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https://www.courtlistener.com/api/rest/v3/opinions/8472418/
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MEMORANDUM ***
In September 2004, appellants Tony and Carol Henderson defaulted on a refinanced home loan that had been sold and assigned to GMAC Mortgage Corporation and was being serviced by First Mortgage Loan Servicing (collectively “GM FMLS”). The Hendersons claim that, after they missed two payments, they entered into an oral contract with GM FMLS under which they would bring their account current through a series of payments and, in exchange, GM FMLS would not initiate foreclosure proceedings. Later, when the Hendersons failed to make a payment equal to the total arrearage plus interest, GM FMLS began the non-judicial foreclosure process.
The Hendersons then filed for bankruptcy, staying the foreclosure proceeding. Six months later, they sued GM FMLS for, among other things, 1) breach of contract, 2) negligent infliction of emotional distress, 3) illegal foreclosure, and 4) violations of the Truth in Lending Act (“TILA”). The district court excluded the affidavit of Tony Henderson’s brother and proposed expert, T.J. Henderson, and granted summary judgment on all claims in favor of GM FMLS. We affirm.
We review a district court’s decision to exclude expert testimony for abuse of discretion. United States v. Seschillie, 310 F.3d 1208, 1211 (9th Cir.2002). The district court did not abuse its discretion in excluding T.J. Henderson’s affidavit. Federal Rule of Evidence 702 provides that,
[1]f scientific, technical, or other specialized knowledge will assist the trier of fact to understand the evidence or to determine a fact in issue, a witness qualified as an expert by knowledge, skill, experience, training, or education, may testify thereto in the form of an opinion or otherwise, if 1) the testimony is based upon sufficient facts or data, 2) the testimony is the product of reliable principles and methods, and 3) the witness has applied the principles and methods reliably to the facts of the ease.
T.J. Henderson provided little information about where and when he obtained his education and training, his conclusions lacked factual support, and the opinions he provided required no scientific, technical, or other specialized knowledge.
We review a district court’s grant of summary judgment de novo. Feldman v. Allstate Ins. Co., 322 F.3d 660, 665 (9th Cir.2003). The district court did not err when it found no binding oral contract between the Hendersons and GM FMLS because there was no evidence that the parties agreed upon a date by which the account must be made current. See De-Phillips v. Zolt Constr. Co., 136 Wash.2d 26, 959 P.2d 1104, 1107 (1998). Because the Hendersons’ emotional distress claim was based solely on the breach of this nonexistent oral contract, the district court correctly granted summary judgment on that claim as well. See Gaglidari v. Denny’s Rests., Inc., 117 Wash.2d 426, 815 P.2d 1362, 1372 (1991).
*302The district court also correctly determined that the Hendersons could not recover on their illegal foreclosure claim because no foreclosure has occurred and because GM FMLS had the right to foreclose after the Hendersons’ default.
The Hendersons’ arguments regarding their right to rescind their loan based on TILA violations are unpersuasive. No right to rescind existed here because the Hendersons received a timely notice of right to cancel, as evidenced by their signatures on the document. See 15 U.S.C. § 1641(b). They failed to exercise that right within the requisite time period.
Further, the statute of limitations on their TILA damages claims expired in November 2003. See 15 U.S.C.A § 1640(e); see also King v. California, 784 F.2d 910, 915 (9th Cir.1986). These claims cannot be salvaged under a theory of recoupment because the Hendersons, not GM FMLS, initiated this action. See Beach v. Ocwen Fed. Bank, 523 U.S. 410, 415, 118 S.Ct. 1408, 140 L.Ed.2d 566 (1998). Further, the district court could require the Hendersons to prove their ability to comply with requirements of 15 U.S.C. § 1635(b) before granting them the right to rescind the loan. See Yamamoto v. Bank of N. Y., 329 F.3d 1167, 1173 (9th Cir.2003).
Finally, there is no valid basis for disregarding the April 6, 2005, letter submitted by GM FMLS, which letter notified the Hendersons that their right to rescind had expired in November 2002.
Affirmed.
This disposition is not appropriate for publication and is not precedent except as provided by 9th Cir. R. 36-3.
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MEMORANDUM **
Levon Garabed Agopian, a native and citizen of Bulgaria, petitions for review of the Board of Immigration Appeals’ (“BIA”) decision dismissing his appeal from an immigration judge’s decision denying his applications for asylum, withholding of deportation, and relief under the Convention Against Torture (“CAT”). Agopian’s application for asylum is derivative; the principal applicant is his mother, Satenik Arsharouni. The BIA terminated Arsharouni’s deportation proceedings in March 2009, while this petition for review was pending. The impact of the termination of the principal applicant’s proceedings on Agopian’s applications for relief and his petition for review is unclear. We therefore grant Agopian’s petition for review, and remand for further proceedings.
Because the BIA terminated his mother’s deportation proceedings, it appears that her asylum application has been abandoned, possibly leaving Agopian in the position of having no pending asylum application. Although Agopian is now over 21 years of age, he would be considered a child under 8 U.S.C. § 1158(b)(3)(B), and therefore eligible to receive derivative asylee status if the asylum application were granted, if the application were still pending. See id. (“An unmarried alien who seeks to accompany ... a parent granted asylum ... shall continue to be classified as a child ... if the alien attained 21 years of age after such application was filed but while it was pending.”).
It appears that neither this court nor the BIA has addressed the question of whether or how a child named for derivative asylee status in a parent’s asylum application may proceed in seeking asylum when the principal applicant is no longer seeking such relief. Because it is unclear whether Agopian’s petition for review is moot as to asylum, we remand for the BIA to determine in the first instance the status of Agopian’s application for asylum. See INS v. Ventura, 537 U.S. 12, 16-18, 123 S.Ct. 353, 154 L.Ed.2d 272 (2002).
Because we remand as to asylum, we do not reach Agopian’s applications for withholding of deportation or CAT relief.
Each party shall bear its own costs for this petition for review.
*304PETITION FOR REVIEW GRANTED; REMANDED.
This disposition is not appropriate for publication and is not precedent except as provided by 9 th Cir. R. 36-3.
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MEMORANDUM **
Mukesh Singh, a native and citizen of India, petitions for review of the Board of Immigration Appeals’ (“BIA”) order denying his motion to reopen and to reissue its previous .decision. Our jurisdiction is governed by 8 U.S.C. § 1252. Reviewing for abuse of discretion, Iturribarria v. INS, 321 F.3d 889, 894 (9th Cir.2003), we deny in part and dismiss in part the petition for review.
The BIA did not abuse its discretion in denying Singh’s “motion to reissue/reopen” because the BIA acted within its broad discretion in determining that the evidence was insufficient to warrant reopening. See Singh v. INS, 295 F.3d 1037, 1039 (9th Cir.2002) (BIA’s denial of a motion to reopen shall be reversed only if it is “arbi*305trary, irrational, or contrary to law.”). His motion presented no new facts related to the underlying claim, and did not claim non-receipt of the BIA’s previous order, but sought only to extend the period to file an appeal to the Ninth Circuit.
We lack jurisdiction to review the BIA’s decision not to invoke its sua sponte authority to reopen proceedings. See Ekimian v. INS, 308 F.3d 1153, 1159 (9th Cir. 2002).
To the extent Singh seeks review of the BIA’s April 2003 order dismissing the underlying appeal, we lack jurisdiction to review that decision because this petition for review is not timely as to that order. See Singh v. INS, 315 F.3d 1186, 1188 (9th Cir.2003).
PETITION FOR REVIEW DENIED in part; DISMISSED in part.
This disposition is not appropriate for publication and is not precedent except as provided by 9th Cir. R. 36-3.
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ON MOTION
ORDER
Tessera, Inc. moves for leave to file a reply brief not to exceed 12,000 words. The intervenors oppose. Tessera replies.
Upon consideration thereof,
It Is ORDERED That:
The motion is granted in part; Tessera’s reply brief, not to exceed 10,000 words, is due within 14 days of the date of filing of this order.
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MEMORANDUM **
Mersen Georgievich Maryanyan, his wife, Marina Nikolayevna Maryanyan, and their children, natives of the former Soviet Union and citizens of Russia, petition for review of the Board of Immigration Appeals’ decision dismissing their appeal from an immigration judge’s order denying their application for asylum, withholding of removal, and protection under the Convention Against Torture (“CAT”). Our jurisdiction is governed by 8 U.S.C. § 1252. We review for substantial evidence the agency’s adverse credibility determination. Gui v. INS, 280 F.3d 1217, 1225 (9th Cir. 2002). We dismiss in part and deny in part the petition for review.
We lack jurisdiction to review Maryanyan’s challenge to the BIA’s denial of the request for voluntary departure for the lead petitioner. See 8 U.S.C. § 1229c(f) (no court shall have jurisdiction over an appeal from the denial of voluntary departure). Accordingly, we dismiss the petition as to his voluntary departure claim.
Substantial evidence supports the agency’s adverse credibility determination based on the inconsistencies between Maryanyan’s testimony and his asylum application with respect to the 1995 and 1999 arrests. See Kohli v. Gonzales, 473 F.3d 1061, 1071 (9th Cir.2007) (discrepancies between petitioner’s testimony and declaration, inter alia, substantially support adverse credibility finding). In the absence of credible testimony, Maryanyan failed to establish eligibility for asylum or withholding of removal. See Farah v. Ashcroft, 348 F.3d 1153, 1156 (9th Cir.2003).
Finally, because Maryanyan’s CAT claim is based on the same testimony that agency found not credible, and he points to no other evidence the agency should have considered, substantial evidence supports the agency’s denial of CAT relief. See id. at 1156-57.
PETITION FOR REVIEW DISMISSED in part; DENIED in part.
This disposition is not appropriate for publication and is not precedent except as provided by 9th Cir. R. 36-3.
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MEMORANDUM **
Eyama Linda Bih Authur, a native and citizen of Cameroon, petitions for review of the Board of Immigration Appeals’ (“BIA”) order dismissing her appeal from an immigration judge’s (“IJ”) decision denying her application for asylum, with*309holding of removal, and relief under the Convention Against Torture (“CAT”). Our jurisdiction is governed by 8 U.S.C. § 1252. We review for substantial evidence, Li v. Ashcroft, 378 F.3d 959, 962 (9th Cir.2004), and we deny in part and dismiss in part the petition for review.
Substantial evidence supports the BIA’s adverse credibility determination based on material discrepancies between Authur’s testimony and her asylum applications regarding the number of times she was arrested, the length of her prison sentence, and whether she was sentenced without a trial. See Chebchoub v. INS, 257 F.3d 1038, 1043-44 (9th Cir.2001); see also L% 378 F.3d at 963 (concluding the agency properly considered and rejected the petitioner’s explanation for discrepancies). In the absence of credible testimony, Authur’s asylum and withholding of removal claims fail. See Farah v. Ashcroft, 348 F.3d 1153, 1156 (9th Cir.2003).
Because Authur’s CAT claim is based on testimony the agency found not credible, and there is no evidence in the record that compels a finding that it is more likely than not she would be tortured if returned to Cameroon, her CAT claim fails. See id. at 1156-57.
We reject Authur’s due process claim based on the IJ’s refusal to admit her documentary evidence. See Cuadras v. INS, 910 F.2d 567, 573 (9th Cir.1990) (no denial of due process where alien fails to show prejudice).
Finally, we lack jurisdiction to review Authur’s due process claim based on the IJ’s exclusion of witness testimony because Authur failed to raise that issue before the BIA. See Barron v. Ashcroft, 358 F.3d 674, 677-78 (9th Cir.2004).
PETITION FOR REVIEW DENIED in part; DISMISSED in part.
This disposition is not appropriate for publication and is not precedent except as provided by 9 th Cir. R. 36-3.
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MEMORANDUM **
Ernesto Colima Maya, a native and citizen of Mexico, petitions for review of the Board of Immigration Appeals’ (“BIA”) order denying his motion to reopen removal proceedings. We have jurisdiction under 8 U.S.C. § 1252. We review for abuse of discretion the denial of a motion to reopen, Ordonez v. INS, 345 F.3d 777, 782 (9th Cir.2003), and we deny the petition for review.
The BIA did not abuse its discretion by denying Colima’s motion to reopen because the BIA considered the evidence he submitted and acted within its discretion in determining that the evidence was insufficient to warrant reopening. See Singh v. INS, 295 F.3d 1037, 1039 (9th Cir.2002) (The BIA’s denial of a motion to reopen shall be reversed if it is “arbitrary, irrational, or contrary to law.”).
PETITION FOR REVIEW DENIED.
This disposition is not appropriate for publication and is not precedent except as provided by 9th Cir. R. 36-3.
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MEMORANDUM **
Eyama Linda Bih Authur, a native and citizen of Cameroon, petitions for review of the Board of Immigration Appeals’ (“BIA”) order dismissing her appeal from an immigration judge’s (“IJ”) decision denying her application for asylum, with*309holding of removal, and relief under the Convention Against Torture (“CAT”). Our jurisdiction is governed by 8 U.S.C. § 1252. We review for substantial evidence, Li v. Ashcroft, 378 F.3d 959, 962 (9th Cir.2004), and we deny in part and dismiss in part the petition for review.
Substantial evidence supports the BIA’s adverse credibility determination based on material discrepancies between Authur’s testimony and her asylum applications regarding the number of times she was arrested, the length of her prison sentence, and whether she was sentenced without a trial. See Chebchoub v. INS, 257 F.3d 1038, 1043-44 (9th Cir.2001); see also L% 378 F.3d at 963 (concluding the agency properly considered and rejected the petitioner’s explanation for discrepancies). In the absence of credible testimony, Authur’s asylum and withholding of removal claims fail. See Farah v. Ashcroft, 348 F.3d 1153, 1156 (9th Cir.2003).
Because Authur’s CAT claim is based on testimony the agency found not credible, and there is no evidence in the record that compels a finding that it is more likely than not she would be tortured if returned to Cameroon, her CAT claim fails. See id. at 1156-57.
We reject Authur’s due process claim based on the IJ’s refusal to admit her documentary evidence. See Cuadras v. INS, 910 F.2d 567, 573 (9th Cir.1990) (no denial of due process where alien fails to show prejudice).
Finally, we lack jurisdiction to review Authur’s due process claim based on the IJ’s exclusion of witness testimony because Authur failed to raise that issue before the BIA. See Barron v. Ashcroft, 358 F.3d 674, 677-78 (9th Cir.2004).
PETITION FOR REVIEW DENIED in part; DISMISSED in part.
This disposition is not appropriate for publication and is not precedent except as provided by 9 th Cir. R. 36-3.
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MEMORANDUM **
Ernesto Colima Maya, a native and citizen of Mexico, petitions for review of the Board of Immigration Appeals’ (“BIA”) order denying his motion to reopen removal proceedings. We have jurisdiction under 8 U.S.C. § 1252. We review for abuse of discretion the denial of a motion to reopen, Ordonez v. INS, 345 F.3d 777, 782 (9th Cir.2003), and we deny the petition for review.
The BIA did not abuse its discretion by denying Colima’s motion to reopen because the BIA considered the evidence he submitted and acted within its discretion in determining that the evidence was insufficient to warrant reopening. See Singh v. INS, 295 F.3d 1037, 1039 (9th Cir.2002) (The BIA’s denial of a motion to reopen shall be reversed if it is “arbitrary, irrational, or contrary to law.”).
PETITION FOR REVIEW DENIED.
This disposition is not appropriate for publication and is not precedent except as provided by 9th Cir. R. 36-3.
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MEMORANDUM **
Pablo Colin-Silva, a native and citizen of Mexico, petitions pro se for review of the Board of Immigration Appeals’ order dismissing his appeal from an immigration judge’s order denying him adjustment of status under 8 U.S.C. § 1255®. We have jurisdiction pursuant to 8 U.S.C. § 1252. Reviewing de novo questions of law, Singh v. INS, 213 F.3d 1050, 1052 (9th Cir.2000), we deny the petition for review.
The agency properly deemed Colin-Silva inadmissible under 8 U.S.C. § 1182(a)(9)(C)® for unlawful presence after a prior removal and correctly noted that Colin-Silva was ineligible for a waiver under 8 U.S.C. § 1182(a)(9)(C)(ii). The agency therefore properly denied Colin-Silva’s application for adjustment of status under 8 U.S.C. § 1255®. See Matter of Briones, 24 I. & N. Dec. 355, 371 (BIA 2007); Gonzales v. Dep’t of Homeland Security, 508 F.3d 1227, 1242 (9th Cir.2007).
PETITION FOR REVIEW DENIED.
This disposition is not appropriate for publication and is not precedent except as provided by 9th Cir. R. 36-3.
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MEMORANDUM **
Jie Zhou, a native and citizen of China, petitions for review of the Board of Immigration Appeals’ decision affirming an immigration judge’s (“IJ”) order denying his application for asylum, withholding of removal, and relief under the Convention Against Torture (“CAT”). We have jurisdiction under 8 U.S.C. § 1252. We review for substantial evidence, Gui v. INS, 280 F.3d 1217, 1225 (9th Cir.2002), and deny the petition for review.
Even though the IJ erred in his one-year time bar finding, see Cinapian v. Holder, 567 F.3d 1067, 1073 (9th Cir.2009) (“Where ... the government alleges an alien’s arrival date in the Notice to Appear, and the alien admits the government’s allegation before the IJ, the allegations are considered judicial admissions rendering the arrival date undisputed.”), substantial evidence supports the agency’s adverse credibility determination because Zhou testified about the arrest and detention he suffered in a manner inconsistent with his declaration. See Kohli v. Gonzales, 473 F.3d 1061, 1071 (9th Cir.2007) (discrepancies between petitioner’s testimony and declaration, inter alia, substantially support adverse credibility finding). Substantial evidence also supports the agency’s specific and cogent demeanor finding. See Arulampalam v. Ashcroft, 353 F.3d 679, 686 (9th Cir.2003).
In the absence of credible testimony, Zhou failed to establish eligibility for asylum or withholding of removal. See Farah v. Ashcroft, 348 F.3d 1153, 1156 (9th Cir. 2003).
Finally, because Zhou’s CAT claim is based on the same testimony that the agency found not credible, and he points to no other evidence the agency should have considered, substantial evidence supports *313the agency’s denial of CAT relief. See id. at 1157.
PETITION FOR REVIEW DENIED.
This disposition is not appropriate for publication and is not precedent except as provided by 9th Cir. R. 36-3.
