we cannot for a moment suppose it was the purpose of ^ ]egjg]a¿ure disturb or impair. The legislature could not have designed to vest a party with the absolute right, by his mere motion, in the midst of a trial before the jury, to arrest the progress of the cause, and have it ordered up to the Circuit court. Notwithstanding, therefore, the peremptory and unqualified language of the law, the utter want of justice and propriety manifest in a strict compliance with its letter, renders it indispensable that the courts, in administering it, should put some restrictions upon its terms, and make some exceptions' to a literal observance of its requirements.
It is obvious, from the very nature of the subject, that the courts must have some control as to the time at which, in the course and order of the proceedings in a cause, they will entertain such motions. The law embraces as well all the causes in chancery as all the cases at law which may have been depending for more than a year in the County courts. Was it the design of the legislature to give to a party the right, after the argument in a chancery cause has commenced, arbitrarily, to stop the argument and remove his case to the Circuit court? Is a plaintiff, in an injunction cause, who has made an unsuccessful motion for a continuance, to be allowed, by such a step, to stay the action of the court, and avoid a dissolution of his injunction? Or, .to take the case before us, has a party to a suit at law, who has made a motion to continue, which has been heard and overruled, a peremptory right to thwart and reverse the decision of the court and defeat his adversary of a trial by removing the case-to the Circuit court? Each of these questions inust, I'.think, be answered in the negative.
A reference to the provisions of the 1st and 2d sec*387tions of chapter 174 of the Code, and the previous laws on the subject, renders it manifest that the true object of such legislation has been to insure to parties to suits in the. County and Corporation courts, the speedy and impartial trial of their causes. The removal of a cause to the Circuit court, after it shall have been pending in a County or Corporation court for more than a year, on the motion of any one of the parties, is one of the means which the legislature has provided for attaining the ends in view. The language of the section in which this provision is made, it is true, is mandatory and not permissive; still, the nature of the subject, as I have said, forbids the idea that a court, in passing upon such a motion, has not a right to consider it in reference to the then state and condition of the cause in which it is submitted.
Upon such a reference in the present case, without instituting any further enquiry into the objects of the motion, the County court must have seen that the inevitable effect of granting it would be, not to further but to defeat the purposes of the law, and to allow the plaintiff in error to baffle and set at nought the action of the court in a matter upon which he had just before invoked its judgment, and visit his adversary with the very evil for which it was the design of the law to afford to both parties an efficient remedy. I think the motion was properly overruled.
The question next to be considered is, whether the County court erred in overruling the motion for a new-trial. And in considering this question, we have to enquire, first, what it was incumbent on the defendant in error to prove; and secondly, whether he has proved it. The elements of the action are malice and the want of probable cause. In the celebrated case of Johnstone v. Sutton, 1 T. R. 493, 545, the gpSetJmh ground of the action was declared to be that^hmprq-' ceedings complained of were had without a;prb)jable*388cause, inasmuch as from the want of such cause the other main ingredient, malice, may be, and most com-is implied ; whilst from the proof of express ma}-ce £¡ie wan£ 0f probable cause cannot be inferred. That was the case of an action for a malicious prosecution before a court martial; but there is no material difference between such actions and actions for the malicious prosecution of civil suits in respect of the grounds on which they rest.
In the case of Manns v. Dupont & al. 3 Wash. C. C. R. 31, probable cause is said to be “ a reasonable ground of suspicion, supported by circumstances sufficiently strong in themselves to warrant a cautious man in his belief that the person accused is guilty of the offence with which he is charged.” In Hare & Wallace’s notes to this case, 1 Amer. Lead. Cas. 213, the annotators select this as one of the best definitions of the term that has been given. Modifying the definition so as to adapt it to such a case as the one before us, we may, I think, properly define justifiable probable cause in cases of the kind to be, a belief, by the attaching creditor, in the existence of the facts essential to the prosecution of his attachment, founded upon such circumstances as, supposing him to be a man of ordinary caution, prudence and judgment, were sufficient to induce such belief.
It is true, that in the case of Mowry v. Miller, 3 Leigh 561, Judge Tucker, in delivering the opinion of the court, said, that as no man can maintain an action for a malicious prosecution, where there was probable cause, it was obvious that those words should be made to refer to the state of fact as it respects the person prosecuted, and not to the degree of knowledge of that fact in the party prosecuting. It will be perceived, on a reference to the case, that the action there was against the defendant for having procured a third person to institute a malicious prosecution for felony *389against the plaintiff. There was a demurrer to the declaration; and Mr. Stanard, in the course of his argument, had endeavored to show that the declaration was defective in that, according to the fair meaning of its allegations, it did not allege that the defendant, without probable cause, advised and procured the prosecutor to institute the prosecution, but that he advised and procured the prosecutor, without probable cause, to institute it. The judge, in his notice of this objection, had already shown conclusively, by a reference to the declaration, that the objection was without any sufficient foundation, inasmuch as the charges of malice and probable cause stood, in the declaration, in connection, not only with the institution of the prosecution, but with the agency of the defendant in averring and procuring it. The proposition of law under consideration, subsequently stated by him, was, therefore, obviously, in his view, not essential to the decision of the case, and we may hence fairly conclude, was not weighed with the same degree of care that he would have bestowed upon it had he taken a different view of the true meaning of the declaration. No case was cited by the learned judge in supporkof the proposition ; and carried out to its full extent, it is opposed by the current of authority, and is, as I conceive, clearly inconsistent with the true theory of such actions. To refer the question of probable cause exclusively to the state of fact as it respects the person prosecuted, would be in effect to allow a party sued for a malicious prosecution to say to the plaintiff, by way of defence, “it is true you are innocent of the offence with which you were charged, and at the time of instituting the prosecution I knew of no circumstance to justify me in believing you to be guilty, and did not so believe, but I have since ascertained that there existed at the time certain facts and circum*390stances, which, had they been then known to me, would have warranted me in believing you guilty.”
The law, in departing from the ordinary rules of pleading and proof, and imposing upon an innocent man, wronged by a criminal prosecution, the burden of negativing probable cause as the foundation of the prosecution, does not proceed upon the idea that he is in fault in having become an object of suspicion, but upon considerations of public policy, requiring to some extent a sacrifice of private rights. Crime would often go unpunished for the want of some one to set on foot its prosecution, if the prosecutor was in all cases to be held bound to make good the charge; and it is thought to be better that innocent men should sometimes have to submit without redress to the hardship and injustice of being falsely charged with crime, than that the members of the community should be deterred from the exercise of a proper diligence and activity in bringing offenders to justice, by the fear of exposing themselves to suits by persons prosecuted upon appearances of guilt which turn out to be fallacious, and deceptive. No considerations of the public good, however, .can require that the partial denial of redress to innocent men falsely charged with crime, on the one hand, or the protection to those who honestly engage, upon reasonable grounds, in the prosecution of supposed offenders, on the other, should be extended to the case of an innocent man visited with the evils of a criminal prosecution instituted against him by one having at. the time no belief in his guilt, and ignorant of any circumstance calculated to produce such belief. Accordingly, the cases are, generally, found holding that probable cause consists in the concurrence of belief of guilt with the existence of facts and circumstance, sufficiently strong to warrant such belief; or, in other words, that probable cause is, substantially, *391belief of guilt founded on reasonable grounds. Cabiness v. Martin, 3 Dev. Law R. 455; Ralston v. Jackson, 1 Sneed’s R. 128; Hall v. Suydam, 6 Barb. S. C. R. Foshay v. Ferguson, 2 Denio R. 617; Siebert v. Price, 5 Watts & Serg. R. 438; Faris v. Starke, 3 B. Monr. R. 4; and cases cited in 1 Amer. Lead. Cas. 213-14.
Applying these principles to the facts of the case, it is difficult to conceive how the jury could well have rendered any other verdict than the one they gave.
The leading facts of the case are, that Davy had contracted with the Manassas gap rail road company to build the abutments and piers of a bridge across the south branch of the Shenandoah, abutting, on one side, on the lands of Spengler: that he had lived in Warren county about eighteen months before the suing out of the attachment, and that he had been at work on the bridge from February 1853 to the 26th of December 1853, say ten months; during which time he boarded with Spengler, the plaintiff in error: that he employed a large number of hands, and in the months of November and December had forty-two hands at work on the bridge: that he had received from the company, a few days before the 26th of December, a large estimate on account of work on the bridge, the exact amount of which was not known, and that on that day he paid out to his hands who were present, about two thousand dollars, leaving something still due to some of them, of whom he asked at the time whether the amounts severally paid to them would do; that he paid nothing to Spengler, or Richards, or Massie (who also took out attachments) at that time, neither of them being present: that on the same day he went to Winchester on his riding mare, carrying with him most probably no other property or money than enough money to pay his expenses, stating to his manager (the witness), about the time of leaving, that he was going to Winchester *392to purchase steel: that he left upon the lands of Spengler all the property afterwards attached, consisting of goods in a store-house, tools'necessary for the prosecution of the work, &c.; of the value of which we have no further proof than that it was sufficient to pay the amount of Spengler’s judgment, and that he had no other property in the state, unless something was due him from the company: that the wife of Davy at that time resided in Washington city, and that he always considered that place his home: that Davy was seen in Winchester on the day he left the work, by a witness, to whom he stated that he intended to return the next day; that on the night of the day just first mentioned, he was seen in Winchester by another witness, who states that at his request he accompanied him to two hardware stores to purchase steel, but that Davy declined buying, saying that he could get it in Alexandria at a lower price, and would purchase there: that there was a considerable fall of snow the same night, but whether it had fallen before the occurrences stated by the last witness, is not shown: that on the 2d of January after the holidays, and after the snow had abated, the manager of Davy went to work on the bridge with twenty-five hands, and continued at work till the 9th of January, when Spengler’s attachment was levied: that on the 17th of the same month Davy returned, bringing the mare on which he had ridden off: and that after some interruptions to the work, caused by the levy upon the tools and other property, and their subsequent sale, the prosecution of the work was fully resumed in February, and continued by Davy and his hands, till it was completed in October 1854.
It was further proved, that up to the time of the suing out of the attachment the credit of Davy was good, and that he was regarded as a man of integrity.
It was also proved by the manager of Davy, that *393shortly before the suing out of the attachment, Spengler came to him and enquired 'whether he or the clerk or any of his hands had heard from Davy, and also whether he had ever known Davy on any other occasion to be so long absent from his work; and that in reply he informed Spengler that Davy had not been heard from since he left, so far as he knewj but that he supposed that owing to the snow Davy had supposed that the work would be suspended for a while, and had gone to Washington to see his wife; that he had known him once to be absent for three weeks whilst engaged on another work in Warren, and that when he then left he requested the witness to attend to the work in his absence for him, and did not fix any time for his return.
It was also proved by one of Spengler’s witnesses, that he lived at Spengler’s house at the time of the suing out of the attachment, and for some time before; that he had frequently heard Davy complain that he was not making any thing on the work, and wished he was away, and he seemed to be out of humor with the place.
No witness gives evidence of any other fact or any other declaration by Davy than what is disclosed in the foregoing statement, tending in any degree to show a purpose on his part to remove his property. It was all left on the premises of Spengler; and there is an entire absence of proof going to show that Davy had made any attempt to carry it away, or to sell it or assign it. The fair inference from the facts is, that the estimate he received was fairly distributed out amongst his hands, according to their claims and wants 5 and that he contemplated the faithful prosecution and completion of the important work on which he was employed, was to be presumed from the fact that, after the slight interruption to its progress occasioned by the holidays and the fall of the snow, his manager had *394resumed the work with a strong and efficient force, and was actively engaged in its prosecution at the time the attachment was sued out.
That it was not an unusual thing for Davy to absent himself from the work on visits to Washington, is directly inferrible from the statement of one of the witnesses, that his usual mode of traveling to Alexandria and Washington was by the rail road, which was completed to a point within six miles of the bridge; and when it is considered that Davy boarded with Spengler, and that the latter could not well be ignorant of the fact that his wife resided in Washington, it is difficult to conceive why, unless he was too ready to indulge in suspicion, he should not, on a view of the facts before him, have been satisfied with the very reasonable manner in which the absence of Davy was accounted for by his manager. I can see no ground on which Spengler could have reasonably founded a belief that Davy had removed or was about to remove his effects so as to endanger the collection of his debt. In the absence of such ground, the jury had a right to infer malice; which in such cases is to be understood in its legal sense, and not in its popular signification of anger, malevolence or vindictiveness. The improper motive or want of proper motive inferrible from a wrongful act based upon no reasonable ground, constitutes of itself all the malice deemed essential in law to the maintenance of the action; and the most charitable construction of Spengler’s motives in suing put the attachment that can be given, is, that he acted upon slight circumstances of suspicion, inducing an unreasonable solicitude, on his part, for the safety of his debt, and a corresponding want of consideration as to the serious and irreparable wrong which his harsh proceeding was calculated to inflict upon the credit and other interests of his debtor.
The proposition advanced in the course of the argu*395ment here, that Davy was precluded by the judgment on the attachment from showing that Spengler had no reasonable ground to believe that he was removing or had removed his effects, &c. is met by the answer that no objection was made to the introduction of any of the evidence in the court below. Davy did not return till after the judgment against him for the debt claimed had been rendered, and an order made for the sale of the attached effects.
If, upon the rehearing of the case, irregularly obtained upon his petition, it was competent for him to have gone into the question whether the attachment had been founded on reasonable grounds (about which I express no opinion), it appears no such issue was tried or tendered. On the trial the plaintiff in error, if he could have relied on' any estoppel, failed to do so, and there seems to have been a free, fair and full trial on the merits.
As to the objection that Davy was entitled to recover no damage growing out of the sale of his property, as he failed to stay the sale by giving bond, it seems to me sufficient to say that, supposing it competent for him to have pursued such a course, and that it was within his power to give such bond, he was not bound to give it. His action proceeds on the ground that the suing out and prosecution of the attachment were wrongful and malicious. The plaintiff in the attachment was acting at his own peril, and cannot be heard to complain that the defendant did not hinder him, in the sale which he was seeking to have, by complying with the onerous condition of giving bond and security to pay the judgment. Besides, the loss occasioned by the sale of his property was but an item in Davy’s claim on account of damages, and the whole question of damage was fully before the jury.
I can see no ground for interfering with the verdict of the jury on the alleged ground of excessiveness. *396The law has not, and from the nature of things, cannot set up any precise standard by which the damages are in such cases to be fixed and ascertained ; and the gpacg -g necessarjijr broad, within the limits of which the court must accept the verdict of the jury as the true and only measure of damage. In this case, the verdict is not so heavy as to induce the belief that the jury have been in any degree influenced by prejudice or passion.
The declaration in this case is irregular, in that it charges that the attachment was sued out wrongfully and without good cause, instead of maliciously and without probable cause; and doubts have been suggested since the argument of the cause, whether this irregularity is cured by the verdict. In the case of Ellis v. Thilman, 3 Call 3 (which was a case for a malicious prosecution), the allegation was that the prosecution was malicious and without any just cause. In the case of Young v. Gregorio, Id. 446 (case for the illegal suing out &c. of an attachment), it was alleged that the proceedings were had maliciously and without any legal or justifiable cause. And in Kirtley v. Deck and others, 2 Munf. 10 (case for a conspiracy in preferring &c. a malicious prosecution for a felony), the allegation was that the defendants falsely and maliciously conspired &c. to prefer a false and malicious prosecution, &c.; but there was no averment that the prosecution was without probable cause. In each of these cases, it was held that the declaration was radically defective, and was not cured by the verdict. In these cases, it was said that the words without probable cause, or some equipollent expression, were essential to make a good declaration, and it was held that the words without any just cause, in the first mentioned case, and without any legal or justifiable cause, in the second, could not be received as equivalents for the words which the law required. It is to be observed, however, of all of these cases, *397that they were decided in the absence of some of the most sweeping of the provisions of our present statute of jeofails, and more especially of that which declares that no judgment after verdict shall be stayed “for any defect whatsoever in the declaration or pleading, whether of form or of substance, which might have been taken advantage of by a demurrer, and which shall not have been so taken advantage of;” which was first introduced at the revisal of 1819; and was re-enacted in 1849, with slight modifications, not necessary to be here noticed. See Code of 1849, p. 680.
It is true, that broad and comprehensive as is the language of the provision, this court has felt called upon, on several occasions, to set some limits to its operation, and to declare that there are some defects in declarations which are beyond its cure. Still it will be seen, on a reference to the cases alluded to, that none of them can be used as precedents for excluding this case from the benefit of said provision. The first of them (in order), Mason v. Farmers Bank at Petersburg, 12 Leigh 84, was the case of a suit by the plaintiff against the president and directors of a branch bank, in which the declaration complained of them as “the president, directors and company of the office of discount and deposit of the Farmers Bank at Peters-burg.” This court held, that no judgment could be rendered, as the declaration was against parties who could not be made liable to any action. There was no such corporation in existence. The declaration plainly showed that the cause of action was against the “president, directors and company of the Farmers Bank of Virginia.” In the second case, that of Ross v. Milne and wife, 12 Leigh 204, the declaration plainly showed that the plaintiffs had no cause of action, and that the right demanded was in a third person. And in the third case, that of Boyle’s adm’r v. Overby, 11 Gratt. 202, which was a suit against an administrator *398for an alleged cause of action against his intestate, the declaration alleged a cause of action which from its very nature must have died with the person of the intestate.
In neither o.ne of these cases was there any room for the inference of facts, supplementary to and consistent with those alleged by the plaintiff, that could make out a good cause of action. In each case, the allegations of the plaintiff showed affirmatively that he had no right to recover.
The distinction between such cases and the one in hand, is too marked to require comment. Proof that the attachment was prosecuted maliciously and without probable cause, would be entirely consistent with the allegation that it was prosecuted wrongfully and without good cause; and it might well be that the very same testimony relied on to establish the latter allegation, might furnish sufficient proof of the former also.
I am free to confess that I have not been able to bring my mind to a conclusion entirely satisfactory as to the precise scope of the provision under consideration. It seems to me, however, that if the present case were to be excepted out of its operation, it would be a very difficult task to say at what point such exceptions should stop. The case" is plainly within the letter of the statute; and I can see no sufficient reason for supposing that it is not within its meaning ; whilst I am entirely satisfied that the case has been fully tried and justly decided on its merits. The supposed defect does not appear to have been, in any manner, brought to the notice of the County court; it is not assigned as one of the causes of error in the petition for a supersedeas to the Circuit court; nor in the petition to this court; nor (if noticed at all) in the argument here, was it insisted on as a ground for arresting the judgment.
Under these circumstances, it seems to me that the *399just and proper mode of disposing of the question is simply to read and administer the law in respect to it as it is written, leaving to the court, on some future occasion, when aided by the arguments of the bar, the task of ascertaining and setting out with more fullness and precision than has been yet attempted, the exact meaning and limits of the statute.
I see no error in the judgment, and am for affirming it.
The other judges concurred in the opinion of Daniel, J.
Judgment affirmed. | 01-04-2023 | 11-07-2022 |
https://www.courtlistener.com/api/rest/v3/opinions/8480922/ | JUDGMENT
PER CURIAM.
This Cause having been heard and considered, it is
Ordered and Adjudged-.
AFFIRMED. See Fed. Cir. R. 36. | 01-04-2023 | 11-05-2022 |
https://www.courtlistener.com/api/rest/v3/opinions/8480923/ | JUDGMENT
PER CURIAM.
THIS CAUSE having been heard and considered, it is
*662Ordered and Adjudged:
AFFIRMED. See Fed. Cir. R. 36. | 01-04-2023 | 11-05-2022 |
https://www.courtlistener.com/api/rest/v3/opinions/8480924/ | ORDER
RADER, Chief Judge.
Biopolymer Engineering, Inc. (Biothera) submits a combined petition for panel rehearing and rehearing en banc with respect to the court’s August 2, 2010 order dismissing its appeal as moot.*
The court dismissed the appeal as moot because it appeared that a settlement agreement resolved all claims between the parties. Biothera asserts that the settlement agreement does not resolve claims with respect to all of the products that it accused of infringing United States Patent No. 5,702,719 and thus the appeal is not moot. The court agrees that under these circumstances the appeal is not moot.
Accordingly,
It Is Ordered That:
(1) The petition for panel rehearing is granted. The court’s August 2, 2010 order dismissing this case is vacated and the case is reinstated.
(2) Biothera’s brief is due within 30 days of the date of filing of this order.
The court did not request an answer because Biothera is the only party participating in this appeal. | 01-04-2023 | 11-05-2022 |
https://www.courtlistener.com/api/rest/v3/opinions/8480925/ | JUDGMENT
PER CURIAM.
THIS CAUSE having been heard and considered, it is
Ordered and Adjudged:
AFFIRMED. See Fed. Cir. R. 36. | 01-04-2023 | 11-05-2022 |
https://www.courtlistener.com/api/rest/v3/opinions/8480926/ | SUMMARY ORDER
Xiao Yong Chen, a native and citizen of China, seeks review of a March 26, 2008, BIA order denying his motion to reopen. In re Xiao Yong Chen, No. A075 405 071 (B.I.A. Mar. 26, 2008). Chen’s motion to reopen was based on his claim that he fears persecution on account of the birth of his U.S. citizen children in violation of China’s family planning policy. For largely the same reasons as this Court set forth in Jian Hui Shao v. Mukasey, 546 F.3d 138 (2d Cir.2008), we find no error in the BIA’s decision. See id. at 168-72. Additionally, the BIA reasonably found that Chen failed to demonstrate his prima facie eligibility for relief under the Convention Against Torture based on his purportedly illegal departure from China. See Mu Xiang Lin v. United States Dep’t of Justice, 432 F.3d 156 (2d Cir.2005).
For the foregoing reasons, this 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 34.1(b). | 01-04-2023 | 11-05-2022 |
https://www.courtlistener.com/api/rest/v3/opinions/8480928/ | OPINION
PER CURIAM.
Petitioner Milton Enriquez seeks review of an order denying his motion to reopen removal proceedings. The government has filed a “motion for summary affir-mance,” which we will construe as a motion to summarily deny the petition for review. See 3d Cir. L.A.R. 27.4; I.O.P. 10.6. Because we conclude that this petition presents no substantial question, we will grant the government’s motion and dismiss in part and deny in part the petition for review. We will also deny Enri-quez’s motion for a stay of removal.
I.
Enriquez is a native and citizen of Ecuador. He conceded his removability for entering the country without admission in 1988. In August 2008, an Immigration Judge (“IJ”) denied his application for cancellation of removal as a non-permanent *760resident alien, finding that he did not establish that his “removal would result in exceptional and extremely unusual hardship” to a qualifying relative. See 8 U.S.C. § 1229b(b)(l)(D). Enriquez argued that his youngest son suffers from respiratory problems, but the IJ noted that Enriquez failed to present any medical records to explain the nature and severity of his son’s illness. The Board of Immigration Appeals (“BIA”) dismissed his appeal on August 20, 2009.
On March 9, 2010, Enriquez filed a motion to reopen with the BIA. The BIA denied the motion, finding it to be untimely filed and not within any of the statutory or regulatory exceptions to the time limits for motions to reopen. The BIA also found that Enriquez failed to demonstrate that an “exceptional situation” exists to warrant sua sponte reopening. Enriquez filed a timely petition for review.
II.
We have jurisdiction under 8 U.S.C. § 1252(a). We review denials of motions to reopen for abuse of discretion. See Borges v. Gonzales, 402 F.3d 398, 404 (3d Cir.2005). Under this standard, we may reverse the BIA’s decision only if it is “arbitrary, irrational, or contrary to law.” Guo v. Ashcroft, 386 F.3d 556, 562 (3d Cir.2004).
III.
A motion to reopen must be filed no later than ninety days after the date on which the final administrative decision was rendered. 8 U.S.C. § 1229a(c)(7)(C)(i); 8 C.F.R. § 1003.2(c)(2). Enriquez’s March 9, 2010 motion following the BIA’s August 20, 2009 decision was plainly was beyond this time limit. In addition, the motion does not satisfy any of the exceptions to the time limit. See 8 U.S.C. § 1229a(c)(7)(C); 8 C.F.R. § 1003.2(c)(3).
As to his claim that the BIA abused its discretion in declining to reopen the proceedings sua sponte, we lack jurisdiction to review that determination. See Calle-Vujiles v. Ashcroft, 320 F.3d 472, 475 (3d Cir.2003). Enriquez cites to Cruz v. Attorney General, 452 F.3d 240, 249 (3d Cir.2006), to support his claim, but has made no showing that his case presents an “exceptional situation” that would have allowed for sua sponte reopening. Furthermore, his case is not one in which the BIA has announced and followed “a general policy by which its exercise of discretion will be governed” that would have created an exception to the jurisdictional bar. Calle-Vujiles, 320 F.3d at 475.
IV.
For the foregoing reasons, we conclude that this petition presents no substantial question. See 3d Cir. L.A.R. 27.4; I.O.P. 10.6. Accordingly, we will grant the government’s motion for summary action and dismiss in part and deny in part the petition for review.1 Enriquez’s motion for a stay of removal is denied as moot.
. Enriquez filed an opposition urging this Court to deny summary action because the Administrative Record had not yet been filed. We assure him that we received and reviewed the Administrative Record prior to ruling on his petition. | 01-04-2023 | 11-05-2022 |
https://www.courtlistener.com/api/rest/v3/opinions/8480929/ | OPINION OF THE COURT
JORDAN, Circuit Judge.
Richard Davis appeals a June 15, 2009, judgment of the United States District Court for the District of New Jersey sentencing him to 30 months’ imprisonment and three years’ supervised release. His attorney has moved to withdraw his representation under Anders v. California, 386 U.S. 738, 87 S.Ct. 1396, 18 L.Ed.2d 493 (1967). For the reasons that follow, we will grant the motion to withdraw and affirm the District Court’s order.
I. Background
On January 8, 2009, stemming from his participation in a check cashing scheme, Davis was indicted for conspiracy to steal and convert United States Treasury checks valued in excess of $1,000, in violation of 18 U.S.C. §§ 371 and 641. He later entered into a plea agreement, pursuant to which he stipulated that his offense had caused a loss of between $10,000 and $30,000 and that the offense involved the unauthorized use of means of identification to unlawfully produce other means of identification.1 The plea agreement also provided that Davis waived his right to appeal his sentence based on those stipulations.
At the change of plea hearing, the District Court confirmed that Davis had read and understood the plea agreement and conferred with counsel regarding its provisions, including the stipulations and the related appellate waiver. After confirming that Davis’s guilty plea was knowing, vol*773untary, and supported by the facts, the District Court accepted the plea.
In a presentence investigation report (“PSR”), the Probation Office determined that Davis’s offense resulted in a total offense level of 12 and that his criminal history placed him in category VI, which resulted in a Sentencing Guidelines range of 30 to 37 months’ imprisonment. The total offense level calculation included a four-level enhancement pursuant to U.S.S.G. § 2B1.1(b)(1)(C) (the “ ‘amount of loss’ enhancement”) based on Davis having caused a loss between $10,000 and $30,000, a two-level enhancement pursuant to U.S.S.G. § 2B1.1(b)(10)(C)(ii) (the “ ‘means of identification’ enhancement”) based on Davis having possessed five or more means of identification that were unlawfully produced from another means of identification,2 and a two-level enhancement pursuant to U.S.S.G. § 2B1.1(b)(2)(A)(i) (the “ ‘10 or more victims’ enhancement”) based on Davis’s offense involving 10 or more victims. Davis filed pro se objections to those enhancements.
At a June 15, 2009, sentencing hearing, the District Court overruled Davis’s objections regarding the “amount of loss” enhancement and the “means of identification” enhancement, reasoning that Davis had stipulated to facts in the plea agreement supporting both enhancements. With respect to the “10 or more victims” enhancement, the District Court sustained Davis’s objection, reasoning that Davis’s limited role in the conspiracy made it inappropriate to attribute so many victims to his offense. Removing that enhancement from the sentencing calculation resulted in a total offense level of 10 and a Guideline range of 24 to 30 months’ imprisonment. After discussing Davis’s work and significant criminal history, the sentencing calculations for his co-conspirators, and the “lack of deterrence that prior custodial sentences [had] accomplished,” the District Court sentenced Davis to a prison term of 30 months — the top of the Guidelines range. (Id. at 47.)
On June 20, 2009, Davis filed a timely pro se appeal of his sentence. In his notice of appeal, Davis raised the argument that the findings underlying the means of identification enhancement had not been substantiated in the PSR or at the sentencing hearing. Davis’s counsel subsequently moved to withdraw and filed a supporting Anders brief. Davis did not file a pro se brief.
II. Discussion3
Under Anders v. California, 386 U.S. 738, 87 S.Ct. 1396, 18 L.Ed.2d 493 (1967), *774counsel may seek to withdraw from representing an indigent criminal defendant on appeal if there are no nonfrivolous issues to appeal. United States v. Marvin, 211 F.3d 778, 779 (3d Cir.2000). We exercise plenary review to determine whether there are any such issues. Penson v. Ohio, 488 U.S. 75, 80, 109 S.Ct. 346, 102 L.Ed.2d 300 (1988). Whether an issue is frivolous is informed by the standard of review for each potential claim raised. See United States v. Schuh, 289 F.3d 968, 974-76 (7th Cir.2002).
We implement Anders through our Local Appellate Rule (“L.A.R.”) 109.2(a), which provides, in relevant part, as follows:
Where, upon review of the district court record, counsel is persuaded that the appeal presents no issue of even arguable merit, counsel may file a motion to withdraw and supporting brief pursuant to Anders v. California, 386 U.S. 738, 87 S.Ct. 1396, 18 L.Ed.2d 493 (1967), which must be served upon the appellant and the United States. The United States must file a brief in response. Appellant may also file a brief in response pro se.... If the panel agrees that the appeal is without merit, it will grant counsel’s Anders motion, and dispose of the appeal without appointing new counsel.
3d Cir. L.A.R. 109.2(a) (2010). We ask two principal questions when counsel proceeds under Anders: whether counsel has “adequately fulfilled” the requirements of L.A.R. 109.2(a), and whether an independent review of the record presents any nonfrivolous issues. United States v. Youla, 241 F.3d 296, 300 (3d Cir.2001).
With respect to the first question, whether counsel has “adequately fulfilled” the requirements of L.A.R. 109.2(a) often turns, as it does here, on the adequacy of counsel’s supporting brief. To be adequate under L.A.R. 109.2(a), an Anders brief must (1) “satisfy the court that counsel has thoroughly examined the record in search of appealable issues,” Id.; (2) identify issues that might arguably support appeal, see Smith v. Robbins, 528 U.S. 259, 285, 120 S.Ct. 746, 145 L.Ed.2d 756 (2000); and (3) “explain why th[ose] issues are frivolous[,]” Marvin, 211 F.3d at 780. “Counsel need not raise and reject every possible claim[,]” but he or she must still conscientiously examine the record. Youla, 241 F.3d at 300.
With respect to the second question, we review the record to determine whether the appeal is frivolous, that is, whether it “lacks any basis in law or fact.” McCoy v. Court of Appeals of Wisconsin, 486 U.S. 429, 438 n. 10, 108 S.Ct. 1895, 100 L.Ed.2d 440 (1988). Where the Anders brief is adequate, we confine our review to portions of the record implicated by the An-ders brief. Youla, 241 F.3d at 301. Where the Anders brief is inadequate, we may expand our review to portions of the record implicated in the defendant’s pro se brief or other filings that provide “guidance concerning the issues [the defendant] wishes to raise on appeal.” Id. Regardless of the adequacy of the Anders brief, we may affirm the District Court without appointing new counsel if we find, after reviewing the record, that the “frivolousness [of the appeal] is patent.” United States v. Coleman, 575 F.3d 316, 321 (3d Cir.2009) (internal quotation marks omitted).
A. Adequacy of the Anders Brief
Here, the Anders brief identifies two issues as arguably not frivolous: whether Davis’s guilty plea was knowing and voluntary, and whether Davis’s top-of-range sentence was unreasonable. However, in analyzing whether the plea was knowing and voluntary, counsel appears to have evaluated the District Court’s plea colloquy based on his memory of the proceeding rather than a review of the record. More troubling, in analyzing whether the sentence was unreasonable, counsel seems *775to have misinterpreted the plea agreement, asserting that Davis had, under the plea agreement, waived his right to appeal his sentence if the sentence was within the agreed upon Guidelines range. It appears instead that the appellate waiver in the plea agreement precludes Davis only from challenging his sentence to the extent it is based on the factual stipulations in the plea agreement. The Anders brief also fails to discuss the “means of identification” issue that Davis raised in his notice of appeal. Given these faults, we cannot say that the Anders brief was the product of a conscientious examination of the record or that it accurately explained why the issues on appeal are frivolous. Accordingly, we conclude that counsel’s Anders brief is inadequate.
B. Nonfrivolous Issues to Appeal
Because the Anders brief is inadequate, we expand our search for nonfrivolous issues beyond the portions of the record implicated by the Anders brief.4 Our search reveals that Davis’s appeal is indeed patently frivolous.
1. Davis’s Guilty Plea
The record does not reveal any infirmity in Davis’s guilty plea. To withstand challenge, a guilty plea must comply with the requirements of Rule 11 of the Federal Rules of Criminal Procedure, which embodies the “constitutional requirement that a guilty plea be ‘knowing’ and ‘voluntary.’ ” United States v. Schweitzer, 454 F.3d 197, 202 (3d Cir.2006). A defendant asserting a Rule 11 error for the first time on appeal must show plain error, that is, error that is plain or obvious and that affects his substantial rights. United States v. Goodson, 544 F.3d 529, 539 (3d Cir.2008). Such error can be the basis for relief on appeal if failing to correct it would “seriously affect the fairness, integrity, or public reputation of judicial proceedings.” Johnson v. United States, 520 U.S. 461, 467, 117 S.Ct. 1544, 137 L.Ed.2d 718 (1997) (internal quotation marks and citations omitted). Here, the guilty plea met the necessary legal requirements. The District Court addressed Davis personally in open court and confirmed that he understood the rights he was forfeiting, that he understood the terms of his plea agreement, and that he was pleading guilty knowingly and voluntarily. Given the District Court’s thorough colloquy, we find no error and thus no nonfrivolous basis upon which Davis may challenge his guilty plea.
2. Davis’s Sentence
As with the guilty plea, the record does not reveal any infirmity in Davis’s sentence. We review the District Court’s sentencing decisions for abuse of discretion, looking first for procedural error and then examining the sentence for substantive reasonableness. United States v. Wise, 515 F.3d 207, 217-18 (3d Cir.2008). With respect to sentencing-related factual findings, our review for abuse of discretion is effectively a review for clear error. See id. at 217 (“[I]f the asserted procedural error is purely factual, our review is highly deferential and we will conclude there has been an abuse of discretion only if the district court’s findings are clearly erroneous.”) Here, the record reveals no procedural or substantive error. The District Court did not miscalculate the Guidelines range, treat the Guidelines as mandatory, or fail to consider the 18 U.S.C. § 3553(a) factors.5 Nor do we per*776ceive any error in the District Court’s finding that Davis’s offense involved means of identification sufficient to apply the “means of identification” enhancement,6 since that finding is based on Davis’s own stipulation.7 There is simply no procedural error on this record. Likewise, there is no substantive error. Our review of the substantive reasonableness of a sentence is, “to a great degree, deferential.” Wise, 515 F.3d at 218. Because the District Court imposed a sentence within the properly calculated Guidelines range that took into account, inter alia, the sentencing calculations for Davis’s co-conspirators, Davis’s extensive criminal history, and the failure of previous custodial sentences to deter Davis’s recidivism, there was no abuse of discretion. The record, then, presents no nonfrivolous basis upon which Davis may appeal his sentence.
III. Conclusion
For the foregoing reasons, we grant the motion to withdraw and affirm the District Court’s judgment.