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MEMORANDUM **
Jie Zhou, a native and citizen of China, petitions for review of the Board of Immigration Appeals’ decision affirming an immigration judge’s (“IJ”) order denying his application for asylum, withholding of removal, and relief under the Convention Against Torture (“CAT”). We have jurisdiction under 8 U.S.C. § 1252. We review for substantial evidence, Gui v. INS, 280 F.3d 1217, 1225 (9th Cir.2002), and deny the petition for review.
Even though the IJ erred in his one-year time bar finding, see Cinapian v. Holder, 567 F.3d 1067, 1073 (9th Cir.2009) (“Where ... the government alleges an alien’s arrival date in the Notice to Appear, and the alien admits the government’s allegation before the IJ, the allegations are considered judicial admissions rendering the arrival date undisputed.”), substantial evidence supports the agency’s adverse credibility determination because Zhou testified about the arrest and detention he suffered in a manner inconsistent with his declaration. See Kohli v. Gonzales, 473 F.3d 1061, 1071 (9th Cir.2007) (discrepancies between petitioner’s testimony and declaration, inter alia, substantially support adverse credibility finding). Substantial evidence also supports the agency’s specific and cogent demeanor finding. See Arulampalam v. Ashcroft, 353 F.3d 679, 686 (9th Cir.2003).
In the absence of credible testimony, Zhou failed to establish eligibility for asylum or withholding of removal. See Farah v. Ashcroft, 348 F.3d 1153, 1156 (9th Cir. 2003).
Finally, because Zhou’s CAT claim is based on the same testimony that the agency found not credible, and he points to no other evidence the agency should have considered, substantial evidence supports *313the agency’s denial of CAT relief. See id. at 1157.
PETITION FOR REVIEW DENIED.
This disposition is not appropriate for publication and is not precedent except as provided by 9th Cir. R. 36-3.
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MEMORANDUM **
Chaoyuan Cen and Juanhong Luo, natives and citizens of China, petition pro se for review of the Board of Immigration Appeals’ order dismissing an appeal from an immigration judge’s (“IJ”) decision denying their application for asylum, withholding of removal, and protection under the Convention Against Torture (“CAT”). We have jurisdiction under 8 U.S.C. § 1252. We review for substantial evidence factual findings, Pedro-Mateo v. INS, 224 F.3d 1147, 1150 (9th Cir.2000), and de novo claims of due process violations, Colmenar v. INS, 210 F.3d 967, 971 (9th Cir.2000). We deny the petition for review.
Substantial evidence supports the agency’s adverse credibility determination based on the IJ’s demeanor finding, see Singh-Kaur v. INS, 183 F.3d 1147, 1151 (9th Cir.1999) (special deference given to demeanor findings based on non-verbal communication), and based on the various inconsistencies between Cen’s testimony and his wife’s testimony regarding their conversion to Christianity, see Kaur v. Gonzales, 418 F.3d 1061, 1066-67 (9th Cir. 2005). In the absence of credible testimony, petitioners failed to establish they are eligible for asylum or withholding of removal. See Farah v. Ashcroft, 348 F.3d 1153, 1156 (9th Cir.2003).
Because Cen’s claim under the CAT is based on the same testimony the agency found to be not credible, and Cen points to no other evidence the agency should have considered, he has failed to establish eligibility for relief under the CAT. See id. at 1156-57.
Finally, to the extent petitioners contend the IJ violated their due process rights, their claim fails because they received a full and fair hearing. See Lata v. INS, 204 F.3d 1241, 1246 (9th Cir.2000) (requiring legal error and prejudice to prevail on a due process challenge).
PETITION FOR REVIEW DENIED.
This disposition is not appropriate for publication and is not precedent except as provided by 9th Cir. R. 36-3.
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MEMORANDUM **
The district court did not abuse its discretion in denying Allan-Selvin’s motion to dismiss for preindictment delay because its finding that Allan was not prejudiced was not clearly erroneous.
Evidence of Allan-Selvin’s prior deportations was not inadmissible under Rule 404(b) of the Federal Rules of Evidence because prior deportation is an element of the offense. Its admission therefore was not plain error. See United States v. Cruz-Escoto, 476 F.3d 1081, 1088 (9th Cir.2007).
The district court did not err in its determination that California Penal Code § 496(a) is categorically an aggravated felony under 8 U.S.C. § 1101(a)(43)(G). See Verdugo-Gonzalez v. Holder, 581 F.3d 1059, 1062 (9th Cir.2009).
AFFIRMED.
This disposition is not appropriate for publication and is not precedent except as provided by 9th Cir. R. 36-3.
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MEMORANDUM **
The County of San Bernardino (the “County”) appeals the district court’s award of damages, interest penalties, and attorney fees for the County’s breach of a construction contract with L.T. Engineering, Inc. (“LTE”). The County does not contest its breach-of-contract liability but challenges the damages award in favor of Safeco Insurance Co. (“Safeco”), assignee and subrogee of LTE. Our decision in this case is controlled by the standard of review, and we review the district court’s award of actual damages for clear error. Jarvis v. K2 Inc., 486 F.3d 526, 529 (9th Cir.2007). We affirm.
The County argues that the admitted evidence in the record did not support the award for lost productivity, which was based on the testimony of Safeco’s expert witness. Safeeo’s expert may rely in an appropriate case, however, on inadmissible data that others collected. See Fed. R.Evid. 703; Southland Sod Farms v. Stover Seed Co., 108 F.3d 1134, 1142 (9th Cir.1997). Safeco’s expert also had extensive knowledge of the underlying facts supporting his testimony, and his conclusions were based on project records and consistent with evidence admitted at trial. We conclude that there was no clear error in the district court’s determination that sufficient evidence supported the expert’s damage testimony.
The district court also did not commit clear error by accepting the Safeco expert’s measured-mile analysis and method of identifying impacted and unimpacted days. The County contends that the expert’s analysis might have excluded some low-productivity unimpacted days or wrongly attributed decline in production to the fault of the County. Yet “once the cause and existence of damages have been so established, recovery will not be denied because the damages are difficult of ascertainment. Liability cannot be evaded because damages cannot be measured with *318exactness.” Schroeder v. Auto Driveaway Co., 11 Cal.3d 908, 114 Cal.Rptr. 622, 523 P.2d 662, 670 (1974) (internal citation omitted).
The district court concluded that the delays LTE caused were “insignificant” in light of the scope of the project and the County’s own delays. Safeco presented a reasonable estimate of lost-productivity damages, and the County’s argument that the damage amount is not exact is insufficient to establish clear error.
The County further claims that LTE caused some part of the 209 days of delay underlying the district court’s delay-damage award. But the County has not shown that any of the insignificant delays LTE caused were on the project’s critical path. Accordingly, whatever delays LTE’s improper actions caused do not impact the amount of delay damages. See 5 Philip L. Bruner & Patrick J. O’Connor, Jr., Construction Law § 15:29. Because Safeco conducted a reasonable critical-path analysis, the district court’s factual finding that the County is responsible for 209 days of delay damages is “plausible in light of the record viewed in its entirety” and thus is not clearly erroneous. Anderson v. City of Bessemer City, 470 U.S. 564, 574, 105 S.Ct. 1504, 84 L.Ed.2d 518 (1985).
Nor did the district court commit clear error by determining that there was no genuine dispute regarding the County’s obligation to release the funds within sixty days of project completion. The district court’s determination that there was no bona fide dispute was based on a plausible interpretation of facts in the record suggesting that the County, through its employees, acted in bad faith. The County did not contest at trial the testimony that the entire retention amount was wrongfully withheld, waiving this argument on appeal. Canada Life Assurance Co. v. La-Peter, 563 F.3d 837, 846 (9th Cir.2009). The damage penalty for the County’s wrongful withholding of retention funds was appropriate and not clear error, as was the district court’s award of attorney’s fees. Cal. Pub. Cont.Code § 7107.
Finally, the evidence at trial shows that the County did not make timely progress payments to LTE. Id. § 20104.50(b). The County did not object to such testimony at trial, and it does not argue on appeal that it ever made these payments.
We conclude that the district court’s award of damages was not clear error, and there was no error in law arising from the district court’s award of prejudgment interest, damage penalties, and attorney’s fees.
AFFIRMED.
This disposition is not appropriate for publication and is not precedent except as provided by Ninth Circuit Rule 36-3.
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MEMORANDUM **
Gonzalo Vicente Alvarado-Matul, a native and citizen of Guatemala, petitions for review of the Board of Immigration Appeals’ order dismissing his appeal from an immigration judge’s decision denying his application for withholding of removal and relief under the Convention Against Torture (“CAT”). We have jurisdiction under 8 U.S.C. § 1252. We review for substantial evidence, Don v. Gonzales, 476 F.3d 738, 741 (9th Cir.2007), and we deny the petition for review.
Substantial evidence supports the agency’s adverse credibility determination based on both Alvarado-Matul’s inconsistent testimony regarding the timing and circumstances of the government agents’ visit to his uncle, see Chebchoub v. INS, 257 F.3d 1038, 1043-44 (9th Cir.2001), and Alvarado-Matul’s admission he lied to immigration officials about his date of entry, see Don, 476 F.3d at 742. In the absence of credible testimony, Alvarado-Matul’s withholding of removal claim fails. See Farah v. Ashcroft, 348 F.3d 1153, 1156 (9th Cir.2003).
*320Because Alvarado-Matul’s CAT claim is based on testimony the agency found not credible, and there is no evidence in the record that compels a finding that it is more likely than not he would be tortured if returned to Guatemala, his CAT claim fails. See id. at 1156-57.
We reject Alvarado-Matul’s contentions that the BIA’s decision violated due process. See Lata v. INS, 204 F.3d 1241, 1246 (9th Cir.2000) (requiring error for due process 'violation).
PETITION FOR REVIEW DENIED.
This disposition is not appropriate for publication and is not precedent except as provided by 9th Cir. R. 36-3. '
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MEMORANDUM *
This is an employment discrimination case challenging events that occurred while the plaintiff-appellant Cheryl Lynn Rice was employed by the United States Postal Service between 1977 and 1989. She filed this case in 2005, and the district court dismissed the case for failure to ex*321haust administrative remedies, holding that she provided no sufficient justification for her delay of fourteen years before initiating any action.
In her appeal, she contends that her delay should be excused on alternative grounds. We included the case in our Pro Bono Representation Project and on appeal Rice has been ably represented by the University of Arizona Pro Bono Appellate Project. There is, however, no basis for invoking equitable estoppel, equitable tolling, or the discovery rule in this case. Appellant did not have any information at the time that she instituted this action that was unavailable to her in 1989. Lukovsky v. City and County of San Francisco, 535 F.3d 1044, 1048-51 (9th Cir.2008) (discovery rule); Santa Maria v. Pac. Bell, 202 F.3d 1170, 1176-79 (9th Cir.2000) (equitable tolling and estoppel).
AFFIRMED.
This disposition is not appropriate for publication and is not precedent except as provided by 9th Cir. R. 36-3.
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MEMORANDUM *
This is an employment discrimination case challenging events that occurred while the plaintiff-appellant Cheryl Lynn Rice was employed by the United States Postal Service between 1977 and 1989. She filed this case in 2005, and the district court dismissed the case for failure to ex*321haust administrative remedies, holding that she provided no sufficient justification for her delay of fourteen years before initiating any action.
In her appeal, she contends that her delay should be excused on alternative grounds. We included the case in our Pro Bono Representation Project and on appeal Rice has been ably represented by the University of Arizona Pro Bono Appellate Project. There is, however, no basis for invoking equitable estoppel, equitable tolling, or the discovery rule in this case. Appellant did not have any information at the time that she instituted this action that was unavailable to her in 1989. Lukovsky v. City and County of San Francisco, 535 F.3d 1044, 1048-51 (9th Cir.2008) (discovery rule); Santa Maria v. Pac. Bell, 202 F.3d 1170, 1176-79 (9th Cir.2000) (equitable tolling and estoppel).
AFFIRMED.
This disposition is not appropriate for publication and is not precedent except as provided by 9th Cir. R. 36-3.
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MEMORANDUM **
Kristiani Purnomo, her husband Hoo Sehoko Iffan Augusta, aka Iffan Augusta Hoo Sehoko, and their two children, 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 applications 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, Wakkary v. Holder, 558 F.3d 1049, 1056 (9th Cir.2009), and deny in part and grant in part the petition for review.
The IJ found that Purnomo and Hoo Sehoko’s asylum claims were time-barred and denied the children’s asylum claim on the merits. The BIA affirmed the IJ’s time-bar finding but did not address the merits denial. The record does not compel the conclusion that the changed circumstances or extraordinary circumstances exceptions excused Purnomo and Hoo Sehoko’s untimely applications. See 8 C.F.R. §§ 1208.4(a)(4), (5); Ramadan v. Gonzales, 479 F.3d 646, 648, 657-58 (9th Cir. *3262007) (per curiam). We grant the petition for review with respect to the children’s asylum claims because the BIA failed to address their challenge to the IJ’s merits denial of their claims. See Montes-Lopez v. Gonzales, 486 F.3d 1163, 1165 (9th Cir. 2007).
On the record before us, petitioners did not establish that Chinese Christians are subject to a pattern or practice of persecution. See Wakkary, 558 F.3d at 1060-62.
With respect to all of the petitioners’ withholding of removal claims, the BIA declined to extend the disfavored group analysis to the withholding of removal context. The BIA, however, did not have the benefit of our intervening decision in Wakkary, in which the court held that the disfavored group analysis applies to withholding of removal. See id. at 1064-65. We therefore grant the petition for review and remand for the BIA to reconsider petitioners’ withholding of removal claims. See INS v. Ventura, 537 U.S. 12, 16-18, 123 S.Ct. 353, 154 L.Ed.2d 272 (2002) (per curiam).
Finally, substantial evidence supports the BIA’s denial of CAT relief because petitioners failed to show that it is more likely than not that they will be tortured if they return to Indonesia. See Wakkary, 558 F.3d at 1067-68.
Each party shall bear its own costs for this petition for review.
PETITION FOR REVIEW DENIED in part; GRANTED in part; REMANDED.
This disposition is not appropriate for publication and is not precedent except as provided by 9th Cir. R. 36-3.
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Affirmed by unpublished PER CURIAM opinion.
Unpublished opinions are not binding precedent in this circuit.
PER CURIAM:
Maricacus Dewayne McNeill appeals the district court’s order denying his motion for reduction of sentence under 18 U.S.C. § 3582(c)(2) (2006). We have reviewed the record and find no reversible error. Accordingly, we affirm for the reasons stated by the district court. See United States v. McNeill, No. 5:06-cr-00246-D-1 (E.D.N.C. June 3, 2009). We dispense with oral argument because the facts and legal contentions are adequately presented in the materials before the court and argument would not aid the decisional process.
AFFIRMED.
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MEMORANDUM **
In these consolidated cases, Rogelio De Anda Cruz, a native and citizen of Mexico, petitions for review of the Board of Immigration Appeals’ (“BIA”) orders denying his motions to reopen (No. 06-71801) and reconsider (No. 06-72969). Our jurisdiction is governed by 8 U.S.C. § 1252. We review for abuse of discretion the denial of motions to reopen and reconsider, Cano-Merida v. INS, 311 F.3d 960, 964 (9th Cir.2002), and de novo due process claims, Fernandez v. Gonzales, 439 F.3d 592, 603 (9th Cir.2006). We dismiss in part and deny in part the petition for review in No. 06-71801, and deny the petition for review in No. 06-72969.
In No. 06-71801, the evidence De Anda Cruz presented with his motion to reopen concerned the same basic hardship grounds as his application for cancellation of removal. See Fernandez, 439 F.3d at 602-03. We therefore lack jurisdiction to *324review the BIA’s discretionary determination that the evidence was insufficient to establish a prima facie case of hardship. See id. at 601 (holding that if “the BIA determines that a motion to reopen proceedings in which there has already been an unreviewable discretionary determination concerning a statutory prerequisite to relief does not make out a prima facie case for that relief,” 8 U.S.C. § 1252(a)(2)(B)® bars this court from revisiting the merits).
De Anda Cruz contends the BIA violated due process because it engaged in impermissible fact-finding, exceeding its authority. Contrary to De Anda Cruz’s contention, the BIA correctly considered the facts in order to determine whether he established a prima facie case, and therefore the due process claim fails. See Lata v. INS, 204 F.3d 1241, 1246 (9th Cir.2000) (requiring both error and prejudice for a due process claim).
De Anda Cruz waived his contention that the BIA erred in denying reopening by failing to consider the new facts set forth in the motion in conjunction with the evidence because he did not argue it in his opening brief. See Bazuaye v. INS, 79 F.3d 118, 120 (9th Cir.1996) (per curiam) (declining to reach issue raised for the first time in the reply brief).
We therefore dismiss in part and deny in part the petition for review in No. 06-71801.
In No. 06-72969, the BIA was within its discretion in denying De Anda Cruz’s motion to reconsider because the motion failed to identify any error of fact or law in the BIA’s prior decision denying the motion to reopen. See 8 C.F.R. § 1003.2(b)(1); Socop-Gonzalez v. INS, 272 F.3d 1176, 1180 n. 2 (9th Cir.2001) (en banc).
We therefore deny the petition for review in No. 06-72969.
No. 06-71801: PETITION FOR REVIEW DISMISSED in part; DENIED in part.
No. 06-72969: PETITION FOR REVIEW DENIED.
This disposition is not appropriate for publication and is not precedent except as provided by 9th Cir. R. 36-3.
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MEMORANDUM **
Kristiani Purnomo, her husband Hoo Sehoko Iffan Augusta, aka Iffan Augusta Hoo Sehoko, and their two children, 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 applications 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, Wakkary v. Holder, 558 F.3d 1049, 1056 (9th Cir.2009), and deny in part and grant in part the petition for review.
The IJ found that Purnomo and Hoo Sehoko’s asylum claims were time-barred and denied the children’s asylum claim on the merits. The BIA affirmed the IJ’s time-bar finding but did not address the merits denial. The record does not compel the conclusion that the changed circumstances or extraordinary circumstances exceptions excused Purnomo and Hoo Sehoko’s untimely applications. See 8 C.F.R. §§ 1208.4(a)(4), (5); Ramadan v. Gonzales, 479 F.3d 646, 648, 657-58 (9th Cir. *3262007) (per curiam). We grant the petition for review with respect to the children’s asylum claims because the BIA failed to address their challenge to the IJ’s merits denial of their claims. See Montes-Lopez v. Gonzales, 486 F.3d 1163, 1165 (9th Cir. 2007).
On the record before us, petitioners did not establish that Chinese Christians are subject to a pattern or practice of persecution. See Wakkary, 558 F.3d at 1060-62.
With respect to all of the petitioners’ withholding of removal claims, the BIA declined to extend the disfavored group analysis to the withholding of removal context. The BIA, however, did not have the benefit of our intervening decision in Wakkary, in which the court held that the disfavored group analysis applies to withholding of removal. See id. at 1064-65. We therefore grant the petition for review and remand for the BIA to reconsider petitioners’ withholding of removal claims. See INS v. Ventura, 537 U.S. 12, 16-18, 123 S.Ct. 353, 154 L.Ed.2d 272 (2002) (per curiam).
Finally, substantial evidence supports the BIA’s denial of CAT relief because petitioners failed to show that it is more likely than not that they will be tortured if they return to Indonesia. See Wakkary, 558 F.3d at 1067-68.
Each party shall bear its own costs for this petition for review.
PETITION FOR REVIEW DENIED in part; GRANTED in part; REMANDED.
This disposition is not appropriate for publication and is not precedent except as provided by 9th Cir. R. 36-3.
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MEMORANDUM **
Mark Allen MeMillion appeals from the 188-month sentence imposed by the district court, following his jury-trial conviction for violations of the Mann and Transportation Acts, 18 U.S.C. §§ 1952, 2421, 2422(a), 2423(a). We have jurisdiction under 28 U.S.C. § 1291. We affirm.
The record supports the conclusion that the district court found unique vulnerability and did not clearly err in imposing the U.S.S.G § 3A1.1 enhancement given the victim’s small size and stature and history of sexual assault and abandonment. See United States v. Williams, 291 F.3d 1180, 1196 (9th Cir.2002) (per curiam), overruled on other grounds by United States v. Gonzales, 506 F.3d 940 (9th Cir.2007).
AFFIRMED.
This disposition is not appropriate for publication and is not precedent except as provided by 9th Cir. R. 36-3.
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MEMORANDUM **
Rafaela Jimenez Luna, a native and citizen of Mexico, petitions for review of the Board of Immigration Appeals’ (“BIA”) order dismissing her appeal from an immigration judge’s (“IJ”) decision denying her application for cancellation of removal. We have jurisdiction pursuant to 8 U.S.C. § 1252. We review de novo claims of due process violations in immigration proceedings. Ibarra-Flores v. Gonzales, 439 F.3d 614, 620 (9th Cir.2006). We deny the petition for review.
We agree with the BIA’s conclusion that the IJ based her decision on the evidence Jimenez Luna presented. Therefore, Jimenez Luna’s claim that she was deprived of a full and fair hearing fails. Cf. Colmenar v. INS, 210 F.3d 967, 971 (9th Cir.2000).
PETITION FOR REVIEW DENIED.
This disposition is not appropriate for publication and is not precedent except as provided by 9th Cir. R. 36-3.
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SUMMARY ORDER
Petitioner Shi Yong Fang, a native and citizen of the People’s Republic of China, seeks review of a September 19, 2008 order of the BIA denying his motion to reopen. In re Shi Yong Fang, No. A073 569 259 (B.I.A. Sept. 19, 2008). We assume the parties’ familiarity with the underlying facts and procedural history in this case.
We review the BIA’s denial of a motion to reopen for abuse of discretion. See Ke Zhen Zhao v. U.S. Dep’t of Justice, 265 *557F.3d 83, 90 (2d Cir.2001). A motion to reopen must be filed no later than 90 days after the final administrative decision is rendered in the proceedings that the applicant seeks to reopen. 8 U.S.C. § 1229a(c)(7); 8 C.F.R. § 1003.2(c)(2). In this case, there is no question that Fang’s motion to reopen was untimely. However, when a movant raises a claim of ineffective assistance of counsel, the filing deadline may, under certain conditions, be equitably tolled. See Jin Bo Zhao v. INS, 452 F.3d 154, 156-59 (2d Cir.2006). To merit equitable tolling, the movant must establish, among other things, that he exercised due diligence during the time period he seeks to toll. See Jian Hua Wang v. BIA, 508 F.3d 710, 714 (2d Cir.2007).
In this case, Fang did not file a disciplinary complaint against his former counsel until April 2008, almost twelve years after his former counsel’s alleged failure to inform him of the date of his rescheduled hearing. In the absence of any explanation from Fang for this extensive delay, the BIA did not err in concluding that Fang failed to exercise the due diligence required to merit equitable tolling. See id.
In addition, the BIA did not err in finding that Fang failed to present evidence of changed country conditions in China that would warrant an exception to the filing deadline for his motion to reopen. 8 U.S.C. § 1229a(c) (7) (C) (ii); 8 C.F.R. § 1003.2(e)(3)(ii). The bulk of the evidence that Fang submitted with his motion — including his marriage certificate, his child’s birth certificate, and two abortion certificates — pre-dated not only the BIA’s final administrative decision but also Fang’s arrival in the United States in 1994. None of this evidence qualifies as material evidence that was not available and could not have been discovered or presented during the underlying deportation proceedings. 8 C.F.R. § 1003.2(c)(1).
Although some of the country conditions evidence that Fang submitted indicated that the enforcement of the family planning policy in certain localities in China sometimes involved coercive practices, none of these described recent changes in the policy or its enforcement that would materially affect Fang’s eligibility for relief. Instead, these documents described long-standing, continuing practices dating back to the years prior to Fang’s departure from China. Accordingly, the BIA reasonably concluded that Fang did not merit an exemption from the time limit for filing a motion to reopen. See 8 U.S.C. § 1229a(c) (7) (C) (ii); 8 C.F.R. § 1003.2(c)(3)(ii).
Finally, Fang argues that the BIA erred by failing to consider and analyze the documentary evidence that he submitted. However, the BIA had no obligation to address the merits of Fang’s untimely motion given his failure to make the threshold showing that conditions in China had changed such that an exemption from the filing deadline was warranted. See 8 C.F.R. § 1003.2(e)(3)(ii).
For the foregoing reasons, the petition for review is DENIED. As we have completed our review, any stay of removal that the Court previously granted in this petition is VACATED, and any pending motion for a stay of removal in this petition is DISMISSED as moot. Any pending request for oral argument in this petition is DENIED in accordance with Federal Rule of Appellate Procedure 34(a)(2), and Second Circuit Local Rule 34(b).
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SUMMARY ORDER
Petitioners Ljindita Vuljaj and Nikola Vuljaj, both natives of Montenegro and citizens of the former Yugoslavia, seek review of an October 30, 2008 order of the BIA denying their motion to reopen. In re Ljindita Vuljaj, Nikola Vuljaj, Nos. A072 413 523, A029 445 544 (B.I.A. Oct. 30, *5592008). We assume the parties’ familiarity with the underlying facts and procedural history in this case.
We review the BIA’s denial of a motion to reopen for abuse of discretion. See Ke Zhen Zhao v. U.S. Dep’t of Justice, 265 F.3d 83, 90 (2d Cir.2001). A motion to reopen must be filed no later than 90 days after the final administrative decision is rendered in the proceedings that the applicant seeks to reopen. 8 U.S.C. § 1229a(c)(7); 8 C.F.R. § 1003.2(c)(2). There is no dispute that the petitioners’ motion was untimely. However, the petitioners argue that they presented evidence of changed country conditions in Serbia-Montenegro that both warranted an exception to the filing deadline for their motion, 8 U.S.C. § 1229a (c)(7)(C)(ii); 8 C.F.R. § 1003.2(c)(3)(ii), and established their prima facie eligibility for asylum and withholding of removal.
Because the BIA did not err in finding that the petitioners failed to establish a ptima facie case for relief, it did not abuse its discretion in denying their motion to reopen. See Ke Zhen Zhao, 265 F.3d at 93. In support of their motion, the petitioners submitted voluminous background materials concerning a September 2006 law enforcement operation known as “Eagle’s Flight” in which Montenegrin authorities arrested eighteen ethnic Albanian Catholics on terrorism charges. However, even assuming the circumstances surrounding the “Eagle’s Flight” incident constituted a change in country conditions in Montenegro with respect to the treatment of ethnic Albanian Catholics, petitioners failed to establish that they had a well-founded fear of persecution as a result.
The petitioners submitted a number of affidavits from friends and associates who claimed that the petitioners would face persecution in Montenegro because Nikola was related to one of the individuals arrested during Eagle’s Flight and he had participated in protests against the Montenegrin authorities in the United States and donated generously to charitable funds intended to assist the families of the Eagle’s Flight defendants. However, as the BIA observed, the petitioners presented no evidence suggesting that the Montenegrin authorities have taken action against Nikola or have any intention of doing so. The documentation petitioners submitted provided no basis for the BIA to conclude that the Montenegrin authorities were aware of Nikola’s political activities in the United States or, even if they were aware, that they would be likely to persecute him on that basis.
Although Nikola could easily have submitted his own statement detailing his political activities in the United States, describing how those activities might have come to the attention of the Montenegrin authorities, and explaining why those activities would result in his persecution in Montenegro, as the BIA found, he failed to do so. See Hongsheng Leng v. Mukasey, 528 F.3d 135, 143 (2d Cir.2008). Given the vague and conelusory nature of the allegations made in the affidavits that were submitted, the BIA did not err in finding that the petitioners’ fear of future persecution was speculative at best. See Jian Xing Huang v. U.S. I.N.S., 421 F.3d 125, 128-29 (2d Cir.2005). Accordingly, the BIA reasonably concluded that the petitioners had failed to establish their prima facie eligibility for the relief they sought. As the failure to establish a prima facie case for relief constitutes an independent basis for denying a motion to reopen, the BIA did not abuse its discretion in denying the petitioners’ motion. See INS v. Abudu, 485 U.S. 94, 104, 108 S.Ct. 904, 99 L.Ed.2d 90 (1988).
For the foregoing reasons, the petition for review is DENIED. As we have completed our review, any stay of removal that *560the Court previously granted in this petition is VACATED, and any pending motion for a stay of removal in this petition is DISMISSED as moot. Any pending request for oral argument in this petition is DENIED in accordance with Federal Rule of Appellate Procedure 34(a)(2), and Second Circuit Local Rule 34(b).
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MEMORANDUM **
Rocío Delgado Rivera, a native and citizen of Mexico, petitions for review of the Board of Immigration Appeals’ (“BIA”) order denying her motion to reopen. We have jurisdiction under 8 U.S.C. § 1252. We review for abuse of discretion the denial of a motion to reopen, Iturribarria v. INS, 321 F.3d 889, 894 (9th Cir.2003), and we deny the petition for review.
The BIA considered the new evidence offered by Rivera, determined that the evidence did not establish a prima facie showing of exceptional and extremely unusual hardship to Rivera’s qualifying relative, and acted within its broad discretion in determining that the evidence was insufficient to warrant reopening. See Singh v. INS, 295 F.3d 1037, 1039 (9th Cir.2002) (the BIA’s denial of a motion to reopen shall be reversed only if it is “arbitrary, irrational, or contrary to law”).
PETITION FOR REVIEW DENIED.
This disposition is not appropriate for publication and is not precedent except as provid*331ed by 9th Cir. R. 36-3.
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MEMORANDUM **
Rony Djoenaedi, a native and citizen of Indonesia, 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 withholding of removal and relief under the Convention Against Torture (“CAT”). We have jurisdiction under 8 U.S.C. § 1252. We review for substantial evidence the denial of an application for withholding of removal and relief under CAT, see Malkandi v. Mukasey, 544 F.3d 1029, 1035 (9th Cir.2008), and we review de novo due process claims, Hernandez de Anderson v. Gonzales, 497 F.3d 927, 932 (9th Cir.2007). We grant in part and deny in part the petition for review, and remand for further proceedings.
Substantial evidence supports the IJ’s conclusion that Djoenaedi failed to establish that he suffered past persecution in Indonesia because the two incidents Djoenaedi experienced do not rise to the level of persecution. See Hoxha v. Ashcroft, 319 F.3d 1179, 1182 (9th Cir.2003). Substantial evidence also supports the BIA’s determination that Djoenaedi failed to establish that ethnic Chinese Christians are subject to the systematic mistreatment required to demonstrate a “pattern or practice” of persecution. See Lolong v. Gonzales, 484 F.3d 1173, 1179-1181 (9th Cir.2007) (en banc) (ethnic Chinese Christian petitioner did not establish an individualized risk or a pattern or practice of persecution in Indonesia).
The BIA found the disfavored group analysis set forth in Sael v. Ashcroft, 386 F.3d 922, 927 (9th Cir.2004), does not apply to withholding of removal claims. Intervening case law holds the disfavored group analysis does apply. See Wakkary v. Holder, 558 F.3d 1049, 1059-60 (9th Cir.2009). Accordingly, we remand to the BIA for consideration of whether, under Sael and Wakkary, Djoenaedi is entitled to withholding of removal.
Substantial evidence supports the BIA’s denial of CAT relief because Djoenaedi failed to show it is more likely than not he would be tortured if returned to Indonesia. See Singh v. Gonzales, 439 F.3d 1100, 1113 (9th Cir.2006).
The IJ and BIA did not violate Djoenaedi’s due process rights by engaging in speculation to conclude that Djoenaedi’s parents and four brothers have continued to reside in Indonesia without harm. Djoenaedi was specifically asked about harm to his family members who remain in Indonesia, and the only incidents he reported were those that occurred prior *333to Ms departure from Indonesia m 2000. See Lata v. INS, 204 F.3d 1241, 1246 (9th Cir.2000) (requiring error to prevail on a due process challenge).
PETITION FOR REVIEW GRANTED in part; DENIED in part; REMANDED.
This disposition is not appropriate for publication and is not precedent except as provided by 9th Cir. R. 36-3.
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MEMORANDUM **
Eduard Beglaryan, a native and citizen of Armenia, and his wife, Tatiana Golovatskaya, a native of Russia and a citizen of Armenia, petition for review of the Board of Immigration Appeals’ order dismissing their appeal from an immigration judge’s (“IJ”) decision denying their application for asylum. We have jurisdiction under 8 U.S.C. § 1252. We review adverse credibility findings for substantial evidence. Soto-Olarte v. Holder, 555 F.3d 1089, 1091 (9th Cir.2009). We deny the petition for review.
Substantial evidence supports the Id’s adverse credibility determination because the discrepancies regarding Beglaryan’s kidnaping, beating at the prosecutor’s office, and 1999 hospitalization go to the heart of his claim, see Li v. Ashcroft, 378 F.3d 959, 962, 964 (9th Cir.2004), and Beglaryan failed to provide a sufficient explanation for the discrepancies, see de Leon-Barrios v. INS, 116 F.3d 391, 393-94 (9th Cir.1997).
The IJ did not err by relying on Beglaryan’s declaration because the record shows that Beglaryan signed his asylum application and swore to the truth of the contents of the application, including the attached declaration. See Lata v. INS, 204 F.3d 1241, 1246 (9th Cir.2000) (requiring error to prevail on a due process challenge).
PETITION FOR REVIEW DENIED.
This disposition is not appropriate for publication and is not precedent except as provided by 9th Cir. R. 36-3.
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MEMORANDUM *
Frank Baldizan was convicted in California state court of manslaughter and shooting at an inhabited dwelling. The trial court sentenced Baldizan to a term of six years imprisonment for the manslaughter offense with a four-year firearm use enhancement. It sentenced Baldizan to a five-year term on the shooting at an inhabited dwelling offense, and enhanced that term with a twenty-five-years-to-life enhancement for the personal discharge of a firearm causing death. The California Court of Appeal upheld the trial court’s stay of the sentence for the manslaughter offense and imposition of the enhanced thirty-years-to-life sentence for the shooting offense.
In his habeas case, petitioner argued that the trial court should have imposed sentence on the manslaughter offense, because it had the longer potential term of imprisonment without enhancement, and that the state court of appeal’s decision retroactively applied the intervening decision in People v. Kramer, 29 Cal.4th 720, 128 Cal.Rptr.2d 407, 59 P.3d 738 (2002), and was contrary to or an unreasonable application of the Supreme Court’s holding in Bouie v. City of Columbia, 378 U.S. 347, 84 S.Ct. 1697, 12 L.Ed.2d 894 (1964). The district court correctly denied the petition.
There was no error in the imposition of the longer sentence. The decision in Kramer merely clarified state law that had been unclear, and constituted a reasonable construction of the preexisting statute. Because the decision of the California Court of Appeal applying Kramer was reasonable and foreseeable under preexisting *336state law, a fortiori it did not violate any clearly established federal law.
AFFIRMED.
This disposition is not appropriate for publication and is not precedent except as provided by 9th Cir. R. 36-3.
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MEMORANDUM **
Marshall Charles Richmond appeals from the district court’s orders denying his pro se motions for a new trial and to set aside the verdict.
Pursuant to Anders v. California, 386 U.S. 738, 87 S.Ct. 1396, 18 L.Ed.2d 493 (1967), Richmond’s counsel has filed a brief stating there are no grounds for relief, along with a motion to withdraw as counsel of record. The appellant has filed a pro se supplemental brief, and no answering brief has been filed.
Our independent review of the record pursuant to Penson v. Ohio, 488 U.S. 75, 80-81, 109 S.Ct. 346, 102 L.Ed.2d 300 (1988), discloses no arguable grounds for relief on direct appeal.
*337Accordingly, counsel’s motion to withdraw is GRANTED, and the district court’s judgment is AFFIRMED.
This disposition is not appropriate for publication and is not precedent except as provided by 9th Cir. R. 36-3.
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MEMORANDUM **
Jose Alfredo Padilla appeals from the judgment revoking his supervised release and imposing a 12-month sentence followed by 24 months of supervised release.
Pursuant to Anders v. California, 386 U.S. 738, 87 S.Ct. 1396, 18 L.Ed.2d 493 (1967), Padilla’s counsel has filed a brief stating there are no grounds for relief, along with a motion to withdraw as counsel of record. We have provided the appellant with the opportunity to file a pro se supplemental brief. No pro se supplemental brief or answering brief has been filed.
Our independent review of the record pursuant to Penson v. Ohio, 488 U.S. 75, 80-81, 109 S.Ct. 346, 102 L.Ed.2d 300 (1988), discloses no arguable grounds for relief on direct appeal.
Accordingly, counsel’s motion to withdraw is GRANTED, and the judgment is AFFIRMED.
This disposition is not appropriate for publication and is not precedent except as provided by 9th Cir. R. 36-3.