. The record does not include a copy of the plea agreement. Accordingly, in ascertaining the plea agreement’s terms, we rely on the record in the District Court, including references to the agreement made in the Presen-tence Investigation Report.
. The "means of identification” enhancement can apply under a variety of circumstances, including when the offense involves “the unauthorized transfer or use of any means of identification unlawfully to produce or obtain any other means of identification” [ (the " ‘unauthorized use’ scenario”)] or when the offense involves "the possession of 5 or more means of identification that unlawfully were produced from, or obtained by the use of, another means of identification” [ (the " ‘5 or more means’ scenario”)]. U.S.S.G. § 2Bl.l(b)(10). Here, the PSR cites the "5 or more means scenario” as the basis for applying the "means of identification” enhancement. This is curious, since Davis's stipulation — that his "offense involved the unauthorized use of means of identification unlawfully to produce other means of identification” (PSR H55(Z)(b)) — clearly supports applying the enhancement on the basis of the “unauthorized use” scenario. However, whether the PSR cited the "5 or more means” scenario intentionally or by mistake in applying the enhancement does not matter, since, as we note hereafter, the District Court correctly applied the enhancement based on Davis's stipulation.
. The District Court had jurisdiction pursuant to 18 U.S.C. § 3231. We have jurisdiction pursuant to 28 U.S.C. § 1291 and 18 U.S.C. § 3742(a).
. Davis's notice of appeal raises an argument that "provide[s] this Court with some guidance concerning the issues he wishes to raise on appeal,” Youla, 241 F.3d at 301, and we have thus considered the portions of the record implicated by the notice.
. The District Court need not have discussed and made findings as to each of the § 3553(a) *776factors, as long as the record reveals that they were meaningfully considered. United States v. Cooper, 437 F.3d 324, 329 (3d Cir.2006). Here, the District Court’s discussion of Davis's history and characteristics, the circumstances surrounding his offense, the need to provide specific deterrence given Davis’s recidivism, and the need to avoid unwarranted sentencing disparities with those of Davis's co-conspirators satisfies its obligation under § 3553(a).
. Davis's stipulation regarding his unauthorized use of means of identification clearly supports the application of the "means of identification” enhancement. The fact that the District Court, during sentencing, referred to the "means of identification” enhancement as the "five or more means” enhancement is of no moment because, even though the "five or more means” reference invokes facts to which Davis had not stipulated, it is clear from the record that the District Court and the parties understood the "five or more means" reference as shorthand for the "means of identification” enhancement.
. Although we address this argument raised in Davis's notice of appeal, we note that it falls within the scope of his appellate waiver, a waiver to which he knowingly and voluntarily agreed and that does not work injustice when applied here. See United States v. Corso, 549 F.3d 921, 927 (3d Cir.2008) (citing United States v. Gwinnett, 483 F.3d 200, 203 (3d Cir.2007), and United States v. Goodson, 544 F.3d 529, 536 (3d Cir.2008)). | 01-04-2023 | 11-05-2022 |
https://www.courtlistener.com/api/rest/v3/opinions/8480930/ | OPINION OF THE COURT
PER CURIAM.
Newcomb Mark Alexander Miller, proceeding pro se, seeks review of the Board of Immigration Appeals’ (“BIA” or “Board”) final order of removal. In its order, the BIA affirmed the Immigration Judge’s (“IJ”) decision to deny Miller’s application for asylum, withholding of removal, and protection under the Convention Against Torture (“CAT”). We will deny the petition.
Miller, a native and citizen of Jamaica, was admitted to the United States in Janu*782ary 1982 as a non-immigrant B-2 visitor. Miller became a lawful permanent resident in April 1984. In April 2004, he was convicted in the United States District Court for the District of Virginia of distributing cocaine base, in violation of 21 U.S.C. § 841(a)(1). Miller was sentenced to 185 months of imprisonment.
Based on his criminal conviction, the United States Department of Homeland Security initiated removal proceedings against Miller by filing a Notice to Appear, charging him with removability under INA § 237(a)(2)(iii) for having been convicted of an aggravated felony as defined in INA § 101(a)(43)(B), and pursuant to INA § 237(a)(2)(B)(i) for having been convicted of a controlled substances violation as defined in section 102 of the Controlled Substances Act, 21 U.S.C. § 801 et seq.
Following his administrative hearing, the IJ found Miller removable as charged based on his conviction and therefore ineligible for asylum and withholding of removal.1 See INA §§ 208(b)(2)(A)(ii) and 241(b)(3). The IJ also concluded that although Miller had testified credibly, he had not met his burden of proving that he would more likely than not be tortured by or with the consent or acquiescence of public officials in Jamaica.2 Miller filed a timely appeal with the BIA and, on February 19, 2010, the Board issued an order dismissing the appeal and affirming the IJ’s application for deferral of removal under the CAT. The Board noted in its decision that Miller had not challenged his conviction on appeal, which rendered him ineligible for asylum and withholding of removal. This petition for review followed.
This Court has authority to review final orders of removal. See 8 U.S.C. § 1252(a).3 “[W]hen the BIA both adopts the findings of the IJ and discusses some of the bases for the IJ’s decision, we have authority to review the decisions of both the IJ and the BIA.” Chen v. Ashcroft, 376 F.3d 215, 222 (3d Cir.2004). The BIA’s factual determinations are upheld if they are supported by reasonable, substantial, and probative evidence on the record considered as a whole. INS v. Elias-Zacarias, 502 U.S. 478, 481, 112 S.Ct. 812, 117 L.Ed.2d 38 (1992).
Miller argues in his petition for review that he did not receive a full and fair hearing before the IJ, in violation of his due process rights. Specifically, he asserts that the agency: 1) improperly conducted the proceedings via video teleconference; 2) failed to comply with the procedures set forth in 8 C.F.R. § 1240.10; 3) improperly denied him a continuance after he informed the IJ that he did not receive notice that his hearing date had been rescheduled; and 4) failed to afford him an opportunity to present his claims because the transcript indicates that portions of his testimony were indiscernible.
Although we have held that there is no constitutional right to asylum, aliens facing removal are entitled to due process. See Sewak v. INS, 900 F.2d 667, 671 (3d Cir.*7831990). In this context, the Due Process Clause entitles an alien to “a full and fair hearing and a reasonable opportunity to present evidence.” Romanishyn v. Att’y Gen., 455 F.8d 175, 185 (3d Cir.2006). To prevail on a due process claim, an alien must show substantial prejudice. Id.
Miller’s argument that the agency violated his right to a fair hearing by conducting the hearing via video teleconference is without merit. As the government correctly states, the statute governing Miller’s hearing, 8 U.S.C. § 1229a, specifically authorizes proceeding by means of a video teleconference. See 8 U.S.C. § 1229a(b)(2)(A)(iii). Miller cites no precedent stating the utilization of video teleconferencing violates due process. We note, however, that the Fourth Circuit has held that video conferencing might result in prejudice where it impedes an IJ’s ability to assess credibility or the format otherwise restricts an alien’s ability to present his or her case. See Rusu v. INS, 296 F.3d 316, 322-24 (4th Cir.2002). Here, the IJ assumed that Miller’s testimony was true, but determined that he was legally ineligible for asylum or withholding of removal and that he had failed to show a likelihood of torture. After reviewing the record, we conclude that Miller has not demonstrated that the use of video teleconferencing prevented the IJ from properly considering the record or testimony so as to have deprived him of a reasonable opportunity to be heard. Moreover, Miller presents no basis upon which we might conclude that the IJ would have ruled differently had he appeared in person.
Next, Miller argues that the IJ failed to comply with the hearing requirements of 8 C.F.R. § 1240.104 when, during the September 22nd merits hearing, she failed to ask him if he was represented by counsel or advise him of the availability of pro bono legal services. The argument is meritless. At an earlier hearing, in January 2008, the IJ specifically told Miller, “You should have received a list of legal counsel, Mr. Miller. It’s a list of attorneys and legal advisors who may be able to represent you at little or no cost.” (See Administrative Record (“A.R.”) at 91.) The IJ then asked him if he had received a copy of the list. (Id.) Miller replied that he thought he had received one, but was provided with another copy. (Id.) Thereafter, at various other hearings, Miller was repeatedly asked if he wished to continue pro se and he answered in the affirmative. (Id. at 135, 159, 162.) Obviously, the facts in this case are distinguishable from those in Leslie v. Att’y Gen., 611 F.3d 171, 182-83 (3d Cir.2010), where, in that case, the IJ failed to advise the alien of the availability of free legal services and neglected to confirm his receipt of the list of available programs. Here, the record amply demonstrates that the IJ complied with the requirements of 8 C.F.R. § 1240.10(a) and (b).5
Miller’s third claim also lacks merit. He argues that the IJ violated his due process rights, when she denied his request *784for a continuance after he informed her at the beginning of the hearing that he had not learned of the change in his hearing date until the night before. Originally, Miller’s merits hearing was scheduled for November 24, 2009. On August 11, 2009, the Immigration Court issued a notice of hearing, rescheduling it to September 22, 2009. As an initial matter, the rescheduling notice was mailed to the same address where Miller had received prior correspondence. More importantly, we note that prior to his September hearing 22nd hearing, Miller had asked for, and been granted, numerous continuances. Obviously sensitive to his pro se status, as mentioned, the IJ previously granted a continuance so that Miller could seek counsel. (A.R. at 81-94.) Miller was also granted two months-long continuances to procure evidence that his parents had been naturalized and also to apply for CAT relief. (Id. at 122, 149.) He was also granted five additional adjournments so that, he could perfect his application and obtain supporting evidence. (Id. at 156, 167, 162, 171, 175.)
Miller claims that because the IJ refused to grant him a continuance at the September 22nd hearing, he was unable to present an affidavit from his father. However, he does not explain how his father’s affidavit would have demonstrated his likely torture by public officials in Jamaica as he has not indicated in his brief what the affidavit might have stated.6 Therefore, even if the IJ erred by not continuing the hearing, by Miller’s own admission, see Pet. Br. at 8, the only harm that he suffered was his inability to present the affidavit. Because he offers no insight into its likely contents, we are unable to conclude that it would have supported his claim for relief. See Khan v. Att’y Gen., 448 F.3d 226, 235-36 (3d Cir.2006).
Lastly, Miller argues that he was prejudiced from the omission of indiscernible or inaudible words or phrases in the hearing transcript. An alien is entitled to administrative review of the IJ’s decision, which demands a reasonably accurate and complete transcript to allow for meaningful and adequate appellate review. See Teng v. Mukasey, 516 F.3d 12, 18 (1st Cir.2008) (citations omitted). However, a petitioner must demonstrate that a more complete or accurate transcription “ ‘would likely have made a dispositive difference in the outcome of the proceeding.’” Id. at 17-18 (quoting Harutyunyan v. Gonzales, 421 F.3d 64, 70 (1st Cir.2005)); Garzas-Moreno v. Gonzales, 489 F.3d 239, 241-42 (6th Cir.2007) (petitioner furnished with inaccurate or incomplete transcript must show that complete and accurate transcript would have changed the outcome of the case) (citation omitted). Miller does not identify a single incident of indiscernible or inaudible testimony in the transcript that might have established his eligibility for CAT protection. Accordingly, because Miller has not demonstrated prejudice, his due process claim must fail.
Having concluded that Miller was given adequate opportunity to present his case, we agree with the BIA that he was unable to identify any record evidence compelling a finding that it is more likely than not that he will be tortured if returned to Jamaica by or with the acquiescence of public officials. See Sevoian v. Ashcroft, 290 F.3d 166, 174-75 (3d Cir.2002) (quoting 8 C.F.R. § 208.16(c)(2)). Accordingly, we will deny the petition for review.
. We note that Miller proceeded pro se throughout the course of his administrative proceedings.
. Miller claimed that he would likely be tortured because he is the son of a former Jamaican police detective.
. We note that section 242(a)(2)(C) of the INA precludes review of removal orders entered against criminal aliens, like Miller, who have been found removable based on a conviction for a controlled substance violation or an aggravated felony. However, Miller argues that the agency violated his due process rights, which raises a constitutional question over which we may exercise jurisdiction. See INA § 242(a)(2)(D); Papageorgiou. v. Gonzales, 413 F.3d 356, 358 (3d Cir.2005).
. Pursuant to 8 C.F.R. § 1240.10(a)(2) and (3), "[i]n a removal proceeding, the immigration judge shall ... [ajdvise the respondent of the availability of free legal services provided by organizations and attorneys ... located in the district where the removal hearing is being held” and shall "[ajscertain that the respondent has received a list of such programs!.]”
. We note that Miller also alleges that the IJ did not have jurisdiction to preside over his case because she was sitting in Elizabeth, New Jersey and he was in custody in York, Pennsylvania. (See Pet. Br. at 5.) However, Miller cites no authority, nor are we aware of any, supporting this assertion. Moreover, the claim does not present a valid due process argument.
. Moreover, as noted, Miller had over six months since his case was last continued to obtain additional evidence, including an affidavit from his father. | 01-04-2023 | 11-05-2022 |
https://www.courtlistener.com/api/rest/v3/opinions/8480931/ | OPINION
PER CURIAM.
John Nasir petitions for review of the Board of Immigration Appeals’ (“BIA”) final order affirming the Immigration Judge’s (“IJ”) denial of Nasir’s application for asylum, withholding of removal, and relief under the Convention Against Torture (“CAT”). For the reasons that follow, we will deny the petition for review.
I.
Nasir, a 35-year-old native and citizen of India, entered the United States in June 2008 and was placed in removal proceedings for not possessing a valid travel document at admission. Nasir conceded removability and applied for asylum, withholding of removal, and relief under the CAT. In a hearing before the IJ, Nasir testified that following his conversion from Islam to Christianity, he had been harassed and threatened. He testified that his godfather and business associate, a man who had also converted to Christianity, was murdered in June 2006 on account of his conversion. Nasir testified that he feared returning to India because the Indian government fails to protect Christian converts who are- attacked by Muslims.
The IJ determined that the threatening incidents experienced by Nasir — an armed man breaking into his family’s house in 2006 and a stranger grabbing his arm and yelling “murtad” in 2007 — were insufficient to rise to the level of past persecution or to ground an objectively well-founded fear of future persecution based on religion. The IJ further found that Nasir’s claim of fear of future persecution was undermined by the fact that, after traveling to the United States for three months, Nasir returned to live in India from May 2007 to June 2008 without experiencing any serious harm. Furthermore, Nasir testified that the reason that he traveled to the United States for a second time in June 2008 was in order to join a mission in Colorado, not to flee active harassment. After finding there was no evidence in the record to support Nasir’s fear that he would be killed for converting, the IJ denied Nasir’s applications for relief and ordered him excluded. Nasir appealed, submitting additional background reports with his appellate brief to the BIA. In an order dated April 15, 2009, the BIA denied Nasir’s appeal, agreeing with the IJ’s reasoning. The BIA additionally observed that Nasir could avoid the violence by moving to parts of India where Christians are not in danger. Treating the additional background materials as a motion to remand, see 8 C.F.R. § 1003.2(c)(4), the BIA declined to restart the proceedings, concluding that “the background evidence submitted does not show that the Indian government or individuals that the government is unable or unwilling to control currently persecute Indian citizens who convert to Christianity even in the Kashmir region.” (See BIA Dec. at 2.) Nasir filed a timely petition for review.
II.
We have jurisdiction over the petition for review pursuant to 8 U.S.C. § 1252(a). Where “the BIA both adopts the findings of the IJ and discusses some of the bases for the IJ’s decision, we have authority to review the decisions of both the IJ and the BIA.” Chen v. Ashcroft, 376 F.3d 215, 222 *793(3d Cir.2004). Our review is for substantial evidence. See Butt v. Gonzales, 429 F.3d 430, 433 (3d Cir.2005). Under this deferential standard of review, we must uphold the agency’s findings “unless the evidence not only supports a contrary conclusion, but compels it.” Abdille v. Ashcroft, 242 F.3d 477, 483-84 (3d Cir.2001). We review the denial of a motion to reopen or remand for abuse of discretion. See Liu v. Att’y Gen., 555 F.3d 145, 148 (3d Cir.2009).
Substantial evidence supports the BIA’s and IJ’s decisions. Nasir argues that the IJ and BIA failed to consider his testimony “within the larger context of persecution” against Christians in India based on the Department of State’s Country Conditions Report.1 (See Pet. Br. at 11.) The record does not support this argument. See, e.g., A.R. 290 (the IJ expressly considering the country conditions). As for the evidence that Nasir submitted to the BIA along with his appeal, see A.R. 20,140-233, we agree with the BIA that the submitted evidence “does not show that the Indian government or individuals that the government is unable or unwilling to control currently persecute Indian citizens who convert to Christianity even in the Kashmir region.” (See BIA Dec. at 2.) Accordingly, we find that the BIA did not abuse its discretion in denying a remand to the IJ to consider the newly submitted evidence.
Substantial evidence supports the conclusion that the harm suffered by Nasir does not constitute past persecution. Threats constitute past persecution “in only a small category of cases, and only when the threats are so menacing as to cause significant actual ‘suffering or harm.’” Li v. Att’y Gen. of the U.S., 400 F.3d 157, 164 (3d Cir.2005) (quoting Lim v. INS, 224 F.3d 929, 936 (9th Cir.2000)). The threats in this case — showing up at Nasir’s house while he was not present— were never acted upon and did not cause Nasir any physical injury. The incident in which a man grabbed Nasir’s arm and yelled “murtad” at him also does not rise to the level of persecution.
Additionally, substantial evidence supports the BIA’s determination that Na-sir did not establish that he had a well-founded fear of future persecution if he returned to India. While he testified that anyone who leaves Islam and converts to Christianity is punished by death, he provided no evidence to support that contention. As the IJ emphasized, the 2006 Country Report states that 2.3 percent of India’s population is Christian and that the government generally respects the constitution’s provision for freedom of religion. (See A.R. 290, 384-85.)2
For the above reasons, we will deny the petition for review.
. In support of his claim, Nasir cites the 2009 Annual Report prepared by the United States Commission on International Religious Freedom. (See Pet. Br. at 13.) We note that this evidence was not submitted to the IJ or to the BIA, as it is not contained in the Administrative Record; thus the IJ and the BIA could not have erred for failing to take it into consideration. See 8 U.S.C. § 1252(b)(4)(A) (limiting review to the administrative record).
. Because Nasir has not established his eligibility for asylum, he cannot satisfy the higher burden of proof for withholding or removal. See Shehu v. Att’y Gen., 482 F.3d 652, 657-58 (3d Cir.2007). Nor is Nasir eligible for relief under CAT, as he failed to show that he would likely be tortured if removed to China. See 8 C.F.R. § 208.16(c)(2). | 01-04-2023 | 11-05-2022 |
https://www.courtlistener.com/api/rest/v3/opinions/8480932/ | OPINION
McKEE, Chief Judge.
We are asked to review the district court’s grant of summary judgment in favor of the Township of East Hanover in an action brought by Coastal Outdoor Advertising Group, L.L.C. The court entered summary judgment and dismissed Coastal’s complaint after determining that Coastal did not have standing. For the reasons that follow, we will affirm.
I.
Inasmuch as we are writing primarily for the parties who are familiar with this case, we need not reiterate the factual or procedural background except insofar as may be helpful to our brief discussion. Our review of a grant of summary judgment for lack of standing is de novo. Common Cause of Pa. v. Pennsylvania, 558 F.3d 249, 257 (3d Cir.2009) (standing); Levy v. Sterling Holding Co., LLC, 544 F.3d 493, 501 (3d Cir.2008) (summary judgment).
II.1
The “irreducible minimum” of standing under Article III of the Constitution is: (1) *795an injury-in-fact, (2) a causal connection between the injury and the defendant’s conduct, and (3) a likelihood that the injury will be redressed by a favorable decision. Toll Bros., Inc. v. Township of Readington, 555 F.3d 131, 137-38 (3d Cir.2009). Although the injury-in-fact requirement is often determinative, all prongs of the test must be met to establish standing. Id. at 138. Here, the district court correctly determined that, although Coastal had suffered an injury that was traceable to the Township’s application of its ordinance, the injury would not be redressable because Coastal could not demonstrate “a substantial likelihood that the requested relief will remedy the alleged injury in fact.” Id. at 143.
Our review is guided by Harp Advertising Illinois, Inc. v. Village of Chicago Ridge, 9 F.3d 1290 (7th Cir.1993). There, a billboard company challenged the village’s general off-site advertising ban. However, the proposed billboard also violated the village’s size and height restrictions so called secondary restrictions. The court dismissed the case for lack of standing because Harp Advertising could not establish that any relief would satisfy Article Ill’s redressability requirement. The court explained: “An injunction against the portions of the ... codes that [the plaintiff] has challenged would not let it erect the proposed sign; the village could block the sign simply by enforcing another, valid, ordinance already on the books.” Id. at 1292.2
Here, Coastal does not dispute the district court’s finding that it did not challenge the secondary restrictions. Thus, the district court correctly concluded that even if the Township’s superseded prohibition on billboards were unconstitutional, Coastal would not be “substantially likely” to erect the billboard because the unchallenged setback, use, and height restrictions would still prevent Coastal from erecting its billboards. See Harp Adver. Ill., 9 F.3d at 1292; Toll Bros., Inc., 555 F.3d at 143.
Although the district court realized that we have not yet addressed this precise issue in the context presented here, Toll Brothers supports the result. There, we concluded that Toll Brothers could establish standing because “[a] favorable decision, [was] substantially likely to result in construction of Toll Brothers’ planned developments.” Toll Bros., Inc., 555 F.3d at 143. Given the size and height zoning restrictions that would continue to prevent Coastal from erecting its billboards, that is not the case here. See The Pitt News v. Fisher, 215 F.3d 354, 361 (3d Cir.2000) (finding a student-run newspaper’s injuries could be redressed because it would “see a dramatic increase in its advertising revenues if [the challenged ordinance] is struck down as unconstitutional.”).
Moreover, in Toll Brothers, when the development company entered into the option contract and spent money to prepare the land for development, existing zoning regulations permitted the office park that *796Toll Brothers sought to build. Here, Coastal either knew or should have known that the Township did not permit billboards when Coastal entered into the underlying lease. Furthermore, even if Coastal were unaware of the zoning restrictions then, it was undisputedly aware of them when the engineering firm that it hired provided it with the draft site plan, which was before it applied to the Township for a permit (without requesting a variance). Accordingly, Toll Brothers, as well as substantial case law from other courts of appeals, supports the district court’s conclusion that Coastal did not meet the redressability requirement for Article III standing.
Coastal nevertheless asserts that its injury — its inability to “exercise its free speech rights by disseminating commercial and noncommercial messages” — -is redress-able through “equitable relief, damages, and attorneys’ fees.” In doing so, Coastal does not specifically address the district court’s conclusion that its injury was not redressable because secondary zoning restrictions would prohibit construction of its billboard. Rather, Coastal appears to contend that it brings only a facial (rather than an as-applied) challenge to the ordinance, and thus that its injury is redressa-ble through nominal damages. The argument misses the point.
Nominal damages will not alleviate the harm caused by the denial of the application — the prohibition of the billboard. See Toll Bros., Inc., 555 F.3d at 143 (injury redressable because developer would be able to move forward with its development).
Furthermore, as the district court correctly determined, it is by no means certain that Coastal is even eligible for nominal damages because it was aware that its billboard violated several provisions of the Township’s Land Use and Zoning Code when it filed its application.3
III.
Accordingly, we will affirm the district court’s order dismissing Coastal’s complaint because Coastal can not satisfy Article Ill’s standing requirement.4
. As the district court noted, this is the latest in a "burgeoning” line of cases in which a *795billboard company seeks to challenge the constitutionality of a local sign ordinance. Several courts of appeals have affirmed the dismissal of cases similar to Coastal’s based on the lack of redressability of the plaintiff's injury. See, e.g., Maverick Media Grp., Inc. v. Hillsborough Cnty., Fla., 528 F.3d 817 (11th Cir.2008); Midwest Media Prop., L.L.C. v. Symmes Twp., 503 F.3d 456, 461 (6th Cir.2007); Covenant Media of S.C., LLC v. City of North Charleston, 493 F.3d 421 (4th Cir.2007); Prime Media, Inc. v. City of Brentwood, 485 F.3d 343 (6th Cir.2007).
. See also Get Outdoors II, LLC v. City of San Diego, 506 F.3d 886 (9th Cir.2007) (finding that the billboard company had standing because it explicitly challenged the secondary size and height regulations).
. Coastal’s reliance on Advantage Media, L.L.C. v. City of Eden Prairie is not helpful, as the court there concluded that plaintiff could not establish redressability because its billboards would still violate unchallenged provisions of the sign code like the restrictions on size, height, location, and setback. 456 F.3d 793, 802 (8th Cir.2006) (citing Harp Adver. Ill., 9 F.3d at 1292).
Coastal’s reliance on Riel v. City of Bradford, 485 F.3d 736 (3d Cir.2007), and Conc-hatta Inc. v. Miller, 458 F.3d 258 (3d Cir.2006), is also not convincing because neither case addressed the redressability prong of Article Ill's standing requirement.
. Since we concluded that Coastal does not have standing under Article III, we need not address the Township's claim that Coastal also lacks prudential standing. | 01-04-2023 | 11-05-2022 |
https://www.courtlistener.com/api/rest/v3/opinions/8480934/ | OPINION
PER CURIAM.
Zeng Qing Chang (“Zheng”) petitions for review of a final order of the Board of Immigration Appeals (“BIA”) affirming the Immigration Judge’s (“IJ’s”) denial of asylum, withholding of removal, and relief under the Convention Against Torture (“CAT”). We will deny the petition for review.
I.
Zheng, a native and citizen of the People’s Republic of China, entered the United States in August 2004 without proper entry documents. She was interviewed at the airport and claimed that she feared returning to China because she had a son and authorities would require her to have an intrauterine device implanted against her will. Zheng was detained. About two weeks later, she had a credible fear interview in which she maintained her claim that she feared returning to China due to its family planning policy. Zheng then applied for asylum, withholding of removal, and CAT protection. In her application, she apologized for previously lying about her reason for fleeing China and stated that the real reason she came to the United States is that she is a lesbian who had suffered discrimination and abuse in China.
The IJ denied relief. He found Zheng’s testimony not credible because she lied about her reason for fleeing China in her airport and credible fear interviews. In particular, the IJ concluded that Zheng did not establish that she is a lesbian and he rejected her corroborating evidence. In the alternative, the IJ concluded that the treatment Zheng suffered in China did not rise to the level of persecution and that she did not demonstrate a well-founded fear of future persecution. The BIA dismissed the appeal, agreeing with the findings and conclusions of the IJ. Zheng then filed a timely petition for review.
II.
We have jurisdiction pursuant to 8 U.S.C. § 1252 to review final orders of removal. In this case, the BIA affirmed the decision of the IJ and discussed some of the bases for the IJ’s decision, so we therefore review the decisions of both the IJ and BIA. See Chen v. Ashcroft, 376 F.3d 215, 222 (3d Cir.2004). In doing so, we review factual findings for substantial evidence and may not disturb them “ ‘unless any reasonable adjudicator would be compelled to conclude to the contrary.’” Sandie v. Att’y Gen., 562 F.3d 246, 251 (3d Cir.2009) (quoting 8 U.S.C. § 1252(b)(4)(B)). We exercise plenary review over questions of law, subject to the established principles of deference accorded agency decision-making. See Sioe Tjen Wong v. Att’y Gen., 539 F.3d 225, 231 (3d Cir.2008).
Under the Immigration and Nationality Act (“INA”), an applicant may demonstrate eligibility for asylum by *814showing either past persecution or a well-founded fear of future persecution on account of race, religion, nationality, membership in a particular social group, or political opinion. 8 U.S.C. § 1101(a)(42)(A). Zheng claims that she is eligible for asylum because she is a lesbian who has suffered persecution on that basis. The IJ found that she had not “established to the satisfaction of the Court that she is, in reality, a lesbian,” and the BIA affirmed. Administrative Record (“AR”) at 72, 3. Zheng argues that the IJ erred by making this finding. Although one might question the IJ’s adverse credibility determination,1 we need not decide the issue because there is substantial evidence in support of the alternative holding that Zheng did not demonstrate that she had been persecuted for being a lesbian.
Zheng testified that she and her girlfriend were once picked up by local village officials and dragged by their hair to a “local office,” detained for the night, and “yelled at.” AR at 132. In her brief, she describes this as being “detained and humiliated.” Pet. Br. at 14. The IJ and the BIA correctly concluded that this isolated incident of harassment does not rise to the level of persecution, which is defined as including “threats to life, confinement, torture, [or] economic restrictions so severe that they constitute a real threat to life or freedom.” Lukwago v. Ashcroft, 329 F.3d 157, 168 (3d Cir.2003); see also Chen v. Ashcroft, 381 F.3d 221, 234-35 (3d Cir.2004) (isolated incidents that do not result in serious injury do not rise to the level of persecution).
Zheng also challenges the BIA’s determination that she did not establish a well-founded fear of future persecution. Zheng relied on an article outlining why homosexuality is not legal in China, but it provides no evidence of a pattern or practice of persecution of homosexuals. See Lie v. Ashcroft, 396 F.3d 530, 537 (3d Cir.2005) (explaining that a petitioner seeking asylum due to pattern or practice of persecution must establish “systemic, pervasive, or organized” harm “committed by the government or forces the government is either unable or unwilling to control”). Zheng also argues that she established a well-founded fear of future persecution because the Government has not rebutted the presumption afforded her. Pet. Brief at 14. She does not receive the benefit of that presumption, however, because she did not demonstrate past persecution. See 8 C.F.R. § 1208.13(b)(1).
Finally, Zheng’s inability to establish her eligibility for asylum necessarily undermines her eligibility for withholding of removal. Sioe Tjen Wong, 539 F.3d at 236-37. And, as the foregoing discussion indicates, Zheng has not presented sufficient evidence to support a conclusion that she would more likely than not be subjected to torture if returned to China.
*815Accordingly, we will deny the petition for review.
. The IJ based his adverse credibility finding on the fact that Zheng lied about her reason for fleeing China in her airport and credible fear interviews, which generally would be a sufficient basis for an adverse credibility determination. See Chen v. Ashcroft, 376 F.3d 215, 223-24 (3d Cir.2004). The IJ also found it "extremely important" that Zheng did not provide a letter from her ex-husband in China corroborating her claim that she is a lesbian. AR at 70. Zheng contends that the IJ erred by not considering her explanations for lying (i.e., she was coerced to lie by the snakehead and feared how she would be treated if she admitted she is a lesbian) and for not seeldng corroboration from her ex-husband (i.e., she did not want to bother him after making him suffer years in a sham marriage). Zheng also argues that the IJ erred by discounting the corroborative evidence she did provide, specifically a letter from the pastor of a church serving the gay and lesbian community in New York City stating that she is a member and photos showing her participating in a gay rights parade. | 01-04-2023 | 11-05-2022 |
https://www.courtlistener.com/api/rest/v3/opinions/8480935/ | OPINION
PER CURIAM.
Agron Halili petitions for review of the Board of Immigration Appeals’ (“BIA”) final order of removal. For the reasons that follow, we will deny the petition.
I.
Halili, a native and citizen of Albania, entered the United States as a nonimmi-grant visitor in 2006. A few days before his visa was set to expire, he filed an affirmative application for asylum and withholding of removal,1 alleging past persecution and a fear of future persecution on account of his involvement and affiliation with Albania’s Socialist Party. After his visa expired, he was placed in removal proceedings.
In November 2007, the Immigration Judge (“IJ”) held a hearing on the merits of Halili’s application. Two months later, the IJ issued a written decision denying the application. The IJ found Halili’s testimony credible, but concluded that neither the unfulfilled threats that had been made against him in Albania, nor his being fired from his job there, rose to the level of persecution. Additionally, the IJ rejected Halili’s claim that he would be persecuted upon returning to Albania for having exposed pension fraud at his former place of employment, concluding that he had not shown that any alleged retaliation taken against him would be on account of his political opinion or his membership in the Socialist Party or another particular social group. Finally, the IJ concluded that Hal-ili had not shown that his fear that he himself would be implicated in the fraud was reasonable. On appeal, the BIA upheld the IJ’s denial of Halili’s application and rejected Halili’s argument that the IJ had failed to afford him a fair hearing. Halili now seeks review of the BIA’s decision.2
*819II.
An alien seeking asylum must demonstrate that he is unable or unwilling to return to his home country “because of persecution or a well-founded fear of persecution on account of race, nationality, membership in a particular social group, or political opinion.” 8 U.S.C. § 1101(a)(42); see 8 U.S.C. § 1158(b). “Persecution” consists of “threats to life, confinement, torture, and economic restrictions so severe that they constitute a threat to life or freedom,” but “does not encompass all treatment that our society regards as unfair, unjust, or even unlawful or unconstitutional.” Fatin v. INS, 12 F.3d 1233, 1240 (3d Cir.1993). We review the agency’s conclusions regarding evidence of persecution, as well as its other factual findings, for substantial evidence, see Chavarria v. Gonzalez, 446 F.3d 508, 515 (3d Cir.2006), and must uphold those findings “unless the evidence not only supports a contrary conclusion, but compels it.” Abdille v. Ashcroft, 242 F.3d 477, 483-84 (3d Cir.2001).
In this ease, Halili has not shown that the record compels a finding of past persecution or a well-founded fear of future persecution. With respect to his claims of past persecution, he has not established that the unfulfilled threats he allegedly faced were sufficiently “imminent and menacing” to constitute persecution. See Li v. Att’y Gen. of the U.S., 400 F.3d 157, 164 (3d Cir.2005). Nor has he shown that his being fired amounts to “the deliberate imposition of severe economic disadvantage” that we have held may constitute persecution. See id. at 168. As for his claims of future persecution, he does not identify any evidence that compels a finding that he has a well-founded fear of future persecution on account of his efforts to expose fraud at his former place of employment. Accordingly, the agency did not err in denying his asylum claim. Because Halili cannot prevail on his asylum claim, he cannot meet the higher standard for withholding of removal. See Lukwago v. Ashcroft, 329 F.3d 157, 182 (3d Cir.2003).
Halili contends that the agency failed to consider all of the evidence, and that the IJ violated his due process rights by denying him a full and fair hearing. We disagree. Having reviewed the record, we are confident that the agency considered all of the evidence, and we find no violation of due process. Contrary to Halili’s assertions, neither the questions the IJ posed to Halili during his testimony, nor the IJ’s interactions with Halili’s counsel during the hearing, were inappropriate. We have considered Halili’s remaining arguments and conclude that they lack merit.3
In light of the above, we will deny Hali-li’s petition.
. Halili’s brief refers to the Convention Against Torture ("CAT”) despite the fact that his counsel in the proceedings before the Immigration Judge made clear that Halili was not pursuing that form of relief. (See Admin. Rec. at 83.) To the extent Halili is now trying to raise a CAT claim, it is unexhausted and thus outside the scope of our review. See Abdulrahman v. Ashcroft, 330 F.3d 587, 594-95 (3d Cir.2003).
. We have jurisdiction over Halili’s petition for review pursuant to 8 U.S.C. § 1252(a)(1).
. Halili argues, inter alia, that "[t]he agency erred when it found changed country conditions,” and that it should have considered whether to grant asylum "notwithstanding any perceived change in country conditions.” (Halili's Brief at 12, 17.) This argument is misplaced, for the agency did not deny his asylum claim based on a change in country conditions. | 01-04-2023 | 11-05-2022 |
https://www.courtlistener.com/api/rest/v3/opinions/8480936/ | OPINION
PER CURIAM.
Elmer Milian Duarte petitions for review of a decision rendered by the Board of Immigration Appeals (“BIA”) affirming the Immigration Judge’s (“IJ”) decision denying his motion to reopen. For the reasons that follow, we will deny the petition for review.