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MEMORANDUM **
Mohammed Tahir Naser, an ethnic Tajik and Shiite Moslem citizen of Afghanistan, petitions for review of the Board of Immigration Appeals’ '(“BIA”) affirmance of the Immigration Judge’s (“IJ”) denial of his application for asylum, withholding of removal, and protection under the Convention Against Torture (“CAT”). We have jurisdiction pursuant to 8 U.S.C. § 1252, and grant the petition for review and remand.
*339The BIA’s agreement with the IJ’s conclusion that it lacked jurisdiction to reconsider the claim of asylum and withholding, including the issues of adverse credibility, past persecution, and charges of excludability on remand is error. The BIA misconstrued our mandate in its 2008 decision, despite its recognition of the correct interpretation in its 2004 order upon remand. The BIA’s 2004 order vacated the prior decisions denying reconsideration of the asylum and withholding claims and ordered reopening “for a further hearing on the applicant’s application for asylum and withholding of exclusion.”
Our 2004 disposition had concluded that the BIA abused its discretion in denying Naser’s motion to reopen pursuant to 8 C.F.R. § 3.2(c)(2)1 because his motion was based on ample evidence of changed circumstances in Afghanistan. We therefore granted Naser’s petition to reopen his case and remanded for a new hearing. The record reveals no explanation for the BIA’s correct interpretation of our remand order in 2004, and subsequent incorrect interpretation in 2008. In doing so, the BIA ignored its own precedent in Matter of Patel, 16 I. & N. Dec. 600, 601 (BIA 1978) (holding that a remand from the BIA to an IJ is effective for all matters deemed appropriate in the exercise of administrative discretion or brought to the attention of the IJ in compliance with appropriate regulations “unless the Board qualifies or limits the remand for a specific purpose”). The BIA’s 2004 order did not qualify or limit the remand to the IJ in any manner whatsoever; nor did we retain jurisdiction.
Although we must remand this matter again for compliance with our 2004 disposition and the BIA’s 2004 order upon remand, it is worth noting for future reference that the BIA applied the wrong legal standard in concluding that Naser was ineligible for asylum because he could safely relocate to Kabul. See 8 C.F.R. § 208.13(b)(3); see also Melkonian v. Ashcroft, 320 F.3d 1061, 1069 (9th Cir.2003) (“[i]t is not enough ... for the IJ to find that applicants could escape persecution by relocating internally. It must be reasonable to expect them to do so.”).
We need not reach the issues of the BIA’s refusal to terminate proceedings pending adjudication of Naser’s visa petitions, the IJ’s refusal to grant a continuance, or the IJ’s bias.
PETITION GRANTED and REMANDED.
This disposition is not appropriate for publication and is not precedent except as provided by 9th Cir. R. 36-3.
. Former § 3.2 has been recodified at 8 C.F.R. § 1003.2 (2003), but we reference the version in effect at the time of the orders.
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SUMMARY ORDER
Petitioner Yi Fu Zheng, a native and citizen of the People’s Republic of China, seeks review of the February 11, 2009 order of the BIA denying his motion to reopen. In re Yi Fu Zheng, No. A077 224 443 (B.I.A. Feb. 11, 2009). We assume the parties’ familiarity with the underlying facts and procedural history of the case.
We review the BIA’s denial of a motion to reopen for abuse of discretion, mindful of the Supreme Court’s admonition that such motions are “disfavored.” Ali v. Gonzales, 448 F.3d 515, 517 (2d Cir.2006) (citing INS v. Doherty, 502 U.S. 314, 322-23, 112 S.Ct. 719, 116 L.Ed.2d 823 (1992)). Here, we conclude that the BIA did not abuse its discretion in denying Zheng’s motion to reopen as untimely.
An alien seeking to reopen proceedings must file his motion to reopen no later than 90 days after the date on which the final administrative decision was rendered. See 8 C.F.R. § 1003.2(c)(2). There is no dispute that Zheng’s November 2008 motion was untimely where the BIA issued a final order of removal in June 2002. Moreover, the BIA properly found that Zheng’s motion did not qualify for an exception to the time limitation based on his assertion of changed country conditions in China. See 8 C.F.R. § 1003.2(c)(3)(ii).
It is well-settled that a change in personal circumstances, such as Zheng’s confirmation as a Roman Catholic in the United States and his recent increased devotion to the faith, is not evidence of changed conditions in China. See Wei Guang Wang v. BIA, 437 F.3d 270, 273-74 (2d Cir.2006); Li Yang Zheng v. U.S. Dep’t of Justice, 416 F.3d 129, 130-31 (2d Cir.2005).
Moreover, the BIA did not err in finding no changed country conditions in China as the 2007 and 2008 U.S. State Department Reports found that: Chinese Catholic clerics have led prayers for the pope and displayed the pope’s picture in some official (i.e., government registered) churches, the majority of Chinese Catholic bishops have reconciled with the Vatican, and the Chinese government allows the Vatican to have a discreet role in the selection of local bishops. Further, the letter Zheng submitted from a friend in China regarding the alleged harassment of Catholics does not compel the conclusion that the treatment of Catholics in China has materially changed since Zheng’s hearing in 2002 or that Zheng would become a specific target of China’s enforcement measures. See Jian Hui Shao v. Mukasey, 546 F.3d 138, 169-72 (2d Cir.2008). Contrary to Zheng’s assertion that the BIA faded to consider his evidence regarding changed county conditions, the BIA need not “expressly parse or refute on the record each individual argument or piece of evidence offered by the petitioner” as long as it “has given reasoned consideration to the petition, and made adequate findings.” Wei Guang Wang, 437 F.3d at 275 (internal quotations omitted).
Thus, the BIA did not abuse its discretion in finding that Zheng failed to demonstrate changed country conditions sufficient to excuse the untimeliness of his motion. See Ke Zhen Zhao v. U.S. Dep’t of Justice, 265 F.3d 83, 93 (2d Cir.2001).
For the foregoing reasons, the petition for review is DENIED. As we have completed our review, any stay of removal that *562the Court previously granted in this petition is VACATED, and any pending motion for a stay of removal in this petition is DISMISSED as moot. Any pending request for oral argument in this petition is DENIED in accordance with Federal Rule of Appellate Procedure 34(a)(2), and Second Circuit Local Rule 34(b).
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SUMMARY ORDER
Petitioner Zhuo Zheng, a native and citizen of the People’s Republic of China, seeks review of a February 11, 2009 order of the BIA, In re Zhou Zheng, No. A079 436 630 (B.I.A. Feb. 11, 2009), issued on remand from this Court. Zhou Zheng v. Mukasey, 285 Fed.Appx. 780 (2d Cir.2008). We assume the parties’ familiarity with the underlying facts and procedural history in this case.
When the BIA issues an independent decision on remand from this Court, the Court reviews the BIA’s decision alone. See Belortaja v. Gonzales, 484 F.3d 619, 623 (2d Cir.2007). We review the agency’s factual findings under the substantial evidence standard. 8 U.S.C. § 1252(b)(4)(B); see, e.g., Corovic v. Mukasey, 519 F.3d 90, 95 (2d Cir.2008). Questions of law and the application of law to undisputed fact are reviewed de novo. Salimatou Bah v. Mukasey, 529 F.3d 99, 110 (2d Cir.2008).
The agency properly found that Zheng failed to establish a well-founded fear of persecution, as required for a grant of asylum. 8 U.S.C. § 1101(a)(42). In our prior decision, we identified three errors in the BIA’s order necessitating remand: (1) the BIA failed to take into account Zheng’s testimony that he feared arrest because other church members might have given his name to the police, or because police officers might have recognized him; (2) the BIA erred in relying on omissions in Zheng’s grandmother’s letter; and (3) the BIA failed to consider the letter from Zheng’s uncle, which specifically addressed the shortcomings of the letter from Zheng’s grandmother.
The BIA remedied these errors in its February 2009 decision. First, the BIA assumed that police were aware of Zheng’s involvement in a church group, but found that he had failed to explain what happened to church members who were arrested. It further noted the absence of evidence suggesting that the authorities continued to look for Zheng after 2002. Thus, the BIA reasonably found that the record did not support a finding that Zheng’s fear was objectively reasonable. See Jian Xing Huang v. INS, 421 F.3d 125, 128-29 (2d Cir.2005) (holding that a fear is not objectively reasonable if it lacks “solid support” in the record and is merely “speculative at best.”). Second, the BIA considered Zheng’s uncle’s letter in conjunction with Zheng’s grandmother’s letter, reasonably concluding that, while his uncle’s letter confirmed details missing in his grandmother’s letter, it did not support a finding of a well-founded fear of future persecution. See Xiao Ji Chen v. U.S. Dep’t of Justice, 471 F.3d 315, 342 (2d Cir.2006) (holding that the weight afforded to the applicant’s evidence in immigration proceedings lies largely within the discretion of the IJ).
*564We also find no clear error in the agency’s conclusion that Zheng failed to establish the existence of a pattern or practice of persecution of unauthorized Christian church groups in China. See 8 C.F.R. § 1208.16(b)(2)(i). The agency’s finding was reasonable because the record indicates that in some areas of China, authorities tolerate small church and Bible study groups. Even if the record also reveals some official repression of religious groups, we find no error in the agency’s weighing of the evidence. See Siewe v. Gonzales, 480 F.3d 160, 167 (2d Cir.2007) (“Where there are two permissible views of the evidence, the factfinder’s choice between them cannot be clearly erroneous.”) (quoting Anderson v. Bessemer City, 470 U.S. 564, 574, 105 S.Ct. 1504, 84 L.Ed.2d 518 (1985)).
Because Zheng did not demonstrate that the agency erred in its analysis of his asylum claim, we leave undisturbed the agency’s denial of that relief. Insofar as Zheng failed to meet his burden of proof with respect to his asylum claim, he necessarily failed to meet the higher burden of proof required to prevail on his claim for withholding of removal. See Paul v. Gonzales, 444 F.3d 148, 156 (2d Cir.2006).
Finally, the BIA did not abuse its discretion in declining to remand Zheng’s proceedings to the IJ based on his claim that the record was “stale.” Motions to remand are held to the same substantive standards as motions to reopen. Singh v. U.S. Dep’t of Justice, 461 F.3d 290, 293 (2d Cir.2006). Here, because Zheng failed to specify any new evidence he wished to include other than the most recent country report, which he admits contained information “substantially similar” to the reports already in the record, the BIA did not err in refusing to remand. Id.; 8 C.F.R. § 1003.23(c). Nor will this Court remand for the BIA to consider additional evidence. See Xiao Xing Ni v. Gonzales, 494 F.3d 260, 269 (2d Cir.2007).
For the foregoing reasons, the petition for review is DENIED. As we have completed our review, any stay of removal that the Court previously granted in this petition is VACATED, and any pending motion for a stay of removal in this petition is DISMISSED as moot. Any pending request for oral argument in this petition is DENIED in accordance with Federal Rule of Appellate Procedure 34(a)(2), and Second Circuit Local Rule 34(b).
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SUMMARY ORDER
Guang Chen-Jiang, a native and citizen of the People’s Republic of China, seeks review of a July 31, 2008 order of the BIA affirming the September 16, 2005 decision of Immigration Judge (“IJ”) Phillip L. Mo-race, denying his application for asylum, withholding of removal, and relief under the Convention Against Torture (“CAT”). In re Guang Cheng-Jiang, No. A098 712 330 (B.I.A. Jul. 31, 2008), aff'g No. A098 712 330 (Immig. Ct. N.Y. City Sep. 16, 2005). We assume the parties’ familiarity with the underlying facts and procedural history of this case.
When the BIA issues an opinion that fully adopts the IJ’s decision, we review the IJ’s decision. Gao v. Gonzales, 424 F.3d 122, 124 (2d Cir.2005). We review the Agency’s factual findings, including adverse credibility findings, under the substantial evidence standard. 8 U.S.C. § 1252(b)(4)(B); see also Corovic v. Muka-sey, 519 F.3d 90, 95 (2d Cir.2008).
We conclude that the IJ’s adverse credibility determination contained error. The IJ’s credibility finding was neither based on inconsistencies in Chen-Jiang’s testimony nor his demeanor, but rather was premised entirely on perceived implausibilities in his account. The two alleged implausibilities were (1) that ChenJian would take risks for Falun Gong and yet know so little about it; and (2) that the authorities would have released ChenJiang after his second arrest based only upon his promise to turn in his friend who was active in Falun Gong. While the IJ may base a credibility finding on the “ ‘inherent plausibility of the applicant’s ... account’ of persecution”, see Xiu Xia Lin v. Mukasey, 534 F.3d 162, 168 (2d Cir.2008) (quoting 8 U.S.C. § 1158(b)(1)(B)(iii)) (alternations in original), we have doubts as to whether the claimed implausibilities in the instant case are sufficiently “tethered to the evidentiary record”, Siewe v. Gonzales, 480 F.3d 160, 169 (2d Cir.2007), to justify an adverse credibility finding.
The second asserted implausibility is based on speculation. As a general matter, it is not obviously implausible that an individual who cooperates with the State would receive lenient treatment. More importantly, there is no evidence that indicates what China does to encourage individuals to aid it in catching and prosecuting those it deems most dangerous. Our cases have treated this kind of speculation about behavior in other countries as unacceptable. See, e.g., Baba v. Holder, 569 F.3d 79, 86-87 (2d Cir.2009) (finding erroneous IJ’s determination that petitioner did not have well-founded fear of persecution where finding was premised on IJ’s speculations about changed political circumstances in petitioner’s country of nationality); Cao He Lin v. U.S. Dep’t of Justice, 428 F.3d 391, 405 (2d Cir.2005) (holding that “absent record evidence of practices in foreign countries, the IJ must not speculate as to the existence or nature of such practices”).
The first alleged implausibility based on Chen-Jiang’s unfamiliarity with Falun Gong practices is also problematic. We have held that a certain level of doctrinal knowledge is not a prerequisite for asylum on religious persecution grounds. “Both history and common sense make amply clear that people can identify with a certain religion, notwithstanding their lack of detailed knowledge about that religion’s doctrinal tenets, and that those same people can be persecuted for their religious affiliation.” Rizal v. Gonzales, 442 F.3d *56984, 90 (2d Cir.2006). And the same seems likely true as to taking risks for one’s beliefs. In any event, even if the IJ could find some implausibility in this aspect of Chen-Jiang’s account, we are not confident that the Agency would deem this ground independently sufficient to support a finding that Chen-Jiang lacked credibility.
When an IJ’s decision contains error, we will not remand if (1) there is substantial evidence in the record that supports the IJ’s credibility finding, and (2) we can state with confidence that the IJ, disregarding those aspects of his reasoning that were erroneous, would adhere to his decision were the petition remanded. See Singh v. B.I.A., 438 F.3d 145, 147-48 (2d Cir.2006) (per curiam). Here, we have doubts about whether there is such substantial evidence and we certainly cannot state with confidence that the IJ would adhere to his decision without relying on the alleged implausibility regarding Chinese prosecutorial practices. Accordingly, we are not able to say that remand would be futile.
We grant Chen-Jiang’s petition for review and remand to the BIA for further proceedings consistent with this order.
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SUMMARY ORDER
Petitioner Soudi Gahutu, a native and citizen of Burundi, seeks review of an April 4, 2008 order of the BIA affirming the October 16, 2006 decision of Immigration Judge (“IJ”) Paul A. DeFonzo pretermitting his application 'for asylum and denying his application for withholding of removal. In re Soudi Gahutu, No. A098-364-803 (B.I.A. Apr. 4, 2008), aff'g No. A098-364803 (Immig. Ct. N.Y. City Oct. 16, 2006). We assume the parties’ familiarity with the underlying facts and procedural history in this case.
I. Asylum
Under 8 U.S.C. § 1158(a)(3), no court shall have jurisdiction to review the agency’s finding that an asylum application was untimely under 8 U.S.C. § 1158(a)(2)(B), or that neither changed nor extraordinary circumstances excused the untimeliness under 8 U.S.C. § 1158(a)(2)(D). Although this Court retains jurisdiction to review constitutional claims and “questions of law,” 8 U.S.C. § 1252(a)(2)(D), a question of law is not implicated “when the petition for review essentially disputes the correctness of the IJ’s fact-finding or the wisdom of his exercise of discretion.” Xiao Ji Chen v. U.S. Dep’t of Justice, 471 F.3d 315, 329 (2d Cir.2006). Gahutu argues that his testimony established that he arrived in the United States in January 2004 and filed his application in May 2004. The IJ rejected this testimony because he found Gahutu not credible and because Gahutu did not submit any documentation indicating when he arrived in the United States. Because Gahutu’s argument challenges only purely factual determinations and the agency’s exercise of discretion, we lack jurisdiction to review the denial of his asylum application and dismiss the petition for review to that extent. 8 U.S.C. § 1158(a)(3); Xiao Ji Chen, 471 F.3d at 328-29.
II. Withholding of Removal
When the BIA does not expressly “adopt” the IJ’s decision, but its opinion closely tracks the IJ’s reasoning, the Court may consider both the IJ’s and the BIA’s opinions. Jigme Wangchuck v. Dep’t of Homeland Sec., 448 F.3d 524, 528 (2d Cir.2006). This Court reviews the agency’s factual findings, including adverse credibility findings, under the substantial evidence standard. 8 U.S.C. § 1252(b)(4)(B); see also Shu Wen Sun v. BIA, 510 F.3d 377, 379 (2d Cir.2007). We review de novo questions of law and the application of law to undisputed fact. Bah v. Mukasey, 529 F.3d 99, 110 (2d Cir.2008).
Substantial evidence supports the IJ’s adverse credibility determination. See Shu Wen Sun, 510 F.3d at 379. In finding Gahutu not credible, the IJ found that: (1) his testimony that his only beating occurred at home when he was arrested contradicted his asylum application, which indicated that he was taken to a separate *573prison cell and beaten every day during his one-week detention; (2) he testified inconsistently regarding how long he had been in possession of his identity documents; (3) he was not familiar with the identity documents he, himself, submitted; and (4) his testimony regarding his ability to conceal his identity documents during his imprisonment was implausible.
In his brief, Gahutu argues that the inconsistencies the IJ relied upon are minor and do not go to the heart of his claim. However, regardless of whether the inconsistencies were minor or central to his claim, the IJ was entitled to rely on their cumulative effect. See Tu Lin v. Gonzales, 446 F.3d 395, 402 (2d Cir.2006) (“[E]ven where an IJ relies on discrepancies or lacunae that, if taken separately, concern matters collateral or ancillary to the claim, the cumulative effect may nevertheless be deemed consequential by the fact-finder.” (internal citations and quotation marks omitted)); see also Liang Chen v. U.S. Attorney Gen., 454 F.3d 103, 106-07 (2d Cir.2006) (“[A]n IJ need not consider the centrality vel non of each individual discrepancy or omission” and can instead “rely upon the cumulative impact of such inconsistencies, and may conduct an overall evaluation of testimony in light of its rationality or internal consistency and the manner in which it hangs together with other evidence.” (internal citations and quotation marks omitted)).
Moreover, contrary to Gahutu’s argument, the inconsistencies went to the heart of his claim because they were related to his alleged persecution by Tutsi soldiers and because they placed his identity in question. See Dhoumo v. BIA, 416 F.3d 172,174 (2d Cir.2005) (per curiam). “[Petitioner’s nationality, or lack of nationality, is a threshold question in determining his eligibility for asylum”.
Having called Gahutu’s credibility into question, the IJ also properly found that he failed to rehabilitate his testimony with corroborating evidence. See Biao Yang v. Gonzales, 496 F.3d 268, 273 (2d Cir.2007).
The discrepancies the IJ identified provide substantial evidence for his adverse credibility determination. See 8 U.S.C. § 1158(b)(1)(B)(iii); Xiu Xia Lin v. Mukasey, 534 F.3d 162, 167 (2d Cir.2008). Therefore, the IJ properly denied Gahutu’s application for withholding of removal, because the only evidence of a threat that Gahutu would be persecuted depended on his credibility.2 See Paul v. Gonzales, 444 F.3d 148, 156 (2d Cir.2006); Xue Hong Yang v. U.S. Dep’t of Justice, 426 F.3d 520, 523 (2d Cir.2005). Because the adverse credibility finding is supported by the record, we need not reach the agency’s alternate burden of proof findings.
For the foregoing reasons, the petition for review is DISMISSED in part, and DENIED in part. As we have completed our review, any pending motion for a stay of removal in this petition is DISMISSED as moot. Any pending request for oral argument in this petition is DENIED in accordance with Federal Rule of Appellate Procedure 34(a)(2), and Second Circuit Local Rule 34(b).
. Although Gahutu argues in his brief that he was eligible for CAT relief, he does not appear to have sought that relief before the IJ, and the IJ never adjudicated such a claim. Even if he had, the adverse credibility determination would be fatal to that claim as well. See Paul v. Gonzales, 444 F.3d 148, 156 (2d Cir.2006).
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SUMMARY ORDER
Petitioner Juniarti Iskandar (“petitioner” or “Iskandar”), a native and citizen of Indonesia, seeks review of an April 28, 2008 order of the BIA, affirming the May 30, 2006 decision of an immigration judge (“IJ”), which pretermitted her application for asylum and denied her application for withholding of removal. In re Iskandar, *575No. A98 420 343 (B.I.A. Apr. 28, 2008), aff'g No. A98 420 343 (Immig. Ct. N.Y. City May 30, 2006). We assume the parties’ familiarity with the factual and procedural history of the case.
When the BIA does not expressly “adopt” the IJ’s decision, but its brief opinion closely tracks the IJ’s reasoning, the Court may consider both the IJ’s and the BIA’s opinions for the sake of completeness if doing so does not affect the Court’s ultimate conclusion. See Jigme Wangchuck v. DHS, 448 F.3d 524, 528 (2d Cir.2006). We review the agency’s factual findings under the substantial evidence standard, treating them as “conclusive unless any reasonable adjudicator would be compelled to conclude to the contrary.” 8 U.S.C. § 1252(b)(4)(B); Corovic v. Mukasey, 519 F.3d 90, 95 (2d Cir.2008). We review de novo questions of law and the application of law to undisputed fact. Salimatou Bah v. Mukasey, 529 F.3d 99, 110 (2d Cir.2008).
We find no error in the agency’s conclusion that Iskandar failed to meet her burden of proof on her application for withholding of removal. The agency’s finding that Iskandar had not suffered past persecution on account of her Chinese ethnicity or Buddhist religion is supported by the record. See Kambolli v. Gonzales, 449 F.3d 454, 457 (2d Cir.2006) (“Persecution does not encompass all treatment that our society regards as unfair, unjust or even unlawful or unconstitutional.” (brackets and internal quotation marks omitted)). In arguing the contrary, Iskandar contends that the agency failed to engage in a cumulative analysis, relying on this Court’s decision in Manzur v. DHS, 494 F.3d 281 (2d Cir.2007). In Manzur, however, we held that remand was required because the IJ’s analysis was “inadequate for us to determine whether he properly considered the petitioners’ claims in the aggregate, and his individual analysis of several of the alleged incidents of harm contains both legal and factual errors.” Id. at 290. Here, there is no indication that the agency considered the incidents individually rather than cumulatively and, in fact, the BIA expressly stated that it had considered their “cumulative effect.”
The agency also did not err in concluding that Iskandar failed to demonstrate a clear probability of persecution in Indonesia. See 8 C.F.R. § 1208.16(b). As the agency specifically noted, the United States Department of State’s 2003 Country Report on Indonesia indicates that the ethnic Chinese are the largest non-indigenous group in Indonesia and play a major role in the economy. In addition, the IJ relied on the Country Report’s statement that ethnic Chinese Buddhists are not targeted for persecution in Indonesia.
While Iskandar contends that she has shown a well-founded fear based on the “one hundred sixty-one pages” of background material she submitted, she fails to cite any portions of the record that establish a clear probability that she would be persecuted if returned to Indonesia. Neither this Court nor the agency are under any obligation to parse the record to create an argument for the petitioner that she has failed to make for herself. See Sioson v. Knights of Columbus, 303 F.3d 458, 459-60 (2d Cir.2002) (noting that it is not the Court’s function to “form an [appellant’s] argument for him, by looking into the record to document the ‘facts’ ... and then examining various combinations of these facts in the light of the legal doctrines he ... mentions”). Highlighting evidence supporting her argument was particularly important given that her family-*576also ethnic Chinese and Buddhists — remain in Indonesia unharmed, undercutting her argument that she is likely to face persecution. See Melgar de Torres v. Reno, 191 F.3d 307, 313 (2d Cir.1999) (finding that where asylum applicant’s mother and daughters continued to live unharmed in petitioner’s native country, claim of well-founded fear was diminished). Therefore, the BIA properly found that Iskandar did not show a likelihood of persecution. Cf. Santoso v. Holder, 580 F.3d 110, 112-13 (2d Cir.2009) (noting that Indonesia is a nation state composed of approximately 6000 inhabited islands).1
CONCLUSION
We have considered all of the petitioner’s arguments and find them to be without merit. For the foregoing reasons the petition for review is DENIED. As we have completed our review, any stay of removal that the Court previously granted in this petition is VACATED, and any pending motion for a stay of removal in this petition is DISMISSED.
. Petitioner urges us to require a lesser showing of risk of persecution based on her status as a member of a “disfavored group” — namely, ethnic Chinese or Buddhists in Indonesia. Her reliance on Sael v. Ashcroft, 386 F.3d 922, 925 (9th Cir.2004), is misplaced, however, because that case described the burden of proof for an asylum claim, which is different, and lower, than the standard that applies to a claim for withholding of removal. See Kyaw Zwar Tun v. U.S. Immigration & Naturalization Serv., 445 F.3d 554, 564-65 (2d Cir.2006). Moreover, we have never adopted Sael even with respect to claims for asylum.
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MEMORANDUM **
Rocío Delgado Rivera, a native and citizen of Mexico, petitions for review of the Board of Immigration Appeals’ (“BIA”) order denying her motion to reopen. We have jurisdiction under 8 U.S.C. § 1252. We review for abuse of discretion the denial of a motion to reopen, Iturribarria v. INS, 321 F.3d 889, 894 (9th Cir.2003), and we deny the petition for review.
The BIA considered the new evidence offered by Rivera, determined that the evidence did not establish a prima facie showing of exceptional and extremely unusual hardship to Rivera’s qualifying relative, and acted within its broad discretion in determining that the evidence was insufficient to warrant reopening. See Singh v. INS, 295 F.3d 1037, 1039 (9th Cir.2002) (the BIA’s denial of a motion to reopen shall be reversed only if it is “arbitrary, irrational, or contrary to law”).
PETITION FOR REVIEW DENIED.
This disposition is not appropriate for publication and is not precedent except as provid*331ed by 9th Cir. R. 36-3.
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MEMORANDUM **
Rony Djoenaedi, a native and citizen of Indonesia, 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 withholding of removal and relief under the Convention Against Torture (“CAT”). We have jurisdiction under 8 U.S.C. § 1252. We review for substantial evidence the denial of an application for withholding of removal and relief under CAT, see Malkandi v. Mukasey, 544 F.3d 1029, 1035 (9th Cir.2008), and we review de novo due process claims, Hernandez de Anderson v. Gonzales, 497 F.3d 927, 932 (9th Cir.2007). We grant in part and deny in part the petition for review, and remand for further proceedings.
Substantial evidence supports the IJ’s conclusion that Djoenaedi failed to establish that he suffered past persecution in Indonesia because the two incidents Djoenaedi experienced do not rise to the level of persecution. See Hoxha v. Ashcroft, 319 F.3d 1179, 1182 (9th Cir.2003). Substantial evidence also supports the BIA’s determination that Djoenaedi failed to establish that ethnic Chinese Christians are subject to the systematic mistreatment required to demonstrate a “pattern or practice” of persecution. See Lolong v. Gonzales, 484 F.3d 1173, 1179-1181 (9th Cir.2007) (en banc) (ethnic Chinese Christian petitioner did not establish an individualized risk or a pattern or practice of persecution in Indonesia).
The BIA found the disfavored group analysis set forth in Sael v. Ashcroft, 386 F.3d 922, 927 (9th Cir.2004), does not apply to withholding of removal claims. Intervening case law holds the disfavored group analysis does apply. See Wakkary v. Holder, 558 F.3d 1049, 1059-60 (9th Cir.2009). Accordingly, we remand to the BIA for consideration of whether, under Sael and Wakkary, Djoenaedi is entitled to withholding of removal.
Substantial evidence supports the BIA’s denial of CAT relief because Djoenaedi failed to show it is more likely than not he would be tortured if returned to Indonesia. See Singh v. Gonzales, 439 F.3d 1100, 1113 (9th Cir.2006).
The IJ and BIA did not violate Djoenaedi’s due process rights by engaging in speculation to conclude that Djoenaedi’s parents and four brothers have continued to reside in Indonesia without harm. Djoenaedi was specifically asked about harm to his family members who remain in Indonesia, and the only incidents he reported were those that occurred prior *333to Ms departure from Indonesia m 2000. See Lata v. INS, 204 F.3d 1241, 1246 (9th Cir.2000) (requiring error to prevail on a due process challenge).
PETITION FOR REVIEW GRANTED in part; DENIED in part; REMANDED.
This disposition is not appropriate for publication and is not precedent except as provided by 9th Cir. R. 36-3.
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MEMORANDUM **
Eduard Beglaryan, a native and citizen of Armenia, and his wife, Tatiana Golovatskaya, a native of Russia and a citizen of Armenia, petition for review of the Board of Immigration Appeals’ order dismissing their appeal from an immigration judge’s (“IJ”) decision denying their application for asylum. We have jurisdiction under 8 U.S.C. § 1252. We review adverse credibility findings for substantial evidence. Soto-Olarte v. Holder, 555 F.3d 1089, 1091 (9th Cir.2009). We deny the petition for review.
Substantial evidence supports the Id’s adverse credibility determination because the discrepancies regarding Beglaryan’s kidnaping, beating at the prosecutor’s office, and 1999 hospitalization go to the heart of his claim, see Li v. Ashcroft, 378 F.3d 959, 962, 964 (9th Cir.2004), and Beglaryan failed to provide a sufficient explanation for the discrepancies, see de Leon-Barrios v. INS, 116 F.3d 391, 393-94 (9th Cir.1997).
The IJ did not err by relying on Beglaryan’s declaration because the record shows that Beglaryan signed his asylum application and swore to the truth of the contents of the application, including the attached declaration. See Lata v. INS, 204 F.3d 1241, 1246 (9th Cir.2000) (requiring error to prevail on a due process challenge).
PETITION FOR REVIEW DENIED.
This disposition is not appropriate for publication and is not precedent except as provided by 9th Cir. R. 36-3.
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MEMORANDUM *
Frank Baldizan was convicted in California state court of manslaughter and shooting at an inhabited dwelling. The trial court sentenced Baldizan to a term of six years imprisonment for the manslaughter offense with a four-year firearm use enhancement. It sentenced Baldizan to a five-year term on the shooting at an inhabited dwelling offense, and enhanced that term with a twenty-five-years-to-life enhancement for the personal discharge of a firearm causing death. The California Court of Appeal upheld the trial court’s stay of the sentence for the manslaughter offense and imposition of the enhanced thirty-years-to-life sentence for the shooting offense.
In his habeas case, petitioner argued that the trial court should have imposed sentence on the manslaughter offense, because it had the longer potential term of imprisonment without enhancement, and that the state court of appeal’s decision retroactively applied the intervening decision in People v. Kramer, 29 Cal.4th 720, 128 Cal.Rptr.2d 407, 59 P.3d 738 (2002), and was contrary to or an unreasonable application of the Supreme Court’s holding in Bouie v. City of Columbia, 378 U.S. 347, 84 S.Ct. 1697, 12 L.Ed.2d 894 (1964). The district court correctly denied the petition.
There was no error in the imposition of the longer sentence. The decision in Kramer merely clarified state law that had been unclear, and constituted a reasonable construction of the preexisting statute. Because the decision of the California Court of Appeal applying Kramer was reasonable and foreseeable under preexisting *336state law, a fortiori it did not violate any clearly established federal law.
AFFIRMED.
This disposition is not appropriate for publication and is not precedent except as provided by 9th Cir. R. 36-3.
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MEMORANDUM **
Marshall Charles Richmond appeals from the district court’s orders denying his pro se motions for a new trial and to set aside the verdict.
Pursuant to Anders v. California, 386 U.S. 738, 87 S.Ct. 1396, 18 L.Ed.2d 493 (1967), Richmond’s counsel has filed a brief stating there are no grounds for relief, along with a motion to withdraw as counsel of record. The appellant has filed a pro se supplemental brief, and no answering brief has been filed.
Our independent review of the record pursuant to Penson v. Ohio, 488 U.S. 75, 80-81, 109 S.Ct. 346, 102 L.Ed.2d 300 (1988), discloses no arguable grounds for relief on direct appeal.
*337Accordingly, counsel’s motion to withdraw is GRANTED, and the district court’s judgment is AFFIRMED.
This disposition is not appropriate for publication and is not precedent except as provided by 9th Cir. R. 36-3.
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MEMORANDUM **
Jose Alfredo Padilla appeals from the judgment revoking his supervised release and imposing a 12-month sentence followed by 24 months of supervised release.
Pursuant to Anders v. California, 386 U.S. 738, 87 S.Ct. 1396, 18 L.Ed.2d 493 (1967), Padilla’s counsel has filed a brief stating there are no grounds for relief, along with a motion to withdraw as counsel of record. We have provided the appellant with the opportunity to file a pro se supplemental brief. No pro se supplemental brief or answering brief has been filed.
Our independent review of the record pursuant to Penson v. Ohio, 488 U.S. 75, 80-81, 109 S.Ct. 346, 102 L.Ed.2d 300 (1988), discloses no arguable grounds for relief on direct appeal.
Accordingly, counsel’s motion to withdraw is GRANTED, and the judgment is AFFIRMED.
This disposition is not appropriate for publication and is not precedent except as provided by 9th Cir. R. 36-3.
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MEMORANDUM **
Mohammed Tahir Naser, an ethnic Tajik and Shiite Moslem citizen of Afghanistan, petitions for review of the Board of Immigration Appeals’ '(“BIA”) affirmance of the Immigration Judge’s (“IJ”) denial of his application for asylum, withholding of removal, and protection under the Convention Against Torture (“CAT”). We have jurisdiction pursuant to 8 U.S.C. § 1252, and grant the petition for review and remand.
*339The BIA’s agreement with the IJ’s conclusion that it lacked jurisdiction to reconsider the claim of asylum and withholding, including the issues of adverse credibility, past persecution, and charges of excludability on remand is error. The BIA misconstrued our mandate in its 2008 decision, despite its recognition of the correct interpretation in its 2004 order upon remand. The BIA’s 2004 order vacated the prior decisions denying reconsideration of the asylum and withholding claims and ordered reopening “for a further hearing on the applicant’s application for asylum and withholding of exclusion.”
Our 2004 disposition had concluded that the BIA abused its discretion in denying Naser’s motion to reopen pursuant to 8 C.F.R. § 3.2(c)(2)1 because his motion was based on ample evidence of changed circumstances in Afghanistan. We therefore granted Naser’s petition to reopen his case and remanded for a new hearing. The record reveals no explanation for the BIA’s correct interpretation of our remand order in 2004, and subsequent incorrect interpretation in 2008. In doing so, the BIA ignored its own precedent in Matter of Patel, 16 I. & N. Dec. 600, 601 (BIA 1978) (holding that a remand from the BIA to an IJ is effective for all matters deemed appropriate in the exercise of administrative discretion or brought to the attention of the IJ in compliance with appropriate regulations “unless the Board qualifies or limits the remand for a specific purpose”). The BIA’s 2004 order did not qualify or limit the remand to the IJ in any manner whatsoever; nor did we retain jurisdiction.
Although we must remand this matter again for compliance with our 2004 disposition and the BIA’s 2004 order upon remand, it is worth noting for future reference that the BIA applied the wrong legal standard in concluding that Naser was ineligible for asylum because he could safely relocate to Kabul. See 8 C.F.R. § 208.13(b)(3); see also Melkonian v. Ashcroft, 320 F.3d 1061, 1069 (9th Cir.2003) (“[i]t is not enough ... for the IJ to find that applicants could escape persecution by relocating internally. It must be reasonable to expect them to do so.”).
We need not reach the issues of the BIA’s refusal to terminate proceedings pending adjudication of Naser’s visa petitions, the IJ’s refusal to grant a continuance, or the IJ’s bias.
PETITION GRANTED and REMANDED.
This disposition is not appropriate for publication and is not precedent except as provided by 9th Cir. R. 36-3.