Duarte is a native and citizen of Guatemala who entered the United States in 1992 without a valid visa, identity or entry document. A notice to appear (“NTA”) charging Duarte with removal pursuant to INA § 212(a)(6)(A)(i) was mailed to Duarte (at 3 Edward Court, Apt. 3, Trenton NJ) on September 15, 2007. (A.R. at 116-17.) Ten days later, the Government sent a hearing notice to the same address, *821requiring Duarte’s appearance on October 3, 2007. (Id. at 96.) The Immigration Court mailed a second NTA to Duarte advising him of a hearing scheduled on November 21, 2007, but the mail, sent to the 3 Edward Court address, was returned as undeliverable.1 (Id. at 93.) When Duarte failed to appear at the November 21 hearing, the IJ conducted the removal hearing in absentia pursuant to INA § 240(b)(5)(A). The IJ ultimately ruled that Duarte be removed to Guatemala based on the documentary evidence submitted by the Government. (Id. at 36.) The final order of removal was mailed to the 3 Edward Court address.
In July 2008, Immigration and Customs Enforcement (“ICE”) apprehended Duarte but did not detain him. On September 18, 2008, he filed a counseled motion to rescind the in absentia removal order and reopen the proceedings (“motion to reopen”) under INA § 240(b)(5)(C)®, attaching an affidavit and medical documentation showing that he had been hospitalized on an emergency basis for asthma and bronchitis from November 21 through 29, 2007. (Id. at 42-82.) In his affidavit, Duarte stated that “I was scheduled to appear before an Immigration Judge in Newark, New Jersey on November 21, 2007,” and that “[t]o my understanding, my former attorney [ ], informed the immigration court that I was in the hospital....” (Id. at 83.) Duarte claimed that his hospitalization constituted “exceptional circumstances” warranting rescission of the in absentia order under 8 C.F.R. § 1003.23(b)(4)(h). (Id.) The IJ denied the unopposed motion, finding that it was untimely filed well beyond the requisite 180-day filing period. The IJ noted that Duarte failed to explain why he waited for about eight or nine months from the date of the removal order (November 21, 2007) before filing his motion to reopen.2 The Board of Immigration Appeals (“BIA”) affirmed the IJ’s finding that the motion was time-barred, holding that Duarte did not contest the timeliness issue on appeal and that he offered no basis for equitable tolling. This timely petition for review followed.
We have jurisdiction over this petition pursuant to INA § 242(a), 8 U.S.C. § 1252(a). We review the agency’s denial of a motion to reopen for abuse of discretion. Immigration & Naturalization Serv. v. Abudu, 485 U.S. 94, 105, 108 S.Ct. 904, 99 L.Ed.2d 90 (1988). Under this deferential standard of review, we will not disturb the agency’s decision unless it is arbitrary, irrational, or contrary to the law. Santana Gonzalez v. Att’y Gen., 506 F.3d 274, 276 (3d Cir.2007).
When an alien seeks reopening to rescind an order of removal in absentia *822based on his failure to appear due to exceptional circumstances, he must file the motion within 180 days of the date of the order of removal. 8 U.S.C. § 1229a(b)(5)(C)(i) [INA § 240(b)(5)(C)(i)]. An alien may file a motion to reopen an order of removal in absentia at any time, however, if it is based on a claim that he did not receive proper notice of his hearing or that he was in federal or state custody and failed to appear through no fault of his own. 8 U.S.C. § 1229a(b)(5)(C)(ii) [INA § 240(b)(5)(C)(ii) ].
In his brief in support of his petition for review, Duarte alleges that “he did not receive the Notice of Hearing” for the November 21, 2007 hearing, a claim for relief under § 1229a(b)(5)(C)(ii). (Pet’r Br. at 7.) The Government counters that we lack jurisdiction to consider this argument because Duarte failed to raise it on appeal to the BIA. The Court’s jurisdiction is limited under § 242(d)(1) of the INA to cases where the petitioner “has exhausted all administrative remedies available to the alien as of right....” 8 U.S.C. 1252(d)(1); see Abdulmhman v. Ashcroft, 330 F.3d 587, 594-95 (3d Cir.2003). A petitioner has exhausted his administrative remedies if he raises all issues before the BIA. Athough the exhaustion principle is not applied “in a draconian fashion,” “[o]ut of respect for the administrative process, we will not require the BIA to guess which issues have been presented and which have not.” Lin v. Att’y Gen., 543 F.3d 114, 121-22 (3d Cir.2008). Even if a petitioner does not exhaust a claim, this Court may still have jurisdiction to consider it, if the BIA sua sponte addressed the issue on its merits. Id. at 122-23.
In his Notice of Appeal to the BIA, after setting forth the standard for reopening due to exceptional circumstances under INA § 240(b)(5)(C)(i), Duarte noted that the NTA (for the November 21, 2007 hearing) was returned to the Immigration Court labeled “return to sender, unable to forward,” and that “[consequently, Respondent failed to appear.” (A.R. at 23.) Duarte immediately followed this statement with an explanation that “his failure to appear at the scheduled hearing was due to “exceptional circumstances,” and he claimed that he had established a prima facie case for relief based on his serious respiratory illness. (Id.) In his brief to the BIA, Duarte again argued that the exceptional circumstance of his hospitalization prevented him from appearing at the hearing. In addition, he claimed that his “medical condition” prevented him from filing a timely motion to reopen. (Id. at 6.) Notably, Duarte did not contest the IJ’s finding that Duarte “did not deny” that he had received notice. Based on the foregoing, we conclude that the BIA was not given sufficient notice of Duarte’s lack of notice claim. Moreover, the BIA did not reach the lack of notice issue on its merits sua sponte in its order. Hence, we lack jurisdiction to review the unexhausted claim.
Duarte also argues the merits of his claim that he was unable to appear at the November 21 hearing due to his hospitalization. He does not challenge, however, the BIA’s conclusion that his motion to reopen was untimely filed. His brief contains no argument concerning the timeliness of his motion to reopen or the applicability of equitable tolling, and, thus, it is not sufficient to bring the issue before the Court, and we deem the issue waived. De Araujo v. Gonzales, 457 F.3d 146, 153 (1st Cir.2006); Voci v. Gonzales, 409 F.3d 607, 609 n. 1 (3d Cir.2005).
For the foregoing reasons, we will deny the petition for review.
. The IJ’s decision and the Government's brief state that Duarte was also served personally with the second NTA when he appeared at the October 3, 2007 hearing. There is no transcript of the October 3 hearing in the record. There are, however, two identical NTA's indicating that a DHS officer served Duarte personally. (See A.R. at 91-92 & 94-95.)
. The IJ also ruled that rescission was not otherwise called for under 8 C.F.R. § 1003.23(b)(4)(ii) because Duarte did not deny receiving the second NTA for the November hearing and he did not allege or demonstrate that his failure to appear was due to circumstances beyond his control while he was in federal or state custody. The IJ also found that to the extent that Duarte claimed that counsel was ineffective in failing to notify the immigration court of his hospitalization, he failed to comply with Matter of Lozada, 19 I. & N. Dec. 637 (BIA 1988). The IJ found that Duarte submitted no evidence that he had retained counsel prior to the November 21, 2007 hearing and that the record lacked any evidence that he diligently attempted to verify his removal status with the immigration court on his own. | 01-04-2023 | 11-05-2022 |
https://www.courtlistener.com/api/rest/v3/opinions/8480938/ | OPINION
PER CURIAM.
Petitioner Suryo Nagautama, a native and ethnic Chinese Christian citizen of In*829donesia, filed a timely petition for review from the Board of Immigration Appeals’ (“BIA”) final order of removal. For the following reasons, we will deny the petition for review.
Nagautama is a citizen of Indonesia who arrived in the United States in 1995 on a B-2 visa. He was placed in removal proceedings for overstaying his visa in 2003. In 2004, he conceded removability, and applied for asylum, withholding of removal, and for relief under the Convention Against Torture (“CAT”), claiming that he was persecuted for his Chinese ethnicity and Catholic religion.
Nagautama’s testimony and personal statement described generally that he was bullied and harassed by Muslims in his community. He said that Indonesian Muslim youth “always call me names, ‘Chinese, Chinese, go back to your country.’ ” (A.R. at 125-26 & 129.) He also testified that they would demand money from him “[e]very time we would go to attend church,” almost every week, and that sometimes he would defend himself from their attempts to take money from his person, in which he incurred minor injuries. (Id. at 129.) He did not report these incidents to the police but he did report them to the church organization. (Id. at 128.) He feared returning to Indonesia because he would be targeted by Muslim youth as a wealthy person who traveled to the United States. (Id. at 129-30.) He also feared returning to Indonesia because of the recent bombings that had occurred in “churches, malls and foreign embassies” there. (Id. at 131.) His father, a Buddhist, and his mother and sister, practicing Catholics who attend church every Sunday, remain in Indonesia where they own and operate a grocery store. (Id. at 132.) Among other things, Nagautama submitted the United States Department of State’s 2003 and 2004 Country Reports on Human Rights Practices in Indonesia.
After a hearing in 2006, the Immigration Judge (“IJ”) denied relief, finding that the asylum application was untimely and that Nagautama failed to meet his respective burdens of proof for withholding of removal and for CAT relief. In November 2009, the Board of Immigration Appeals (“BIA”) dismissed Nagautama’s appeal,1 agreeing with the IJ’s decision to pretermit the asylum petition as untimely. (App. at 21.) The Board affirmed the IJ’s denial of withholding of removal because Nagautama failed to demonstrate past persecution or a clear probability of future persecution if he returned. (Id.) The BIA held that although the acts of Muslim Indonesians in asking Nagautama repeatedly for money and robbing him on several occasions might amount to discrimination or harassment, these acts did not constitute “past persecution.” (Id. at 22.) The Board rejected Nagautama’s claim that the IJ ignored the conditions in Indonesia as presented in the State Department Reports of record, and it found that Nagautama’s fear of general conditions of violence and unrest affecting the entire populace in Indonesia did not amount to a well-founded fear of future harm. (Id.) The Board also denied CAT relief, holding that Nagauta-ma failed to meet his burden of proof. (Id.) Through counsel, Nagautama filed this petition for review.
No court shall have jurisdiction to review any determination regarding the timeliness of an asylum application and the applicability of the exceptions. See 8 U.S.C. § 1158(a)(3); Tarrawally v. Ashcroft, 338 F.3d 180, 185 (3d Cir.2003). Although the subsequently enacted REAL *830ID Act amended the Immigration and Nationality Act to allow constitutional claims or questions of law to survive its jurisdiction-stripping provisions, see REAL ID Act § 106(a)(l)(A)(iii), 8 U.S.C. § 1252(a)(2)(D), Nagautama has not raised any legal or constitutional claims regarding the IJ’s determination that his asylum claim was untimely. Because we lack jurisdiction to consider whether Nagauta-ma’s asylum application was timely, our review is confined to consideration of whether the BIA properly affirmed the denial of withholding of removal.2
To be eligible for withholding of removal, Nagautama must demonstrate that it is more likely than not that his life would be threatened in Indonesia on account of race, religion, nationality, membership in a particular social group, or political opinion. Tarrawally, 838 F.3d at 186; 8 U.S.C. § 1231(b)(3)(A). We may reverse the BIA’s decision only if the record would compel a reasonable factfinder to conclude that the requisite fear existed. I.N.S. v. Elias-Zacarias, 502 U.S. 478, 481, 112 S.Ct. 812, 117 L.Ed.2d 38 (1992).
Nagautama argues that the Board erred in finding that the record evidence failed to show a pattern or practice of persecution. We have held that in order to constitute a “pattern or practice,” the persecution of a group must be “systemic, pervasive, or organized.” Lie v. Ashcroft, 396 F.3d 580, 537 (3d Cir.2005). In Wong v. Attorney General, 539 F.3d 225 (3d Cir.2008), we held that the 2003 and 2004 Country Reports regarding Indonesia did not demonstrate a pattern or practice of persecution against Chinese Christians. Id. at 233. We noted that the 2005 and 2007 Country Reports documented improved treatment of Chinese Christians in Indonesia. Id. at 234. Here, Nagautama relies on largely out-dated Country Reports on Indonesia for 2000, 2001, and 2002, and he fails to address the information documented in the 2004 Country Report.3 Given the lack of evidence showing the Indonesian government’s action or acquiescence in Nagautama’s case, we are not compelled to conclude that the discrimination and harassment he suffered constituted a pattern or practice of persecution.4
Nagautama argues that the Board erroneously failed to apply the “disfavored group analysis” set forth in Sael v. Ashcroft, 386 F.3d 922 (9th Cir.2004), in determining whether he showed a pattern or practice of past persecution. We soundly rejected the “disfavored group” analysis in Lie, 396 F.3d at 538 n. 4. See also Wong, 539 F.3d at 235 n. 5 (noting that the Ninth Circuit Court of Appeals “appears to have moved away from its reasoning in Sael ”). Nagautama also asserts that the Board should have followed the decision in *831Eduard, v. Ashcroft, 379 F.3d 182 (5th Cir.2004), where the Court found a pattern or practice of persecution of Chinese Christians in Indonesia. We disagree. In Wong, we examined Eduard and concluded that the decision was not persuasive regarding conditions in Indonesia as reflected in later (2004) reports because it was based on out-dated country conditions in 2000. Wong, 539 F.3d at 234-35.
We conclude that Nagautama has not shown that the record compels a finding that his life would be threatened if removed to Indonesia so as to entitle him to withholding of removal. Tarrawally, 338 F.3d at 186. Accordingly, we will deny the petition for review.
. On February 13, 2008, the BIA granted Na-gautama’s motion to reopen the appeal, which the Board had dismissed in July 2007 because there was no notice of appeal in the record.
. Nagautama’s brief contains a statement in the "Conclusion” that this Court should reverse the Board’s denial of his CAT claim, but it contains no argument concerning relief under the CAT. Such a statement is not sufficient to bring the issue before the Court, and we deem the issue waived. De Araujo v. Gonzales, 457 F.3d 146, 153 (1st Cir.2006); Voci v. Gonzales, 409 F.3d 607, 610 n. 1 (3d Cir.2005).
. Nagautama also broadly asserts that the IJ erred "by overlooking critical evidence,” but he did not include any argument to support it.
.To the extent that Nagautama argues that he suffered past persecution on account of his Chinese ethnicity and his Christian religion when he was robbed, when his store was targeted for attack, and when people yelled "Kill Chinese” at him and threw stones, we conclude that he has not shown that the record compels a finding that he suffered past persecution, as opposed to discrimination or harassment, on account of his ethnicity or religion. Fatin v. I.N.S., 12 F.3d 1233, 1240 (3d Cir.1993) ("persecution does not encompass all treatment that our society regards as unfair, unjust, or even unlawful or unconstitutional"). | 01-04-2023 | 11-05-2022 |
https://www.courtlistener.com/api/rest/v3/opinions/8481197/ | 85005: Case View
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22-34639: This document is currently unavailable. If you need a copy of this document, please contact Clerk's Office at (775)684-1600.
Disclaimer: The information and documents available here should not be relied upon as an official record of action.Only filed documents can be viewed. Some documents received in a case may not be available for viewing.Some documents originating from a lower court, including records and appendices, may not be available for viewing.For official records, please contact the Clerk of the Supreme Court of Nevada at (775) 684-1600.
Case Information: 85005
Short Caption:GROSSMAN VS. DIVERSIFIED COMMC'NS SOLS., INC., LTD.Court:Supreme Court
Lower Court Case(s):Clark Co. - Eighth Judicial District - A798969Classification:Civil Appeal - General - Other
Disqualifications:Case Status:Disposition Filed
Replacement:Panel Assigned:
Panel
To SP/Judge:07/20/2022 / Haire, PaulSP Status:Completed
Oral Argument:Oral Argument Location:
Submission Date:How Submitted:
+
Party Information
RoleParty NameRepresented By
AppellantDarren GrossmanPeter M. Angulo
(Angulo Law Group, LLC)
Joseph R. Smith
(Angulo Law Group, LLC)
RespondentDiversified Communications Solutions, Inc., Ltd.Robert S. Qualey
(Qualey Law Group)
+
Due Items
Due DateStatusDue ItemDue From
11/28/2022OpenRemittitur
Docket Entries
DateTypeDescriptionPending?Document
07/14/2022Filing FeeFiling Fee due for Appeal. (SC)
07/14/2022Notice of Appeal DocumentsFiled Notice of Appeal. Appeal docketed in the Supreme Court this day. (SC)22-22187
07/14/2022Notice/OutgoingIssued Notice to File Case Appeal Statement/Civil. Due date: 7 days. (SC)22-22189
07/14/2022Notice/OutgoingIssued Notice to Pay Supreme Court Filing Fee. No action will be taken on this matter until filing fee is paid. Due Date: 7 days. (SC)22-22191
07/19/2022Filing FeeFiling Fee Paid. $250.00 from Peter M. Angulo. E-Payment Ref. no. 22071925310806. (SC)
07/19/2022Notice of Appeal DocumentsFiled Case Appeal Statement. (SC)22-22653
07/19/2022Notice/OutgoingIssued Notice of Referral to Settlement Program. This appeal may be assigned to the settlement program. Timelines for requesting transcripts and filing briefs are stayed. Docketing Statement mailed to counsel for appellants - due: 21 days. (SC)22-22677
07/20/2022Settlement NoticeIssued Notice: Assignment to Settlement Program. Issued Assignment Notice to NRAP 16 Settlement Program. Settlement Judge: Paul M. Haire. (SC)22-22805
07/21/2022Filing FeeReturned Filing Fee. Check No. 1435 returned to Angulo Law Group. (SC)
08/01/2022Docketing StatementFiled Docketing Statement Civil Appeals. (REJECTED PER NOTICE ISSUED 8/1/22) (SC)
08/01/2022Notice/OutgoingIssued Notice of Rejection of Deficient Docketing Statement. Corrected docketing statement due: 5 days. (SC)22-24117
08/04/2022Docketing StatementFiled Docketing Statement Civil Appeals. (SC)22-24467
08/15/2022Settlement Program ReportFiled ECAR/Appropriate for Settlement Program. This case is appropriate for mediation and a settlement conference is scheduled for September 13, 2022, at 2:00 PM. (SC)22-25409
09/20/2022Settlement Program ReportFiled Final Report/No Settlement. The parties were unable to agree to a settlement of this matter. (SC)22-29595
09/21/2022Settlement Order/ProceduralFiled Order: No Settlement/Briefing Reinstated. The parties were unable to agree to a settlement. Appellant(s): 14 days transcript request; 90 days opening brief and appendix. (SC)22-29634
09/27/2022Order/ProceduralFiled Order to Show Cause. Appellant's Response due: 30 days. The deadlines for filing documents in this appeal shall be suspended pending further order of this court. Respondent may file any reply within 14 days from the date that appellant's response is served. (SC)22-30322
10/27/2022MotionFiled Appellant's Response to Order to Show. (SC)22-33907
11/03/2022Order/DispositionalFiled Order Dismissing Appeal. This court entered an order directing appellant to demonstrate this court's jurisdiction. Appellant has responded and concedes that the judgment is not a final disposition and that this court lacks jurisdiction. "ORDERS this appeal DISMISSED." SNP- JH/LS/DH. (SC)22-34639
Combined Case View | 01-04-2023 | 11-07-2022 |
https://www.courtlistener.com/api/rest/v3/opinions/8480940/ | Affirmed by unpublished PER CURIAM opinion.
Unpublished opinions are not binding precedent in this circuit.
PER CURIAM:
Stephen Yagman appeals the district court’s order denying relief on his complaint filed pursuant to Bivens v. Six Unknown Named Agents of Fed. Bureau of Narcotics, 403 U.S. 388, 91 S.Ct. 1999, 29 L.Ed.2d 619 (1971). We have reviewed the record and find no reversible error. Accordingly, we affirm for the reasons stated by the district court. Yagman v. Johns, No. 5:08-ct-03089-FL (E.D.N.C. Mar. 29, 2010). We dispense with oral argument because the facts and legal contentions are adequately presented in the materials before the court and argument would not aid the decisional process.
AFFIRMED. | 01-04-2023 | 11-05-2022 |
https://www.courtlistener.com/api/rest/v3/opinions/8480941/ | Petition denied by unpublished PER CURIAM opinion.
Unpublished opinions are not binding precedent in this circuit.
PER CURIAM:
Pablo Trujillo-Gudino petitions for a writ of mandamus, alleging the district court has unduly delayed acting on his 28 U.S.C.A. § 2255 (West Supp.2010) motion. He seeks an order from this court directing the district court to act. Our review of the district court’s docket reveals that the district court denied Trujillo-Gudino’s § 2255 motion in an order entered on August 12, 2010. Accordingly, because the district court has recently decided Trujillo-Gudino’s case, we deny the mandamus petition as moot. We grant leave to proceed in forma pauperis. We dispense with oral argument because the facts and legal contentions are adequately presented in *844the materials before the court and argument would not aid the decisional process.
PETITION DENIED. | 01-04-2023 | 11-05-2022 |
https://www.courtlistener.com/api/rest/v3/opinions/8480942/ | Petition denied by unpublished PER CURIAM opinion.
Unpublished opinions are not binding precedent in this circuit.
PER CURIAM:
Bruce Everett Void-El petitions for a writ of mandamus, alleging the district court has unduly delayed acting on his 28 U.S.C. § 2241 (2006) petition. He seeks an order from this court directing the district court to act. Our review of the district court’s docket reveals that the district court has entered an order adopting the recommendation of the magistrate judge and dismissing Void-El’s petition. Accordingly, we deny the mandamus petition as moot. We dispense with oral argument because the facts and legal contentions are adequately presented in the materials before the court and argument would not aid the decisional process.
PETITION DENIED. | 01-04-2023 | 11-05-2022 |
https://www.courtlistener.com/api/rest/v3/opinions/8480944/ | Affirmed by unpublished PER CURIAM opinion.
Unpublished opinions are not binding precedent in this circuit.
PER CURIAM:
Johnnie Gathers appeals the district court’s order accepting the recommendation of the magistrate judge and denying relief on his 42 U.S.C. § 1983 (2006) complaint. We have reviewed the record and find no reversible error. Accordingly, we affirm for the reasons stated by the district court. Gathers v. Ozmint, No. 9:09-cv-01295-HMH, 2010 WL 1542350 (D.S.C. Apr. 15, 2010). We dispense with oral argument because the facts and legal contentions are adequately presented in the materials before the court and argument would not aid the decisional process.
AFFIRMED. | 01-04-2023 | 11-05-2022 |
https://www.courtlistener.com/api/rest/v3/opinions/8480945/ | Affirmed by unpublished PER CURIAM opinion.
Unpublished opinions are not binding precedent in this circuit.
PER CURIAM:
Charles M. Cassell, III, appeals the district court’s order dismissing his 42 U.S.C. § 1983 (2006) complaint. We have reviewed the record and find no reversible error. Accordingly, we affirm for the reasons stated by the district court. Cassell v. FNU Dawkins, Dr., No. 5:10-cv-00069-GCM, 2010 WL 2266972 (W.D.N.C. June 3, 2010). We deny Cassell’s motions for copies and to subpoena all evidence and exhib*850its. We dispense with oral argument because the facts and legal contentions are adequately presented in the materials before the court and argument would not aid the decisional process.
AFFIRMED. | 01-04-2023 | 11-05-2022 |
https://www.courtlistener.com/api/rest/v3/opinions/8480946/ | Affirmed by unpublished PER CURIAM opinion.
Unpublished opinions are not binding precedent in this circuit.
PER CURIAM:
Matthew Detzler appeals the district court’s order dismissing his 42 U.S.C. § 1988 (2006) complaint under 28 U.S.C. § 1915A(b) (2006). We have reviewed the record and find no reversible error. Accordingly, we affirm for the reasons stated by the district court. Detzler v. Cox, No. 1:10-cv-00552-GBL-TCB (E.D. Va. June 11, 2010). We dispense with oral argument because the facts and legal contentions are adequately presented in the materials before the court and argument would not aid the decisional process.
AFFIRMED. | 01-04-2023 | 11-05-2022 |
https://www.courtlistener.com/api/rest/v3/opinions/8480947/ | Affirmed by unpublished PER CURIAM opinion.
Unpublished opinions are not binding precedent in this circuit.
PER CURIAM:
Bernard McFadden appeals the district court’s order accepting the recommendation of the magistrate judge and dismissing his 42 U.S.C. § 1983 (2006) complaint with prejudice for lack of prosecution. We have reviewed the record and find no reversible error. Accordingly, we affirm for the reasons stated by the district court. See McFadden v. Major, No. 6:09-cv-02437-RBH, 2010 WL 2721905 (D.S.C. July 9, 2010). We dispense with oral argument because the facts and legal contentions are adequately presented in the materials before the court and argument would not aid the decisional process.
AFFIRMED.. | 01-04-2023 | 11-05-2022 |
https://www.courtlistener.com/api/rest/v3/opinions/8480949/ | Affirmed by unpublished PER CURIAM opinion.
Unpublished opinions are not binding precedent in this circuit.
PER CURIAM:
Leon A. Stone appeals the district court’s order denying relief on his 42 U.S.C. § 1983 (2006) complaint. We have reviewed the record and find no reversible error. Accordingly, we deny Stone’s motions for appointment of counsel, bail or release pending appeal, and to enforce judgment and authorize discovery and affirm for the reasons stated by the district court. Stone v. Bennett, No. 2:10-cv-00280-JBF-FBS (E.D.Va. July 15, 2010). We dispense with oral argument because the facts and legal contentions are adequately presented in the materials before the court and argument would not aid the decisional process.
AFFIRMED. | 01-04-2023 | 11-05-2022 |
https://www.courtlistener.com/api/rest/v3/opinions/8480950/ | Affirmed by unpublished PER CURIAM opinion.
Unpublished opinions are not binding precedent in this circuit.
PER CURIAM:
De’Juan Anderko Watkins appeals the district court’s order denying his motion for a writ of audita querela. We have reviewed the record and find no reversible error. Accordingly, we affirm for the reasons stated by the district court. United States v. Watkins, No. 7:02-cr-00106-F-1 (E.D.N.C. July 12, 2010). We dispense with oral argument because the facts and legal contentions are adequately presented in the materials before the court and argument would not aid the decisional process.
AFFIRMED. | 01-04-2023 | 11-05-2022 |
https://www.courtlistener.com/api/rest/v3/opinions/8480951/ | Affirmed by unpublished PER CURIAM opinion.
Unpublished opinions are not binding precedent in this circuit.
PER CURIAM:
Dwight Xavier Jones appeals the district court’s order adopting the recommendation of the magistrate judge and denying relief on his 42 U.S.C. § 1983 (2006) complaint. We have reviewed the record and find no reversible error. Accordingly, we affirm for the reasons stated by the district court. Jones v. Corr. Care Solutions, No. 0:09-cv-00269-HMH, 2010 WL 2926178 (D.S.C. July 23, 2010). We dispense with oral argument because the facts and legal contentions are adequately presented in the materials before the court and argument would not aid the decisional process.
AFFIRMED. | 01-04-2023 | 11-05-2022 |
https://www.courtlistener.com/api/rest/v3/opinions/8480954/ | Dismissed by unpublished PER CURIAM opinion.
Unpublished opinions are not binding precedent in this circuit.
PER CURIAM:
Sammy Junior Morgan appeals the district court’s order dismissing his 42 U.S.C. § 1983 (2006) complaint under 28 U.S.C. § 1915(e)(2)(B)(2006). We have reviewed the record and find that this appeal is frivolous. Accordingly, we dismiss the appeal for the reasons stated by the district court. Morgan v. Jenkins, No. 5:09-ct-03197-BO (E.D.N.C. June 23, 2010). We dispense with oral argument because the facts and legal contentions are adequately presented in the materials before the court and argument would not aid the decisional process.
DISMISSED. | 01-04-2023 | 11-05-2022 |
https://www.courtlistener.com/api/rest/v3/opinions/8480955/ | Dismissed by unpublished PER CURIAM opinion.
Unpublished opinions are not binding precedent in this circuit.
PER CURIAM:
Edith Budik seeks to appeal the district court’s order granting the motion to substitute the United States as defendant in this civil action. This court may exercise jurisdiction only over final orders, 28 U.S.C. § 1291 (2006), and certain interlocutory and collateral orders, 28 U.S.C. § 1292 (2006); Fed.R.Civ.P. 54(b); Cohen v. Beneficial Indus. Loan Corp., 337 U.S. 541, 545-46, 69 S.Ct. 1221, 93 L.Ed. 1528 (1949). The order Budik seeks to appeal is neither a final order nor an appealable interlocutory or collateral order. See Maron v. United States, 126 F.3d 317, 321 n. 4 (4th Cir.1997). Accordingly, we dismiss the appeal for lack of jurisdiction. We dispense with oral argument because the facts and legal contentions are adequately presented in the materials before the court and argument would not aid the decisional process.
DISMISSED. | 01-04-2023 | 11-05-2022 |
https://www.courtlistener.com/api/rest/v3/opinions/8480956/ | Affirmed by unpublished PER CURIAM opinion.
Unpublished opinions are not binding precedent in this circuit.
PER CURIAM:
John D. Riddick, Sr., appeals the district court’s order denying his motion for reduction of sentence. We have reviewed the record and find no reversible error. Accordingly, we affirm for the reasons stated by the district court. United States v. Riddick, No. 2:00-cr-00067-JBF-2 (E.D.Va. Aug. 27, 2008). We dispense with oral argument because the facts and legal contentions are adequately presented *871in the materials before the court and argument would not aid the decisional process.
AFFIRMED. | 01-04-2023 | 11-05-2022 |
https://www.courtlistener.com/api/rest/v3/opinions/8480957/ | Affirmed by unpublished PER CURIAM opinion.
Unpublished opinions are not binding precedent in this circuit.
PER CURIAM:
Danny Lee Fleck appeals the district court’s order denying his motion for reconsideration. We have reviewed the record and find no reversible error. Accordingly, we affirm for the reasons stated by the district court. United States v. Fleck, No. 1:04-cr-00491-AMD-l1 (D.Md. Feb. 18 & Mar. 23, 2010). We dispense with oral argument because the facts and legal contentions are adequately presented in the materials before the court and argument would not aid the decisional process.
AFFIRMED. | 01-04-2023 | 11-05-2022 |
https://www.courtlistener.com/api/rest/v3/opinions/8480958/ | Affirmed by unpublished PER CURIAM opinion.
Unpublished opinions are not binding precedent in this circuit.
PER CURIAM:
Henry Lewis Astrop appeals the district court’s order dismissing his complaint. We have reviewed the record and find no reversible error. Accordingly, we affirm for the reasons stated by the district court. Astrop v. Eckerd Corp., No. 3:09-cv-00681-RLW, 2010 WL 1779992 (E.D.Va. Apr. 29 & 30, 2010). We dispense with oral argument because the facts and legal contentions are adequately presented in *882the materials before the court and argument would not aid the decisional process.
AFFIRMED. | 01-04-2023 | 11-05-2022 |
https://www.courtlistener.com/api/rest/v3/opinions/8480959/ | Affirmed by unpublished PER CURIAM opinion.
Unpublished opinions are not binding precedent in this circuit.
PER CURIAM:
James Arthur Biggins appeals the district court’s orders dismissing his 42 U.S.C. § 1983 (2006) complaint under 28 U.S.C. § 1915A(b) (2006) and denying reconsideration. We have reviewed the record and find no reversible error. Accordingly, we affirm for the reasons stated by the district court. Biggins v. Seaton, No. 8:10-cv-01488-PJM (D. Md. June 11 & July 9, 2010). We dispense with oral argument because the facts and legal contentions are adequately presented in the materials before the court and argument would not aid the decisional process.
AFFIRMED. | 01-04-2023 | 11-05-2022 |
https://www.courtlistener.com/api/rest/v3/opinions/8480960/ | Affirmed by unpublished PER CURIAM opinion.
Unpublished opinions are not binding precedent in this circuit.
PER CURIAM:
Monstsho Eugene Vernon appeals the district court’s order denying his motion filed pursuant to 18 U.S.C. § 3582(c)(2) (2006), which sought a reduction in his sentence based upon Amendment 599 to the Sentencing Guidelines. We have reviewed the record and find no reversible error. Accordingly, we affirm for the reasons stated by the district court. United States v. Vernon, No. 6:01-cr-00239-HMH-3 (D.S.C. Aug. 4, 2010). We dispense with oral argument because the facts and legal contentions are adequately presented in the materials before the court and argument would not aid the decisional process.
AFFIRMED. | 01-04-2023 | 11-05-2022 |
https://www.courtlistener.com/api/rest/v3/opinions/8480961/ | Affirmed by unpublished PER CURIAM opinion.
Unpublished opinions are not binding precedent in this circuit.
PER CURIAM:
Norman Tyrone Dais appeals the district court’s order denying his motion for production of documents for his inspection. We have reviewed the record and find no reversible error. Accordingly, we affirm. Dais has not given any substantial reason for granting the request. We also deny his motion for an expedited appeal. We dispense with oral argument because the facts and legal contentions are adequately presented in the materials before the court and argument would not aid the decisional process.
AFFIRMED. | 01-04-2023 | 11-05-2022 |
https://www.courtlistener.com/api/rest/v3/opinions/8480962/ | Affirmed by unpublished PER CURIAM opinion.
Unpublished opinions are not binding precedent in this circuit.
PER CURIAM:
Aelisha N. Marsh appeals the district court’s order dismissing her complaint filed under Title VII of the Civil Rights Act of 1964, as amended, alleging defamation and wrongful termination. We have reviewed the record and find no reversible error. Accordingly, we affirm for the reasons stated by the district court. Marsh v. CBS Media Corp., No. 3:09-cv-00289-RJC, 2009 WL 3151946 (W.D.N.C. Sept. 24, 2009). We further deny Marsh’s “Motion for Monetary Relief Beyond the Scope of Unemployment.” We dispense with oral argument because the facts and legal contentions are adequately presented in the materials before the court and argument would not aid the decisional process.
AFFIRMED. | 01-04-2023 | 11-05-2022 |
https://www.courtlistener.com/api/rest/v3/opinions/8480963/ | Affirmed by unpublished PER CURIAM opinion.
Unpublished opinions are not binding precedent in this circuit.
PER CURIAM:
Patricia T. Patterson appeals the district court’s order accepting the recommendation of the magistrate judge and denying relief on her 42 U.S.C. § 1983 (2006) complaint. We have reviewed the record and find no reversible error. Accordingly, we affirm for the reasons stated by the district court. Patterson v. Funderburk, No. 0:10-cv-00676-MBS, 2010 WL 2404445 (D.S.C. June 10, 2010). We deny Patterson’s motion for default judgment. We dispense with oral argument because the facts and legal contentions are adequately presented in the materials before the court and argument would not aid the decisional process.
AFFIRMED. | 01-04-2023 | 11-05-2022 |
https://www.courtlistener.com/api/rest/v3/opinions/8480964/ | Affirmed by unpublished PER CURIAM opinion.
Unpublished opinions are not binding precedent in this circuit.
PER CURIAM:
Charles Robert Barefoot, Jr., a federal pre-trial detainee, appeals the district court’s order denying relief on his 28 U.S.C.A. § 2241 (West 2006 & Supp.2010) petition and the order denying his motion for reconsideration. We have reviewed the record and find no reversible error. Accordingly, we affirm for the reasons stated by the district court. See Barefoot v. Revell, No. 5:09-hc-02091-D (E.D.N.C. Feb. 18, 2010; Apr. 5, 2010). We dispense with oral argument because the facts and legal contentions are adequately presented in the materials before the court and argument would not aid the decisional process.
AFFIRMED. | 01-04-2023 | 11-05-2022 |
https://www.courtlistener.com/api/rest/v3/opinions/8480965/ | Affirmed by unpublished PER CURIAM opinion.
Unpublished opinions are not binding precedent in this circuit.
PER CURIAM:
Patricia T. Patterson appeals the district court’s order accepting the recommendation of the magistrate judge and denying relief on her 42 U.S.C. § 1983 (2006) complaint. We have reviewed the record and find no reversible error. Accordingly, we affirm for the reasons stated by the district court. Patterson v. Barber, No. 0:10-cv-00025-MBS, 2010 WL 2404446 (D.S.C. June 10, 2010). We dispense with oral argument because the facts and legal contentions are adequately presented in the materials before the court and argument would not aid the decisional process.
AFFIRMED. | 01-04-2023 | 11-05-2022 |
https://www.courtlistener.com/api/rest/v3/opinions/8480966/ | *909Affirmed by unpublished PER CURIAM opinion.
Unpublished opinions are not binding precedent in this circuit.
PER CURIAM:
Dorothy Saunders appeals the district court’s order dismissing her wrongful death and personal injury complaint. We have reviewed the record and find no reversible error. Accordingly, we affirm for the reasons stated by the district court. Saunders v. Union Carbide Corp., No. 3:10-cv-00746, 2010 WL 2720750 (S.D.W.Va. July 8, 2010). We dispense with oral argument because the facts and legal contentions are adequately presented in the materials before the court and argument would not aid the decisional process.
AFFIRMED. | 01-04-2023 | 11-05-2022 |
https://www.courtlistener.com/api/rest/v3/opinions/8480967/ | Affirmed by unpublished PER CURIAM opinion.
Unpublished opinions are not binding precedent in this circuit.
PER CURIAM:
Larry D. Coleman, a state prisoner, appeals the district court’s order dismissing his 42 U.S.C. § 1983 (2006) complaint. We have reviewed the record and find no reversible error. Accordingly, we affirm for the reasons stated by the district court. Coleman v. Ali, No. 7:10-cv-00255-gecmfu, 2010 WL 2605283 (W.D.Va. June 25, 2010). We dispense with oral argument because the facts and legal contentions are adequately presented in the materials before the court and argument would not aid the decisional process.
AFFIRMED. | 01-04-2023 | 11-05-2022 |
https://www.courtlistener.com/api/rest/v3/opinions/8480968/ | Affirmed by unpublished PER CURIAM opinion.
Unpublished opinions are not binding precedent in this circuit.
PER CURIAM:
Daniel J. Boone, a federal prisoner, appeals the district court’s order accepting the recommendation of the magistrate judge and denying relief on his 28 U.S.C.A. § 2241 (West 2006 & Supp.2010) petition. We have reviewed the record and find no reversible error. Accordingly, we affirm for the reasons stated by the district court. Boone v. United States, No. 5:10-cv-00090, 2010 WL 2079736 (S.D.W.Va. May 19, 2010). We dispense with oral argument because the facts and legal contentions are adequately presented in the materials before the court and argument would not aid the decisional process.
AFFIRMED. | 01-04-2023 | 11-05-2022 |
https://www.courtlistener.com/api/rest/v3/opinions/8480969/ | Petition denied by unpublished PER CURIAM opinion.
Unpublished opinions are not binding precedent in this circuit.
PER CURIAM:
Willie Reynolds has petitioned this court for a writ of mandamus. In his petition, Reynolds asks this court to order the district court to rule on his 18 U.S.C. § 3582(c)(2) (2006) motion for sentence reduction, as well as his motion to expedite the proceedings before the district court. Reynolds has also filed a motion to expedite the proceedings before this court. Our review of the district court’s docket reveals that the district court denied Reynolds’ § 3582(c)(2) motion on September 10, 2010, thereby rendering the motion to expedite pending in the district court moot. Accordingly, we deny Reynolds’ mandamus petition and motion to expedite before this court as moot. We dispense with oral argument because the facts and legal contentions are adequately presented in the materials before the court and argument would not aid the decisional process.
PETITION DENIED. | 01-04-2023 | 11-05-2022 |
https://www.courtlistener.com/api/rest/v3/opinions/8480970/ | Affirmed by unpublished PER CURIAM opinion.
Unpublished opinions are not binding precedent in this circuit.
PER CURIAM:
Lloyd George Maxwell appeals the district court’s order dismissing his complaint filed pursuant to the Federal Tort Claims Act, 28 U.S.C. § 1346 (2006), and Bivens v. Six Unknown Named Agents of the Fed. Bureau of Narcotics, 403 U.S. 388, 91 S.Ct. 1999, 29 L.Ed.2d 619 (1971). We have reviewed the record and find no reversible error. Accordingly, we affirm for the reasons stated by the district court. Maxwell v. United States, No. 1:10-cv-01483-BEL, 2010 WL 2652198 (D.Md. *915June 30, 2010). We dispense with oral argument because the facts and legal contentions are adequately presented in the materials before the court and argument would not aid the decisional process.
AFFIRMED. | 01-04-2023 | 11-05-2022 |
https://www.courtlistener.com/api/rest/v3/opinions/8481199/ | 85466: Case View
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22-34378: This document is currently unavailable. If you need a copy of this document, please contact Clerk's Office at (775)684-1600.
Disclaimer: The information and documents available here should not be relied upon as an official record of action.Only filed documents can be viewed. Some documents received in a case may not be available for viewing.Some documents originating from a lower court, including records and appendices, may not be available for viewing.For official records, please contact the Clerk of the Supreme Court of Nevada at (775) 684-1600.
Case Information: 85466
Short Caption:MOTI, M.D. VS. DIST. CT. (JAIME)Court:Supreme Court
Lower Court Case(s):Clark Co. - Eighth Judicial District - A797876Classification:Original Proceeding - Civil - Mandamus
Disqualifications:Case Status:Disposition Filed
Replacement:Panel Assigned:
Panel
To SP/Judge:SP Status:
Oral Argument:Oral Argument Location:
Submission Date:How Submitted:
+
Party Information
RoleParty NameRepresented By
PetitionerDereje Moti, M.D.Alissa N. Bestick
(Lewis Brisbois Bisgaard & Smith, LLP/Las Vegas)
Keith A. Weaver
(Lewis Brisbois Bisgaard & Smith, LLP/Las Vegas)
Real Party in InterestCristina JaimeSiria L. Gutierrez
(Bighorn Law/Las Vegas)
Kimball J. Jones
(Bighorn Law/Las Vegas)
RespondentJessica K. Peterson
RespondentThe Eighth Judicial District Court of the State of Nevada, in and for the County of Clark
+
Due Items
Due DateStatusDue ItemDue From
11/28/2022OpenRemittitur
Docket Entries
DateTypeDescriptionPending?Document
10/07/2022Filing FeePetition Filing Fee Paid. $250.00 from Autumn Nouwels. E-Payment Ref. no. 22100539782487. (SC)
10/07/2022Petition/WritFiled Petition for Writ of Mandamus Regarding Motion to Strike Expert Benny Gavi, MD. (SC)22-31631
10/07/2022AppendixFiled Appendix to Petition for Writ - Volume 1. (SC)22-31632
10/07/2022AppendixFiled Appendix to Petition for Writ - Volume 2. (SC)22-31633
11/02/2022Order/DispositionalFiled Order Denying Petition. "ORDER the petition DENIED." RP/JH/LS. (SC)22-34378
Combined Case View | 01-04-2023 | 11-07-2022 |
https://www.courtlistener.com/api/rest/v3/opinions/8481205/ | 83455: Case View
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Case Information: 83455
Short Caption:CITY OF LAS VEGAS VS. RES. TRANSITION CONSULTANTS, LLCCourt:Supreme Court
Lower Court Case(s):Clark Co. - Eighth Judicial District - A808277Classification:Civil Appeal - General - Other
Disqualifications:Case Status:Disposition Filed
Replacement:Panel Assigned:
Panel
To SP/Judge:09/07/2021 / Levitt, LansfordSP Status:Completed
Oral Argument:Oral Argument Location:
Submission Date:08/11/2022How Submitted:On Briefs
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Party Information
RoleParty NameRepresented By
AppellantCity of Las VegasPhilip R. Byrnes, Jr.
(Las Vegas City Attorney)
Bryan K. Scott
(Las Vegas City Attorney)
RespondentOlympic Coast Investment, Inc.Scott D. Fleming
(Fleming Law Firm, PLLC)
RespondentResource Transitions Consultants, LLCScott D. Fleming
(Fleming Law Firm, PLLC)
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Due Items
Due DateStatusDue ItemDue From
11/28/2022OpenRemittitur
Docket Entries
DateTypeDescriptionPending?Document
09/02/2021Filing FeeAppeal Filing Fee Waived. State/County/Municipality. (SC)
09/02/2021Notice of Appeal DocumentsFiled Notice of Appeal. Appeal docketed in the Supreme Court this day. (Docketing statement mailed to counsel for appellant.) (SC)21-25577
09/02/2021Notice/OutgoingIssued Notice of Referral to Settlement Program. This appeal may be assigned to the settlement program. Timelines for requesting transcripts and filing briefs are stayed. (SC)21-25579
09/07/2021Settlement NoticeIssued Notice: Assignment to Settlement Program. Issued Assignment Notice to NRAP 16 Settlement Program. Settlement Judge: Lansford W. Levitt. (SC)21-25822
09/23/2021Docketing StatementFiled Docketing Statement Civil Appeals. (SC)21-27553
09/24/2021Notice of Appeal DocumentsFiled Copy of District Court Minutes. (SC)21-27635
10/07/2021Settlement Program ReportFiled ECAR/Not Appropriate for Settlement Program. This case is not appropriate for mediation. (SC)21-28852
10/08/2021Notice of Appeal DocumentsFiled Notice of Appeal/Amended/Supplemental. (SC)21-28892
10/08/2021Settlement Order/ProceduralFiled Order Removing From Settlement Program/Briefing Reinstated. This appeal is removed from the settlement program. Appellant(s): 14 days transcript request; 90 days opening brief. (SC)21-28972
10/21/2021Transcript RequestFiled Request for Transcript of Proceedings. Transcripts requested: 6/14/21. To Court Reporter: Deloris Scott. (REJECTED PER NOTICE FILED ON 10/21/21) (SC)
10/21/2021Notice/OutgoingIssued Notice of Rejection of Deficient Transcript Request. (SC)21-30431
10/25/2021Transcript RequestFiled Request for Transcript of Proceedings. Transcripts requested: 6/14/21. To Court Reporter: Deloris Scott. (SC)21-30683
11/01/2021TranscriptFiled Notice from Court Reporter. Jill Hawkins stating that the requested transcripts were delivered. Dates of transcripts:6/14/21. (SC)21-31337
01/06/2022Order/Clerk'sFiled Order Granting Extension Per Telephonic Request. Appellant's opening brief and appendix due: January 20, 2022. (SC)22-00580
01/20/2022BriefFiled Appellant's Opening Brief. (SC)22-02109
01/20/2022AppendixFiled Joint Appendix (Volume I). (SC)22-02110
01/20/2022AppendixFiled Joint Appendix (Volume II). (SC)22-02111
01/20/2022AppendixFiled Joint Appendix (Volume III). (SC)22-02112
01/20/2022AppendixFiled Joint Appendix (Volume IV). (SC)22-02113
01/20/2022AppendixFiled Joint Appendix (Volume V). (SC)22-02114
02/16/2022Order/Clerk'sFiled Order Granting Telephonic Extension. Respondents' Answering Brief due: March 8, 2022. (SC)22-05145
03/04/2022BriefFiled Respondent's Answering Brief. (REJETED PER NOTICE ISSUED 3/4/22) (SC)
03/04/2022Notice/OutgoingIssued Notice of Rejection of Deficient Brief. Corrected brief due: 5 days. (SC)22-06951
03/04/2022BriefFiled Respondent's Answering Brief. (SC)22-06990
04/04/2022Order/Clerk'sFiled Order Granting Telephonic Extension. Appellant's Reply Brief due: April 18, 2022. (SC)22-10333
04/18/2022BriefFiled Appellant's Reply Brief. (SC)22-12202
04/18/2022Case Status UpdateBriefing Completed/To Screening. (SC)
08/11/2022Order/ProceduralFiled Order Submitting for Decision Without Oral Argument. (SC)22-25221
10/31/2022Order/DispositionalFiled Order of Reversal and Remand. "ORDER the judgment of the district court REVERSED AND REMAND this matter to the district court for proceedings consistent with this order". SNP-JH/LS/DH. (SC)22-33980
Combined Case View | 01-04-2023 | 11-07-2022 |
https://www.courtlistener.com/api/rest/v3/opinions/8481655/ | Daniel, J.
The controversy in this case hinges *489mainly on the proper construction of the provision of the 5 th section of the 149th chapter of the Code of 1849, requiring an action for any articles charged in any store account to be brought within two years next after the right to bring the same shall have first accrued; and in order to ascertain such construction, it is necessary to look somewhat into the history of our legislation and judicial decisions upon the subject.
The first act, the provisions of which it seems to me necessary to notice particularly, is the act of 1748, entitled “ an act prescribing the method of proving book debts.” 6 Hen. Stat. at Large, p. 53. The preamble recites: Whereas the trade of merchandise in this colony is chiefly carried on by retail, and the goods and merchandises are often delivered to the buyer by the retailer himself, and it frequently happens that nobody is privy thereto but the buyer and seller, so that in many cases there may be a defect of legal evidence to charge such buyer, and by that means a fair trader may be hindered from recovering a just debt; and the act then proceeds to declare that in any action of debt or upon the case where the plaintiff„shall declare upon an emisset or indebitatus assumpsit. for goods, wares or merchandises by him sold and delivered to any other person or persons, and upon the trial of such action such plaintiff shall declare upon his oath, that the matter in dispute is a store account, and that he hath no means to prove the delivery of the articles therein contained, or any of them, but by his store book; in that case, such book may be given in evidence at the trial, if he shall make out by his oath that such book doth contain a true account of all the dealings, or the last settlement of accounts between them, and that all the articles therein contained were bona fide delivered, and that he hath given all just credits due to the defendant in such account; and such book and oath shall be admitted and *490received as good evidence for any of the articles for goods delivered within two years before the same ac-brought, but not for any article of a longer standing) unless the defendant shall have removed out of county where he resided at the time of his contracting the debt, and then within three years before action brought.
It is not necessary to advert to the act of 1732, 4 Hen. Stat. at Large, p. 329, which is repealed by the 5th section of the act aforesaid of 1748, further than to observe that it is substantially, as well in its preamble as in all its provisions relating to the matter in hand, identical with the act of 1748, with the exception that the period within which the goods are to be delivered is eighteen months instead of two years.
The act next to be noticed is that of 1779, which is entitled “ an act for discouraging extensive credits, and repealing the act prescribing the method of proving book debts.” After reciting that the method of proving book debts, and the long and extensive credits formerly given by merchants and traders, had been found by experience injurious to the people of this commonwealth, this statute repeals the act of 1748, and then proceeds to declare that all actions founded upon accounts for goods, wares and merchandise sold and delivered, or for any articles charged in any store account, shall be sued within six months next after the cause of such action, or the delivery of such goods, wares and merchandise, and not after; it requires the date of the articles charged in any such account severally to be particularly specified; affixes a penalty to the post-dating of any article in such account; and makes it the duty of every court and jury before whom any such action shall be tried, ex officio to take notice of the* act, although the defendant may fail to plead it.
By the act of 1789 (13 vol. Hen. St. p. 5) the act *491of 1779 is altered to the extent of requiring, that the period of limitation for suits on store accounts shall be one year instead of six months, and that a defendant intending to rely upon such limitation shall plead it.
In the case of Tomlin & als. v. Kelly, 1 Wash. 190, decided in 1793, the jury found a special verdict in the following words : “ We find for the plaintiff's one hundred pounds nine shillings six and a half pence damages, if the court, shall be of opinion that an action can be maintained for goods, wares and merchandises imported for sale by the plaintiffs who hept no retail store, but who sold the same at public auction on a wharf, and delivered them to the defendant twelve months before this suit was brought — otherwise for the defendant.” The District court gave judgment for the defendant upon the verdict, and the plaintiffs obtained a supersedeas from this court.
In the course of the argument before this court it was urged that the mischief which it was the aim of the act of 1779 to remedy, existed only in the retail business, which almost entirely formed the internal commerce of this country before the war, and of course must have been alluded to by the legislature; and that additional proof that the retail trade alone was contemplated, was to be derived from the clause of the law requiring each item in the account to be truly dated. In answer to this, it was said that the second clause of the act created a bar against all actions founded upon accounts for goods sold and delivered, or for any articles charged in any store account; and why (it was asked), if the law only meant store accounts, was the former part of that clause inserted, as the latter would have answered the purpose ? It was also further said, that if it were politic to prevent extensive credits in the confined sales of a retail store, the reason applied a fortiori to extensive wholesale *492negotiations; if it were wise to prevent such credits when the dealings were transacted in a house by pribargain, it was equally so when the sale was upon a wharf, at public auction. The judgment of ^ District court was reversed by this court without dissent; and as the opinion of the court is very brief, I give it in the language of the president (Pendleton):
“In discussing the case of Beall v. Edmondson (he says), it was agreed, by the unanimous opinion of a full court, that the act of 1779 applied only to the store accounts of retail dealers; and we should feel ourselves bound by that opinion, unless it were overruled by as full a court, even if our sentiments at this time, respecting the principle then established, were different from what they then were. But the present court retain the same opinion upon the subject; and must therefore pronounce the law to be in favor of the plaintiff, upon the special conclusion of the verdict.”
On referring to the case of Beall v. Edmondson (3 Call 514), mentioned in the foregoing opinion, it will be seen that it was the case of a suit for goods, wares and merchandise, in which the jury found a special verdict for the plaintiff, subject to the opinion of the court, whether an express assumpsit of the defendant took the debt out of the act of 1779. The true question submitted to the court -in that case, it will be seen, was whether the statute of 1779 had any application to the case of an express promise by the defendant to pay the amount of a store account; and in their written opinion they confined themselves to that question, and held that the statute applied only when it was necessary for the plaintiff to produce and rely on his account, and did not embrace the case of an express promise to pay, upon which a suit might be maintained without the account. The court in their written opinion say nothing as to the act of 1779 ap*493plying only to the store accounts of retail dealers; but we have the statement of the president (as has been seen), that in the discussion of the case, such was agreed as the unanimous opinion of the court. This interpretation of the act of 1779, as agreed in Beall v. Edmondson, and adjudged in Tomlin v. Kelly, was doubtless well known to our legislature, when they came to revise the laws in 1819; and we find that the provision in question is then re-enacted in the words of the act of 1779, with the exception that the period of limitation is made (as had been done in 1789) one year in the place of six months. See 1 Rev. Code 1819, ch. 128, § 7.
In the case of Moore v. Mauro, 4 Rand. 488, decided by this court in 1826, the declaration was in assumpsit for goods, wares and merchandise sold and delivered ; and there was a special plea that the action was founded on an account for goods, &c., and that the supposed cause of action did not accrue within one year. To which there was a special replication, that at the time of the sale of the goods, “ the plaintiff' and the defendant were merchants, and that the goods were sold and delivered by the plaintiff as such merchant, to the defendant as such merchant.” The only question before the court (necessary to be noticed here) was as to the effect of the special replication. The replication was founded on the saving, in the 4th section of the act of 1819, in favor of “suchaccounts as concern the trade of merchandise between merchant and merchant, their factors and servants;” and it was objected in the argument that this saving did not apply to the actions mentioned in the 7th section of said act. In noticing this objection, the president (Brooke), delivering the opinion of the court, said, “ It would be strange indeed if this construction was to prevail ; if an action of indebitatus assumpsit between merchant and merchant is not to be barred by the saving in the *494act after five years, but is to be barred before, that is after one year. This objection was not well considered, or it would not have been made. In Tomlin v. Kelly, 1 Wash. 190, it was decided by this court that the act of 1779 applied only to the store accounts of retail dealers.”
It is perhaps as convenient to state here as any where else, that I cite the case of Moore v. Mauro simply for the purpose of showing that this court still regarded the act of 1779, and consequently the 7th section of the act of 1819, as applying only to the store accounts of retail dealers. There is no ground whatever for supposing that this case can be brought within the saving of the 5th section of the 149th chapter of the present Code relating to accounts concerning the trade of merchandise between merchant and merchant, as that saving in its very terms applies only to cases “ where the action of account would lie;” and this is obviously not a case of that character: For it is now well established by the English as well as the American decisions, that the saving in the act, 21 James 1, ch. 16, applies only to cases where the accounts are between merchant and merchant, relate actually to merchandise and not merely to mercantile contracts connected with it, and are current and mutual; in which last designation is not included cases where the demand is altogether on one side, though payments on account have been made. Inglis v. Haigh, 8 Mees. & Welsb. 781, and notes; Spring & als. v. Gray's ex'ors, 6 Peters’ R. 151; Toland v. Sprague, 12 Peters’ R. 300; Coster & als. v. Murrays, 5 John. Ch. R. 522; Murray v. Coster, 20 John. R. 576; 1 Rob. New Pr. 592-3-4-5; Rep. Revisors, note, 742.
The case of Moore v. Mauro is, however, as I have already said, useful for the purpose of showing that this court in 1826 gave to the saving in the act of 1819 in relation to store accounts, the same construction which, *495in 1790 and 1793, in the cases of Beall v. Edmondson and Tomlin v. Kelly, it had given to the like saving in the act of 1779; a construction which we have every reason for supposing has been received and acted upon by the courts and the members of the profession in the state generally as the true one. See 2 Tuck. Comm. 153; Tate’s Digest, notes, 649.
Such was the state of the law on the subject (with the exception that in 1838 the time was changed from one year to two years) when the legislature came to act on the report of the revisors in 1849. In the 5th section of ch. 149, as reported by them, all actions upon contracts not in writing were placed on the same footing and made subject to a limitation of three years, except actions of account by one partner against another for a settlement of the partnership accounts, or concerning the trade of merchandise between merchant and merchant, their factors or servants, and actions on the case between such parties for not accounting; in either of which cases the parties were allowed five years after a cessation of their dealings, in which to bring their actions. Under this section, as recommended by the revisors, there was no distinction between store accounts and any other accounts (other than those expressly saved). The legislature, however, whilst adopting the other provisions of the section in the very words of the revisors, refused to alter the existing laws in respect to the limitation on open accounts generally, and the limitation on store accounts, and required that actions on the former should be brought within five years, and on the latter, within two years.
The question as to the propriety of adhering to the peculiar policy (known only to the laws of this state and the state of Kentucky) which had prevailed since 1779, of placing the accounts of retail dealers, with their customers, on a special footing, or of abolishing *496the restriction, and placing them on the same level 'th other accounts generally, could not have been more distinctly presented to the mind of the legislature. If, therefore, in rejecting the recommendation th revisors in this regard, and in inserting the provision in respect to such accounts, the legislature had adopted said provision precisely as it had stood in all the preceding acts on the subject, I cannot conceive how any difficulty or doubt could have arisen in respect to their intention. In such a state of things, no room, it seems to me, would have been left for the argument that they did not mean to confine the limitation to the store accounts of retail dealers exclusively; there would have been an inference of the most conclusive character that they were seeking to accomplish the same ends that the provision had been hitherto construed by the courts as designed to effectuate. In their omitting the words “ for goods, wares and merchandise sold and delivered,” and retaining simply the words “ action for any articles charged in any store account,” as the provision now stands, I can perceive no evidence whatever of a purpose on the part of the legislature to alter the effect which was attributed to the law in Tomlin v. Kelly. I cannot see how the provision, as it now stands, is less apt to express a purpose to restrict the limitation to the store accounts of retail dealers than it was when it also contained the words now omitted. The design and policy of the law as it formerly stood, were, and, as it now stands, are, as I conceive, through the instrumentality of short credits and frequent settlements, likely to flow from its provisions, to offer some check to the loose, mischievous, and oftentimes ruinous running up of long accounts at the stores by inconsiderate and careless men and the members of their families. The transactions of tiie wholesale merchants with their customers do not seem to me to be within the mischief which *497such a law can he reasonably regarded as designed to cure. The stricter method of conducting such a business, the magnitude of the transactions, and the character of the customers (most generally merchants also, attentive to and fully conscious of, the state of their accounts), would of themselves seem to afford a protection against those evils which the legislature might well contemplate as the probable result of credits given by the retail merchants to their customers, if not in some degree restrained by a provision such as the one they have enacted.
In proceeding to apply these views to the instructions given to the jury by the Circuit court, it is scarcely necessary to say, that the propriety of both instructions must depend on the same question; inasmuch as the written acknowledgment by the defendants of the account of the plaintiffs, as well as all the items of the account, are of a date more than two years antecedent to the bringing of the action; and the 7th section of chapter 149 of the Code gives to a plaintiff relying on such a written promise the same number of years thereafter, within which to bring his action, that is prescribed in the 5th section for bringing the action on the original contract.
In propounding to the jury the other proposition contained in the instructions, it is obvious that the judge must have proceeded either upon the idea that the account of the plaintiffs, whether an account of wholesale or retail dealings between the parties, was barred by the limitation of two years, or, upon the assumption that the account was of the character last mentioned. Upon the first mentioned view of the instructions, the construction which I have given to the statute shows that they were erroneous; in the other alternative, the error in giving the instructions is, I think, equally apparent. In the declaration the plaintiffs are styled as merchants and partners trading un*498der the name, style and firm of Edwin Wortham & Co., and the defendants as late merchants and partners trading under the name, firm and style of Smith & Sampson. It was proved by a witness, that he as salesman for the plaintiffs, sold and delivered to the defendants, upon their orders, the articles mentioned, in the account (filed), and that the account was correct ; that from time to time, when the goods called for by each order were delivered, he rendered to the defendants a bill of particulars of the goods so delivered, and that he subsequently rendered to the defendants a full account of all the particulars, corresponding with the account. There was no evidence as to whether the defendants were merchants, or as to whether the plaintiffs were wholesale or retail merchants, or in respect to the character of the dealings as being by wholesale or by retail, further than such as appears from the face of the account proved to be correct, as just above stated. The account, however, does on its face show that every dealing or sale was mainly if not exclusively by the hogshead, barrel, box, bag, sack, piece, gross, dozen, &c. Such sales answer to the popular definition of wholesale dealings, and our legislature, in ascertaining in their tax laws who should be regarded as wholesale merchants, have, on one occasion if not on others, designated as such those whose sales were of the character just indicated. Sess. Acts 1839-40, ch. 2, § 7.
Because of the error of the Circuit court in respect to the instructions, the judgment ought to be reversed, the verdict set aside, and the cause remanded for further proceedings in accordance with the principles herein declared. The mode of pleading the act of limitations — simply “the act of limitations” — was irregular; but no objection was made by the plaintiffs to the receiving and entering the plea in that form ; and it is difficult to suppose that they could have en*499tertained any doubt as to the particular limitation of the statute relied on, inasmuch as the declaration was filed at rules in August 1855 ; and the first item of theaccount bears date April 9th, 1852. I.would not, therefore, have been willing to reverse the judgment because of such irregularity. As however the case has to go back on account of the error in the instructions, I think it would be proper to direct the Circuit court to strike out the plea, if the plaintiffs shall so insist, and give leave to the defendants to plead anew.
Moncure and Robertson, Js. concurred in the opinion of Daniel, J.
The following is the judgment of the court:
It seems to the court, that according to the true construction of the provision of the 5th section of the 149th chapter of the Code of 1849, requiring actions for any articles charged in any store account to be brought within two years after said actions shall have first accrued, said provision does not embrace the wholesale dealings of importing and wholesale mer'chants, but applies exclusively to the store accounts of retail dealers with their customers; and it appearing to the court, from the certificate of the judge of the said Circuit court, that there was no evidence to show whether the account filed was of dealings by wholesale or by retail, other than what appears from the face of said account, proved to be correct, and that the evidence furnished by said account tends to show that the several sales and dealings between the parties were by wholesale and not by retail, it seems to the court that the instructions given by the Circuit court were erroneous.
It seems further to the court, that the plea of the act of limitations by the defendants is defective in not stating on what provision of the statute the defen*500dants intended to rely; as however it is not probable that the plaintiffs could have been deceived or misled as to the purpose and meaning of the defendants, it appearing that the declaration was filed at August rules 1855, and that the first item of the account is dated on the 9th April 1852, the court would not reverse the judgment because of the defect aforesaid; yet as the judgment must be reversed, because of the error in the instructions, and remanded for a new trial, it seems to the court that the said Circuit court, before proceeding to said trial, should, if the plaintiffs shall so insist, require the said defendants, if they intend to rely on the act of limitations, to amend their pleading, and show distinctly on what provision or provisions of the law they design to rely.
Therefore, it is considered that the said judgment be reversed. | 01-04-2023 | 11-07-2022 |
https://www.courtlistener.com/api/rest/v3/opinions/8480971/ | Affirmed by unpublished PER CURIAM opinion.
Unpublished opinions are not binding precedent in this circuit.
PER CURIAM:
Timnah K. Rudisill appeals the district court’s order denying his “Emergency Motion for Dismissal and/or Immediate Release Due to Lack of Jurisdiction and Failure to State a Claim.” We have reviewed the record and find no reversible error. Accordingly, we affirm for the reasons stated by the district court. United States v. Rudisill, No. 1:01-cr-00048-MR-9, 2010 WL 2509900 (W.D.N.C. June 17, 2010). We dispense with oral argument because the facts and legal contentions are adequately presented in the materials before the court and argument would not aid the decisional process.
AFFIRMED. | 01-04-2023 | 11-05-2022 |
https://www.courtlistener.com/api/rest/v3/opinions/8480972/ | Dismissed by unpublished PER CURIAM opinion.
Unpublished opinions are not binding precedent in this circuit.
PER CURIAM:
Larry G. Kirby seeks to appeal the district court’s order denying relief on his 28 U.S.C. § 2254 (2006) petition. The district court referred this case to a magistrate judge pursuant to 28 U.S.C.A. § 636(b)(1)(B) (West 2006 & Supp.2010). The magistrate judge recommended that relief be denied and advised Kirby that failure to file specific objections to this recommendation could waive appellate review of a district court order based upon the recommendation.
The filing of specific objections to a magistrate judge’s recommendation is necessary to preserve appellate review of the substance of that recommendation when the parties have been warned of the consequences of noncompliance. Wright v. Collins, 766 F.2d 841, 845-46 (4th Cir.1985); see also Thomas v. Arn, 474 U.S. 140, 106 S.Ct. 466, 88 L.Ed.2d 435 (1985). Kirby has waived appellate review by failing to file specific objections after receiving proper notice. Accordingly, we deny a certificate of appealability and dismiss the appeal.
We dispense with oral argument because the facts and legal contentions are adequately presented in the materials before the court and argument would not aid the decisional process.
DISMISSED. | 01-04-2023 | 11-05-2022 |
https://www.courtlistener.com/api/rest/v3/opinions/8480974/ | PER CURIAM: *
Desiree Ann Weaver Shaw, Texas prisoner # 769352, seeks a certifícate of appealability (COA) from the dismissal of her 28 U.S.C. § 2254 application as successive and unauthorized under 28 U.S.C. § 2244(b). She is serving a 32-year sentence for murder. She concedes that her § 2254 application is successive, and we have not authorized its filing. Reasonable jurists would not find the district court’s dismissal of her application debatable or wrong. See Slack v. McDaniel, 529 U.S. 473, 484, 120 S.Ct. 1595, 146 L.Ed.2d 542 (2000). Her motion for a COA and ALL OTHER OUTSTANDING MOTIONS are DENIED.
Shaw has previously been warned that attempts to evade the requirements of § 2244 would invite sanctions. Shaw has failed to heed this warning. According, Shaw is ORDERED to pay a sanction in the amount of $100 to the Clerk of this Court. She is BARRED from filing any pleading in this court or in any court subject to this court’s jurisdiction challenging her murder conviction until the sanction has been paid in full, unless she first obtains leave of the court in which she seeks to file such a challenge. Shaw is further CAUTIONED that future attempts to evade the requirements of § 2244 and any future frivolous, repetitive, or otherwise abusive filings in the district court or in this court will subject her to additional and progressively more severe sanctions.
COA and ALL OUTSTANDING MOTIONS DENIED; SANCTION IMPOSED.
Pursuant to 5th Cir R. 47.5, the court has determined that this opinion should not be published and is not precedent except under the limited circumstances set forth in 5th Cir. R. 47.5.4. | 01-04-2023 | 11-05-2022 |
https://www.courtlistener.com/api/rest/v3/opinions/8480975/ | PER CURIAM: *
Jason Alan Ybarra appeals his conditional guilty plea conviction and sentence for distribution of cocaine base. As part of his plea agreement, Ybarra specifically reserved the right to appeal the denial of a motion to suppress cocaine base and other evidence seized during a search of his house. Ybarra argues on appeal that there was no showing of exigent circumstances, and the search was per se unreasonable because the officers did not knock and announce themselves or present a warrant. He challenges the district court’s finding that officers did nothing more than conduct a protective sweep of the house prior to the issuance of a warrant.
When a district court’s factual findings on a motion to suppress are based on live testimony at a suppression hearing, we will accept those findings unless they are “clearly erroneous or influenced by an incorrect view of the law.” United States v. Jackson, 596 F.3d 236, 239-40 (5th Cir.) (internal quotation marks and citation omitted), cert. denied, — U.S. -, 130 S.Ct. 2126, 176 L.Ed.2d 748 (2010). The existence of exigent circumstances is a factual finding reviewed for clear error. United States v. Maldonado, 472 F.3d 388, 392 (5th Cir.2006). In evaluating exigent circumstances, we consider “the appearance of the scene of the search in the circumstances presented as it would appear to reasonable and prudent men standing in the shoes of the officers.” United States v. Rodeo, 102 F.3d 1401, 1405 (5th Cir.1996)(internal quotation marks and citation omitted). When reasonable minds may disagree, we will “not second guess the judgment of experienced law enforcement officers concerning the risks of a particular situation.” United States v. Menchaca-Castruita, 587 F.3d 283, 290 (5th Cir.2009) (internal quotation marks and citation omitted). Under the circumstances of this case, we conclude that the district court did not clearly err in finding that officers were justified in arresting *938Ybarra and conducting a protective sweep prior to obtaining a warrant. See United States v. Rico, 51 F.3d 495, 501-505 (5th Cir.1995)(finding that exigent circumstances justified search of a house after suspects were arrested outside as they prepared to depart in a vehicle suspected to contain contraband). The district court’s determination that officers did nothing more than conduct a protective sweep of the house prior to issuance of the warrant is likewise not clearly erroneous. Jackson, 596 F.3d at 239-40.
AFFIRMED.
Pursuant to 5th Cir. R. 47.5, the court has determined that this opinion should not be published and is not precedent except under the limited circumstances set forth in 5tii Cir. R. 47.5.4. | 01-04-2023 | 11-05-2022 |
https://www.courtlistener.com/api/rest/v3/opinions/8480976/ | PER CURIAM: *
Plaintiff Martin Ogden appeals the district court’s grant of summary judgment in favor of Defendant John E. Potter, as Postmaster General of the United States Postal Service, on Plaintiffs age discrimination, hostile work environment, and retaliation claims under federal law. Reviewing the record de novo, Williams v. Wynne, 533 F.3d 360, 365 (5th Cir.2008), we AFFIRM.
1. Ogden has waived his appeal of the district court’s entry of judgment for Potter on his age discrimination claim. Mullins v. TestAmerica, Inc., 564 F.3d 386, *939407 n. 9 (2009). Although he appeals the district court’s order in its entirety, he lists only two issues on appeal — retaliation, and hostile work environment. And, he scarcely references his age in his opening brief. Thus, we deem this issue on appeal to have been waived.