. Former § 3.2 has been recodified at 8 C.F.R. § 1003.2 (2003), but we reference the version in effect at the time of the orders.
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SUMMARY ORDER
Wen Fang Shi, a native and citizen of the People’s Republic of China, seeks review of a November 25, 2008 order of the BIA denying her motion to reopen and reissue. In re Wen Fang Shi, No. A077 550 393 (B.I.A. Nov. 25, 2008). We assume the parties’ familiarity with the underlying facts and procedural history of this case.
We review the agency’s denial of a motion to reissue for abuse of discretion. See Ping Chen v. U.S. Att’y Gen., 502 F.3d 73, 75 (2d Cir.2007). In her motion, Shi requested that the BIA reissue its prior decision so that she could file a timely petition for review in this Court, alleging that prior counsel had been ineffective because she failed to file such a petition. In order to prevail on a claim of ineffective assistance of counsel, a movant must show that competent counsel would have acted otherwise, and that the alien was prejudiced by her counsel’s performance. See Rabiu v. INS, 41 F.3d 879, 882-83 (2d Cir.1994).
Even assuming, however, that prior counsel was ineffective, see Jin Bo Zhao v. INS, 452 F.3d 154, 158 (2d Cir.2006) (stating that an attorney would be ineffective if she was hired well before the BIA’s deadline to file a motion but failed to file a timely motion), the BIA reasonably determined that Shi failed to demonstrate that she was prejudiced as a result. The BIA explained that Shi “failed to offer any evidence that an appeal of [its] final order ha[d] any possibility of success and that the end result of her removal proceedings would have been different had her prior attorney filed the petition for review.”
Indeed, Shi made no argument that a petition for review in this Court had any likelihood of success. Absent such an argument, the BIA acted well within its discretion in denying Shi’s motion. See Ra-biu, 41 F.3d at 882 (holding that in order to “show that the attorney’s failure to file” an application for relief caused her “actual prejudice,” she “must make a prima facie showing that [s]he would be eligible for the relief and that [s]he could have made a strong showing in support of her application.”).1
For the foregoing reasons, the petition for review is DENIED. As we have completed our review, any stay of removal that the Court previously granted in this peti*571tion is VACATED, and any pending motion for a stay of removal in this petition is DISMISSED as moot. Any pending request for oral argument in this petition is DENIED in accordance with Federal Rule of Appellate Procedure 34(a)(2), and Second Circuit Local Rule 34(b).
. To the extent Shi's arguments in her brief to this Court challenge the agency's underlying denial of her application for relief from removal, this Court lacks jurisdiction to review those claims. See Stone v. INS, 514 U.S. 386, 406, 115 S.Ct. 1537, 131 L.Ed.2d 465 (1995).
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SUMMARY ORDER
Petitioner Soudi Gahutu, a native and citizen of Burundi, seeks review of an April 4, 2008 order of the BIA affirming the October 16, 2006 decision of Immigration Judge (“IJ”) Paul A. DeFonzo pretermitting his application 'for asylum and denying his application for withholding of removal. In re Soudi Gahutu, No. A098-364-803 (B.I.A. Apr. 4, 2008), aff'g No. A098-364803 (Immig. Ct. N.Y. City Oct. 16, 2006). We assume the parties’ familiarity with the underlying facts and procedural history in this case.
I. Asylum
Under 8 U.S.C. § 1158(a)(3), no court shall have jurisdiction to review the agency’s finding that an asylum application was untimely under 8 U.S.C. § 1158(a)(2)(B), or that neither changed nor extraordinary circumstances excused the untimeliness under 8 U.S.C. § 1158(a)(2)(D). Although this Court retains jurisdiction to review constitutional claims and “questions of law,” 8 U.S.C. § 1252(a)(2)(D), a question of law is not implicated “when the petition for review essentially disputes the correctness of the IJ’s fact-finding or the wisdom of his exercise of discretion.” Xiao Ji Chen v. U.S. Dep’t of Justice, 471 F.3d 315, 329 (2d Cir.2006). Gahutu argues that his testimony established that he arrived in the United States in January 2004 and filed his application in May 2004. The IJ rejected this testimony because he found Gahutu not credible and because Gahutu did not submit any documentation indicating when he arrived in the United States. Because Gahutu’s argument challenges only purely factual determinations and the agency’s exercise of discretion, we lack jurisdiction to review the denial of his asylum application and dismiss the petition for review to that extent. 8 U.S.C. § 1158(a)(3); Xiao Ji Chen, 471 F.3d at 328-29.
II. Withholding of Removal
When the BIA does not expressly “adopt” the IJ’s decision, but its opinion closely tracks the IJ’s reasoning, the Court may consider both the IJ’s and the BIA’s opinions. Jigme Wangchuck v. Dep’t of Homeland Sec., 448 F.3d 524, 528 (2d Cir.2006). This Court reviews the agency’s factual findings, including adverse credibility findings, under the substantial evidence standard. 8 U.S.C. § 1252(b)(4)(B); see also Shu Wen Sun v. BIA, 510 F.3d 377, 379 (2d Cir.2007). We review de novo questions of law and the application of law to undisputed fact. Bah v. Mukasey, 529 F.3d 99, 110 (2d Cir.2008).
Substantial evidence supports the IJ’s adverse credibility determination. See Shu Wen Sun, 510 F.3d at 379. In finding Gahutu not credible, the IJ found that: (1) his testimony that his only beating occurred at home when he was arrested contradicted his asylum application, which indicated that he was taken to a separate *573prison cell and beaten every day during his one-week detention; (2) he testified inconsistently regarding how long he had been in possession of his identity documents; (3) he was not familiar with the identity documents he, himself, submitted; and (4) his testimony regarding his ability to conceal his identity documents during his imprisonment was implausible.
In his brief, Gahutu argues that the inconsistencies the IJ relied upon are minor and do not go to the heart of his claim. However, regardless of whether the inconsistencies were minor or central to his claim, the IJ was entitled to rely on their cumulative effect. See Tu Lin v. Gonzales, 446 F.3d 395, 402 (2d Cir.2006) (“[E]ven where an IJ relies on discrepancies or lacunae that, if taken separately, concern matters collateral or ancillary to the claim, the cumulative effect may nevertheless be deemed consequential by the fact-finder.” (internal citations and quotation marks omitted)); see also Liang Chen v. U.S. Attorney Gen., 454 F.3d 103, 106-07 (2d Cir.2006) (“[A]n IJ need not consider the centrality vel non of each individual discrepancy or omission” and can instead “rely upon the cumulative impact of such inconsistencies, and may conduct an overall evaluation of testimony in light of its rationality or internal consistency and the manner in which it hangs together with other evidence.” (internal citations and quotation marks omitted)).
Moreover, contrary to Gahutu’s argument, the inconsistencies went to the heart of his claim because they were related to his alleged persecution by Tutsi soldiers and because they placed his identity in question. See Dhoumo v. BIA, 416 F.3d 172,174 (2d Cir.2005) (per curiam). “[Petitioner’s nationality, or lack of nationality, is a threshold question in determining his eligibility for asylum”.
Having called Gahutu’s credibility into question, the IJ also properly found that he failed to rehabilitate his testimony with corroborating evidence. See Biao Yang v. Gonzales, 496 F.3d 268, 273 (2d Cir.2007).
The discrepancies the IJ identified provide substantial evidence for his adverse credibility determination. See 8 U.S.C. § 1158(b)(1)(B)(iii); Xiu Xia Lin v. Mukasey, 534 F.3d 162, 167 (2d Cir.2008). Therefore, the IJ properly denied Gahutu’s application for withholding of removal, because the only evidence of a threat that Gahutu would be persecuted depended on his credibility.2 See Paul v. Gonzales, 444 F.3d 148, 156 (2d Cir.2006); Xue Hong Yang v. U.S. Dep’t of Justice, 426 F.3d 520, 523 (2d Cir.2005). Because the adverse credibility finding is supported by the record, we need not reach the agency’s alternate burden of proof findings.
For the foregoing reasons, the petition for review is DISMISSED in part, and DENIED in part. As we have completed our review, any pending motion for a stay of removal in this petition is DISMISSED as moot. Any pending request for oral argument in this petition is DENIED in accordance with Federal Rule of Appellate Procedure 34(a)(2), and Second Circuit Local Rule 34(b).
. Although Gahutu argues in his brief that he was eligible for CAT relief, he does not appear to have sought that relief before the IJ, and the IJ never adjudicated such a claim. Even if he had, the adverse credibility determination would be fatal to that claim as well. See Paul v. Gonzales, 444 F.3d 148, 156 (2d Cir.2006).
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SUMMARY ORDER
Petitioner Juniarti Iskandar (“petitioner” or “Iskandar”), a native and citizen of Indonesia, seeks review of an April 28, 2008 order of the BIA, affirming the May 30, 2006 decision of an immigration judge (“IJ”), which pretermitted her application for asylum and denied her application for withholding of removal. In re Iskandar, *575No. A98 420 343 (B.I.A. Apr. 28, 2008), aff'g No. A98 420 343 (Immig. Ct. N.Y. City May 30, 2006). We assume the parties’ familiarity with the factual and procedural history of the case.
When the BIA does not expressly “adopt” the IJ’s decision, but its brief opinion closely tracks the IJ’s reasoning, the Court may consider both the IJ’s and the BIA’s opinions for the sake of completeness if doing so does not affect the Court’s ultimate conclusion. See Jigme Wangchuck v. DHS, 448 F.3d 524, 528 (2d Cir.2006). We review the agency’s factual findings under the substantial evidence standard, treating them as “conclusive unless any reasonable adjudicator would be compelled to conclude to the contrary.” 8 U.S.C. § 1252(b)(4)(B); Corovic v. Mukasey, 519 F.3d 90, 95 (2d Cir.2008). We review de novo questions of law and the application of law to undisputed fact. Salimatou Bah v. Mukasey, 529 F.3d 99, 110 (2d Cir.2008).
We find no error in the agency’s conclusion that Iskandar failed to meet her burden of proof on her application for withholding of removal. The agency’s finding that Iskandar had not suffered past persecution on account of her Chinese ethnicity or Buddhist religion is supported by the record. See Kambolli v. Gonzales, 449 F.3d 454, 457 (2d Cir.2006) (“Persecution does not encompass all treatment that our society regards as unfair, unjust or even unlawful or unconstitutional.” (brackets and internal quotation marks omitted)). In arguing the contrary, Iskandar contends that the agency failed to engage in a cumulative analysis, relying on this Court’s decision in Manzur v. DHS, 494 F.3d 281 (2d Cir.2007). In Manzur, however, we held that remand was required because the IJ’s analysis was “inadequate for us to determine whether he properly considered the petitioners’ claims in the aggregate, and his individual analysis of several of the alleged incidents of harm contains both legal and factual errors.” Id. at 290. Here, there is no indication that the agency considered the incidents individually rather than cumulatively and, in fact, the BIA expressly stated that it had considered their “cumulative effect.”
The agency also did not err in concluding that Iskandar failed to demonstrate a clear probability of persecution in Indonesia. See 8 C.F.R. § 1208.16(b). As the agency specifically noted, the United States Department of State’s 2003 Country Report on Indonesia indicates that the ethnic Chinese are the largest non-indigenous group in Indonesia and play a major role in the economy. In addition, the IJ relied on the Country Report’s statement that ethnic Chinese Buddhists are not targeted for persecution in Indonesia.
While Iskandar contends that she has shown a well-founded fear based on the “one hundred sixty-one pages” of background material she submitted, she fails to cite any portions of the record that establish a clear probability that she would be persecuted if returned to Indonesia. Neither this Court nor the agency are under any obligation to parse the record to create an argument for the petitioner that she has failed to make for herself. See Sioson v. Knights of Columbus, 303 F.3d 458, 459-60 (2d Cir.2002) (noting that it is not the Court’s function to “form an [appellant’s] argument for him, by looking into the record to document the ‘facts’ ... and then examining various combinations of these facts in the light of the legal doctrines he ... mentions”). Highlighting evidence supporting her argument was particularly important given that her family-*576also ethnic Chinese and Buddhists — remain in Indonesia unharmed, undercutting her argument that she is likely to face persecution. See Melgar de Torres v. Reno, 191 F.3d 307, 313 (2d Cir.1999) (finding that where asylum applicant’s mother and daughters continued to live unharmed in petitioner’s native country, claim of well-founded fear was diminished). Therefore, the BIA properly found that Iskandar did not show a likelihood of persecution. Cf. Santoso v. Holder, 580 F.3d 110, 112-13 (2d Cir.2009) (noting that Indonesia is a nation state composed of approximately 6000 inhabited islands).1
CONCLUSION
We have considered all of the petitioner’s arguments and find them to be without merit. For the foregoing reasons the petition for review is DENIED. As we have completed our review, any stay of removal that the Court previously granted in this petition is VACATED, and any pending motion for a stay of removal in this petition is DISMISSED.
. Petitioner urges us to require a lesser showing of risk of persecution based on her status as a member of a “disfavored group” — namely, ethnic Chinese or Buddhists in Indonesia. Her reliance on Sael v. Ashcroft, 386 F.3d 922, 925 (9th Cir.2004), is misplaced, however, because that case described the burden of proof for an asylum claim, which is different, and lower, than the standard that applies to a claim for withholding of removal. See Kyaw Zwar Tun v. U.S. Immigration & Naturalization Serv., 445 F.3d 554, 564-65 (2d Cir.2006). Moreover, we have never adopted Sael even with respect to claims for asylum.
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MEMORANDUM **
Ingris Gomez, a native and citizen of Guatemala, petitions for review of the Board of Immigration Appeals’ (BIA) order affirming the Immigration Judge’s (IJ) denial of her motion to reopen.
We have jurisdiction under 8 U.S.C. § 1252 to hear this converted habeas corpus claim as a timely filed petition for review of the BIA decision. See Pub.L. No. 109-13, 119 Stat. 231, § 106(a), 8 U.S.C. § 1252(a)(5); see also id. at § 106(c). We dismiss in part and deny in part the petition for review.
We lack jurisdiction to review Gomez’s contention that she should not have been charged as an arriving alien under 8 U.S.C. § 1182(a)(6)(C)(ii)(I) because she failed to exhaust this claim by raising this claim before the agency. See 8 U.S.C. § 1252(d)(1); Barron v. Ashcroft, 358 F.3d 674, 678 (9th Cir.2004).
In this court, Gomez fails to raise any challenge to the agency denial of her second motion to reopen and has therefore waived these issues on appeal. See Martinez-Serrano v. INS, 94 F.3d 1256, 1260 (9th Cir.1996).
Gomez’s motion to supplement the record is denied.
PETITION FOR REVIEW DISMISSED IN PART, DENIED IN PART.
This disposition is not appropriate for publication and is not precedent except as provided by 9th Cir. R. 36-3.
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MEMORANDUM **
Cyrus Braswell appeals pro se from the district court’s order granting his 18 U.S.C. § 3582(c)(2) motion for reduction of sentence. We have jurisdiction pursuant to 28 U.S.C. § 1291, and we affirm.
Braswell contends that he was denied his Sixth Amendment right to self-representation during his § 3582(c)(2) proceeding to modify his sentence. Assuming arguendo that the district court erred by not granting his request, any error was harmless because the court allowed Bras-well the opportunity to file a supplemental brief raising any issues not addressed by court-appointed counsel, and subsequently explained why a § 3582(c)(2) proceeding was not the proper vehicle to raise those issues. Cf. United States v. Maness, 566 F.3d 894, 897 (9th Cir.2009) (per curiam).
Braswell also contends that the district court erred by limiting the issues on resentencing to a consideration of whether and to what extent he was entitled to a sentence reduction under § 3582(c)(2) based upon the revised Guideline and the factors set forth in 18 U.S.C. § 3553(a), and refusing to address his challenges to the original sentencing enhancements and to the sufficiency of the indictment. The district court did not err. By its plain terms § 3582(c)(2) applies only to sen-fences and not convictions. See 18 U.S.C. § 3582(c)(2). In addition, Guideline application decisions unrelated to the amendment remain unaffected by a § 3582(c)(2) motion. See U.S.S.G. § lB1.10(b), cmt. n. 2 (2008).
AFFIRMED.
This disposition is not appropriate for publication and is not precedent except as provided by 9th Cir. R. 36-3.
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MEMORANDUM **
Charles T. Davis, a California state prisoner, appeals pro se from the district court’s judgment dismissing his 42 U.S.C. § 1983 action for failure to exhaust administrative remedies as required by 42 U.S.C. § 1997e(a). He also appeals the district court’s order denying his motion for reconsideration. We have jurisdiction under 28 U.S.C. § 1291. We review de novo the dismissal for failure to exhaust, Wyatt v. Terhune, 315 F.3d 1108, 1117 (9th Cir. 2003), and review for abuse of discretion the denial of reconsideration, Sch. Dist. No. 1J, Multnomah County, Or. v. ACandS, Inc., 5 F.3d 1255, 1262 (9th Cir. 1993). We affirm.
The district court properly dismissed the action because Davis clearly conceded that he failed to exhaust prison grievance procedures prior to filing suit. See Wyatt, 315 F.3d at 1120 (“A prisoner’s [clear] concession to nonexhaustion is a valid ground for dismissal .... ”); see also Booth v. Churner, 532 U.S. 731, 741, 121 S.Ct. 1819, 149 L.Ed.2d 958 (2001) (requiring exhaustion of administrative remedies regardless of the type of relief sought); McKinney v. Carey, 311 F.3d 1198, 1200-01 (9th Cir.2002) (per curiam) (requiring exhaustion of administrative remedies pri- or to filing suit).
The district court did not abuse its discretion by denying Davis’s motion for reconsideration because the motion provided no basis for relief from the judgment. See Sch. Dist. No. 1J, 5 F.3d at 1263.
Because the district court properly dismissed the action, Davis’s motion for injunctive relief was moot. See Ruvalcaba v. City of Los Angeles, 167 F.3d 514, 521 (9th Cir.1999) (“If there is no longer a possibility that an appellant can obtain relief for his claim, that claim is moot and must be dismissed for lack of jurisdiction.”).
AFFIRMED.
This disposition is not appropriate for publication and is not precedent except as provided by 9th Cir. R. 36-3.