2. We agree with the district court that Ogden failed to establish a prima facie case on his retaliation claim, or alternatively failed to show pretext. A single denial of leave is not an adverse employment action when it affects leave on a specific date and time, but not the employee’s amount of or right to take leave in general, because a reasonable employee would not have found the action to be materially adverse. See Burlington N. & Santa Fe Ry. Co. v. White, 548 U.S. 58, 70, 126 S.Ct. 2405, 2415-16, 165 L.Ed.2d 345 (2006) (“[T]his standard will screen out trivial conduct while effectively capturing those acts that are likely to dissuade employees from complaining or assisting in complaints about discrimination.”). Nor would Ogden’s rescinded letter of warning count as an adverse employment action because Title VII’s “antiretaliation provision protects an individual not from all retaliation, but from retaliation that produces an injury or harm.” Id. at 2415. We also agree with the district court that even assuming the denial for auxiliary assistance constituted an adverse employment action— which it likely does not — Ogden has failed to meet his burden to show that Potter’s legitimate non-discriminatory reason for the denial was pretext. Aryain v. Wal-Mart Stores Tx. LP, 534 F.3d 473, 484 (5th Cir.2008). Ogden failed to make a prima facie case for his denial of leave, and rescinded warning letter allegations. And, he failed to show Potter’s reason for denying auxiliary assistance was pretext.
3. The district court correctly entered judgment for Potter on Ogden’s hostile work environment claim. The only specifically identified incidents Ogden cites as the basis for his hostile work environment claim are those discussed above. Even assuming that Ogden found these three incidents as sufficiently severe and pervasive, his perception is not objectively reasonable. Frank v. Xerox, Corp., 347 F.3d 130, 138 (5th Cir.2003). Nor does Ogden offer any evidence that any of these actions were based on his age. Id. Thus, his hostile work environment claim fails.
AFFIRMED.
Pursuant to 5th Cm. R. 47.5, the court has determined that this opinion should not be published and is not precedent except under the limited circumstances set forth in 5th Cm. R. 47.5.4. | 01-04-2023 | 11-05-2022 |
https://www.courtlistener.com/api/rest/v3/opinions/8480977/ | PER CURIAM: *
The Federal Public Defender appointed to represent Russell Kenton Coleman has *996moved for leave to withdraw and has filed a brief in accordance with Anders v. California, 386 U.S. 738, 87 S.Ct. 1396, 18 L.Ed.2d 493 (1967). Coleman has filed a response. Our independent review of the record, counsel’s brief, and Coleman’s response discloses no nonfrivolous issue for appeal. Accordingly, counsel’s motion for leave to withdraw is GRANTED, counsel is excused from further responsibilities herein, and the APPEAL IS DISMISSED. See 5th Cir. R. 42.2. Coleman’s motion to proceed pro se on appeal is DENIED.
Pursuant to 5th Cir. R. 47.5, the court has determined that this opinion should not be published and is not precedent except under the limited circumstances set forth in 5th Cir. R. 47.5.4. | 01-04-2023 | 11-05-2022 |
https://www.courtlistener.com/api/rest/v3/opinions/8480978/ | ON PETITION FOR REHEARING EN BANC
PER CURIAM:
The court having been polled at the request of one of the members of the court and a majority of the judges who are in regular active service and not disqualified not having voted in favor (Fed. R.App. P. and 5th Cir. R. 35), the Petition for Rehearing En Banc is DENIED.
Voting for en banc rehearing were; Judge Jerry E. Smith, Judge Jacques L. Wiener, Jr., Judge Fortunato P. Benavides, Judge Carl E. Stewart, Judge James L. Dennis, Judge Edward C. Prado and Judge Jennifer W. Elrod. Voting against en banc rehearing were: Chief Judge Edith H. Jones, Judge Carolyn Dineen King, Judge E. Grady Jolly, Judge W. Eugene Davis, Judge Emilio M. Garza, Judge Edith B. Clement, Judge Priscilla R. Owen, Judge Leslie H. Southwick, and Judge Catharina Haynes.*
Upon the filing of this order, the clerk shall issue the mandate forthwith. See Fed. RApp. P. 41(b).
In 2009, the court decided to begin identifying the judges voting for or against en banc rehearing where a poll is taken and the request for en banc rehearing is denied. | 01-04-2023 | 11-05-2022 |
https://www.courtlistener.com/api/rest/v3/opinions/8480979/ | DENNIS, Circuit Judge,
dissenting:
I respectfully dissent from the denial of rehearing en banc. As my panel dissent explains, United States v. Pack, 612 F.3d 341, 362-68 (5th Cir.2010) (Dennis, J., dissenting), this case was erroneously decided by the district court, erroneously affirmed by the panel majority, and should have been vacated and revisited en banc for three reasons: (1) the district court incorrectly ruled that the defendant lacked Fourth Amendment standing and that the evidence was not a fruit of the poisonous tree; (2) the panel should not have reached the question of reasonable suspicion, because the trial judge erroneously held that the defendant lacked standing and pretermitted that issue, and consequently there are no factual findings below on which the panel could have based such a finding; and (3) the panel incorrectly concluded that United States v. Brigham, 382 F.3d 500 (5th Cir.2004) (en banc), modified United States v. Dortch, 199 F.3d 193 (5th Cir.1999). The panel majority’s decision to revoke its statements that Brigham overruled Dortch does not cure this last error. Dortch continues to establish that it was unreasonable for the officer in the instant case to detain Pack and the driver for an extended period and beyond the time needed to issue a warning, the basis for the initial traffic stop. I respectfully dissent. | 01-04-2023 | 11-05-2022 |
https://www.courtlistener.com/api/rest/v3/opinions/8480980/ | PER CURIAM: *
Manuel Alberto Carillo Moreno (Carillo) appeals following his guilty-plea conviction for illegal reentry in violation of 8 U.S.C. §§ 1326(a) and (b). The district court imposed forty-six months of imprisonment and three years of supervised release. He argues the sentence was greater than necessary to meet the sentencing goals outlined in 18 U.S.C. § 3553(a).
Carillo has not shown that the forty-six-month term of imprisonment imposed by the district court was unreasonable. Because the sentence was within the properly calculated guidelines range of forty-six to fifty-seven months of imprisonment, it is entitled to a presumption of reasonableness. United States v. Campos-Maldonado, 531 F.3d 337, 338 (5th Cir.2008). The record demonstrates that the district court properly made an individualized assessment to determine whether a sentence within the guidelines range was sufficient but not greater than necessary to achieve the goals of Section 3553(a). See Rita v. United States, 551 U.S. 338, 347-48, 127 S.Ct. 2456, 168 L.Ed.2d 203 (2007). Carillo has thus failed to rebut the presumption of reasonableness that we apply to his within-guidelines sentence. See Campos-Maldonado, 531 F.3d at 338.
Carillo raises two additional arguments, which he acknowledges are foreclosed by our precedent, to preserve for further review. He argues that, in light of Kimbrough v. United States, the presumption of reasonableness does not apply to his within-guidelines sentence because the illegal reentry Guideline, U.S.S.G. § 2L1.2, lacks an empirical basis. 552 U.S. 85, 109-10, 128 S.Ct. 558, 169 L.Ed.2d 481 (2007). We have consistently rejected Carillo’s argument, concluding that Kimbrough does not question the presumption of reasonableness and does not require district or appellate courts to independently analyze the empirical grounding behind each individual guideline. See United States v. Duarte, 569 F.3d 528, 530-31 (5th Cir.), cert. denied, — U.S. -, 130 S.Ct. 378, 175 L.Ed.2d 231 (2009); United States v. Mondragon-Santiago, 564 F.3d 357, 366-67 (5th Cir.), cert. denied, — U.S. -, 130 S.Ct. 192, 175 L.Ed.2d 120 (2009). Carillo also argues the Guidelines produce unwarranted sentencing disparities between defendants who can participate in a fast-track program and defendants who cannot. We have held that “any sentencing disparity resulting from fast track disposition is not unwarranted.” United States v. Gomez-Herrera, 523 F.3d 554, 563 (5th Cir.2008).
The judgment of the district court is AFFIRMED.
Pursuant to 5th Cir. R. 47.5, the court has determined that this opinion should not be published and is not precedent except under the limited circumstances set forth in 5th Cir. R. 47.5.4. | 01-04-2023 | 11-05-2022 |
https://www.courtlistener.com/api/rest/v3/opinions/8480981/ | PER CURIAM: *
The attorney appointed to represent Jose Francisco Martinez-Maldonado (Martinez) has moved for leave to withdraw and has filed a brief in accordance with Anders v. California, 386 U.S. 738, 87 S.Ct. 1396, 18 L.Ed.2d 493 (1967). Martinez has filed a response. Our independent review of the record, counsel’s brief, and Martinez’s response discloses no nonfrivolous issue for appeal. Accordingly, counsel’s motion for leave to withdraw is GRANTED, counsel is excused from further responsibilities herein, and the APPEAL IS DISMISSED. See 5th Cir. R. 42.2.
Pursuant to 5th Cir R. 47.5, the court has determined that this opinion should not be published and is not precedent except under the limited circumstances set forth in 5th Cir. R. 47.5.4. | 01-04-2023 | 11-05-2022 |
https://www.courtlistener.com/api/rest/v3/opinions/8481033/ | PER CURIAM:
Michael Forrest Jones petitions for a writ of mandamus, alleging the district court has unduly delayed acting on his civil action. He seeks an order from this court directing the district court to act. Although we find that mandamus relief is not warranted because the delay is not unreasonable, we deny the mandamus petition without prejudice to the filing of another mandamus petition if the district court does not act expeditiously. We grant leave to proceed in forma pauperis. We dispense with oral argument because the facts and legal contentions are adequately presented in the materials before the court and argument would not aid the decisional process.
PETITION DENIED. | 01-04-2023 | 11-05-2022 |
https://www.courtlistener.com/api/rest/v3/opinions/8480983/ | PER CURIAM: *
Defendant-Appellant Fred Flores, III, federal prisoner # 12212-078, appeals the district court’s denial of his motion under 18 U.S.C. § 3582(c)(2) for a sentence reduction based on the recent amendments to the crack cocaine provisions of the Sentencing Guidelines. The government has filed a motion for summary affirmance of the district court’s judgment or, in the alternative, for an extension of time to file a brief on the merits. Flores’s sentencing range was not determined under the crack cocaine provisions of the Sentencing Guidelines. Accordingly, he is not eligible for a reduced sentence. See § 3582(c); U.S.S.G. § lB1.10(a)(2) & cmt. (n.l(A)). The judgment of the district court is AFFIRMED. The government’s motion for summary affirmance is GRANTED, and its alternative motion for an extension of time is DENIED as unnecessary.
Pursuant to 5th Cir. R. 47.5, the court has determined that this opinion should not be published and is not precedent except under the limited circumstances set forth in 5th Cir. R. 47.5.4. | 01-04-2023 | 11-05-2022 |
https://www.courtlistener.com/api/rest/v3/opinions/8480984/ | ORDER
Donald Green, a Illinois inmate, appeals the grant of summary judgment for various prison officials in his action under 42 U.S.C. § 1983, claiming retaliation, deliberate indifference, and violations of due process. We affirm.
Prison officials disciplined Green in April 2005 for possessing other inmates’ photographs, with their names and identification numbers on the back, in violation of the prison’s rule prohibiting the unauthorized possession of other inmates’ personal information. Green was punished again in June 2006 for possessing the legal materials of fellow inmates in violation of the same rule and another that prohibits the possession of other inmates’ property. The first time, Green received a one-month demotion to C-grade status (a loss of privileges) and one-month commissary restriction, and the second time he received seven days of segregation and two months of C-grade, and he lost his job assignment.
After the prison rejected his grievances protesting these disciplinary actions and prison conditions, Green filed this § 1983 lawsuit against prison officials, arguing, as relevant here, that the officials retaliated against him for filing too many grievances, acted with deliberate indifference to conditions of excessive heat and inadequate ventilation, and violated his right to due process by holding unfair disciplinary hearings. He also argued that he was legally entitled to possess other inmates’ legal materials, vaguely asserting that it was wrong for the prison to confiscate, and punish him for possessing, the materials.
The district court granted in part, and denied in part, summary judgment for the defendants. The court found, first, that Green’s punishment was not severe enough to deprive him of a liberty interest in violation of the Due Process Clause. The court next rejected Green’s retaliation claim because his only evidence of retaliation — a supervisor’s affidavit claiming that the supervisor “had learned” of retaliatory motive from undisclosed sources— was inadmissible hearsay. And in any event, the court also found that Green failed to provide evidence that retaliation was the cause of his punishment. The court also found that Green’s description *168of excessive heat and inadequate ventilation in his cell did not reflect a sufficiently serious deprivation or deliberate indifference to the extreme conditions. The court, however, denied summary judgment to the prison officials on Green’s vaguely worded claim that defendants’ confiscation of his papers and legal books violated his First Amendment rights; the court explained that the prison officials had not justified the reasons behind their rules prohibiting the possession of other inmates’ personal information and property, and that a fuller record needed to be made. After further proceedings, the court granted summary judgment on this claim, finding that the prison’s rule prohibiting possession of other inmates’ property was reasonably related to its objectives of safety and security and that Green had other legitimate avenues for obtaining legal documents and books.
On appeal Green challenges the grant of summary judgment against him on his retaliation claim, arguing generally that the district court was wrong to reject the supervisor’s affidavit as lacking in credibility. But Green misapprehends the basis of the court’s ruling; the court did not weigh the affidavit’s credibility, but instead properly excluded it as hearsay because it relayed out-of-court statements by unknown sources that were offered to prove the truth of the matter asserted (the retaliation). See Gunville v. Walker, 583 F.3d 979, 985 (7th Cir.2009). Without this affidavit, Green cannot point to any evidence that supports an inference of retaliation.
Green next contends that his disciplinary hearings violated his right to due process because he was not allowed to present evidence (at either hearing) and because the prison’s rule prohibiting possession of other inmates’ personal information is vague. But as the district court explained, Green’s argument fails because short-term segregation, grade demotions, loss of commissary privileges, and loss of prison employment are insufficient hardships to deprive him of a liberty interest in violation of the Due Process Clause. See Sandin v. Conner, 515 U.S. 472, 484, 115 S.Ct. 2293, 132 L.Ed.2d 418 (1995); Lekas v. Briley, 405 F.3d 602, 610, 613 (7th Cir. 2005); Hoskins v. Lenear, 395 F.3d 372, 374-75 (7th Cir.2005).
Green also takes issue with the district court’s conclusion that there was no First Amendment violation when his legal papers, books, and administrative materials were confiscated and he was punished for having them. Green does not specifically address this conclusion, and instead maintains that he has a right to act as a jailhouse lawyer and to possess legal materials, and that the prison’s actions violated due process. We understand Green to be asserting a general right of access to the courts, but this right does not confer unconditional privileges to retain legal documents belonging to others. The right of access to courts is violated only when a prisoner is denied access and suffers actual injury as a result. Lewis v. Casey, 518 U.S. 343, 351-53, 116 S.Ct. 2174, 135 L.Ed.2d 606 (1996); Ortiz v. Downey, 561 F.3d 664, 671 (7th Cir.2009). Because Green did not show any such injury, this claim must fail.
Green also challenges the district court’s grant of summary judgment on his Eighth Amendment claims regarding the conditions of his confinement. He argues that the district court wrongly discounted his evidence regarding the heat in his cell during the summer of 2006—his own testimony and the affidavit of an asthmatic inmate who complained to officials about respiratory problems—as not raising an inference that prison officials were deliberately indifferent to extreme conditions. But the district court properly found that *169Green’s evidence failed to show that the heat was serious enough to deny the “minimal civilized measure of life’s necessities” or that prison officials were deliberately indifferent to the heat. See Townsend v. Fuchs, 522 F.3d 765, 773 (7th Cir.2008). Green has not pointed to any evidence reflecting that the heat carried on at extreme levels for an extended duration or that he suffered any harm from the heat. See Chandler v. Crosby, 379 F.3d 1278,-1290-94 (11th Cir.2004); Dixon v. Godinez, 114 F.3d 640, 642 (7th Cir.1997). Moreover, that officials placed a fan in the hallway to help keep the air moving belies the suggestion that they were deliberately indifferent to the effects of the heat.
Green also contests the grant of summary judgment on his claim that the prison’s decision to bolt cell windows shut during winter months violated the Eighth Amendment. Noting a comment by a grievance officer that bolting windows increased inmates’ exposure to airborne health risks, he reiterates that the prison’s inadequate ventilation constituted deliberate indifference. But even if the ventilation system were inadequate, summary judgment was appropriate because Green presented only conclusory allegations that inadequate ventilation caused disease and respiratory problems. See Sain v. Wood 512 F.3d 886, 894 (7th Cir.2008); Dixon, 114 F.3d at 645. For instance, Green introduced no evidence to refute an affidavit from the warden attesting that the Illinois Department of Corrections’ sanitation department determined that air flow would still be adequate with the windows bolted.
Finally, Green contests the district court’s denial of his request to have counsel recruited to represent him because, he argues, this case was too complex, legally and factually, for him to be able to fairly litigate his claims alone. When faced with a request to recruit counsel, a district court must consider, among other things, whether the plaintiff has demonstrated an ability to litigate his case. Pruitt v. Mote, 503 F.3d 647, 654 (7th Cir.2007) (en banc). The court here did not abuse its discretion in denying Green’s request. The court noted that Green’s complaint and pleadings were “drafted better than many documents the court sees filed by licensed attorneys” and that he comprehended the law regarding his claims and could effectively press his interests and conduct discovery. The court’s analysis meets the standard set forth in Pruitt.
AFFIRMED. | 01-04-2023 | 11-05-2022 |
https://www.courtlistener.com/api/rest/v3/opinions/8480986/ | MEMORANDUM **
In these consolidated cases, Eric Pieter Soemampouw and Indra Wati Pinkan Eman, natives and citizens of Indonesia, petition for review of the Board of Immigration Appeals’ (“BIA”) order dismissing their appeal from an immigration judge’s (“IJ”) decision denying their application for asylum, withholding of removal, and relief under the Convention Against Torture (“CAT”) in No. 06-71353, and the BIA’s order denying their motion to reopen proceedings in No. 06-73767. Our jurisdiction is governed by 8 U.S.C. § 1252. We review for substantial evidence the agency’s factual findings, Zehatye v. Gonzales, 453 F.3d 1182, 1184-85 (9th Cir.2006), and review for abuse of discretion the denial of a motion to reopen, and we review de novo due process claims *187based on ineffective assistance of counsel, Hurribarria v. INS, 321 F.3d 889, 894 (9th Cir.2003). We deny in part and dismiss in part the petition for review in No. 06-71353, and deny the petition in No. 06-73767.
The record does not compel the conclusion that petitioners established changed circumstances excusing the untimely filing of their asylum application. See 8 C.F.R. § 1208.4(a)(4); Ramadan v. Gonzales, 479 F.3d 646, 656-58 (9th Cir.2007) (per curiam). Accordingly, petitioners’ asylum claim fails.
Even as members of a disfavored group, petitioners failed to demonstrate the requisite individualized risk of persecution. See Hoxha v. Ashcroft, 319 F.3d 1179, 1184-85 (9th Cir.2003); see also Wakkary v. Holder, 558 F.3d 1049, 1066 (9th Cir.2009) (“An applicant for withholding of removal will need to adduce a considerably larger quantum of individualized-risk evidence to prevail”). Accordingly, petitioners’ withholding of removal claim fails.
Substantial evidence supports the agency’s denial of CAT relief because petitioners have not shown it is more likely than not they would be tortured in Indonesia. See id. at 1067-68.
We lack jurisdiction to review petitioners’ unexhausted due process claim regarding the agency’s failure to serve them with the Id’s revised decision. See Barron v. Ashcroft, 358 F.3d 674, 677-78 (9th Cir. 2004).
Lastly, the BIA did not abuse its discretion by denying petitioners’ motion to reopen based on ineffective assistance of counsel, because petitioners did not establish they were prejudiced by prior counsel’s actions. See Iturribarria, 321 F.3d at 901-03.
No. 06-71353: PETITION FOR REVIEW DENIED in part; DISMISSED in part.
No. 06-73767: PETITION FOR REVIEW DENIED.
This disposition is not appropriate for publication and is not precedent except as provided by 9th Cir. R. 36-3. | 01-04-2023 | 11-05-2022 |
https://www.courtlistener.com/api/rest/v3/opinions/8480987/ | MEMORANDUM **
Narendra Prasad, a native and citizen of Fiji, petitions for review of the Board of Immigration Appeals’ (“BIA”) order denying his motion to reopen alleging ineffective assistance of counsel. We have jurisdiction under 8 U.S.C. § 1252. Reviewing for abuse of discretion, Iturribama v. INS, 321 F.3d 889, 894 (9th Cir.2003), we deny the petition for review.
The BIA did not abuse its discretion in denying Prasad’s motion to reopen because it was filed more than two years after the BIA’s May 12, 2005, order dismissing the underlying appeal, see 8 C.F.R. § 1003.2(c)(2), and Prasad failed to demonstrate that he acted with the due diligence required for equitable tolling, see Iturribarria, 321 F.3d at 897(equitable tolling available “when a petitioner is prevented from filing because of deception, fraud, or error, as long as the petitioner acts with due diligence”); see also Singh v. Gonzales, 491 F.3d 1090, 1096-97 (9th Cir. 2007).
In light of our disposition, we do not reach Prasad’s remaining contentions.
PETITION FOR REVIEW DENIED.
This disposition is not appropriate for publication and is not precedent except as provided by 9 th Cir. R. 36-3. | 01-04-2023 | 11-05-2022 |
https://www.courtlistener.com/api/rest/v3/opinions/8481200/ | 85447: Case View
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Case Information: 85447
Short Caption:EDWARDS (CARL) VS. DIST. CT. (STATE)Court:Supreme Court
Lower Court Case(s):Nye Co. - Fifth Judicial District - 11-CR-1515Classification:Original Proceeding - Criminal - Proper Person Writ Petition
Disqualifications:Case Status:Disposition Filed
Replacement:Panel Assigned:
Panel
To SP/Judge:SP Status:
Oral Argument:Oral Argument Location:
Submission Date:How Submitted:
+
Party Information
RoleParty NameRepresented By
PetitionerCarl Dean Edwards
In Proper Person
Real Party in InterestThe State of NevadaChristopher R. Arabia
(Nye County District Attorney)
Aaron D. Ford
(Attorney General/Carson City)
Kirk Vitto
(Nye County District Attorney)
RespondentThe Fifth Judicial District Court of the State of Nevada, in and for the County of Nye
+
Due Items
Due DateStatusDue ItemDue From
11/28/2022OpenRemittitur
Docket Entries
DateTypeDescriptionPending?Document
10/03/2022Filing FeePetition Filing Fee Waived. Criminal. (SC)
10/03/2022Petition/WritFiled Proper Person Petition for Writ of Certiorari. (SC)22-31161
10/03/2022Notice/OutgoingIssued Notice to Provide Proof of Service. Due date: 14 days. (SC)22-31163
11/02/2022Order/DispositionalFiled Order Denying Petition. "ORDER the petition DENIED." RP/JH/LS. (SC)22-34382
Combined Case View | 01-04-2023 | 11-07-2022 |
https://www.courtlistener.com/api/rest/v3/opinions/8480989/ | MEMORANDUM **
Sonia Elizabeth Coronado, a native and citizen of Guatemala, petitions for review of the Board of Immigration Appeals’ (“BIA”) order summarily affirming an immigration judge’s (“IJ”) removal order. We have jurisdiction under 8 U.S.C. § 1252. We review for abuse of discretion the IJ’s denial of a continuance, Sandoval-Luna v. Mukasey, 526 F.3d 1243,1246 (9th Cir.2008) (per curiam), for substantial evidence the IJ’s factual findings, Almaghzar v. Gonzales, 457 F.3d 915, 920 (9th Cir. 2006), and de novo claims of due process violations in immigration proceedings. Ram v. INS, 243 F.3d 510, 516 (9th Cir. 2001). We deny the petition for review.
The IJ did not abuse her discretion in denying a continuance where Coronado did not demonstrate good cause. See 8 C.F.R. § 1003.29 (an IJ may grant a continuance for good cause shown); Baires v. INS, 856 F.2d 89, 92-93 (9th Cir.1988). It follows that Coronado’s due process claim fails. See Lata v. INS, 204 F.3d 1241, 1246 (9th Cir.2000) (requiring error for a petitioner to prevail on a due process claim).
Substantial evidence supports the IJ’s denial of Coronado’s application for protection under the Convention Against Torture because the record does not establish that it is more likely than not that Coronado would be tortured if returned to Guatemala. See Almaghzar, 457 F.3d at 922-*20728. Coronado’s contention that the IJ failed to consider all of the evidence is belied by the record. See id.
Coronado’s contention that the BIA erred in affirming without opinion is unavailing because she did not argue in her appeal brief that the BIA could not resolve her appeal without further factfinding. See 8 C.F.R. § 1003.1(d)(3)(iv).
PETITION FOR REVIEW DENIED.
This disposition is not appropriate for publication and is not precedent except as provided by 9th Cir. R. 36-3. | 01-04-2023 | 11-05-2022 |
https://www.courtlistener.com/api/rest/v3/opinions/8480990/ | *213MEMORANDUM **
Edgar Rovidio Ortega-Sanchez, a native and citizen of Guatemala, petitions for review of the Board of Immigration Appeals’ (“BIA”) order dismissing his appeal from an immigration judge’s (“IJ”) decision denying his application for asylum, withholding of removal, and protection under the Convention Against Torture (“CAT”). We have jurisdiction under 8 U.S.C. § 1252. We review for substantial evidence the agency’s factual findings, Wakkary v. Holder, 558 F.3d 1049, 1056 (9th Cir.2009), and de novo due process claims, Ram v. INS, 243 F.3d 510, 516 (9th Cir.2001). We deny the petition for review.
The record does not compel the conclusion that changed or extraordinary circumstances excused Ortega-Sanchez’s untimely filed asylum application. See 8 C.F.R. § 1208.4(a)(4), (5); Ramadan v. Gonzales, 479 F.3d 646, 656-58 (9th Cir. 2007) (per curiam). Accordingly, Ortega-Sanchez’s asylum claim fails. In light of this conclusion, we deny Ortega-Sanchez’s motion to file a supplemental brief.
Substantial evidence supports the agency’s finding that Ortega-Sanchez failed to establish past persecution because the record does not compel the conclusion that the deaths of his friend and family members were connected to him, see Wakkary v. Holder, 558 F.3d at 1060 (requiring that persecution against friends or family members be “part of a pattern of persecution closely tied to the petitioner”) (internal quotations and citation omitted), and any threats he received did not rise to the level of persecution, see Lim v. INS, 224 F.3d 929, 936-37 (9th Cir.2000). Further, Ortega Sanchez failed to demonstrate sufficient individualized risk of future persecution to show a clear probability of future persecution. See Wakkary, 558 F.3d at 1066 (“An applicant for withholding of removal will need to adduce a considerably larger quantum of individualized-risk to prevail.”). Accordingly, substantial evidence supports the agency’s denial of Ortega Sanchez’s withholding of removal claim. See Hoxha v. Ashcroft, 319 F.3d 1179,1185 (9th Cir.2003).
Substantial evidence supports the agency’s denial of Ortega-Sanchez’s CAT claim because he did not establish it is more likely than not that he will be tortured if returned to Guatemala. See Wakka'ry, 558 F.3d at 1067-68.
Ortega-Sanchez contends his due process rights were violated because the IJ employed an incorrect standard in denying his withholding of removal claim. We reject this contention because it is belied by the record. See Lata v. INS, 204 F.3d 1241, 1246 (9th Cir.2000) (requiring error and prejudice for a petitioner to prevail on a due process claim).
Finally, we deny Ortega-Sanchez’s motion to take administrative notice of the 2008 State Department Report. See Fisher v. INS, 79 F.3d 955, 963 (9th Cir.1996) (en banc).
PETITION FOR REVIEW DENIED.
This disposition is not appropriate for publication and is not precedent except as provided by 9th Cir. R. 36-3. | 01-04-2023 | 11-05-2022 |
https://www.courtlistener.com/api/rest/v3/opinions/8480991/ | *215MEMORANDUM **
Luis Ernesto Diaz-Morataya, a native and citizen of Guatemala, petitions for review of the Board of Immigration Appeals’ order dismissing his appeal from an immigration judge’s (“IJ”) decision denying his application for asylum and his application for cancellation of removal. Our jurisdiction is governed by 8 U.S.C. § 1252. We review for substantial evidence the agency’s factual findings, Wakkary v. Holder, 558 F.3d 1049, 1056 (9th Cir.2009), and we review de novo due process claims, Martinez-Rosas v. Gonzales, 424 F.3d 926, 930 (9th Cir.2005). We deny in part and dismiss in part the petition for review.
Substantial evidence supports the agency’s determination that Diaz-Morataya failed to establish past persecution, because the isolated threat and harassment he suffered did not rise to the level of persecution. See Lim v. INS, 224 F.3d 929, 936-37 (9th Cir.2000); see also Nagoulko v. INS, 333 F.3d 1012, 1016-17 (9th Cir.2003) (teasing, discrimination and harassment do not amount to past persecution). Substantial evidence also supports the agency’s determination that Diaz-Morataya failed to establish a well founded fear of future persecution, because he did not demonstrate the requisite individualized risk. See Lolong v. Gonzales, 484 F.3d 1173, 1180-51 (9th Cir. 2007) (en banc). Accordingly, Diaz-Morataya’s asylum claim fails.
Diaz-Morataya contends the IJ applied the incorrect legal standard to his cancellation of removal application by failing to consider all the relevant hardship factors. The record belies this contention. Because the IJ applied the correct legal standard, we lack jurisdiction to review the IJ’s discretionary hardship determination. See Mendez-Castro v. Mukasey, 552 F.3d 975, 979-80 (9th Cir.2009).
Finally, Diaz-Morataya’s contention that the IJ incorrectly applied the legal standard under Cabrera-Alvarez v. Gonzales, 423 F.3d 1006, 1012 (9th Cir.2005), does not amount to a colorable claim over which we have jurisdiction. See Martinez-Ro~ sas, 424 F.3d at 930.
PETITION FOR REVIEW DENIED in part; DISMISSED in part.
This disposition is not appropriate for publication and is not precedent except as provided by 9th Cir. R. 36-3. | 01-04-2023 | 11-05-2022 |
https://www.courtlistener.com/api/rest/v3/opinions/8480993/ | MEMORANDUM **
Kaur Singh, a native and citizen of India, petitions for review of the Board of Immigration Appeals’ order dismissing his appeal from an immigration judge’s decision denying his application for asylum, withholding of removal, and protection under the Convention Against Torture (“CAT”). We have jurisdiction under 8 U.S.C. § 1252. We review for substantial evidence the agency’s adverse credibility determination, Tekle v. Mukasey, 533 F.3d 1044, 1051 (9th Cir.2008), and we deny the petition for review.
The agency denied Singh’s asylum application as time-barred. Singh does not challenge this dispositive finding in his opening brief. See Martinez-Serrano v. INS, 94 F.3d 1256, 1259-60 (9th Cir.1996) (issues not specifically raised and argued are waived). Accordingly, we deny the petition as to Singh’s asylum claim.
Substantial evidence supports the agency’s adverse credibility determination because the inconsistencies between Singh’s testimony and the asylum officer’s notes with respect to the nature of the mistreatment Singh allegedly suffered during his first and third arrests, the duration of Singh’s detention following his first arrest, whether Singh sought medical treatment at a hospital following his second arrest, and whether Singh reported the incidents to the chief minister, go to the heart of his claim of persecution. See Chebchoub v. INS, 257 F.3d 1038, 1043 (9th Cir.2001). Accordingly, Singh’s withholding of removal claim fails. See Farah v. Ashcroft, 348 F.3d 1153,1156 (9th Cir.2003).
Singh’s CAT claim fails because it is based on the same testimony the agency found not credible, and Singh points to no other evidence that shows it is more likely than not he will be tortured in India. See id. at 1156-57.
PETITION FOR REVIEW DENIED.
This disposition is not appropriate for publication and is not precedent except as provided by 9th Cir. R. 36-3. | 01-04-2023 | 11-05-2022 |
https://www.courtlistener.com/api/rest/v3/opinions/8481010/ | JUDGMENT
PER CURIAM.
This appeal was considered on the record from the United States District Court for the District of Columbia and on the brief filed by the appellant. See Fed. RApp. P. 84(a)(2); D.C.Cir. Rule 34(j). It is
ORDERED AND ADJUDGED that the district court’s order entered June 25, 2010 be affirmed. The district court did not abuse its discretion in denying appellant’s motion for relief under Fed.R.Civ.P. 60(b). See Twelve John Does v. District of Columbia, 841 F.2d 1133, 1138 (D.C.Cir. 1988).
Pursuant to D.C. Circuit Rule 36, this disposition will not be published. The Clerk is directed to withhold issuance of the mandate herein until seven days after resolution of any timely petition for rehearing or petition for rehearing en banc. See Fed. RApp. P. 41(b); D.C.Cir. Rule 41. | 01-04-2023 | 11-05-2022 |
https://www.courtlistener.com/api/rest/v3/opinions/8481656/ | Moncure, J.
I think the Hustings court ought to have compelled the plaintiff to join in the defendant’s demurrer to the plaintiff’s evidence; which was documentary, and presented a question of law, at least not plainly against the demurrant. 1 Rob. Pr. (old ed.) 353; Green, &c. v. Buckner’s adm’r, 6 Leigh 82. But the judgment ought not to be reversed on that ground, if the evidence set forth in the demurrer shows that the plaintiff was entitled to recover. Brockenbrough v. Ward’s adm’r, 4 Rand. 352. Nor if all the evidence in the cause, which is set out in the second bill of exceptions, shows that he was entitled to recover. If upon the whole evidence the plaintiff is entitled to recover, even though he might not be upon so much of it as is set out in the demurrer, it would be vain to reverse the judgment and remand the cause for a new trial which would result in precisely the same judgment. *504I will therefore proceed to consider the case upon its . ■ merits.
The main if not the only question arising in the case is presented by the second bill of exceptions; and * the sufficiency of the notice stated in the protest of the note for two thousand dollars.
When the said note became due and was protested, Boyd the endorser was dead, and had no personal representative. He resided in Lynchburg at the time of his death, and his family continued to reside there until after the protest of the note. Notice of the dishonor of the note was, on the day of the protest, deposited by the notary in the post-office in Lynchburg, directed to “The legal representative of James M. Boyd deceased, Lynchburgand this is all the notice which was given.
The counsel for the defendant in error contends that no notice was necessary; or if necessary, that sufficient notice was given.
He contends that no notice was necessary, because when the note became due and was protested, there was no person in existence to receive notice, the endorser being dead and having no personal representative.
I have seen no case which expressly decides that notice is necessary under such circumstances. And there are many circumstances under which it is unnecessary to give any notice, as may be seen by referring to Story on Prom. Notes, § 356, and other elementary works. There are cases like the present, in which the notice proved to have been given in them was held to be sufficient; which strongly if not necessarily implies that some notice is necessary in such cases. But without expressing any opinion upon the question, and conceding for the purposes of this case at least that notice was necessary, I will proceed to enquire whether the notice given was sufficient.
*505The only objection taken to the sufficiency of the notice, is that it ought to have been left at the late domicil of the endorser where his family still resided, instead of being deposited in the post-office.
While, on the one hand, it has been long and well settled that if the parties (to give and receive notice) reside in different places, the notice may be sent by mail; so, on the other, it seems to be well settled, at least as a general rule, that if they reside in the same place, the notice must be personal; that is, must be given to the individual, or left at his domicil or place of business. See 1 American Lead. Cas. 4th edition, 396 and the notes; and 2 Rob. Pr. (new ed.) 191.