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MEMORANDUM **
Luis Ricardo Cardenas-Reyes appeals from the district court’s judgment revoking his supervised release and imposing a 24-month sentence of imprisonment, plus a new 12-month term of supervised release. Pursuant to Anders v. California, 386 U.S. 738, 87 S.Ct. 1396, 18 L.Ed.2d 493 (1967), Cardenas-Reyes’ counsel has filed a brief stating there are no grounds for relief, along with a motion to withdraw as counsel of record. We have provided the appellant the opportunity to file a pro se supplemental brief. No pro se supplemental brief or answering brief has been filed.
Our independent review of the record pursuant to Penson v. Ohio, 488 U.S. 75, 80-81, 109 S.Ct. 346, 102 L.Ed.2d 300 (1988), discloses no arguable grounds for relief on direct appeal.
Accordingly, counsel’s motion to withdraw is GRANTED, and the district court’s judgment is AFFIRMED.
This disposition is not appropriate for publication and is not precedent except as provided by 9th Cir. R. 36-3.
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SUMMARY ORDER
Plaintiff-Appellant Farah Jaquith appeals from a judgment of the United States District Court for the Southern District of New York (Seibel, J.), entered following a jury verdict in favor of Defendant-Appellee, South Orangetown Central School District (“School District”). We assume the parties’ familiarity with the underlying facts, procedural history, and specification of the issues on appeal.
Jaquith argues that the district court erroneously rejected her claim that two of the School District’s peremptory challenges during jury selection were exercised for racially discriminatory reasons. See Batson v. Kentucky, 476 U.S. 79, 96-98, 106 S.Ct. 1712, 90 L.Ed.2d 69 (1986); Edmonson v. Leesville Concrete Co., 500 U.S. 614, 630, 111 S.Ct. 2077, 114 L.Ed.2d 660 (1991) (applying Batson analysis to civil cases). “[T]he ultimate question of discriminatory intent represents a finding of fact that will be set aside only if clearly erroneous.” United States v. Taylor, 92 F.3d 1313, 1326 (2d Cir.1996). There was no clear error here.
Jaquith made out a prima facie Batson claim by demonstrating that two of the School District’s three peremptory strikes were used to strike prospective jurors who appeared to be African-American, removing the only such individuals who had been empaneled. See Green v. Travis, 414 F.3d 288, 299 (2d Cir.2005). In response, the School District offered race-neutral explanations for its decision to strike each of the two jurors. Counsel for the School District noted that the first juror stricken had indicated that his wife was disabled, and that Jaquith’s claims included allegations that the School District had failed to accommodate her requests for reassignment following cancer surgery. This led counsel to conclude that the juror might tend to favor the plaintiff. Counsel then explained that the second juror stricken had stated that she was present because then just-inaugurated “President Obama said everybody should serve,” leading counsel to conclude that she “seemed a little bit over-eager to try to do good as a preconceived notion of what good might be.” Counsel further indicated that his concern had “nothing to do with race,” but rather had “more to do with political affiliation and ideas that a person — certain political persuasion may have with respect to a case.” While the district court indicated its disagreement with counsel’s reasoning as to the second juror, it concluded that the asserted reasons for the peremptory strikes were not a pretext for discrimination.
As this Court has emphasized previously, the race-neutral explanations offered in response to a Batson challenge “need not be ‘persuasive, or even plausible’ for the non-movant to meet his obligation at step two of the Batson procedure and thereby advance the inquiry to the third step.” See Messiah v. Duncan, 435 F.3d 186, 195 (2d Cir.2006) (quoting Purkett v. Elem, 514 U.S. 765, 768, 115 S.Ct. 1769, 131 L.Ed.2d 834 (1995)). At that third step, “ ‘the decisive question’ ” typically will be “ ‘whether counsel’s race-neutral explanation for a *655peremptory challenge should be believed.’ ” McKinney v. Artuz, 326 F.3d 87, 98 (2d Cir.2003) (quoting Hernandez v. New York, 500 U.S. 352, 365, 111 S.Ct. 1859, 114 L.Ed.2d 395 (1991)). The record here indicates that the district court made the required assessment of credibility, and we find no clear error in the court’s decision to credit the School District’s race-neutral explanations for its peremptory challenges.
For the foregoing reasons, the judgment of the district court is hereby AFFIRMED.
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SUMMARY ORDER
Michael McMillan appeals his sentence for racketeering, racketeering conspiracy, and conspiracy to distribute and possess with intent to distribute cocaine base (“crack”) and cocaine on the grounds that the sentence, imposed after remand pursuant to United States v. Crosby, 397 F.3d 103 (2d Cir.2005), was procedurally and substantively unreasonable. Further, he seeks remand to allow the district court to amend its written judgment to bring it into compliance with 18 U.S.C. § 3553(e)(2).
We assume the parties’ familiarity with the underlying facts, the procedural history, and the issues presented for review.
We review a district court’s sentence for procedural and substantive reasonableness. United States v. Rattoballi, 452 F.3d 127, 131-32 (2d Cir.2006). A review for reasonableness, in turn, is akin to a review for abuse of discretion. Gall v. United States, 552 U.S. 38, 128 S.Ct. 586, 597, 169 L.Ed.2d 445 (2007).
A district court’s failure to calculate properly the Guidelines range constitutes procedural error. Gall, 128 S.Ct. at 597. On resentencing, a district court can rely on the Guidelines calculation from the Pre-Sentence Report (“PSR”) used at the original sentencing, so long as the parties had a full opportunity to be heard and to supplement the PSR at resentencing. United States v. Quintieri, 306 F.3d 1217, 1234 (2d Cir.2002).
The district court did not commit procedural error. Without objection, the court explicitly reaffirmed the Guideline determinations in the original PSR, noting that the Guidelines called for a life sentence.
McMillan next argues that the district court “failed to recognize the extent of its discretion in determining what would constitute a fair and reasonable sentence.” Although McMillan frames this issue as one of substantive reasonableness, his claim is procedural. See Gall, 128 S.Ct. at 597 (noting that “treating the Guidelines as mandatory” is a procedural error); United States v. Johnson, 567 F.3d 40, 51 (2d Cir.2009) (same).
The district court recognized its authority to depart from the recommended Guidelines sentence. The very fact that the court imposed a thirty-year sentence after stating (twice) that the Guidelines called for a life sentence-—coupled with the fact that the Court’s original sentence was a life sentence—clearly demonstrates that the court understood its authority to impose a non-Guidelines sentence. The district judge expressly recognized that it “has [a] wide spectrum of sentences available that go from way down in terms of incarceration up to life. The guidelines, as I have indicated, suggest a life sentence.”
McMillan contends that the court failed to comply with the “parsimony clause” in 18 U.S.C. § 3553(a), which requires “a sentence sufficient, but not greater than necessary,” to serve the objectives of sentencing. 18 U.S.C. § 3553(a); see also United States v. Habbas, 527 F.3d 266, 274 (2d Cir.2008). Specifically, the court must consider, inter alia, the nature and circumstances of the offense; the history and characteristics of the defendant; and the need for the sentence imposed to reflect the seriousness of the offense, to deter criminal conduct, to protect the public, and to provide the defendant with educational training and medical care. See 18 U.S.C. § 3553(a).
The record demonstrates that the district court considered each factor seriatim *657and therefore complied with section 3553(a).
Finally, McMillan seeks a remand “so that the District Court can be given the opportunity to comply with 18 U.S.C. § 3553(c)(2),” which requires district courts imposing non-Guidelines sentences to state their reasons for doing so “with specificity in the written order of judgment and commitment.” Remand is appropriate when the district court violates section 3553(c)(2), even though remand in these circumstances “will not result in any change in the conviction or sentence.” United States v. Hall, 499 F.3d 152, 154 (2d Cir.2007) (per curiam); see also United States v. Goffi, 446 F.3d 319, 322 n. 2 (2d Cir.2006).
The written order of judgment does not comply with this requirement. Accordingly, we remand the matter for the sole purpose of allowing the district court to amend its -written judgment to comply with section 3553(c)(2).
Finding no merit in McMillan’s remaining arguments, we hereby AFFIRM the judgment of the district court AND REMAND for the district court to amend its written judgment to comply with 18 U.S.C. § 3553(c)(2).
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MEMORANDUM **
Ingris Gomez, a native and citizen of Guatemala, petitions for review of the Board of Immigration Appeals’ (BIA) order affirming the Immigration Judge’s (IJ) denial of her motion to reopen.
We have jurisdiction under 8 U.S.C. § 1252 to hear this converted habeas corpus claim as a timely filed petition for review of the BIA decision. See Pub.L. No. 109-13, 119 Stat. 231, § 106(a), 8 U.S.C. § 1252(a)(5); see also id. at § 106(c). We dismiss in part and deny in part the petition for review.
We lack jurisdiction to review Gomez’s contention that she should not have been charged as an arriving alien under 8 U.S.C. § 1182(a)(6)(C)(ii)(I) because she failed to exhaust this claim by raising this claim before the agency. See 8 U.S.C. § 1252(d)(1); Barron v. Ashcroft, 358 F.3d 674, 678 (9th Cir.2004).
In this court, Gomez fails to raise any challenge to the agency denial of her second motion to reopen and has therefore waived these issues on appeal. See Martinez-Serrano v. INS, 94 F.3d 1256, 1260 (9th Cir.1996).
Gomez’s motion to supplement the record is denied.
PETITION FOR REVIEW DISMISSED IN PART, DENIED IN PART.
This disposition is not appropriate for publication and is not precedent except as provided by 9th Cir. R. 36-3.
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MEMORANDUM **
California state prisoner Enrique Algal-on appeals from the district court’s judgment dismissing his 28 U.S.C. § 2254 habeas petition. We have jurisdiction under 28 U.S.C. § 2253(a). We review the dismissal of a mixed habeas petition de novo, and a district court’s grant or denial of a stay for abuse of discretion. Wooten v. Kirkland, 540 F.3d 1019, 1023 (9th Cir. 2008). We affirm.
The district court properly dismissed Algalon’s petition because it was a mixed petition containing both exhausted and unexhausted claims. See Rose v. Lundy, 455 U.S. 509, 510, 102 S.Ct. 1198, 71 L.Ed.2d 379 (1982). The district court did not abuse its discretion in denying Algal-on’s motion to stay the mixed petition because Algalon did not demonstrate good cause for his failure to exhaust his state remedies prior to filing his federal habeas petition. See Rhines v. Weber, 544 U.S. 269, 277, 125 S.Ct. 1528, 161 L.Ed.2d 440 (2005) (requiring good cause for petitioner’s failure to exhaust); Wooten, 540 F.3d at 1024 (holding that petitioner’s belief that appellate counsel raised a claim before state court did not constitute good cause); Hughes v. Idaho State Bd. of Corrections, 800 F.2d 905, 909 (9th Cir.1986) *342(holding that illiterate pro se litigant’s reliance on another inmate’s assistance was not sufficient cause).
The district court was not required to inform Algalon of the three-step procedure set out in Kelly v. Small, 315 F.3d 1063 (9th Cir.2003), and Calderon v. United States District Court (Taylor), 134 F.3d 981 (9th Cir.1998). See Pliler v. Ford, 542 U.S. 225, 230-31, 124 S.Ct. 2441, 159 L.Ed.2d 338 (2004).
AFFIRMED.
This disposition is not appropriate for publication and is not precedent except as provided by 9th Cir. R. 36-3.
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MEMORANDUM **
Cyrus Braswell appeals pro se from the district court’s order granting his 18 U.S.C. § 3582(c)(2) motion for reduction of sentence. We have jurisdiction pursuant to 28 U.S.C. § 1291, and we affirm.
Braswell contends that he was denied his Sixth Amendment right to self-representation during his § 3582(c)(2) proceeding to modify his sentence. Assuming arguendo that the district court erred by not granting his request, any error was harmless because the court allowed Bras-well the opportunity to file a supplemental brief raising any issues not addressed by court-appointed counsel, and subsequently explained why a § 3582(c)(2) proceeding was not the proper vehicle to raise those issues. Cf. United States v. Maness, 566 F.3d 894, 897 (9th Cir.2009) (per curiam).
Braswell also contends that the district court erred by limiting the issues on resentencing to a consideration of whether and to what extent he was entitled to a sentence reduction under § 3582(c)(2) based upon the revised Guideline and the factors set forth in 18 U.S.C. § 3553(a), and refusing to address his challenges to the original sentencing enhancements and to the sufficiency of the indictment. The district court did not err. By its plain terms § 3582(c)(2) applies only to sen-fences and not convictions. See 18 U.S.C. § 3582(c)(2). In addition, Guideline application decisions unrelated to the amendment remain unaffected by a § 3582(c)(2) motion. See U.S.S.G. § lB1.10(b), cmt. n. 2 (2008).
AFFIRMED.
This disposition is not appropriate for publication and is not precedent except as provided by 9th Cir. R. 36-3.
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MEMORANDUM **
Charles T. Davis, a California state prisoner, appeals pro se from the district court’s judgment dismissing his 42 U.S.C. § 1983 action for failure to exhaust administrative remedies as required by 42 U.S.C. § 1997e(a). He also appeals the district court’s order denying his motion for reconsideration. We have jurisdiction under 28 U.S.C. § 1291. We review de novo the dismissal for failure to exhaust, Wyatt v. Terhune, 315 F.3d 1108, 1117 (9th Cir. 2003), and review for abuse of discretion the denial of reconsideration, Sch. Dist. No. 1J, Multnomah County, Or. v. ACandS, Inc., 5 F.3d 1255, 1262 (9th Cir. 1993). We affirm.
The district court properly dismissed the action because Davis clearly conceded that he failed to exhaust prison grievance procedures prior to filing suit. See Wyatt, 315 F.3d at 1120 (“A prisoner’s [clear] concession to nonexhaustion is a valid ground for dismissal .... ”); see also Booth v. Churner, 532 U.S. 731, 741, 121 S.Ct. 1819, 149 L.Ed.2d 958 (2001) (requiring exhaustion of administrative remedies regardless of the type of relief sought); McKinney v. Carey, 311 F.3d 1198, 1200-01 (9th Cir.2002) (per curiam) (requiring exhaustion of administrative remedies pri- or to filing suit).
The district court did not abuse its discretion by denying Davis’s motion for reconsideration because the motion provided no basis for relief from the judgment. See Sch. Dist. No. 1J, 5 F.3d at 1263.
Because the district court properly dismissed the action, Davis’s motion for injunctive relief was moot. See Ruvalcaba v. City of Los Angeles, 167 F.3d 514, 521 (9th Cir.1999) (“If there is no longer a possibility that an appellant can obtain relief for his claim, that claim is moot and must be dismissed for lack of jurisdiction.”).
AFFIRMED.
This disposition is not appropriate for publication and is not precedent except as provided by 9th Cir. R. 36-3.
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*346MEMORANDUM **
Darren Henderson, a California state prisoner, appeals pro se from the district court’s judgment dismissing his 42 U.S.C. § 1983 action .alleging deliberate indifference to his serious medical needs. We have jurisdiction under 28 U.S.C. § 1291. We review de novo, Hearns v. Terhune, 413 F.3d 1036, 1040 (9th Cir.2005), and we affirm in part, vacate in part, and remand.
In his opening brief, Henderson fails to address, and therefore waives any challenge to, the district court’s dismissal of his claims against defendants Cox, French, and Wolf, and his claim against defendant Roche premised on Roche’s alleged failure to provide medication. See Martinez-Serrano v. INS, 94 F.3d 1256, 1259-60 (9th Cir.1996) (issues not specifically raised and argued in a party’s opening brief are waived). Accordingly, we affirm the dismissal of those claims.
However, we vacate the judgment to the extent it dismisses the claims alleging that defendants Dovey, Felker, and Roche executed and enforced unconstitutional policies pertaining to the treatment of diabetic inmates. The district court dismissed the claims in part because the California Department of Corrections and Rehabilitation’s policies and procedures for treating diabetic inmates were previously found to meet the constitutional standard of care. Because we can find no support in the record for that conclusion, we vacate the judgment dismissing these claims against Dovey, Felker, and Roche, and remand for further proceedings. On remand, the district court should consider, independent of Plata v. Schwarzenegger, whether Henderson’s amended complaint states a claim against those defendants, and if not, whether leave to amend is appropriate. See Lopez v. Smith, 203 F.3d 1122, 1130-31 (9th Cir.2000) (en banc) (stating that leave to amend should be granted if it appears at all possible that a pro se plaintiff can correct the defect in the pleading).
The parties shall bear their own costs on appeal.
AFFIRMED in part, VACATED in part, and REMANDED.
This disposition is not appropriate for publication and is not precedent except as provided by 9th Cir. R. 36-3.
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MEMORANDUM **
Julio Cortes appeals from the 120-month sentence imposed following his guilty-plea conviction for receipt of child pornography, in violation of 18 U.S.C. § 2252A(a)(2). We have jurisdiction pursuant to 28 U.S.C. § 1291, and we affirm.
Cortes contends that the district court erred by failing to grant his request for a sentence below the Guidelines range. We review for reasonableness. See United States v. Mohamed, 459 F.3d 979, 986-88 (9th Cir.2006). The record reflects that the district court thoroughly considered the § 3553(a) factors, including Cortes’ arguments in mitigation, prior to imposing a sentence in the middle of the Guidelines range. The district court did not proce*349durally err, and the sentence is substantively reasonable. See Gall v. United States, 552 U.S. 38, 128 S.Ct. 586, 596-97, 169 L.Ed.2d 445 (2007); see also United States v. Carty, 520 F.3d 984, 991-93 (9th Cir.2008) (en banc).
AFFIRMED.
This disposition is not appropriate for publication and is not precedent except as provided by 9th Cir. R. 36-3.
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MEMORANDUM **
Raju Narayan Dangol, a native and citizen of Nepal, petitions for review of the Board of Immigration Appeals’ (“BIA”) order denying his motion to reissue a previous decision. Our jurisdiction is governed by 8 U.S.C. § 1252. Reviewing for abuse of discretion, Perez v. Mukasey, 516 F.3d 770, 773 (9th Cir.2008), and reviewing de novo claims of constitutional violations in immigration proceedings, Ram v. INS, 243 F.3d 510, 516 (9th Cir.2001), we deny in part and dismiss in part the petition for review.
The BIA did not abuse its discretion in refusing to reissue its March 29, 2006, order where the record indicates the order was mailed to Dangol’s counsel’s address of record, see Haroutunian v. INS, 87 F.3d 374, 375 (9th Cir.1996) (a properly addressed cover letter creates a presumption of mailing on the date of the cover letter), and Dangol failed to submit evidence supporting his claim of nonreceipt, cf. Singh v. Gonzales, 494 F.3d 1170, 1172-73 (9th Cir.2007); see also 8 C.F.R. § 1003.2(c). It follows that Dangol’s due process claim fails. See Lata v. INS, 204 *351F.3d 1241, 1246 (9th Cir.2000) (requiring error for a petitioner to prevail on a due process claim).