But of late the courts have strongly inclined to restrict the general rule referred to, and have established many exceptions to it, as may be seen by referring to the case of the Bank of Columbia v. Lawrence, 1 Peters’ R. 578, and other cases cited in 1 American Lead. Cas. 402-3, and the notes. The learned ■ authors of that work conclude their commentary on the cases with the following observation : “ It is obvious that the rule requiring personal notice, where the parties reside in the same place, has lost its reasonable force, and exists only by authority. Instead of undermining it with exceptions that conflict with it in principle, and render the subject embarrassing in practice, it would be much better to declare that the rule itself has become obsolete, and is abolished.”
It cannot properly be said that the rule has become obsolete, having been recognized and acted on in many recent as well as older cases, and having in no case been denied or disregarded. It is therefore too firmly established to be abolished by the courts. Were it an original question (as is well said by Shaw, C. J. in Eagle Bank v. Hathaway, 5 Metc. R. 212, 216), it is far from certain that notice by the post-office would not frequently reach an endorser as soon and as cer*506tainly as notice at his domicil.” But though the rule is settled by a long course of judicial decisions, “it is settled by positive law, only so far as the cases within it.” Id. If this case be within it, we must follow it; but if not, and we are untrammeled by any decisions applying to such a case, we must then determine, as an original question, whether the notice given was sufficient.
I do not think this case comes within the general rule. It cannot be said that both parties resided in the same place. The endorser was dead, and had no personal representative at the time of the protest. If there had then been a personal representative, he would have been one of the parties, and entitled to notice, which might have been given to him precisely in the same way as if he had himself been the endorser. But there being none, there was no person in existence entitled to notice; and though it might well be expected there would soon be one, yet who he would be, and when he would qualify, and where he would reside, were probably unknown to the holder.
Nor do I think we are at all trammeled by any decisions applying to such a case. It has never been decided that in such a case notice may not be given through the post-office. It is indeed said in Story on Prom. Notes, § 310, that in such a case “ notice may or should be left at the domicil of the deceased” endorser. But the cases cited as authority for that remark, only decide that notice may, not shozild be given in that way. The learned author seems to infer that the notice shotdd, because it may be given in that way. But I do not think the inference is well founded. We know that under the same circumstances notice may be sufficiently given in several different ways. As the remark of Judge Story has an important relation to this case, and as the authorities bearing upon it are not numerous, it may be proper to review them.
*507In Stewart v. Eden, 2 Caines’ R. 121, the endorser at the date of the note resided in the city of New York, but shortly thereafter retired to his country seat, miles from the city, where he died nearly two months before the note became due. He had no personal representative at the time of the protest, and notice addressed to him was left at his house in the city, which was shut up at the time. It was held that the notice was well served and properly addressed. Livingston, J. in delivering the opinion of the court, used the following observations, which have a strong bearing on the case before us: “ We must take care that while proper diligence be imposed on the holder of negotiable paper, we do not exact from him every possible exertion that might have been made to affect an endorser with knowledge of its being dishonored. If he has done all that a diligent and prudent man could naturally do under like circumstances; if the law has prescribed no certain way of sending a notice in the given case“ and especially, if from what has been done, it may reasonably be presumed that notice has reached the parties concerned, we should be satisfied and not ask for more.” “ Nor was it fatal to direct the notice to the endorser himself; for as it was not known whether he had made a will, nor who his execu-. tors were, until long after, it was full as probable that it would reach the parties interested by this address as by any other; some one of the deceased’s family would either open it, or see it safely delivered to aa executor.”
In the Merchants Bank v. Birch, 17 John. R. 25, when the note became due the endorser was dead without a personal representative, but the fact of his death was unknown, he having died at sea. Notice addressed to him was left at his last residence, which was in the city of New York; another was left with his reputed agent in the city, and another was sent by mail to the residence of his family in the country. It was insisted *508that notice should have been given to the executors of the endorser when they qualified, though that was not until some months after the protest. It was held that Stewart v. Eden, supra, governed the case, and that the notice given was sufficient. “If an endorser be dead at -¿he maturity of a note (says Spencer, Ch. J. in delivering the opinion of the court), and there be executors or administrators at that time known to the holder, notice must be given to them, for they represent the testator or intestate, and are as fully entitled to notice as he would be if alive. But it is a novel principle, unsupported either by precedent or authority, that notice is to be given to the representatives of the endorser, and who became such long after the note has fallen due. The rights of the holder of a note or bill, are to be determined by his acts, when the note or bill becomes due; and if he then gives such notice, as under the existing state of facts the law requires of him, his rights are fixed, and he cannot be required to superadd any other notice at a future period.”
In Willis v. Green, 5 Hill’s N. Y. R. 232, when the note became due, one of two joint endorsers was dead without a legal representative; and notice addressed to him was sent by mail to Little Falls, instead of Salisbury, where he resided at the time of his death. The court admitted that the notice would have been sufficient if it had been sent to the proper place, that is, to Salisbury; but it was unnecessary to decide the question.
In Oriental Bank v. Blake, 22 Pick. R. 206, it was held, in conformity with what was said in Merchants Bank v. Birch, supra, that where the administrator of an endorser of a note had been appointed before its maturity, and had given due notice of his appointment, he was entitled to the same notice of the nonpayment of the note as is required by law to be given to an endorser.
In Planters Bank v. White, 2 Humph. R. 112, a no*509tice addressed to the endorser and sent by mail to the place of his last residence, was held to be sufficient, though he was dead and had a legal representative; the fact of his death being unknown to the notary, and the residence of the representative being at the mansion house of the deceased.
In Pillow v. Hardeman, adm'r, 3 Id. 538, the endorser was dead at the time of the protest, and the fact of his death known to the notary, but not the name of his personal representative if there then was one. A notice addressed to the “ legal representative” of the endorser, as in this case, and sent by mail to the last residence of the endorser, which was at a different place from that of the protest, was held sufficient, though it did not appear that the administrator ever received it.
These are all the cases I have seen which seem to have a bearing on the subject, and the first four are all which are cited by Story in support of his statement. They certainly do not show that the notice in this case is insufficient.
I regard the question in this case then as an open one; and so regarding it, I ask, Was not the notice given sufficient ? In other words, Was it not reasonable, under all the circumstances? For that is the question, whenever it comes up as an original one, unaffected by settled rules of law. When the note was protested, the endorser was dead without a personal representative. And the notary had at once to solve the question, How should notice be given to bind the estate of the endorser ? It was necessary to give it, or at least to set it in motion, immediately. It could not be deferred until the qualification of a personal representative. Two modes of giving it naturally suggested themselves. One by sending it through the post-office, and the other by leaving it at the last residence of the endorser, where his family *510still resided in the same town ; and the notary elected the former. Was it not a reasonable choice ? Was it so unreasonable as to defeat the right of the holder against the estate of the endorser? No unnecessary restraintshould be imposed on the circulation of negotiable papei’. No difficult condition should be required to be performed to fix the liability of parties. What was the notary to do under the circumstances of this case ? He could not deliver the notice to the personal representative himself, who was the person entitled to l’eceive it, but who was not then known and had not qualified. All he could do was, to put it in a train of being received by the pei-sonal representative in a reasonable time after his qualification. He might have left it at the last residence of the endorser, as the cases decide; but that would only have been a means of conveying it to the personal representative after his qualification. The notice is not to the family, but to the personal representative, who stands in the shoes of the endorser. Then, as a means of conveying it to the pei’sonal representative, is not the post-office at least as good a place of deposit as the last residence of the deceased? In Stewart v. Eden, the family of the endorser had i-emoved from his last residence, which was shut up, and the notice was stuffed in a key hole; and yet it was held sufficient. A notice given personally, or at the domicil or place of business, may be merely verbal. Would not a written notice, properly addressed and dropped in the post-office, be at least as apt to be received, and as soon received, by the personal representative after his qualification, as any notice, much less a verbal one, left at the last residence of the endorser, even supposing some person should be there to receive it? A notice dropped in the post-office would probably be taken out by the family at once, and delivered to the representative on his qualification, or before, if he were *511known. Or, if not taken out before his qualification, would probably be called for and received by him immediately thereafter. It is said the family would no right to take the notice out of the office, being directed to the legal representative; that drop letters (as they are called) are not advertised; and that after three months they are sent to the dead letter office; so that the personal representative might never receive the notice. This is possible, though it is certainly very improbable. We know that, in practice, letters addressed to a deceased person, or his representative, are taken out of the post office by members and friends of the family. But if the postmaster should be so strict as to hold the notice for the representative, it would only make the receipt of it by the proper person more certain. That person would be apt to call for it in time to prevent its being sent to the dead letter office. It is not necessary that the notice should be actually received, but only that due diligence should be used to give it.
The reason for requiring notice, in the case of a lining endorser, to be left at his domicil or place of business rather than at the post-office, does not apply to the case of a deceased endorser who is without a representative. In the former case, the law presumes that the endorser is always at his domicil or place of business, or has some person there to attend to his business ; and a notice left there is considered to be at home, and as having in effect been personally served. In the latter case, no such presumption can be made. A notice left at the domicil of a deceased endorser for his representative when one qualifies, is not at home, but is merely in transitu; and so is a notice left at the post-office for such representative.
If notice given through the post-office would be just as effectual as notice left at the last residence of the endorser, there is one reason at least which would make the former preferable, and which was mentioned *512in the argument of the counsel for the defendant in error; and that is, the family of the deceased at the time of the protest, might be in a state of deep affliction (occasioned by his recent death), when it would be painful both to them and the notary, for him to have visit them on a matter of business.
I am of opinion that the notice given of the protest of the note for two thousand dollar's was sufficient.
An objection is taken in the petition to the sufficiency of the notice of protest of the note for one thousand two hundred and fifty dollars; but it was not relied on in the argument, and is clearly without foundation.
And the same may be said of another objection taken in the petition, and not relied on in the argument; being to a supposed variance between the declaration and the proof. There is in fact no such variance, the cause of action being truly set out in the declaration, though it wrongly concludes, that “ by reason of the premises, cause of action accrued to the plaintiffs to have and demand of said James M. Boyd, in his lifetime, said sum of money and interest, as above demanded,” instead of, his administrator since his death. But this is a mere legal conclusion, which may be rejected as surplusage. And if it were a variance, “it did not prejudice the plaintiff in error, and would have been corrected by an amendment at the trial, if the attention of the court had been called to it.” Code, p. 672, 7.
Upon the whole, I think the defendant in error is entitled to recover, and that there is no error in the judgment for which it ought to be reversed. I am therefore for affirming it.
Daniel and Bobertson, Js. concurred in the opinion of Moncure, J.
Judgment affirmed. | 01-04-2023 | 11-07-2022 |
https://www.courtlistener.com/api/rest/v3/opinions/8480994/ | MEMORANDUM **
Alberto Hernandez-Oregel appeals from the 90-month sentence imposed following his guilty-plea conviction for being a deported alien found in the United States, in violation of 8 U.S.C. § 1326. We have jurisdiction under 28 U.S.C. § 1291, and we affirm.
Hernandez-Oregel contends, for the first time on appeal, that the district court erred by enhancing his sentence under 18 U.S.C. § 1326(b) because the government never provided the court with the statute of his prior conviction. We take judicial notice of the abstract of judgment for Hernandez-Oregel’s 1981 conviction for assault with a deadly weapon, in violation of California Penal Code § 245(a), a categorical felony crime of violence that qualified Hernandez-Oregel for a sentencing enhancement under section 1326(b). See United States v. Heron-Salinas, 566 F.3d 898, 899 (9th Cir.2009); see also United States v. Black, 482 F.3d 1035, 1041 (9th Cir.2007).
Hernandez-Oregel also contends that Almendarez-Torres v. United States, 523 U.S. 224, 118 S.Ct. 1219, 140 L.Ed.2d 350 *261(1998), should be overruled. As he concedes, this contention fails. See Agostini v. Felton, 521 U.S. 203, 237, 117 S.Ct. 1997, 138 L.Ed.2d 391 (1997).
Finally, Hernandez-Oregel contends that the sentence is substantively unreasonable. The record reflects that there was no procedural error and that, in light of the totality of the circumstances, the sentence within the Guidelines range is substantively reasonable. See United States v. Carty, 520 F.3d 984, 992-93 (9th Cir.2008) (en banc).
The government’s request for judicial notice is granted.
AFFIRMED.
This disposition is not appropriate for publication and is not precedent except as provided by 9 th Cir. R. 36-3. | 01-04-2023 | 11-05-2022 |
https://www.courtlistener.com/api/rest/v3/opinions/8480995/ | MEMORANDUM **
Federal prisoner Jairo Fernando MierCardenas appeals pro se from the district court’s judgment denying his 28 U.S.C. § 2241 habeas petition. We have jurisdiction under 28 U.S.C. § 2253, and we affirm.
Mier-Cardenas challenges a disciplinary decision in which he was found guilty of possession, manufacture, or introduction of a hazardous tool. He contends that he did not receive adequate notice of the charges. This contention fails because Mier-Cardenas was provided with enough information about the factual basis for the charge “to enable him to marshal the facts and prepare a defense.” Wolff v. McDonnell, 418 U.S. 539, 564, 94 S.Ct. 2963, 41 L.Ed.2d 935 (1974).
Mier-Cardenas also contends that the hearing officer’s decision was not supported by the evidence. “Some evidence” supports the prison disciplinary decision. Superintendent v. Hill, 472 U.S. 445, 454, 105 S.Ct. 2768, 86 L.Ed.2d 356 (1985).
AFFIRMED.
This disposition is not appropriate for publication and is not precedent except as provided by 9th Cir. R. 36-3. | 01-04-2023 | 11-05-2022 |
https://www.courtlistener.com/api/rest/v3/opinions/8480997/ | MEMORANDUM **
The district court properly dismissed Patsy N. Sakuma’s (“Sakuma”) action as moot because her condominium had been sold and there was no longer a controversy as to which effective relief could be granted. See Vill. of Gambell v. Babbitt, 999 F.2d 403, 406 (9th Cir.1993).
*287Sakuma’s remaining contentions are unpersuasive.
AFFIRMED.
This disposition is not appropriate for publication and is not precedent except as provided by 9 th Cir. R. 36-3. | 01-04-2023 | 11-05-2022 |
https://www.courtlistener.com/api/rest/v3/opinions/8480998/ | MEMORANDUM **
We do not consider the district court’s disposition of William J. Jones’s claims because he identifies no error that he contends the district court committed and presents no argument challenging any of its rulings. See Acostar-Huerta v. Estelle, 7 F.3d 139, 144 (9th Cir.1993) (issues raised in pro se litigant’s brief but not supported by argument are deemed abandoned).
AFFIRMED.
This disposition is not appropriate for publication and is not precedent except as provided by 9th Cir. R. 36-3. | 01-04-2023 | 11-05-2022 |
https://www.courtlistener.com/api/rest/v3/opinions/8480999/ | ORDER
Keith Dale Martin has filed his sixth motion for authorization to file a second or successive petition for a writ of habeas corpus pursuant to 28 U.S.C. § 2254. We deny authorization.
In the order denying his fifth motion for authorization, we imposed filing-restriction sanctions. In re Martin, No. 08-5134 (10th Cir. Oct. 6, 2008). Despite the sanctions, Mr. Martin again seeks to challenge the same state conviction and sentence by asserting a version of the same claims he has already asserted in his many previous filings. He now claims, however, that authorization is warranted because the trial court entered an amended judgment on December 17, 2009. The purpose of the amended judgment was to correct a clerical error in the judgment; the Count 1 charge was corrected to state that he had been convicted of unlawful possession of a controlled drug after former conviction of a felony. He contends that this amended judgment provides newly discovered evidence needed for authorization to file a second or successive § 2254 petition. See 28 U.S.C. § 2244(b)(2)(B).
We disagree. Although the Supreme Court recently held in Magwood v. Patterson, — U.S. -, -, 130 S.Ct. 2788, 2792, 177 L.Ed.2d 592 (2010), that a first-time challenge to a new state-court judgment is not a second or successive application under § 2244(b), Magwood is factually distinguishable from this case. In Mag-wood, after the federal district court granted conditional § 2254 habeas relief, the state trial court held new sentencing proceedings and then entered a new judgment at the conclusion of those proceedings. In comparison, in this case there were no new proceedings resulting in a new judgment. Rather, the amended judgment merely corrected a clerical error — one which did not rise to the level of constitutional error, as Mr. Martin was fully aware of his offense of conviction.
Accordingly, we DENY the motion for authorization. This denial is not appeal-able and “shall not be the subject of a petition for rehearing or for a writ of certiorari.” 28 U.S.C. § 2244(b)(3)(E). | 01-04-2023 | 11-05-2022 |
https://www.courtlistener.com/api/rest/v3/opinions/8481201/ | 85503: Case View
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Case Information: 85503
Short Caption:KIRBY VS. HSBC BANK USACourt:Supreme Court
Lower Court Case(s):Clark Co. - Eighth Judicial District - A701293Classification:Civil Appeal - General - Other
Disqualifications:Case Status:Disposition Filed
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RoleParty NameRepresented By
AppellantCindy KirbyMichael F. Bohn
(Law Offices of Michael F. Bohn, Ltd.)
RespondentHSBC Bank USANathan Frederick Jones Smith
(Malcolm Cisneros\Las Vegas)
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Due Items
Due DateStatusDue ItemDue From
11/28/2022OpenRemittitur
Docket Entries
DateTypeDescriptionPending?Document
10/13/2022Filing FeeFiling Fee due for Appeal. (SC)
10/13/2022Notice of Appeal DocumentsFiled Notice of Appeal. Appeal docketed in the Supreme Court this day. (SC)22-32363
10/13/2022Notice/OutgoingIssued Notice to Pay Supreme Court Filing Fee. No action will be taken on this matter until filing fee is paid. Due Date: 7 days. (SC)22-32365
11/01/2022Order/DispositionalFiled Order Dismissing Appeal. To date, appellant has not paid the filing fee or otherwise responded to this court's notice. Accordingly "this appeal is dismissed." (SC)22-34228
11/03/2022Filing FeeReturned Filing Fee. Check No.17148 returned to Law Offices of Michael F. Bohn. (SC)
11/04/2022MotionFiled Motion Motion to reinstate appeal22-34801
Combined Case View | 01-04-2023 | 11-07-2022 |
https://www.courtlistener.com/api/rest/v3/opinions/8481206/ | 85532: Case View
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22-33857: This document is currently unavailable. If you need a copy of this document, please contact Clerk's Office at (775)684-1600.
Disclaimer: The information and documents available here should not be relied upon as an official record of action.Only filed documents can be viewed. Some documents received in a case may not be available for viewing.Some documents originating from a lower court, including records and appendices, may not be available for viewing.For official records, please contact the Clerk of the Supreme Court of Nevada at (775) 684-1600.
Case Information: 85532
Short Caption:GONZALEZ VS. ANDYCourt:Supreme Court
Lower Court Case(s):Clark Co. - Eighth Judicial District - A844701Classification:Civil Appeal - General - Other
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RoleParty NameRepresented By
AppellantAustin Keith GonzalezSteven Dominic Broka, Esq.
(Winner Booze & Zarcone)
Bruce William Kelley
(Winner Booze & Zarcone)
RespondentBrian AndyRichard F. Scotti
Docket Entries
DateTypeDescriptionPending?Document
10/20/2022Filing FeeFiling Fee due for Appeal. (SC)
10/20/2022Notice of Appeal DocumentsFiled Notice of Appeal. Appeal docketed in the Supreme Court this day. (SC)22-33092
10/20/2022Notice/OutgoingIssued Notice to Pay Supreme Court Filing Fee. No action will be taken on this matter until filing fee is paid. Due Date: 7 days. (SC)22-33094
10/24/2022Filing FeeE-Payment $250.00 from Steven Dominic Broka, Esq.. (SC)
10/25/2022Notice/OutgoingIssued Notice of Referral to Settlement Program. This appeal may be assigned to the settlement program. Timelines for requesting transcripts and filing briefs are stayed. Docketing Statement mailed to counsel for appellant - due: 21 days. (SC)22-33498
10/25/2022Notice/IncomingFiled Appellant's Notice of Withdrawal of Appeal. (SC)22-33571
10/27/2022Order/DispositionalFiled Order/Voluntary Dismissal. Order Dismissing Appeal. Appellant's October 25, 2022, notice of withdrawal is construed as a motion for voluntary dismissal. The motion is granted and "this appeal is dismissed." Case Closed/No Remittitur Issued. (SC)22-33857
Combined Case View | 01-04-2023 | 11-07-2022 |
https://www.courtlistener.com/api/rest/v3/opinions/8481000/ | HARTZ, Circuit Judge,
dissenting:
I respectfully dissent. Although I would have hoped that Mr. Martin’s application would qualify for treatment under the strict standards governing a second-or-successive application for habeas relief, it appears to me that the recent Supreme Court decision in Magwood v. Patterson, - U.S. -, 130 S.Ct. 2788, 177 L.Ed.2d 592 (2010), requires otherwise. Last December Mr. Martin obtained an amended judgment, and this is his first habeas application since entry of that judgment. As I understand Magwood, 28 U.S.C. § 2244(b) “applies] only to a ‘second or successive’ application challenging the same state-court judgment.” Id. at 2796. The Supreme Court left open the possibility that if a judgment revises only the sentence and not the conviction, a second *328challenge to the underlying conviction would come under § 2244(b), id. at 2802-03; but Mr. Martin’s new judgment changed the offense of conviction and did not change the sentence. Accordingly, in my view Mr. Martin’s motion for authorization to file a second-or-successive application should be treated as an original application under § 2254 and should be transferred to the district court for further proceedings.
I find this result disturbing because it provides frequent filers like Mr. Martin with new opportunities to burden the courts, to say nothing of burdening prosecutors. Perhaps full briefing and oral argument (which I would have preferred in this case) would have enlightened me to how this case is distinguishable from Mag-wood. I suspect, however, that the issue will dog the courts for some time. Ultimately, this is a matter that will likely land in the lap of Congress, and it would seem to deserve prompt attention by the Judicial Conference. | 01-04-2023 | 11-05-2022 |
https://www.courtlistener.com/api/rest/v3/opinions/8481001/ | PER CURIAM:
Richard A. Selinger, appointed counsel for Teddy Leonel Cruz-Velez in this direct criminal appeal, has moved to withdraw from further representation of the appellant and filed a brief pursuant to Anders v. California, 386 U.S. 738, 87 S.Ct. 1396, 18 L.Ed.2d 493 (1967). Because independent examination of the entire record reveals no arguable issues of merit, counsel’s motion to withdraw is GRANTED, and Cruz-Velez’s conviction and sentence are AFFIRMED. | 01-04-2023 | 11-05-2022 |
https://www.courtlistener.com/api/rest/v3/opinions/8481003/ | JUDGMENT
PER CURIAM.
Upon consideration of the record from the United States District Court for the District of Columbia and the briefs and arguments of the parties, it is
ORDERED AND ADJUDGED that the judgment of the District Court be affirmed.
Raising numerous issues, appellant Juan Del Cid Morales appeals his conviction and sentence for conspiring to distribute cocaine. Morales begins by arguing that an impermissible variance exists between the single conspiracy charged in the indictment and the trial evidence which showed, according to Morales, three separate and distinct conspiracies. But although some of the details and participants of the conspiracy changed, the overarching purpose throughout the relevant time period was to transport cocaine through Guatemala to the United States, resulting in a single conspiracy. See United States v. Tarantino, 846 F.2d 1384, 1392-93 (D.C.Cir.1988).
Morales also argues that the trial court erred when it admitted items seized from Morales and two of his co-conspirators at the time of their arrest by Salvadoran authorities; according to Morales, a proper chain of custody regarding the items was never established. We need not determine, however, whether the trial court erred in admitting the items because any chain of custody error would have been harmless “in light of its limited importance and the strength of the other evidence against [Morales].” United States v. Mejia, 597 F.3d 1329, 1337 (D.C.Cir.2010).
Morales further claims that his constitutional rights were violated when the trial court denied his motion to suppress statements made by him during his interrogation by federal agents; he claims that he did not voluntarily, knowingly, and intelligently waive his constitutional rights against self-incrimination. The trial court found, however, that Morales was read his rights in Spanish before being interrogated, that he acknowledged his understanding of them and then waived them in writing, and that he was a reasonably intelligent adult who could comprehend what was read aloud in his native language. These findings by the trial court resolve the issue in favor of the United States. See United States v. Yunis, 859 F.2d 953, 958-59, 961, 965-66 (D.C.Cir. 1988).
*599We have considered the remaining arguments of Morales and conclude they are without merit.
Pursuant to Rule 36 of this Court, this disposition will not be published. The Clerk is directed to withhold issuance of the mandate herein until seven days after the disposition of any timely petition for rehearing or petition for rehearing en banc. See Fed R.App. P. 41(b); D.C.Cir. R. 41. | 01-04-2023 | 11-05-2022 |
https://www.courtlistener.com/api/rest/v3/opinions/8481004/ | JUDGMENT
PER CURIAM.
This case was considered on the record from the United States District Court for the District of Columbia and on the briefs and arguments by counsel. It is
ORDERED that the judgment of the district court be affirmed.
Xavier Valentine Brown appeals the district court’s denial of his petition under 28 U.S.C. § 2255, which petition sought to vacate his sentence and remand for new trial on the ground that he was denied his Sixth Amendment right to effective assistance of counsel. Reviewing Brown’s petition de novo, we conclude that Brown’s appeal fails. See United States v. Goodwin, 594 F.3d 1, 4 (D.C.Cir.2010) (declining to settle standard of review because petition failed even under de novo review).
Brown was convicted of conspiracy to possess with intent to distribute one kilogram or more of heroin in violation of 21 U.S.C. § 846, by attempting to collect $47,000 from Gregory Fulton, a convicted drug felon working in an undercover capacity for the FBI, on behalf of a Panamanian heroin smuggler named Jose Meneses (alternatively known as “Cholo” or “Cholito”) on January 6, 2005. The critical issue at trial was Brown’s knowledge and intent: did Brown know that he was being sent by Meneses to collect payment for a number of illegal heroin shipments received by Fulton? The government presented the testimony of several members of Menes-es’s heroin smuggling network, all appearing pursuant to cooperation agreements, as well as audio and video surveillance footage capturing the meeting between Brown and Fulton. In addition, pursuant to Fed. *600R.Evid. 404(b), the government offered the testimony of Kenriek Eastmond for the limited purpose of establishing Brown’s knowledge and intent. Eastmond testified about working with Brown on various drug smuggling jobs between 1994 and 2002, long before the events at issue in Brown’s trial. At the time of Brown’s trial, Eastmond was serving a sentence of 70 months’ imprisonment for cocaine possession. Eastmond was also a foreign national who was facing the prospect of deportation upon his release from prison.
Brown argues that his trial counsel rendered ineffective assistance of counsel by failing to investigate Eastmond’s immigration status and by failing to cross-examine Eastmond about his deportation status as a source of bias. Under Strickland v. Washington, establishing ineffective assistance requires a two-pronged showing: first, “counsel’s performance was deficient,” and second, “the deficient performance prejudiced the defense.” 466 U.S. 668, 687, 104 S.Ct. 2052, 80 L.Ed.2d 674 (1984). We need not consider both prongs if we can dispose of the appeal on one or the other. United States v. Burch, 156 F.3d 1315, 1326 (D.C.Cir.1998) (citing Strickland, 466 U.S. at 697, 104 S.Ct. 2052). We conclude Brown’s petition fails because, assuming arguendo deficiency, Brown cannot show prejudice.
To establish prejudice, Brown must show a “reasonable probability” that “the result of the proceeding would have been different” if his trial counsel had investigated Eastmond’s immigration status and cross-examined him on it. Strickland, 466 U.S. at 694, 104 S.Ct. 2052. Brown has failed to establish a “reasonable probability” on two related grounds. First, even without Eastmond’s testimony, the government presented sufficient evidence at trial to establish Brown’s knowledge and intent. See United States v. Weaver, 234 F.3d 42, 48 (D.C.Cir.2000) (finding no prejudice where “strength of the government’s evidence ... would remain virtually unchanged” even setting aside testimony tainted by alleged deficiency). Ana Alvarez Rios, a co-conspirator, testified that she hand-delivered one kilo of heroin from Meneses to Brown in early December 2004, just weeks before Brown’s arrest. Alexis Barraza, another co-conspirator, testified that he relayed telephone messages on several occasions between Menes-es in Panama and Brown in the United States. Brown’s meeting with Fulton included several suspicious circumstances: Brown’s use of the alias “Gordo,” the “last call made” from Brown’s cell phone to a Panamanian number labeled “Cholito’s new cell” in Brown’s cell phone directory, the four additional cell phones and over $7000 in cash found inside Brown’s car alongside notebooks containing names and phone numbers for Barraza and Fulton. Given the ample evidence the government presented at trial, Eastmond cannot be characterized as a “key witness” whose testimony alone established Brown’s knowledge and intent. See Weaver, 234 F.3d at 47-48. Second, any additional cross-examination of Eastmond on the subject of his deportability would have had little effect. Brown’s trial counsel conducted an aggressive cross-examination of Eastmond, eliciting Eastmond’s admission that he “snitched” on a number of people after being arrested in order to “help [himself] out,” that he made false or inconsistent statements to police and FBI investigators and that he was testifying against Brown pursuant to a cooperation agreement with the government. The jury thus had several reasons to question Eastmond’s credibility and cross-examining Eastmond on his possible deportation would have added little to Brown’s defense.
*601Pursuant to D.C. Circuit Rule 36, this disposition will not be published. The Clerk is directed to withhold issuance of the mandate herein until seven days after resolution of any timely petition for rehearing or rehearing en banc. See Fed. R.App. P. 41(b); D.C.Cir. Rule 41(a)(1). | 01-04-2023 | 11-05-2022 |
https://www.courtlistener.com/api/rest/v3/opinions/8481005/ | JUDGMENT
PER CURIAM.
This appeal on petition for review of an order of the Federal Railroad Administration was presented to the court and briefed by the parties. The court has accorded the issues full consideration and has determined that they do not warrant a published opinion. For the reasons presented in the accompanying memorandum, it is
ORDERED and ADJUDGED that the petition for review be denied.
Pursuant to D.C. Circuit Rule 36, this disposition will not be published. The Clerk is directed to withhold issuance of the mandate herein until seven days after resolution of any timely petition for rehearing or rehearing en banc. See Fed. R.App. P. 41(b); D.C.Cir. Rule 41.
MEMORANDUM
L.R. Smith, a former engineer who worked for Union Pacific (“the railroad”), petitions for review of the decision of the Federal Rail Administrator affirming the dismissal by the Locomotive Engineer Review Board (“the Board”) of Smith’s petition for review of the railroad’s decision to suspend his locomotive engineer’s certificate. Smith challenges the agency’s interpretation of its regulations and contends that he was denied due process under the Fifth Amendment of the Constitution. He can prevail on neither issue, and we deny the petition because the Administrator’s decision was not arbitrary or capricious or contrary to law. Nat’l Ass’n of Gov’t Emp., Local R5-186 v. Fed. Labor Rela*602tions Autk, 363 F.3d 468, 474 (D.C.Cir. 2004).
The record shows that on January 9, 2005, Smith failed a random breath alcohol test while on duty. The railroad suspended his certificate the same day. On January 17, 2005, Smith signed a document accepting the revocation of his certificate and waived the 49 C.F.R. 240.307 process. His engineer certificate was revoked by the railroad from January 9 to October 10, 2005. He also was dismissed from employment. At the time of his dismissal, Smith signed a one-time return to service agreement, setting conditions. The railroad thereafter notified Smith on February 7, 2006, that he was dismissed because the Employee Assistance Program Manager had advised that Smith, on the day before, was in violation of the service agreement. The railroad notified Smith in writing that his engineer certificate was suspended. The railroad denied Smith’s appeal by letter of May 30, 2006.
The Federal Railroad Administration (“FRA”) has promulgated regulations pursuant to the Rail Safety Improvement Act of 1988, 49 U.S.C. § 20135, see 56 Fed. Reg. 28,228 (1991); 49 C.F.R. § 1.49(m), providing for three levels of appeal: by petition to the Board, 49 C.F.R. § 240.401; by review of the Board’s decision by an Administrative Hearing Officer, id. §§ 240.407, 409; and by appeal to the Administrator, id. § 240.403(e), 240.411.1 The regulations required Smith to file a “complete” petition, including “all written documents in the petitioner’s possession that document the railroad’s decision.” 49 C.F.R. § 240.403(b)(5).
Smith petitioned the Board on June 8, 2006, claiming his certification was revoked without a railroad on-the-property hearing or other required federal regulatory procedures. The Board requested Smith, who was represented by counsel, on three separate occasions to file the documents in his possession to support his petition. Neither Smith nor his counsel responded. The Board, therefore, dismissed his petition. Smith then sought a hearing before an Administrative Hearing Officer, who ruled he lacked jurisdiction. Upon further appeal, the Administrator issued a show cause order directing Smith to explain why he did not “submit the [Substance Abuse Professional (“SAP”) ] reports or other documents in his possession or obtainable by him” to the Administrator and the Board or to submit the documents. Smith responded by arguing, through counsel, that he had no obligation to file the SAP reports, while the railroad did as part of its defense. The Administrator found that Smith had not: (1) demonstrated excusable neglect for his failure to respond to the Board’s request for documents; (2) presented his objections to the request for documents before the Board; or (3) produced the required documents in compliance with the show cause order. Smith now contends that the FRA violated both the Administrative Procedure Act and the Constitution when it dismissed his case for failure to supplement his petition with a document not in his possession, control, or custody. See 49 U.S.C. § 20114(c).
*603The court will defer to an agency’s reasonable interpretation of its regulations. See Thomas Jefferson Univ. v. Shalala, 512 U.S. 504, 512, 114 S.Ct. 2381, 129 L.Ed.2d 405 (1994). But regardless of whether the Administrator reasonably determined “possession” under 49 C.F.R. § 240.403(b)(5) to mean constructive possession, the railroad was obligated under the regulations to provide Smith with a copy of the SAP report upon his request, 49 C.F.R. § 40.329(c). Smith does not suggest he ever made such a request. Additionally, Smith does not deny that he had in his actual possession other documents relevant to his petition that he did not submit to the Board, such as the letter from the railroad notifying him of the suspension of his certificate. Further, Smith offered no explanation for failing to respond in any manner to the Board’s requests. Nor did he produce any documents for the Administrator. Under the circumstances, the Administrator could properly find that Smith failed to demonstrate excusable neglect under 49 C.F.R. § 240.403(d)(2). Hence, Smith’s challenges to the railroad’s suspension and its claim he waived his right to challenge that suspension come too late and are waived. See Nuclear Energy Inst v. EPA, 373 F.3d 1251, 1297-98 (D.C.Cir.2004).
Similarly without merit is Smith’s due process claim. Assuming he could show that he had a property interest in his engineer certificate, see Bd. of Regents v. Roth, 408 U.S. 564, 577, 92 S.Ct. 2701, 33 L.Ed.2d 548 (1972), the FRA afforded him ample process. See Boddie v. Connecticut, 401 U.S. 371, 378, 91 S.Ct. 780, 28 L.Ed.2d 113 (1971). Smith exercised his rights of appeal and had the opportunity to present his arguments in support of his petition upon complying with the FRA’s regulations and the Board’s reasonable requests for documentation. In any event, Smith presented no evidence to show the railroad was a state actor. See, e.g., Jackson v. Metropolitan Edison Co., 419 U.S. 345, 350, 95 S.Ct. 449, 42 L.Ed.2d 477 (1974).
. The FRA adopted a certification scheme for identifying individuals qualified to operate locomotives, 49 C.F.R. § 240.1, and prescribed minimum federal safety standards, id. § 240.1(b); see also id. § 240.117 & 240.307(b)(1). Each railroad, in turn, is required to develop and maintain a certification program, and may impose higher standards and deny certification based on those standards. 49 C.F.R. §§ 240.101, 240.1. Prior to or upon suspending an engineer’s certificate, the railroad must provide notice and an opportunity for a hearing. 49 C.F.R. § 240.307(b); however, the right to a hearing may be waived if done in writing, id. § 240.307(f). | 01-04-2023 | 11-05-2022 |
https://www.courtlistener.com/api/rest/v3/opinions/8481006/ | JUDGMENT
PER CURIAM.
Upon consideration of the record from the Securities and Exchange Commission, and the briefs and arguments of the parties, it is
*604ORDERED AND ADJUDGED that the judgment of the Securities and Exchange Commission be affirmed.
Substantial evidence supports the Commission’s finding that petitioner Rodney Schoemann made a purchase of 100,000 shares of Stinger Systems, Inc. from Douglas Murrell on September 23, 2004. On that date, Murrell was a control person of Stinger. Schoemann was therefore obligated under Section 5 of the Securities Act, 15 U.S.C. § 77e, to register the shares before selling them. His failure to do so constituted a violation of the Act, so the SEC’s remedial action was appropriate.
Pursuant to Rule 36 of this Court, this disposition will not be published. The Clerk is directed to withhold issuance of the mandate herein until seven days after the disposition of any timely petition for rehearing or petition for rehearing en bane. See Fed RApp. P. 41(b); D.C.Cir. R. 41. | 01-04-2023 | 11-05-2022 |
https://www.courtlistener.com/api/rest/v3/opinions/8481007/ | JUDGMENT
PER CURIAM.
This appeal was considered on the record from the United States District Court for the District of Columbia and on the brief filed by the appellant. See Fed. R.App. P. 34(a)(2); D.C.Cir. Rule 34(j). It is
ORDERED AND ADJUDGED that the district court’s order dismissing appellant’s complaint be affirmed. The district court correctly determined it lacked subject matter jurisdiction over that complaint. See 28 U.S.C. §§ 1331,1332.
Pursuant to D.C. Circuit Rule 36, this disposition will not be published. The Clerk is directed to withhold issuance of the mandate herein until seven days after resolution of any timely petition for rehearing or petition for rehearing en banc. See Fed. RApp. P. 41(b); D.C.Cir. Rule 41. | 01-04-2023 | 11-05-2022 |
https://www.courtlistener.com/api/rest/v3/opinions/8481008/ | JUDGMENT
PER CURIAM.
This appeal was considered on the record from the United States District Court for the District of Columbia and on the brief filed by the appellant. See Fed. R.App. P. 34(a)(2); D.C.Cir. Rule 34(j). It is
ORDERED AND ADJUDGED that the district court’s order dismissing appellant’s complaint without prejudice be affirmed. The district court correctly determined it lacked subject matter jurisdiction over that complaint. See 28 U.S.C. §§ 1331, 1332.
Pursuant to D.C. Circuit Rule 36, this disposition will not be published. The Clerk is directed to withhold issuance of the mandate herein until seven days after resolution of any timely petition for rehearing or petition for rehearing en banc. See Fed. R.App. P. 41(b); D.C.Cir. Rule 41. | 01-04-2023 | 11-05-2022 |
https://www.courtlistener.com/api/rest/v3/opinions/8481011/ | JUDGMENT
PER CURIAM.
This appeal was considered on the record from the United States District Court for the District of Columbia and on the brief and appendix filed by the appellant. See Fed. R.App. P. 34(a)(2); D.C.Cir. Rule 34(j). It is
ORDERED AND ADJUDGED that the district court’s order dismissing appellant’s complaint without prejudice be affirmed. The district court correctly determined the complaint failed to comply with Fed. R.Civ.P. 8(a) and provided no basis upon which the court could discern whether it had subject matter jurisdiction.
Pursuant to D.C. Circuit Rule 36, this disposition will not be published. The Clerk is directed to withhold issuance of the mandate herein until seven days after resolution of any timely petition for rehearing or petition for rehearing en banc. See Fed. R.App. P. 41(b); D.C.Cir. Rule 41. | 01-04-2023 | 11-05-2022 |
https://www.courtlistener.com/api/rest/v3/opinions/8481012/ | JUDGMENT
PER CURIAM.
This appeal was considered on the record from the United States District Court for the District of Columbia and on the briefs filed by the parties. See Fed. RApp. P. 34(a)(2); D.C.Cir. Rule 34(j). It is
ORDERED AND ADJUDGED that the district court’s order granting summary judgment in favor of Appellee and dismissing Appellant’s claims be affirmed. Appellant Melvin Gresham alleged that the District of Columbia violated his rights under the First Amendment and the D.C. Whis*608tleblower Protection Act, D.C.Code § 1-615.51 et seq., and committed intentional infliction of emotional distress. The district court granted summary judgment to the District on the First Amendment claim and, having dismissed the only Federal claim, declined to exercise supplemental jurisdiction over the two remaining claims. On appeal, Appellant failed to articulate any discernible theory of how the district court erred in granting summary judgment on the First Amendment claim. Having dismissed the First Amendment claim, the district court had discretion over whether to exercise supplemental jurisdiction over the two claims under District of Columbia law. Shelcoyan v. Sibley Int’l, 409 F.3d 414, 423 (D.C.Cir.2005). Declining to do so in this instance was not an abuse of discretion.
Pursuant to D.C. Circuit Rule 36, this disposition will not be published. The Clerk is directed to withhold issuance of the mandate herein until seven days after resolution of any timely petition for rehearing or rehearing en banc. See Fed. RApp. P. 41(b); D.C.Cir. Rule 41. | 01-04-2023 | 11-05-2022 |
https://www.courtlistener.com/api/rest/v3/opinions/8481014/ | JUDGMENT
PER CURIAM.
This petition for review was considered on the record from the National Transportation Safety Board (“NTSB”) and on the briefs filed by the parties. See Fed. R.App. P. 34(a)(2); D.C. CIR. R. 34®. It is
ORDERED and ADJUDGED that the petition be denied. Petitioner Howard Schwarzman operated his aircraft in an Air Defense Identification Zone (“ADIZ”) while squawking a transponder code in violation of Federal Aviation Administration (“FAA”) security requirements. The FAA suspended Petitioner’s commercial pilot certificate for 30 days, finding that he violated 14 C.F.R. § 91.13(a), prohibiting careless or reckless operation of an aircraft; § 91.139(c), requiring compliance with air traffic rules published in Notices to Airman; and § 99.7, mandating compliance with special security requirements in an ADIZ. The NTSB upheld the suspension. Petitioner argues that the FAA must provide a way for pilots to verify transponder emissions, that he is entitled to a waiver of sanction, and that the FAA violated various constitutional rights. The NTSB’s finding that Petitioner operated his aircraft in violation of FAA regulations and its finding that Petitioner was ineligible for a waiver were both supported by substantial evidence. Petitioner identifies no regulations or other authorities holding that the FAA must provide services to verify an aircraft’s transponder code emissions before take off, nor indeed shows why, given other available methods of verification, there might be any occasion for it to do so. Petitioner also failed to articulate any cognizable theory of how the FAA violated his rights under equal protection, due process, or the Ninth Amendment to the Constitution. The NTSB’s action was therefore not “arbitrary, capricious, an abuse of discretion, or otherwise not in accordance with law.” 5 U.S.C. § 706(2)(A).
The Court has accorded the issues full consideration and has determined that they occasion no need for a published opinion. See D.C. Cir. R. 36(b). The clerk is directed to withhold issuance of the mandate herein until seven days after resolution of any timely petition for rehearing or rehearing en banc. See Fed. R.App. P. 41(b); D.C. Cir. R. 41. | 01-04-2023 | 11-05-2022 |
https://www.courtlistener.com/api/rest/v3/opinions/8481015/ | JUDGMENT
PER CURIAM.
This appeal from a judgment of the United States District Court for the District of Columbia was presented to the court, and briefed and argued by counsel. The court has accorded the issues full consideration and has determined that they do not warrant a published opinion. See D.C.Cir. Rule 36(d). For the reasons presented in the accompanying memorandum, it is
ORDERED AND ADJUDGED that the grant of summary judgment by the district court be affirmed.
Pursuant to D.C. Circuit Rule 36, this disposition will not be published. The Clerk is directed to withhold issuance of the mandate herein until seven days after resolution of any timely petition for rehearing or rehearing en banc. See Fed. R.App. P. 41(b); D.C.Cir. Rule 41.
MEMORANDUM
The district court granted partial summary judgment to appellee, ruling that the Office of the Pardon Attorney (“OPA”) was required under the Freedom of Information Act (“FOIA”), 5 U.S.C. § 552, to release the list of the names prepared by the White House of persons whose pardon or commutation applications had been denied by the President. Lardner v. US. Dep’t of Justice, 638 F.Supp.2d 14 (D.D.G.2009)(“Lardner II”). It rejected appellee’s argument that collateral estoppel applied because it found that the current FOIA request differed materially from an earlier FOIA request in Lardner v. U.S. Dep’t of Justice, Civ. Act. No. 03-0180, 2005 WL 758267 (D.D.C. Mar.31, 2005)(“Lardner I”). It also rejected appellant’s reliance on FOIA Exemptions 6 and 7(C).
Appellant contends that the district court unwarrantedly discounted the privacy interests of unsuccessful clemency applicants, most of whom were not prosecuted in cases that engendered substantial public interest. Such “practical obscurity,” U.S. Dep’t of Justice v. Reporters’ Comm, for Freedom of the Press, 489 U.S. 749, 780, 109 S.Ct. 1468, 103 L.Ed.2d 774 (1989), it maintains, would be lost if their identities were disclosed, and disclosure would create a stigma that could undermine the public interest in their rehabilitation. Appellant further suggests that it is unlikely disclosure of the list of names would serve the public interest by shedding light on what the government is up to, doubting appellee’s assertion that such disclosure would help to elucidate the extent to which inappropriate ethnic considerations may infect the pardon process. Finally, appellant contends that the list of names is covered by Exemption 7(C) because “ ‘the determination whether to grant a pardon has clear law enforcement implications.’ ” Appellant’s Br. 18 (quoting Binion v. U.S. Dep’t of Justice, 695 F.2d 1189, 1194 (9th Cir.1983)).
Upon de novo review, we affirm for the reasons given in the district court’s opinion. The district court’s balancing of the interests under Exemption 6 and its reasons for rejecting appellant’s arguments in support of withholding disclosure of the list of names are persuasive. Appellant’s *611reliance on Judicial Watch, Inc. v. U.S. Dep’t of Justice, 365 F.3d 1108 (D.C.Cir. 2004), in support of its Exemption 6 claim, is misplaced; in that case the FOIA applicant requested individual pardon applications, “including non-public personal information about the applicants and their lives before and after their convictions,” id. at 1125. Appellee does not seek disclosure of the contents of the applications. Moreover, as the district court observed, hardener II, 638 F.Supp.2d at 25, appellant’s confidentiality and stigma concerns are undermined by OPA’s procedures whereby written advice to applicants states that OPA reserves the right to release information to neighbors and employers, among others, in the course of investigating an applicant’s suitability for a pardon or commutation of sentence, and by OPA’s regulations that advise applicants that certain information in their applications will be released when a third party inquires “concerning a specific, named person,” 67 Fed. Reg. 66,417, 66,418 (Oct. 31, 2002); see also 28 C.F.R. § 50.2 (2010). The incremental value of the withheld information, see Schrecker v. U.S. Dep’t of Justice, 349 F.3d 657, 661 (D.C.Cir.2003), is not speculative in view of the Inspector General’s Report on whether impermissible considerations played a role in pardon determinations.
The requested list of names is also not a law enforcement record under Exemption 7(C). There is a distinction between the list of the names of persons denied a pardon or commutation of sentence itself and the records compiled as part of OPA’s investigation. The requested list of names prepared by the White House is designed to inform OPA of the President’s determinations; it is not information compiled for law enforcement purposes coming from OPA’s investigative records. See FBI v. Abramson, 456 U.S. 615, 624, 102 S.Ct. 2054, 72 L.Ed.2d 376 (1982). Appellant conceded in the district court that the requested list of names exists independently of the investigative file on any applicant. See Lardner II, 638 F.Supp.2d at 32. Appellant’s reliance on Binion, 695 F.2d at 1194, is misplaced; that case addressed the release of confidential information compiled by the FBI in investigating pardon applications. The list of names prepared by the White House is unrelated to any law enforcement investigation that might be prejudiced by its release. See John Doe Agency v. John Doe Carp., 493 U.S. 146, 154, 110 S.Ct. 471, 107 L.Ed.2d 462 (1989); Pratt v. Webster, 673 F.2d 408 (D.C.Cir.1982). Finally, appellant makes no argument here that release of the list of names would implicate national security, see Mittleman v. OPM, 76 F.3d 1240, 1243 (D.C.Cir.1996), or that the information is protected under FOIA exemption 5 by the presidential communications privilege, see Loving v. DOD, 550 F.3d 32, 39-40 (D.C.Cir.2008). | 01-04-2023 | 11-05-2022 |
https://www.courtlistener.com/api/rest/v3/opinions/8481016/ | JUDGMENT
PER CURIAM.
This appeal from a judgment of the United States District Court for the District of Columbia was considered on the record and on the briefs of counsel. The court has accorded the issues full consideration and has determined that they do not warrant a published opinion. See D.C. CIR. R. 36(d). It is
ORDERED and ADJUDGED that the judgment of the district court be affirmed.
Following a jury trial, Appellant Frederick S. Hill was convicted on three counts of bank fraud and one count of conspiracy to commit bank fraud, in violation of 18 U.S.C. §§ 1344 & 1349. At sentencing, the District Court found that Appellant had served as an organizer, leader, manager, or supervisor in connection with the counterfeit check scheme in which he had participated with three other persons. The District Court Judge thus increased the base level of Appellant’s sentence by two points pursuant to Section 3Bl.l(c) of the United States Sentencing Guidelines (“Guidelines”). U.S.S.G. § 3Bl.l(c) (“If the defendant was an organizer, leader, manager, or supervisor in any criminal activity other than described in [U.S.S.G. § 3Bl.l](a) or (b), increase by 2 levels.”). The District Court Judge then sentenced Appellant to forty-six months on each count, to be served concurrently. On appeal, Appellant contests only the sentencing enhancement.
In determining whether to impose an aggravating role enhancement under § 3B1.1, the District Court considers a number of factors, including:
[T]he exercise of decision making authority, the nature of participation in the commission of the offense, the recruitment of accomplices, the claimed right to a larger share of the fruits of the crime, the degree of participation in planning or organizing the offense, the nature and scope of the illegal activity, and the degree of control and authority exercised over others.
U.S. Sentencing Guidelines Manual § 3B1.1 cmt. n.4 (2009). In this case, the District Court imposed a two-level enhancement, because Appellant had recruited a fellow co-conspirator into the check-cashing scheme, effectively supervised the actions of that co-conspirator, and executed decision-making authority in deciding how to split up the conspirators’ ill-gotten proceeds. The court thus concluded that Appellant had played a significant role in leading, organizing, and managing the criminal activity.
The clearly erroneous standard governs our review of the District Court’s findings of fact. United States v. Brockenborrugh, 575 F.3d 726, 738 (D.C.Cir.2009).
When applying the clear error standard of review, we are mindful that the trial judge has a unique opportunity “to evaluate the credibility of witnesses and to weigh the evidence.” Inwood Labs., Inc. v. Ives Labs., Inc., 456 U.S. 844, 855, 102 S.Ct. 2182, 72 L.Ed.2d 606 (1982); see also Harry T. Edwards & Linda A. Elliot, Federal Courts Stan*613dards of Review: Appellate Court Review of District Court Decisions And Agency Actions 21 (2007) (explaining clearly erroneous standard). Accordingly, we affirm unless we are “left with the definite and firm conviction that a mistake has been committed.” United States v. U.S. Gypsum Co., 833 U.S. 364, 395, 68 S.Ct. 525, 92 L.Ed. 746 (1948).
Id. at 737-38. Under this highly deferential standard, we cannot say that the District Court’s findings are clearly erroneous.
The Clerk is directed to withhold the issuance of the mandate herein until seven days after the disposition of any timely petition for rehearing. See Fed. R.App. P. 41(b); D.C. Cir. R. 41. | 01-04-2023 | 11-05-2022 |
https://www.courtlistener.com/api/rest/v3/opinions/8481202/ | 85436: Case View
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Case Information: 85436
Short Caption:IN RE: DISCIPLINE OF ANDREW WASIELEWSKICourt:Supreme Court
Lower Court Case(s):NONEClassification:Bar Matter - SCR 111 - Petition
Disqualifications:Case Status:Disposition Filed
Replacement:Panel Assigned:
Panel
To SP/Judge:SP Status:
Oral Argument:Oral Argument Location:
Submission Date:How Submitted:
+
Party Information
RoleParty NameRepresented By
PetitionerState Bar of NevadaDaniel Mink Hooge
(State Bar of Nevada/Las Vegas)
Phillip J. Pattee
(State Bar of Nevada/Las Vegas)
RespondentAndrew Wasielewski
In Proper Person
+
Due Items
Due DateStatusDue ItemDue From
11/28/2022OpenRemittitur
Docket Entries
DateTypeDescriptionPending?Document
09/30/2022Filing FeeAppeal Filing fee waived. Bar Matter/Bar Discipline. (SC).
09/30/2022Petition/BarFiled Petition/Discipline SCR 111(4). (SC).22-30839
10/31/2022Order/Dispositional BarFiled Order of Temporary Suspension and Referral to Southern Nevada Disciplinary Board. "We temporarily suspend Andrew Wasielewski from the practice of law in Nevada and refer this matter to the Southern Nevada Disciplinary Board for proceedings before a hearing panel in which the sole issue to be determined is the extent of the discipline to be imposed." SNP22 - JH/LS/DH. (SC)22-34127
Combined Case View | 01-04-2023 | 11-07-2022 |
https://www.courtlistener.com/api/rest/v3/opinions/8481019/ | SUMMARY ORDER
Plaintiff-Appellant Roland Johnson appeals from a Decision and Order granting summary judgment to defendants, denying Johnson’s motion for additional discovery pursuant to Federal Rule of Civil Procedure 56(f), and dismissing the complaint.
This is the second appeal arising from Johnson’s third suit against the Postmaster General under Title VII of the Civil Rights Acts of 1964 (“Title VII”), as amended, 42 U.S.C. § 2000e et seq. Johnson’s first suit alleging a denial of a promotion on the basis of his race was brought in 1990, but settled just two days into trial. Johnson filed his second suit on January 15, 2002 (“Johnson II”) alleging retaliation in the wake of his first suit. The district court granted summary judgment to the defendant and we affirmed by summary order on December 15, 2005. While Johnson II remained pending, Johnson filed his third suit against defendant alleging retaliation and constructive discharge. The district court again granted summary judgment to defendants and we affirmed by summary order on June 7, 2006. Johnson subsequently moved for rehearing en banc in light of an intervening Supreme Court decision, Burlington Northern & Santa Fe Railway Company v. White, 548 U.S. 53, 126 S.Ct. 2405, 165 L.Ed.2d 345 (2006). We denied the motion on November 29, 2006. Johnson then petitioned for and was granted certiorari by the Supreme Court. On June 25, 2007, the Supreme Court vacated the June 7, 2006 summary order and remanded the case “for further consideration in light of’ Burlington Northern. Accordingly, this Court vacated the district court’s judgment and remanded the case to the district court on August 10, 2007. Following supplemental briefing by the parties addressing the import of the Burlington Northern decision, the district court again granted summary judgment for defendants on June 21, 2009, partially on the basis of res judicata. This appeal followed. We assume the parties’ familiarity with the additional relevant facts and procedural history of the case.
On appeal, Johnson primarily argues that the district court erred in having insufficiently considered Johnson’s claims in light of Burlington Northern. We review de novo a district court’s grant of summary judgment. Mathirampuzha v. Potter, 548 F.3d 70, 74 (2d Cir.2008). Grant of summary judgment on the basis of res judicata is also reviewed de novo. Legnani v. Alitalia Linee Aeree Italiane, S.P.A., 400 F.3d 139, 141 (2d Cir.2005) (per curiam). We review a denial of a Rule 56(f) motion for abuse of discretion. Miller v. Wolpoff & Abramson, L.L.P., 321 F.3d 292, 300 (2d Cir.2003).
We note at the outset that the holdings in Burlington Northern do not affect the application of res judicata itself. Res judicata bars relitigation of issues that were previously litigated by the same parties or their privies to a final judgment in a *646court of competent jurisdiction. In re Teltronics Servs., Inc., 762 F.2d 185, 190 (2d Cir.1985). Those criteria are all met here. The application of res judicata is appropriate even when the prior “judgment may have been wrong or rested on a legal principle subsequently changed,” Federated Dep’t Stores v. Moitie, 452 U.S. 394, 398, 101 S.Ct. 2424, 69 L.Ed.2d 103 (1981). Therefore, we affirm the dismissal of all the claims previously adjudicated in Johnson II as barred by res judicata.
We have also examined Johnson’s two new allegations of retaliation, individually and in context. In this respect, context means in the light of how a reasonable person would understand the new events, given the defendant’s past actions, even though those prior actions are no longer actionable because of res judicata. See Jute v. Hamilton, 420 F.3d 166 (2d Cir. 2005) (holding the same with regard to the statute of limitations). We conclude that neither substantiates retaliation under Title VII. Specifically, the record reveals that there was no discriminatory animus motivating the request for allegedly “excessive documentation” with respect to Johnson’s claim under the Family Medical Leave Act (“FMLA”) because the FMLA Coordinator was unaware of Johnson’s discrimination complaints at the time of the document request. With respect to Laura Lewis’s allegedly threatening statements to Johnson, we are satisfied that those statements do not constitute material adverse action under Burlington Northern. See 548 U.S. at 68, 126 S.Ct. 2405; Hicks v. Baines, 593 F.3d 159, 165 (2d Cir.2010).
Finally, because Burlington Northern does not affect this Court’s previous decision to affirm the district court’s dismissal of Johnson’s constructive discharge claim and the denial of his Rule 56(f) motion, we decline to disturb those determinations. In any event, as to the Rule 56(f) motion, we find persuasive the district court’s reasoning with respect to the merits of the claim, and, finding no abuse of discretion in denying Johnson’s motion, also affirm on those grounds.
We have considered Johnson’s additional arguments on appeal and find them to be without merit. We conclude that the district court appropriately considered the plaintiffs various allegations in light of Burlington Northern, individually and taken together. The district court having thus adequately discharged our directive under the remand, we hereby AFFIRM the order of the district court. | 01-04-2023 | 11-05-2022 |
https://www.courtlistener.com/api/rest/v3/opinions/8481020/ | SUMMARY ORDER
Around October 2002, Petitioner-Appellant Michael Z. Matthew was retained by Respondent-Appellee Papua New Guinea (“PNG”) to function as PNG’s exclusive representative in attracting foreign investment into the country from North America. The contract between the parties broadly contemplated a commission for Matthew based on the value of the financial opportunity made available to PNG. In lieu of memorializing the exact terms of the commission in writing, however, Matthew relied exclusively on oral representations by PNG’s Prime Minister, Sir Michael T. Somare (“PM”). Subsequent to a failed investment endeavor, Matthew sought payment of his commission. With no payment forthcoming, the parties ultimately agreed to refer the matter to arbitration. After fully briefing the dispute, the Arbitrator issued an Interim Award on August 6, 2008 dismissing Matthew’s breach of contract claim as barred under the Statute of Frauds, leaving intact Matthew’s quantum meruit claim. After a further round of briefing, the Arbitrator issued a Final Award dismissing petitioner’s quantum meruit claim, finding that there was no basis to admit the PM’s oral representations about the terms of the commission. The Arbitrator reasoned that the claim must therefore be dismissed because “a record devoid of detail with respect to the services and reasonable value [of the services rendered] ordinarily requires dismissal of a quantum meruit claim.” J.A. 79. After the Arbitrator denied Matthew’s subsequent motion for reconsideration and leave to supplement the record, Matthew *648sought to vacate the Arbitrator’s award in federal district court. On December 9, 2009, the district court confirmed the Interim and Final Awards (Swain, J.). Petitioner now seeks to vacate the district court’s judgment confirming the awards for manifest disregard of the law. We assume the parties’ familiarity with the additional relevant facts and procedural history of the case.
We review a district court’s confirmation of an arbitration award de novo and any findings of fact for clear error. Duferco Int’l Steel Trading v. T. Klaveness Shipping A/S, 333 F.3d 383, 388 (2d Cir.2003). However, “[i]t is well established that courts must grant an arbitration panel’s decision great deference.” Id. A party seeking to vacate an arbitration award therefore bears a decidedly heavy burden. Indeed, a reviewing court may not vacate an award “merely because it is convinced that the arbitration panel made the wrong call on the law. On the contrary, the award should be enforced, despite a court’s disagreement with it on the merits, if there is a barely colorable justification for the outcome reached.” Stolt-Nielsen S.A. v. AnimalFeeds Int’l Corp., 548 F.3d 85, 92 (2d Cir.2008), rev’d on other grounds, — U.S. 2010, 130 S.Ct. 1758, 176 L.Ed.2d 605 (2010) (internal quotation marks and citations omitted). “In the context of contract interpretation, we are required to confirm arbitration awards despite ‘serious reservations about the soundness of the arbitrator’s reading of the contract.’ ” Id. (quoting Westerbeke Corp. v. Daihatsu Motor Co., Ltd., 304 F.3d 200, 216 n. 10 (2d Cir.2002)) (alteration omitted).
Moreover, a party seeking to vacate an arbitration award for manifest disregard of the law faces a high bar. Manifest disregard applies only in “those exceedingly rare instances where some egregious impropriety on the part of the arbitrators is apparent.” Id. at 91-92 (internal quotation marks omitted). Manifest disregard requires “more than error or misunderstanding with respect to the law” and does not provide a basis for vacatur merely because there exists “an arguable difference regarding the meaning or applicability of laws urged upon it.” Id. at 92 (alterations and internal quotation marks omitted). Ultimately, the doctrine is “a mechanism to enforce the parties’ agreements to arbitrate rather than as judicial review of the arbitrators’ decision.” Id. at 95.
In order to find manifest disregard of the law: (1) we first “consider whether the law that was allegedly ignored was clear, and in fact explicitly applicable to the matter before the arbitrators,” Duferco, 333 F.3d at 390; (2) we must then find that “the law was in fact improperly applied [by the Arbitrator], leading to an erroneous outcome,” id.; and finally (3) we determine whether “the arbitrator must have known of [the applicable law’s] existence, and its applicability to the problem before him,” id. With respect to the last element, “we impute only knowledge of governing law identified by the parties to the arbitration.” Id.; see also Stolh-Nielsen, 548 F.3d at 93 (quoting the Duferco three-part test in its entirety).
Petitioner here has failed to demonstrate that the Arbitrator manifestly disregarded the law. We have no basis to find reversible error with respect to the Arbitrator’s conclusion that the proffered evidence of the commission’s material terms — namely the PM’s oral representations — was “entitled to no weight.” J.A. 81. In light of that determination, the Arbitrator properly applied New York law *649to dismiss the petitioner’s quantum meruit claim in the absence of any other evidence of the value of Matthew’s services. See Zaitsev v. Salomon Bros., Inc., 60 F.3d 1001, 1004 (2d Cir.1995) (“Under New York law, a contract that is unenforceable under the Statute of Frauds is inadmissible as evidence of the reasonable value of services.”). Nor can we credit Matthew’s contention that the Arbitrator was obligated to apply New York law for “directed verdicts” by mere mention of it in an unelaborated context. Matthew failed, in any event, to raise this argument before the Arbitrator, and “we impute only knowledge of governing law identified by the parties to the arbitration.” Duferco, 333 F.3d at 390.
We have considered the petitioner’s remaining arguments and find them to be without merit. With substantially more than just a “barely colorable justification for the outcome reached,” Stolt-Nielsen S.A, 548 F.3d at 92, and no “egregious impropriety on the part of the arbitrator ],” id. at 91-92, we conclude that the Arbitrator did not manifestly disregard the law. We therefore AFFIRM the judgment of the district court denying Matthew’s motion to vacate the underlying arbitration awards. | 01-04-2023 | 11-05-2022 |
https://www.courtlistener.com/api/rest/v3/opinions/8481021/ | SUMMARY ORDER
Petitioner Zuo Gui Xu, a native and citizen of the People’s Republic of China, seeks review of a November 30, 2009, order of the BIA affirming the January 24, 2008, decision of Immigration Judge (“IJ”) Noel Brennan denying Xu’s application for asylum, withholding of removal, and relief under the Convention Against Torture (“CAT”). In re Zuo Gui Xu, No. A099 927 183 (B.I.A. Nov. 30, 2009), aff'g No. A099 927 183 (Immig. Ct. N.Y. City Jan. 24, 2008). We assume the parties’ familiarity with the underlying facts and procedural history in this case.
*656Under the circumstances of this case, we review the IJ’s decision as supplemented by the BIA. See Yan Chen v. Gonzales, 417 F.3d 268, 271 (2d Cir.2005). The applicable standards of review are well-established. See 8 U.S.C. § 1252(b)(4)(B); Jian Hui Shao v. Mukasey, 546 F.3d 138, 157-58 (2d Cir.2008); Salimatou Bah v. Mukasey, 529 F.3d 99, 110 (2d Cir.2008).
Asylum and Withholding of Removal
I. Past Persecution
Xu is not per se eligible for asylum based on his wife’s forced abortion. Shi Liang Lin v. U.S. Dep’t of Justice, 494 F.3d 296, 309-10 (2d Cir.2007). He may qualify for relief by demonstrating that he: (1) engaged in “resistance” to a coercive population control program; and (2) suffered past persecution or has a well-founded fear of future persecution on account of such resistance. See 8 U.S.C. § 1101(a)(42). Here, the agency assumed that Xu had engaged in “other resistance” to the family planning policy but found that the unfulfilled threats of sterilization and fines that Xu received, considered in conjunction with the emotional pain he suffered as a result of his wife’s abortion, did not rise to the level of persecution. See Shi Liang Lin, 494 F.3d at 309; Gui Ci Pan v. U.S. Att’y Gen., 449 F.3d 408, 412 (2d Cir.2006).
Although Xu argues that this harm constitutes persecution in the aggregate, there is no indication that the agency failed to consider the cumulative effect of this harm. Cf. Manzur v. U.S. Dep’t of Homeland Sec., 494 F.3d 281, 290 (2d Cir. 2007); Poradisova v. Gonzales, 420 F.3d 70, 79-80 (2d Cir.2005). To the contrary, the agency considered this harm and found that because Xu did not indicate that he endured any physical harm or any emotional harm aside from that which he suffered as a result of his wife’s abortion, he failed to establish persecution based on his resistance to the family planning policy. See Shi Liang Lin, 494 F.3d at 309 (noting that the profound emotional loss an individual may suffer following a spouse’s forced abortion does not constitute persecution under the INA); Gui Ci Pan, 449 F.3d at 412 (claims based on unfulfilled threats do not establish persecution).
II. Well-Founded Fear of Sterilization
Contrary to Xu’s argument, because the agency determined that Xu did not suffer past persecution, he was not entitled to a presumption that his life or freedom would be threatened in the future if removed to China. See 8 C.F.R. § 1208.16(b)(1). Moreover, as the agency found that Xu submitted no evidence indicating that “Chinese authorities sought to arrest, detain, or otherwise punish him in connection with his wife’s unauthorized pregnancy,” and as he points this Court to no evidence contradicting that finding, substantial evidence supports the agency’s finding that he failed to establish a well-founded fear of sterilization based on his “other resistance” to the family planning policy. See Jian Xing Huang v. INS, 421 F.3d 125, 129 (2d Cir.2005) (per curiam); Jian Hui Shao, 546 F.3d at 172. Finally, to the extent Xu argues he established a well-founded fear based on the threats of a fine, he provided no evidence of his income in China, his net worth, or any other facts that would make it possible to evaluate his personal financial circumstances in relation to the fines it was alleged the government would impose. See Guan Shan Liao v. U.S. Dep’t of Justice, 293 F.3d 61, 70 (2d Cir.2002).
Because Xu was unable to meet his burden to prove eligibility for asylum, he necessarily failed to meet the higher burden required for withholding of removal. See Paul v. Gonzales, 444 F.3d 148, 156 (2d Cir.2006).
*657For 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 34.1(b). | 01-04-2023 | 11-05-2022 |
https://www.courtlistener.com/api/rest/v3/opinions/8481022/ | *720ORDER AMENDING OPINION AND JUDGMENT
IT IS HEREBY ORDERED that the Opinion and Judgment filed in this case on September 9, 2010, be amended to correct the name of the district court judge from Honorable Joel A. Pisano to Honorable Christopher C. Connor. | 01-04-2023 | 11-05-2022 |
https://www.courtlistener.com/api/rest/v3/opinions/8481023/ | *750OPINION
SLOVITER, Circuit Judge.
Appellant Mauricio Betancourt appeals his conviction and sentence for one count of conspiracy to distribute heroin in violation of 21 U.S.C. § 846. Counsel for Betancourt has moved to withdraw and filed an Anders brief, asserting that there are no non-frivolous issues for appeal. See Anders v. California, 386 U.S. 738, 744, 87 S.Ct. 1396, 18 L.Ed.2d 493 (1967). As authorized in Anders, appellant has filed a pro se brief.1 We will affirm and grant counsel’s motion to withdraw.
I.
On June 18, 2008, Betancourt met with and arranged to sell 300 grams of heroin to a confidential Government informant. Betancourt was then arrested by law enforcement officers who seized the heroin from his truck. Subsequently, other drug paraphernalia and a handgun were seized from Betancourt’s residence pursuant to a search warrant.
Betancourt entered into a plea agreement by which he pled guilty to one count of conspiracy to distribute 100 grams or more of heroin, which carried a mandatory five-year sentence, and stipulated to a two-level sentencing enhancement pursuant to U.S.S.G. § 2D1.1(b)(1) (providing a two-level enhancement for possessing a firearm in connection with a drug trafficking offense). In exchange, the Government agreed not to indict Betancourt under 18 U.S.C. § 924(c) for possessing a firearm in relation to a drug trafficking crime, which would have carried a mandatory five-year consecutive sentence. Because of the firearm stipulation, the District Court found that Betancourt was ineligible for the “safety valve” provided by 18 U.S.C. § 3553(f) and U.S.S.G. § 5C1.2, which would have permitted a sentence below the five-year mandatory minimum. Accordingly, based on a guideline range of fifty-seven to seventy-one months, the District Court sentenced Betancourt to sixty-five months imprisonment. Betancourt timely appealed.
II.
Under Anders, appellant’s counsel must thoroughly review the record in search of appealable issues and explain why the issues are frivolous. United States v. Marvin, 211 F.3d 778, 780 (3d Cir.2000). If a reviewing court finds that counsel’s Anders brief is deficient, it may still grant the motion to withdraw and affirm if the appeal is “patently frivolous.” United States v. Coleman, 575 F.3d 316, 321 (3d Cir.2009). Here, as the Government points out, the record reveals that defense counsel did not order a transcript of the plea or sentencing proceeding and therefore he did not adequately review the District Court record as required by L.A.R. 109.2(a)(2008). However, because the issues raised in defense counsel’s Anders brief and defendant’s pro se brief are all patently frivolous, we will nevertheless affirm.
Betancourt claims that the firearm stipulation and plea agreement were not properly entered into because of defense counsel’s failure to advise him of the consequences of the stipulation and failure to move to suppress the weapon. We do not reach this issue because “[i]t has long been the practice of this court to defer the issue of ineffectiveness of trial counsel to a collateral attack.” United States v. Thorn*751ton, 327 F.3d 268, 271 (3d Cir.2003) (citation omitted).
Betancourt appears to argue that his plea was not knowing or voluntary because of his alleged failure to appreciate the consequences of the firearm stipulation. We review that claim for plain error. United States v. Vonn, 535 U.S. 55, 63-64, 122 S.Ct. 1043, 152 L.Ed.2d 90 (2002) (where defendant fails to withdraw his plea or raise a Rule 11 objection in the District Court, the plea is renewable only for plain error). The plea colloquy demonstrates that Betancourt understood that the plea agreement did not entitle him to relief under § 3553(f) and that any such relief would be determined by the District Court at sentencing. Accordingly, there was no plain error.
Notwithstanding the stipulation contained in his plea agreement, Betancourt claims that the District Court erred in denying him “safety valve” relief under § 3553(f). We review the District Court’s factual determinations as to “safety valve” eligibility for clear error, and apply plenary review to its legal determinations. United States v. Wilson, 106 F.3d 1140, 1142-43 (3d Cir.1997). Based on Betancourt’s plea stipulation and other undisputed facts, the District Court properly concluded that Betancourt had not met his burden of demonstrating that the firearm was not possessed in connection with the drug offense. Accordingly, there was no error.
Finally, Betancourt contends that the sentence was unreasonable in light of his cooperation with the Government. The District Court imposed a sentence of sixty-five months, within the guideline range of fifty-seven to seventy-one months. Insofar as district courts are afforded broad discretion in fashioning sentences, the sentence is reasonable and there is no reason to disturb it.
Accordingly, there is no non-frivolous issue for appeal in this case.
III.
For the above-stated reasons, we will affirm the judgment of sentence and grant counsel’s motion to withdraw.
. The District Court had jurisdiction under 18 U.S.C. § 3231. We have jurisdiction under 18 U.S.C. § 3742(a) and 28 U.S.C. § 1291. | 01-04-2023 | 11-05-2022 |
https://www.courtlistener.com/api/rest/v3/opinions/8481024/ | OPINION
PER CURIAM.
Petitioner Fayan Lin, a native and citizen of China, arrived at Chicago O’Hare International Airport on July 7, 2005. He provided a sworn statement to an immigration officer at the airport, claiming that he had come to the United States to work and make money, and that the Chinese authorities were looking for him and his parents because his parents practiced Falun Gong. App. 288-87. At the airport, Lin gave his address as 121 Haotong Village, 1012 Tamtao Town, Fujian, China. App. 284. He stated that, after leaving China, he went to Taiwan, and then to Seoul, South Korea, before arriving in Chicago. See id. A written report of the interview was prepared, which Lin reviewed and signed, indicating that his answers were true and correct. App. 287.
On July 14, 2005, an asylum officer conducted a “credible fear interview,” during which Lin again alleged that he feared harm in China because of his affiliation with Falun Gong. App. 245-254. He told the asylum officer that he had been arrested on June 9, 2005, beaten, and detained overnight after the Chinese authorities observed him distributing Falun Gong fliers. App. 251-52. Lin said his older sister, who lives legally in the United States, contacted his uncle in Taiwan to make travel arrangements for him to leave China, and he traveled to Taiwan and South Korea before arriving in the United States about one month later. App. 252-53. Lin gave his address before leaving China as 121 Houdong Village, Tantou Town, Changle City, Fujian Province. App. 246.1
On July 15, 2005, removal proceedings were initiated against Lin when the former Immigration & Naturalization Service filed a Notice to Appear with the Immigration Court, charging that he was subject to removal pursuant to Immigration & Nationality Act (“INA”) § 212(a)(7)(A)®, 8 U.S.C. § 1182(a)(7)(A)®, as an alien not in possession of a valid entry document. A.R. 376-77. On or about December 20, 2005, and after a change of venue to Newark, New Jersey, Lin filed an application for asylum under INA § 208(a), 8 U.S.C. § 1158(a), withholding of removal under INA § 241(b)(3), 8 U.S.C. § 1231(b)(3), and for protection under the Convention Against Torture, 8 C.F.R. §§ 1208.16(c), 1208.18, claiming that he had been persecuted by the Chinese government on account of his practice of the outlawed Falun Gong religion or spiritual movement.2
In a statement accompanying his asylum application, Lin stated that he obtained some Falun Gong materials from the internet, which his parents requested he make *759into pamphlets to distribute to others. App. 298. On June 9, 2004, he went to Wuyi Public Square to distribute Falun Gong pamphlets and he was arrested. See id He was detained at the local police station, interrogated, beaten, and the authorities refused to give him food. See id He was released on bond the same evening. See id On June 12, 2004, three days after his arrest, he went back to the public square to deliver pamphlets to a male friend of his parents but a member of the police seized the pamphlets. See id He became scared and hid in a small lane, and, after awhile, he telephoned his parents who told him to hide at a relative’s home. See id His parents later contacted him and asked a relative to help him leave China. App. 299. With the help of a smuggler, Lin left China on July 5, 2005. See id On this asylum application, Lin again gave his address as 121 Sihou, Houdong Village, Tantou Town, Changle City, Fujian Province, and he stated that he had lived at this address from March of 1981 to June 7, 2005. App. 292.
In further support of his asylum application, Lin submitted a copy of an arrest warrant issued for his arrest by the Public Security Bureau of Fuzhou City on June 14, 2004. The warrant listed Lin’s address as No. 203 Maiding, Baoshan District, Fuzhou City. App. 280. Lin also submitted his Household Registry, App. 323-329, and he submitted statements from his father and a relative, App. 257-72. He also supplemented the record with a 2006 Congressional Research Service Report to Congress, entitled “China and Falun Gong,” which discusses the Chinese government’s 1999 crackdown on Falun Gong practitioners and allegations of continued government persecution of some Falun Gong adherents. App. 161-73.
Lin conceded removability as charged, and a hearing on the merits of his asylum application was held on February 6, 2007. At the hearing, Lin testified that from 2000 until 2003 he lived with his parents at the 121 Houdong Village, Tantou Town, Changle City address. App. 109-10.3 From 2003 until some time in 2004, he rented a place at 128 Mei Ding village in the Chunshan District of Fuzhou City, where he was employed. See id at 108. He returned to his parents’ home at 121 Houdong Village in Changle City in 2004, which is where he lived until he left for the United States. See id. at 110.
Lin further testified that he was arrested once on June 9, 2004 by Chinese authorities for helping his parents distribute Falun Gong pamphlets to co-workers. See id at 114, 122. He got the Falun Gong materials through his friend, Lin Qiu, who obtained the information from the internet. See id. at 118-20. After he was arrested, he was taken to the police station, where he was detained until he was released that night. See id. at 124-25. While detained, he was threatened with further detention by the authorities and not allowed to eat. See id. at 126. After being released from detention, Lin stayed at home until June 12, 2004, when he again went to the public square to deliver pamphlets to his aunt. See id. at 129-30. The police appeared and arrested his aunt and he ran away and hid until it became dark. See id. at 130. Then he telephoned his parents, who told him to stay with a friend instead of returning home. See id. After asking his parents to help him leave the country, he left China on June 17, 2004, lived in Taiwan for a year, and arrived in the United States on July 7, 2005. See id. at 130-31. Lin testified that the authorities in China issued an arrest warrant for him on June *76014, 2004, because they had evidence indicating he was a Falun Gong practitioner. See id. at 131-32.
On cross-examination, Lin testified that he only stayed in Taiwan for several days rather than a year, and he arrived in the United States on July 7, 2004. See id. at 133. When asked to explain his earlier testimony that he lived in Taiwan for a year after his arrest, Lin stated that he was nervous and his mind had gone “blank.” See id. at 134. Counsel for the government pointed out Lin’s testimony that he left China on June 17, 2004, which contradicted his asylum application, wherein he stated that he left China on July 5, 2005. When asked to explain, Lin again stated that his mind had gone “blank.” See id. at 134-35.
Counsel for the government also asked Lin if he had ever lived at 203 Mei Ding, Chun Shan District, in Fu Zhou City, the address listed on the arrest warrant. See id. at 139.4 Lin answered that he lived at this address approximately ten years ago, and his Household Registry and identification card did not reflect that because it was his relative’s address. See id. at 139-40. When asked to explain why he failed to mention in his asylum application that he had lived at this address, Lin responded that he did not include the information because he did not think it was important. See id. at 141-42. Counsel for the government continued his cross-examination of Lin as follows:
Q. Well, sir, it’s very important because the arrest warrant that you submitted indicates that you lived at the 203 Mei Ding address. But none of the documents you submitted nor the letters you submitted from your relatives or your father, nor your own asylum application or statement indicate the 203 Mei Ding address whatsoever. So, do you know why that is?
Lin: I do not know.
See id. at 142.
During questioning by the IJ, Lin could not explain why his asylum application and his father’s statement indicated that he had obtained the Falun Gong materials he eventually distributed from the internet rather than from his friend, Qiu, as he had testified, see id. at 148, or why his asylum application indicated that he handed a pamphlet to a friend of his parents who was male, given that he testified that the person he handed the materials to was his aunt, see id. at 150-51. With respect to his asylum application statement that he had been beaten while detained by the police, and his omission from his testimony of having been beaten while he was detained, Lin answered that he omitted any reference in his testimony to the beating because the beating left no injuries and thus no one would have believed him. See id. at 149-50.
The IJ issued a decision at the end of the merits hearing, concluding that Lin did not testify credibly, and, therefore, he did not meet his burden to show past persecution or a well-founded fear of future persecution. Accordingly, Lin did not qualify for asylum or withholding of removal. The IJ found Lin incredible for several reasons. First, and importantly, Lin failed to account for the inconsistency between his testimony, asylum application, and Household Registry on the one hand, and the arrest warrant on the other, with respect to his address at the time Chinese authorities allegedly were looking for him. He *761gave prior addresses of 121 Houdong Village in Changle City, his parents’ home, and 128 Mei Ding5 village in the Chunshan District of Fuzhou City, but he never once mentioned living at the 203 Maiding address. And yet, the IJ noted, the arrest warrant was offered specifically to corroborate his claim of persecution. The IJ credited government counsel’s thorough cross-examination for exposing this “glaring problem.” App. 35.
Second, and also importantly, the IJ concluded that Lin failed to provide a reasonable explanation for his inconsistent testimony with respect to whether he left China several days, or more than a year, after his alleged trouble with the authorities in June of 2004. App. 37. His relative’s affidavit indicated that the arrest warrant was served on June 15, 2004, but Lin’s father did not ask for a fake passport until July 2, 2005. See id. In his asylum application, Lin stated that he left China in July of 2005, but on cross-examination by the government he was confused about when he left China. See id. at 37-38. Ultimately, Lin did not properly account for the time between June of 2004 and July of 2005.
The IJ found other inconsistencies of lesser importance as follows. Lin gave inconsistent statements about whether he had obtained his Falun Gong materials from the internet by himself or from his friend, Qui; his father’s statement did not mention that Lin had been beaten during his detention nor did Lin mention it in his testimony; and he gave in his asylum application the gender of the person pursued by the police on June 12, 2004 as male, but in his testimony he stated that the person he met on the public square was his aunt. Last, the IJ denied the CAT claim, finding that Lin’s claims of past and possible future harm lacked credibility, and he failed to provide any additional evidence showing that it was more likely than not that he would be tortured in China. Lin’s removal to China was ordered.
Lin appealed to the Board of Immigration Appeals, contesting the IJ’s adverse credibility determination. On November 21, 2008, the Board dismissed the appeal, concluding that Lin failed to establish eligibility for asylum or withholding of removal. Applying a clearly erroneous standard to the IJ’s credibility determination, see 8 C.F.R. § 1003.1(d)(3)(i) (“Facts determined by the immigration judge, including findings as to the credibility of testimony, shall be reviewed only to determine whether the findings of the immigration judge are elearly erroneous”), the Board concluded that the two primary inconsistencies cited by the IJ concerning Lin’s address in China when he allegedly was being sought by the authorities, and the inconsistent dates he provided with respect to when he left China for the United States, constituted significant evidence of a lack of credibility. The Board further agreed that Lin’s explanation for the home address inconsistency — that the address on the arrest warrant was ten years old— was not reasonable, especially because it conflicted with his Household Registry and his asylum application, which affirmatively listed the 121 Houdong Village address for all periods from 1981 to 2005. Lin’s explanation for the inconsistent dates provided with respect to when he left China was muddled and inadequate. Having found that these two inconsistencies were sufficient to support the IJ’s adverse credibility determination, the Board did not address the other inconsistencies cited by the IJ. *762The Board also affirmed the IJ’s rejection of Lin’s CAT claim. Lin has timely petitioned for review of the Board’s decision.
We will deny the petition for review. We have jurisdiction under 8 U.S.C. § 1252(a)(1), (b)(1). Where, as here, the Board adopts specific aspects of the IJ’s analysis and factfinding in support of its conclusion, we review the decisions of both the Board and the IJ. Xie v. Ashcroft, 359 F.3d 239, 242 (3d Cir.2004). The agency’s “findings of fact are conclusive unless any reasonable adjudicator would be compelled to conclude to the contrary.” 8 U.S.C. § 1252(b)(4)(B). See also Immigration & Naturalization Serv. v. Elias-Zacarias, 502 U.S. 478, 481, 112 S.Ct. 812, 117 L.Ed.2d 38 (1992). Under this deferential standard, the petitioner must establish that the evidence does not just support a contrary conclusion but compels it. See Abdille v. Ashcroft, 242 F.3d 477, 483-84 (3d Cir.2001). Adverse credibility determinations are reviewed under the same standard, and are afforded substantial deference where they are grounded on evidence in the record and where the agency provides specific, cogent reasons for its determination. Abdulrahman v. Ashcroft, 330 F.3d 587, 597 (3d Cir.2003).
Before the enactment of the REAL ID Act of 2005, an adverse credibility determination could be based on inconsistencies only if the inconsistencies went to the heart of the claim. See Chukwu v. Att’y Gen. of U.S., 484 F.3d 185, 189 (3d Cir. 2007). Inconsistent statements and contradictory evidence constituted cogent reasons that could support an adverse credibility finding, see Dia v. Ashcroft, 353 F.3d 228, 249-50 (3d Cir.2003) (en banc), but minor inconsistencies and minor admissions that revealed nothing about an asylum applicant’s fear for his safety were not an adequate basis for an adverse credibility determination, see Gabuniya v. Att’y Gen. of U.S., 463 F.3d 316, 322 (3d Cir. 2006).
As the agency noted here, a new REAL ID Act standard applies to Lin’s claim, because he filed his asylum application after May 11, 2005. The asylum statute now provides that “credibility determinations may be made ‘without regard to whether an inconsistency, inaccuracy, or falsehood goes to the heart of the applicant’s claim.’ ” Chukwu, 484 F.3d at 189 (quoting INA § 208(b)(1)(B)(iii), 8 U.S.C. § 1158 (b) (1) (B) (iii)). We have not yet had occasion to apply the new standard and we need not do so here, because the agency’s adverse credibility determination in Lin’s case is supported by substantial evidence even under the pre-REAL ID Act standard that prohibits basing one on minor inconsistencies, see Gabuniya, 463 F.3d at 322. Substantial evidence supports the IJ’s and Board’s conclusions that Lin’s claim lacked credibility because of two significant, non-minor inconsistencies between his testimony and documentary evidence with respect to his address in China when the authorities were allegedly pursuing him, and his contradictory accounts of when he fled China. Lin has failed to demonstrate that the record evidence compels reversal of the agency’s conclusion. 8 U.S.C. § 1252(b)(4)(B).
Under INA § 208(b), the Attorney General has the discretion to grant asylum to “refugees.” 8 U.S.C. § 1158(b); see also Immigration & Naturalization Serv. v. Cardoza-Fonseca, 480 U.S. 421, 428 n. 5, 107 S.Ct. 1207, 94 L.Ed.2d 434 (1987). Section 101(a)(42)(A) of the INA defines a “refugee” as a person unable to return to his country of “nationality ... because of persecution or a well-founded fear of persecution on account of race, religion, nationality, membership in a particular social group, or political opinion....’’ 8 U.S.C. § 1101(a)(42)(A). The alien bears the bur*763den of proof of establishing that he is a refugee and that he has suffered past persecution or has a well-founded fear of persecution. See 8 C.F.R. § 1208.13(a); Gao v. Ashcroft, 299 F.3d 266, 272 (3d Cir. 2002). If past persecution is established, then the alien is presumed to have a well-founded fear of persecution. See 8 C.F.R. § 1208.13(b)(1); Shardar v. Att’y Gen. of U.S., 503 F.3d 308, 312 (3d Cir.2007). In the absence of evidence of past persecution, the alien must demonstrate a subjective fear of persecution through credible testimony that his fear is genuine, Zubeda v. Ashcroft, 333 F.3d 463, 469 (3d Cir. 2003), and he must show that a reasonable person in his circumstances would fear persecution if returned to the country in question, see id.
The more exacting withholding of removal standard requires an alien to show by a “clear probability” that his life or freedom would be threatened on account of a protected ground in the proposed country of removal. Immigration & Naturalization Serv. v. Stevie, 467 U.S. 407, 104 S.Ct. 2489, 81 L.Ed.2d 321 (1984). See also Cardoza-Fonseca, 480 U.S. at 430, 107 S.Ct. 1207 (“would be threatened” standard has no subjective component). In making out a CAT claim, the burden of proof is on the alien to establish that it is more likely than not that he would be tortured in his native country. 8 C.F.R. § 1208.16(c)(2).
Lin claimed persecution on account of imputed political opinion, but he failed to establish through “specific facts and credible testimony,” see Abdille, 242 F.3d at 482, that he was eligible for asylum as a refugee on this basis. The purported warrant for his arrest, because it is dated June 14, 2004, was potentially persuasive evidence corroborating his testimony that he was arrested on June 9, 2004 and released the same day, and that he again returned to the public square to distribute Falun Gong literature on June 12, 2004. The arrest warrant certainly was intended by Lin to provide critical evidence of his case of persecution. But it indicates his address at the time the Chinese authorities were looking for him as 203 Maiding in Fuzhou City, and yet, in his testimony, asylum application, and Household Registry, Lin gave prior addresses of 121 Houdong Village in Changle City (his parents’ home), and 128 Mei Ding village in Fuzhou City (where he was renting at a time when he was employed), and never once mentioned living at the 203 Maiding address. His explanation that he lived at the address ten years ago is insufficient. The explanation is flatly contradicted by his asylum application and Household Registry, just as the Board and the IJ noted, and the explanation does not make sense of the fact that he allegedly gave Chinese authorities, at the time he was detained, an address that was ten years out of date. It also makes no sense that the authorities had this address as his address in their official records.
Lin also gave conflicting dates about when he fled China. Although he stated in his asylum application that he left China on July 5, 2005, and the letter from his relative indicated that he requested a fake passport on July 2, 2005, App. 260, Lin testified during direct examination that, after his second encounter with the police on June 12, 2004, he left China on June 17, 2004. He then resided in Taiwan for approximately one year before arriving in the United States in July of 2005. When confronted with the inconsistency during cross-examination, Lin contradicted his earlier testimony by stating that he only stayed in Taiwan for several days. His explanation for this significant discrepancy concerning his whereabouts from mid-June of 2004 through early July of 2005 — that his mind went blank — is inadequate.
*764Lin has argued on appeal that the agency’s adverse credibility determination was defective because the two inconsistencies cited by the Board “were not directly linked to the heart of the claim.” See Petitioner’s Brief, at 15. We are not persuaded by this argument. The inconsistency noted by the IJ and the Board concerning where Lin was living when the Chinese authorities allegedly were looking for him, is, under the circumstances of his having submitted the arrest warrant as corroborative evidence of his claim of persecution, not minor. The inconsistency noted by the IJ and the Board concerning how long Lin remained in China following his arrest and the issuance of the arrest warrant has an even closer connection to his claim, because the length of time he remained in China after he allegedly was persecuted indicates his level of concern about his circumstances. Inconsistencies that reveal something about an asylum applicants fear for his safety are, under the pre-REAL ID Act standard, an adequate basis for an adverse credibility finding. See Gabuniya, 463 F.3d at 322.
We do not read the Board’s or IJ’s decisions to hold that the two inconsistencies noted were minor and did not go to the heart of Lin’s claim of persecution, notwithstanding that both the Board and the IJ purported to apply the REAL ID Act standard for judging an alien’s credibility. The Board stated without discussion that “some of these inconsistencies may not relate to the heart of the claim,” which is hardly conclusive of the question. The IJ similarly did not specifically address the question of whether the two inconsistencies went to the heart of Lin’s claim. However, the IJ tellingly concluded that Lin’s inconsistency regarding where he was for one year after the warrant was issued for his arrest was “critical,” noting that his failure to offer a reasonable explanation for what occurred during the year when he supposedly was avoiding arrest was “extremely troublesome.” App. 38. The Board agreed with the IJ that Lin’s “muddled explanation [was] insufficient to explain this significant inconsistency.” App. 4.
Because Lin was found incredible, he could not demonstrate past persecution or a well-founded fear of persecution in China on account of a protected ground. See 8 U.S.C. § 1101(a)(42); Zubeda, 333 F.3d at 469. Because he failed to show past persecution or a reasonable fear of future persecution under the lower burden of proof required for asylum, he is necessarily ineligible for withholding of removal. Cardoza-Fonseca, 480 U.S. at 430-32, 107 S.Ct. 1207. In addition, the record does not compel a conclusion that Lin met his burden of establishing that it is more likely than not that he will be tortured upon his return to China, 8 C.F.R. § 1208.16(c)(2).
For the foregoing reasons, we will deny the petition for review.
. We will rely on this spelling of "Houdong” Village and "Tantou” Town throughout this opinion, as it most frequently appears in the documentary evidence.
. Falun Gong is a spiritual movement that blends aspects of Taoism, Buddhism, and the meditative techniques and physical exercises of qigong — a traditional Chinese exercise discipline — with the teachings of its founder. See generally Lin v. Att’y Gen. of U.S., 543 F.3d 114, 117 n. 3 (3d Cir.2008).
. In the hearing transcript, Lin’s home address appears as "121 Xo Dong village, Tang Tou town,” App. 110. This appears to be a phonetic spelling.
. “Mei Ding” is the spelling that appears in the hearing transcript, and is the spelling used by the IJ in his oral decision. We note that the spelling of this address in the actual arrest warrant is “203 Maiding.” A.R. 280. Insofar as the Board of Immigration Appeals used the “Maiding” spelling, so shall we throughout this opinion.
. This too appears to be a phonetic spelling. Because the "128” address was only mentioned during Lin's testimony, the phonetic spelling is all that appears in the Administrative Record. | 01-04-2023 | 11-05-2022 |
https://www.courtlistener.com/api/rest/v3/opinions/8481026/ | OPINION OF THE COURT
HARDIMAN, Circuit Judge.
In these consolidated appeals, Andreas Suryanto petitions for review of two orders of the Board of Immigration Appeals (BIA). We will deny both petitions.
I.
Because we write for the parties, we state only the facts and procedural history necessary to our decision. Suryanto is an Indonesian Chinese Christian who was placed in removal proceedings after overstaying his visa. He conceded removability, but applied for asylum, withholding of removal, and protection under the Convention Against Torture (CAT), arguing that he faced religious and ethnic persecution in Indonesia. After a hearing on the merits, the Immigration Judge (IJ) issued an oral decision denying Suryanto relief and granting his request for voluntary departure. The Board of Immigration Appeals (BIA) summarily affirmed the IJ’s order. Following the BIA’s decision, Suryanto incorrectly filed a petition for review in the Ninth Circuit, which transferred the case here. After his case was transferred, Suryanto married a United States citizen, and we held his appeal in abeyance pending adjudication of his 1-180 application. Following approval of his 1-130 application, Suryanto filed a motion with the BIA to reopen and remand his case. The BIA denied this petition, and Suryanto filed a second petition for review.
A.
Suryanto argues that he is entitled to relief because he has suffered persecution in Indonesia as a result of his Chinese ethnicity and Christian faith, and because he fears future persecution if he is forced to return. At his removal hearing, Suryanto recounted incidents of harassment and violence to support his claim. While a student in primary school, children frequently demanded money from Suryanto, and on ten or more occasions he was physically assaulted, although sometimes the attack was limited to a slap or a push. Suryanto testified that he was targeted for these attacks because “they assume that every Chinese has money.” Tr. 25.
Suryanto described two specific incidents of violence in greater detail. First, in 1990 he and a friend were beaten by seven or eight peers after rebuffing their demand for money. Second, about a year later, two older teenage boys accosted Suryanto and choked him until he “couldn’t breathe.” Id. at 30. Suryanto believed he was targeted both times because of his Chinese ethnicity.
Suryanto also related instances of violence and harassment directed toward his family. For example, Suryanto’s father opened an electronics store in the late 1980s and gang members demanded protection money from him. Suryanto’s father initially refused to pay, and the gang members beat him and his employees. Suryanto claimed that these incidents “only happen[ed] in the Chinese [stores],” and were thus likely motivated by ethnic animus. Id. at 41. In May 1998, during the widespread anti-government riots in *832Indonesia, Suryanto’s father’s electronics store was burned down and his family was forced to hide in their home for a period of three days.
In addition to this ethnically-motivated harassment, Suryanto described two religiously-motivated attacks that he experienced. On December 24, 2000, during a Christmas service at Suryanto’s church in Jakarta, a bomb exploded in the parking lot. A few minutes later, after he had gone out to see what had happened, a second bomb exploded inside the church, causing several injuries, some of them serious. In January 2001, as Suryanto and other young members of the congregation were returning home from cleaning the church, they were again accosted. When Suryanto refused to turn over his money, he was beaten and warned: “don’t even try to repair or rebuild that church.” Id. at 53.
Soon after this incident, Suryanto left for Singapore at his mother’s behest. After two months, however, he returned to Indonesia because Singapore was too “busy” and because it was “very difficult to find a job.” Id. at 22. Five months later, in September 2001, Suryanto came to the United States.
In addition to his claims of past persecution, Suryanto testified that he fears future persecution because of ongoing hostility toward ethnic Chinese Christians in Indonesia.
B.
Although Suryanto had “basically been a credible witness,” the IJ found that Suryanto did not suffer past persecution. IJ Opinion 8. The IJ concluded that Suryanto’s run-ins with children seeking money were a result of his “refus[al] to give individuals money. Not because he was Chinese.” Id. at 9. The IJ also held that the bombing of Suryanto’s church was not an “act of persecution,” but rather “an isolated act of aggression and terrorism.” Id. This finding was buttressed by the fact that “[tjhere were no problems before or subsequent to that incident at that church.” Id. The IJ also noted that the attack made on Suryanto during his return from cleaning the church did not constitute religious persecution because it did not impair his freedom of worship. Finally, the IJ concluded that Suryanto did not “truly ... fear for his life” in Indonesia, as evidenced by his prompt return from Singapore. Id. at 4. The IJ found that had Suryanto truly feared for his life, he would have remained in Singapore “notwithstanding the fact that ... life is very busy and hectic there, and notwithstanding the fact that he did not have a job at that time.” Id. at 5.
Alternatively, the IJ held that Suryanto “could obviously avoid any future persecution by relocating to another section of his country....” Id. at 11. Suryanto conceded that he “has had no problems as an adult” in the province where his parents reside, and that his family is free to practice religion there. Id.
C.
Suryanto petitioned for review of the IJ’s decision and the BIA affirmed without opinion. Because Suryanto improperly sought review of the BIA decision in the Court of Appeals for the Ninth Circuit, the case was transferred here on January 25, 2006.1
*833On May 25, 2007, Suryanto married a United States citizen. He then moved the BIA to reopen his case, so we held his petition in abeyance pending further action by the BIA. After the BIA denied his motion, Suryanto filed a second petition for review, claiming a due process deprivation. We consolidated both petitions.
II.
A.
Where, as here, the BIA affirms the IJ’s decision without opinion, we review the IJ’s decision. Zhang v. Gonzales, 405 F.3d 150, 155 (3d Cir.2005). We review the IJ’s factual determinations under the substantial evidence standard, which requires us to defer to the IJ’s findings “unless any reasonable adjudicator would be compelled to conclude to the contrary.” 8 U.S.C. § 1252(b)(4)(B). We review the BIA’s denial of the motion to reopen for an abuse of discretion. Borges v. Gonzales, 402 F.3d 398, 404 (3d Cir.2005).
B.
An alien is eligible for asylum, pursuant to 8 U.S.C. § 1158(b)(1)(A), if he qualifies as a “refugee” within the meaning of 8 U.S.C. § 1101(a)(42)(A), that is, if he “is unable or unwilling to return to” the country of his nationality “because of persecution or a well-founded fear of persecution on account of race, religion, nationality, membership in a particular social group, or political opinion.” The applicant bears the burden of showing that he qualifies as a refugee, see Guo v. Ashcroft, 386 F.3d 556, 561 (3d Cir.2004), and he “must establish that race, religion, nationality, membership in a particular social group, or political opinion was or will be at least one central reason for [his] persecution].” 8 U.S.C. § 1158(b)(l)(B)(i). “Persecution” is defined as “threats to life, confinement, torture, and economic restrictions so severe that they constitute a threat to life or freedom.” Lie v. Ashcroft, 396 F.3d 530, 536 (3d Cir.2005) (quoting Fatin v. INS, 12 F.3d 1233, 1240 (3d Cir.1993)). A “well-founded fear of persecution” must be both genuinely held by the petitioner and objectively reasonable. Id. An alien may establish a presumption that a well-founded fear exists by demonstrating that he suffered persecution in the past. 8 C.F.R. § 208.13(b)(1).
After careful review of the record, we are unable to conclude that any reasonable factfinder would have been compelled to disagree with the IJ. In Lie v. Ashcroft— another case involving an ethnically Chinese Christian from Indonesia — we stated that “[s]imple robbery, in isolation, while unfortunate and troubling, does not seem to meet th[e] stringent standard” required to establish persecution under the statute. 396 F.3d at 536. The same conclusion applies here: although the robberies Suryanto suffered were terrible, a reasonable factfinder would not be compelled to conclude that they were severe enough to constitute persecution under the statute. Likewise, a reasonable factfinder would not be compelled to conclude that the bombing of Suryanto’s church and the subsequent warning constituted persecution.
Moreover, there is insufficient evidence to compel a reasonable factfinder to conclude that the robberies were motivated by Suryanto’s race, as opposed to his perceived wealth. In Lie, the robbers referred to the petitioner as a “Chinese pig,” but we agreed with the BIA that “a single ethnic slur was insufficient to establish that the thieves were motivated by Lie’s or her husband’s ethnicity.” Id. at 535 (internal quotation marks omitted). Similarly, although Suryanto has offered some evidence supporting his contention that the harassment he suffered was a result of ethnic animus, the majority of his testimo*834ny supports the IJ’s conclusion that financial gain was the motivating force.
Furthermore, a reasonable factfinder could conclude (as the IJ did) that Suryanto does not subjectively hold a well-founded fear of persecution based on his voluntary return to Indonesia from Singapore.
For all the foregoing reasons, we will affirm the IJ’s conclusion that Suryanto is not eligible for asylum, which also dooms his claim for withholding of removal. See Kibinda v. Att’y Gen., 477 F.3d 113, 123 (3d Cir.2007).
III.
Suryanto next claims the BIA’s denial of his motion to reopen following his marriage deprived him of due process of law. We review this claim de novo.
We find no constitutional infirmity in the BIA’s action. “[A] cognizable liberty or property interest must exist in the first instance for a procedural due process claim to lie.” Mudric v. Att’y Gen., 469 F.3d 94, 98 (3d Cir.2006). Here, Suryanto seeks reopening to vindicate his supposed interest in adjusting his immigration status. Ordinarily, the Attorney General has discretion to adjust an alien’s status.2 See 8 U.S.C. § 1255(a); Mudric, 469 F.3d at 98-99. When the decision to grant or withhold a benefit is entrusted to the discretion of a government actor, one has no constitutional property interest in obtaining that -relief. Conn. Bd. of Pardons v. Dumschat, 452 U.S. 458, 465, 101 S.Ct. 2460, 69 L.Ed.2d 158 (1981). Accordingly, Suryanto does not have a sufficient property or liberty interest in the adjustment of his status to qualify for due process protection. Mudric, 469 F.3d at 99 (“No constitutional injury occurred from the INS delays in this case because Mudric simply had no due process entitlement to the wholly discretionary benefits of which he and his mother were allegedly deprived____”). Suryanto’s due process claim therefore must fail.
IV.
For the foregoing reasons, we will deny both of Suryanto’s petitions for review.
. The Government claims we lack jurisdiction, citing the requirement of 8 U.S.C. § 1252(b)(1) that a “petition for review [of an order of removal] must be filed not later than 30 days after the date of the final order." Suryanto did, however, file his petition within the requisite timeframe; he simply filed it in the wrong venue. See id. § 1252(b)(2). Because the venue requirement is nonjurisdictional, Bonhometre v. Gonzales, 414 F.3d 442, 446 n. 5 (3d Cir.2005), we reject the Government's argument in this regard.
. In the instant case it appears that the Attorney General may have been statutorily required to deny adjustment because Suryanto failed to voluntarily depart within the timeline set by the IJ. See 8 U.S.C. § 1229a(b)(7) (an alien who fails to voluntarily depart is ineligible for relief under § 1255, governing adjustment of status, for 10 years). Because we find that Suryanto does not have a viable due process claim, however, there is no need for us to address this issue. | 01-04-2023 | 11-05-2022 |
https://www.courtlistener.com/api/rest/v3/opinions/8481027/ | PER CURIAM:
Michael Anthony Taliaferro appeals the district court’s order denying relief on his 42 U.S.C. § 1983 (2006) complaint. We have reviewed the record and find no reversible error. Accordingly, we affirm for the reasons stated by the district court. Taliaferro v. Greensville Corr. Ctr., No. 2:10-cv-00217-RBS-FBS (E.D.Va. May 18, 2010). We dispense with oral argument because the facts and legal contentions are adequately presented in the materials before the court and argument would not aid the decisional process.
AFFIRMED. | 01-04-2023 | 11-05-2022 |
https://www.courtlistener.com/api/rest/v3/opinions/8481028/ | PER CURIAM:
Michael Lawrence Branch appeals the district court’s order denying his 18 U.S.C. § 3582(c)(2) (2006) motion for reduction of sentence. We have reviewed the record and find no reversible error. Accordingly, we affirm for the reasons stated by the district court. United States v. Branch, No. l:05-cr-00016-CCB-l, 2009 WL 5178303 (D.Md. Dec. 30, 2009). We dispense with oral argument because the facts and legal contentions are adequately presented in the materials before the court and argument would not aid the decisional process.
AFFIRMED. | 01-04-2023 | 11-05-2022 |
https://www.courtlistener.com/api/rest/v3/opinions/8481029/ | PER CURIAM:
Woodrow B. Thompson, III, appeals the district court’s order denying his motion to remand all federal and state employment discrimination claims to state court. We review de novo the district court’s denial of the motion to remand. See Moffitt v. Residential Funding, Co., LLC, 604 F.3d 156, 159 (4th Cir.2010). We have reviewed the record and find no reversible error. Accordingly, we affirm for the reasons stated by the district court. Thompson v. Nova-pro Risk Solutions, LP, No. l:09-cv01755-WDQ, 2009 WL 4884517 (D.Md. Dec. 10, 2009). We dispense with oral argument because the facts and legal contentions are adequately presented in the materials before the court and argument would not aid the decisional process.AFFIRMED | 01-04-2023 | 11-05-2022 |
https://www.courtlistener.com/api/rest/v3/opinions/8481030/ | PER CURIAM:
Danny Jan Sekoh appeals the district court’s order dismissing his civil complaint for lack of subject matter jurisdiction. We have reviewed the record and find no reversible error. Accordingly, we affirm for the reasons stated by the district court. See Sekoh v. Sekoh, No. 5:10-cv-00251-D (E.D.N.C. July 26, 2010). We dispense with oral argument because the facts and legal contentions are adequately presented in the materials before the court and argument would not aid the decisional process.
AFFIRMED. | 01-04-2023 | 11-05-2022 |
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