We lack jurisdiction to consider Dangol’s challenge to the BIA’s March 29, 2006, order because this petition is not timely as to that order. See 8 U.S.C. § 1252(b)(1); Singh v. INS, 315 F.3d 1186, 1188 (9th Cir.2003).
PETITION FOR REVIEW DENIED in part; DISMISSED in part.
This disposition is not appropriate for publication and is not precedent except as provided by 9th Cir. R. 36-3.
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*691SUMMARY ORDER
Defendant-Appellant Miguel OrlandoMena appeals from a judgment of the district court (Cote, J.) entered October 21, 2008, sentencing him principally to fifty-seven months’ imprisonment. OrlandoMena argues that the district court improperly included a prior Florida youthful offender adjudication in calculating his base offense level and criminal history categoiy points. We assume the parties’ familiarity with the facts and procedural history of the case.
The decision to include a youthful offender adjudication in a Sentencing Guidelines calculation is a question of law that we review de novo. See United States v. Matthews, 205 F.3d 544, 545 (2d Cir.2000). Section 2L1.2 of the Sentencing Guidelines provides that the offense level for illegal reentry be increased by sixteen levels if the defendant was previously deported after “a conviction for a felony that is ... a crime of violence.” U.S.S.G. § 2L1.2(b)(l)(A)(ii). The test for whether a youthful offender adjudication qualifies as a “conviction” for purposes of the Sentencing Guidelines was set forth in United States v. Driskell, 277 F.3d 150 (2d Cir.2002), and specifically applied to § 2L1.2 in United States v. Reinoso, 350 F.3d 51, 54 (2d Cir.2003)2 Under this framework, courts look to the “substance of the past conviction rather than the statutory term affixed to it by the state court,” Dniskell, 277 F.3d at 154, specifically considering “the nature of [the] prior proceeding, the sentence received and actually served, and where the defendant was incarcerated.” Id. at 151.
In this case, it is undisputed that Orlando-Mena was prosecuted as an adult in adult court in Florida. He was sentenced to four years’ incarceration and two years’ Community Control, and he served more than two years of his four year sentence. Nonetheless, he argues that his youthful offender adjudication does not qualify as a “conviction” under § 2L1.2 because, under Florida law, youthful offenders are required to be housed at separate institutions. Even assuming Orlando-Mena actually served his sentence in a youthful offender facility,3 however, that one factor is not dispositive. Because Orlando-Mena was prosecuted as an adult in adult court, and was sentenced to, and served, a substantial period of incarceration, we conclude that in substance the adjudication was a conviction for purposes of § 2L1.2. See Driskell, 277 F.3d at 157-58 (citing with approval a Ninth Circuit decision in which that court found two defendants had received adult sentences imposed pursuant to adult convictions for purposes of the Guidelines even though they had been committed to the California Youth Authority and not to state prison); United States v. Jackson, 504 F.3d 250, 253 (2d Cir.2007) (per curiam) (concluding that the youthful offender adjudication was a prior conviction for a felony drug offense under 21 U.S.C. § 841(b) even though the record did not indicate whether defendant had served his youthful offender sentence in an adult institution).
*692As to the criminal history category, under U.S.S.G. § 4A1.2(a)(1), a “prior sentence” means “any sentence previously imposed upon adjudication of guilt, whether by guilty plea, trial, or plea of nolo contendere.” In this case, it is undisputed that Orlando-Mena was sentenced to four years’ incarceration. However, a “sentence imposed for an offense committed prior to the defendant’s eighteenth birthday” is only counted if it “resulted from an adult conviction.” Id. § 4A1.1, Application Note 1. There is no need to consider whether Orlando-Mena’s sentence resulted from an adult conviction, because he committed the offense in question when he was eighteen years old. Orlando-Mena’s citation to Driskell in this regard is inapposite, because in that case the defendant committed the offense in question when he was seventeen years old. See 277 F.3d at 151-52. Moreover, even if Driskell required us to perform the analysis discussed above for the criminal history calculation as well, the result would be no different from the one we reached with regards to § 2L1.2. See Reinoso, 350 F.3d at 55 (“[T]here is no basis for distinguishing between the criminal history calculation and the base offense level calculation in applying Driskell’s conception of youthful offender status.”).
We have considered all of OrlandoMena’s other arguments and find them without merit. Therefore, for the foregoing reasons, the judgment of the district court is AFFIRMED.
. Orlando-Mena specifically disclaims reliance on U.S.S.G. § 2L1.2, Application Note l(A)(iv), which provides that an offense committed before a defendant turned eighteen may not be used to enhance the base offense level “unless such conviction is classified as an adult conviction under the laws of the jurisdiction in which the defendant was convicted," because he was over eighteen at the time he committed the crimes in question here.
. Orlando-Mena does not argue that he was actually housed at such a facility. Indeed, the record does not indicate where OrlandoMena served his sentence.
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SUMMARY ORDER
Petitioner Howard Brett Berger seeks review of two orders of the SEC, the first sustaining disciplinary action against him by the National Association of Securities Dealers (“NASD”)1, and the second affirming that sanction after our remand for reconsideration. We assume the parties’ familiarity with the underlying facts, the procedural history of the case, and the issues raised on appeal.
Berger first contends that the SEC’s finding that Berger was subject to NASD’s retention jurisdiction was not based on substantial evidence. In applying the substantial evidence standard of review, we uphold the SEC’s findings of fact where they are supported by “such relevant evidence as a reasonable mind might accept as adequate to support a conclusion.” Consol. Edison Co. of N.Y. v. NLRB, 305 U.S. 197, 217, 59 S.Ct. 206, 83 L.Ed. 126 (1938). We review the SEC’s legal conclusions for arbitrariness, capriciousness, and *694abuse of discretion. Markowski v. SEC, 34 F.3d 99, 104 (2d Cir.1994).
NASD has jurisdiction over its members and associated persons, the latter being defined as “natural person[s] who ... [have] applied for registration under the Rules of Association,” NASD By-Laws, art. I, § dd(l), and it retains such jurisdiction for two years after the effective date of the individual’s termination of association, id. at art. V, § 4, available at www.finra.org/web/groups/ industry/@ip/@reg/@notice/documents/ notices/p009798.pdf. NASD jurisdiction has been held to extend to those applicants who have applied for membership but who have not been approved, including those who have signed and submitted a Form U4. See, e.g., Dep’t of Enforcement, Complainant v. Respondent, Complaint No. C 10010146, 2003 NASD Discip. LEXIS 1, at *9 n. 4 (N.A.C. Jan. 3, 2003). We conclude that the finding that Berger signed and submitted a Form U4 within the two years prior to the first on-the-record interview (“OTR”) at which he was asked to appear was grounded in the record and was supported by substantial evidence. The initial Form U4 bore Berger’s name on the “signature of applicant” line and was twice amended over the month after its submission on April 15, 2003. In addition, the information that was supplied in connection with those amendments in all likelihood could only have been provided by Berger, and Berger had strong incentives to seek registration in April 2003.
Berger next contends that the SEC abused its discretion in sustaining a sanction against him that permanently barred him from associating with any NASD member firm. Under the Administrative Procedure Act (“APA”), we review the SEC’s sanction determinations for whether they are “arbitrary, capricious, an abuse of discretion, or otherwise not in accordance with law.” 5 U.S.C. § 706(2)(A). We overturn such sanctions only if they are unwarranted in law or without justification in fact. McCarthy v. SEC, 406 F.3d 179, 188 (2d Cir.2005). We have discretion to reduce or eliminate a sanction if it is “excessive or does not serve its intended purposes.” Id.
We find the SEC’s sanction to be warranted in law and adequately justified in its decisions, and note that the SEC was not required to impose the least onerous sanction available to it, so long as the sanction it chose was remedial and not excessive or oppressive. See PAZ Sec., Inc. v. SEC (PAZ II), 566 F.3d 1172, 1174-76 (D.C.Cir.2009). In light of Berger’s past disciplinary history with NASD; the circumstances of his failure to appear at the two OTRs; the importance of the Millennium investigation to NASD, which Berger’s conduct at least somewhat impeded; and the seriousness of Rule 8210 violations in general, we conclude that the SEC was within its discretion in sustaining the agency’s permanent bar against Berger.
Finally, Berger argues that NASD’s procedures fail to meet the fairness requirement of the Securities Exchange Act of 1934 (“SEA”), see 15 U.S.C. § 78o-3, because they do not allow an associated person to challenge NASD’s jurisdiction over him or her prior to an OTR. In essence, Berger contends that NASD should adopt what he alleges to be the New York Stock Exchange’s practice of imposing conditional bars on persons who violate its rules. We have held, however, that NASD is not a state actor subject to due process requirements, D'Alessio v. SEC, 380 F.3d 112, 120 n. 12 (2d Cir.2004), and to the extent that NASD provides those persons who refuse to appear at an OTR a full, albeit delayed, opportunity to litigate the jurisdictional issue after disciplinary proceedings have begun, see Bob *695Jones Univ. v. Simon, 416 U.S. 725, 746-47, 94 S.Ct. 2038, 40 L.Ed.2d 496 (1974), we are satisfied that its procedures comply with the SEA’s fairness requirement.
We have reviewed Berger’s remaining contentions and conclude that they are without merit.
For the foregoing reasons, Berger’s petition for review is DENIED.
. NASD was consolidated with other regulatory bodies in 2007 to become the Financial Industry Regulatory Authority (“FINRA'').
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SUMMARY ORDER
Petitioner-Appellant Kareem Smith appeals from a judgment of the United States District Court for the Southern Dis*696trict of New York (Pauley, J.), entered on December 11, 2008, 2008 WL 5203726, denying his petition for a writ of habeas corpus pursuant to 28 U.S.C. § 2254. We assume the parties’ familiarity with the facts and procedural history of the case.
Smith asserts that he was denied his Fifth Amendment right to remain silent and his Fourteenth Amendment due process right to consult with his attorney, as both were defined by the Supreme Court in Brooks v. Tennessee, 406 U.S. 605, 92 5.Ct. 1891, 32 L.Ed.2d 358 (1972), when the trial court required Smith to testify, if at all, as the first defense witness in order to avoid a delay in the proceedings when other defense witnesses were unavailable. The Appellate Division affirmed Smith’s conviction on direct appeal, summarily rejecting his assertion that the trial court had committed error under Brooks. People v. Smith, 260 A.D.2d 253, 690 N.Y.S.2d 6, 6 (1999) (concluding that the trial court’s decision was “a proper exercise of ... [the court’s] power to control the flow of the proceedings in the interest of preventing the morning session of the trial from being wasted”). Because the state court denied Smith’s claim on the merits, we must deny the petition unless the state court’s adjudication resulted in a decision that “was contrary to, or involved an unreasonable application of, clearly established Federal law, as determined by the Supreme Court of the United States.” 28 U.S.C. § 2254(d)(1).
“Notwithstanding ... some of the broad language the Court employed in Brooks,... Brooks does not constitute a general prohibition against a trial judge’s regulation of the order of trial in a way that may affect the timing of a defendant’s testimony.” Harris v. Barkley, 202 F.3d 169, 173 (2d Cir.2000). In Harris, we concluded that the trial court could, consistent with Brooks, order a defendant to testify, if at all, prior to the last defense witness, who was not available until the next day because the defendant had failed to subpoena the witness. Id. at 173-74. Smith argues that the circumstances of his trial were unlike those we confronted in Harris, and that even if Brooks does not constitute a general prohibition against a trial judge’s regulation of the order of trial in a way that may affect the timing of a defendant’s testimony, it nonetheless prohibits the particular regulation of the order of trial at issue here. Although we agree that the circumstances of Smith’s trial are different in many ways from the trial we considered in Harris, we cannot agree that the circumstances are so different that the state court’s decision “was contrary to, or involved an unreasonable application of,” Brooks.
For the foregoing reasons, the judgment of the district court is hereby AFFIRMED.
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SUMMARY ORDER
Plaintiff-Appellant Farah Jaquith appeals from a judgment of the United States District Court for the Southern District of New York (Seibel, J.), entered following a jury verdict in favor of Defendant-Appellee, South Orangetown Central School District (“School District”). We assume the parties’ familiarity with the underlying facts, procedural history, and specification of the issues on appeal.
Jaquith argues that the district court erroneously rejected her claim that two of the School District’s peremptory challenges during jury selection were exercised for racially discriminatory reasons. See Batson v. Kentucky, 476 U.S. 79, 96-98, 106 S.Ct. 1712, 90 L.Ed.2d 69 (1986); Edmonson v. Leesville Concrete Co., 500 U.S. 614, 630, 111 S.Ct. 2077, 114 L.Ed.2d 660 (1991) (applying Batson analysis to civil cases). “[T]he ultimate question of discriminatory intent represents a finding of fact that will be set aside only if clearly erroneous.” United States v. Taylor, 92 F.3d 1313, 1326 (2d Cir.1996). There was no clear error here.
Jaquith made out a prima facie Batson claim by demonstrating that two of the School District’s three peremptory strikes were used to strike prospective jurors who appeared to be African-American, removing the only such individuals who had been empaneled. See Green v. Travis, 414 F.3d 288, 299 (2d Cir.2005). In response, the School District offered race-neutral explanations for its decision to strike each of the two jurors. Counsel for the School District noted that the first juror stricken had indicated that his wife was disabled, and that Jaquith’s claims included allegations that the School District had failed to accommodate her requests for reassignment following cancer surgery. This led counsel to conclude that the juror might tend to favor the plaintiff. Counsel then explained that the second juror stricken had stated that she was present because then just-inaugurated “President Obama said everybody should serve,” leading counsel to conclude that she “seemed a little bit over-eager to try to do good as a preconceived notion of what good might be.” Counsel further indicated that his concern had “nothing to do with race,” but rather had “more to do with political affiliation and ideas that a person — certain political persuasion may have with respect to a case.” While the district court indicated its disagreement with counsel’s reasoning as to the second juror, it concluded that the asserted reasons for the peremptory strikes were not a pretext for discrimination.
As this Court has emphasized previously, the race-neutral explanations offered in response to a Batson challenge “need not be ‘persuasive, or even plausible’ for the non-movant to meet his obligation at step two of the Batson procedure and thereby advance the inquiry to the third step.” See Messiah v. Duncan, 435 F.3d 186, 195 (2d Cir.2006) (quoting Purkett v. Elem, 514 U.S. 765, 768, 115 S.Ct. 1769, 131 L.Ed.2d 834 (1995)). At that third step, “ ‘the decisive question’ ” typically will be “ ‘whether counsel’s race-neutral explanation for a *655peremptory challenge should be believed.’ ” McKinney v. Artuz, 326 F.3d 87, 98 (2d Cir.2003) (quoting Hernandez v. New York, 500 U.S. 352, 365, 111 S.Ct. 1859, 114 L.Ed.2d 395 (1991)). The record here indicates that the district court made the required assessment of credibility, and we find no clear error in the court’s decision to credit the School District’s race-neutral explanations for its peremptory challenges.
For the foregoing reasons, the judgment of the district court is hereby AFFIRMED.
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SUMMARY ORDER
Michael McMillan appeals his sentence for racketeering, racketeering conspiracy, and conspiracy to distribute and possess with intent to distribute cocaine base (“crack”) and cocaine on the grounds that the sentence, imposed after remand pursuant to United States v. Crosby, 397 F.3d 103 (2d Cir.2005), was procedurally and substantively unreasonable. Further, he seeks remand to allow the district court to amend its written judgment to bring it into compliance with 18 U.S.C. § 3553(e)(2).
We assume the parties’ familiarity with the underlying facts, the procedural history, and the issues presented for review.
We review a district court’s sentence for procedural and substantive reasonableness. United States v. Rattoballi, 452 F.3d 127, 131-32 (2d Cir.2006). A review for reasonableness, in turn, is akin to a review for abuse of discretion. Gall v. United States, 552 U.S. 38, 128 S.Ct. 586, 597, 169 L.Ed.2d 445 (2007).
A district court’s failure to calculate properly the Guidelines range constitutes procedural error. Gall, 128 S.Ct. at 597. On resentencing, a district court can rely on the Guidelines calculation from the Pre-Sentence Report (“PSR”) used at the original sentencing, so long as the parties had a full opportunity to be heard and to supplement the PSR at resentencing. United States v. Quintieri, 306 F.3d 1217, 1234 (2d Cir.2002).
The district court did not commit procedural error. Without objection, the court explicitly reaffirmed the Guideline determinations in the original PSR, noting that the Guidelines called for a life sentence.
McMillan next argues that the district court “failed to recognize the extent of its discretion in determining what would constitute a fair and reasonable sentence.” Although McMillan frames this issue as one of substantive reasonableness, his claim is procedural. See Gall, 128 S.Ct. at 597 (noting that “treating the Guidelines as mandatory” is a procedural error); United States v. Johnson, 567 F.3d 40, 51 (2d Cir.2009) (same).
The district court recognized its authority to depart from the recommended Guidelines sentence. The very fact that the court imposed a thirty-year sentence after stating (twice) that the Guidelines called for a life sentence-—coupled with the fact that the Court’s original sentence was a life sentence—clearly demonstrates that the court understood its authority to impose a non-Guidelines sentence. The district judge expressly recognized that it “has [a] wide spectrum of sentences available that go from way down in terms of incarceration up to life. The guidelines, as I have indicated, suggest a life sentence.”
McMillan contends that the court failed to comply with the “parsimony clause” in 18 U.S.C. § 3553(a), which requires “a sentence sufficient, but not greater than necessary,” to serve the objectives of sentencing. 18 U.S.C. § 3553(a); see also United States v. Habbas, 527 F.3d 266, 274 (2d Cir.2008). Specifically, the court must consider, inter alia, the nature and circumstances of the offense; the history and characteristics of the defendant; and the need for the sentence imposed to reflect the seriousness of the offense, to deter criminal conduct, to protect the public, and to provide the defendant with educational training and medical care. See 18 U.S.C. § 3553(a).
The record demonstrates that the district court considered each factor seriatim *657and therefore complied with section 3553(a).
Finally, McMillan seeks a remand “so that the District Court can be given the opportunity to comply with 18 U.S.C. § 3553(c)(2),” which requires district courts imposing non-Guidelines sentences to state their reasons for doing so “with specificity in the written order of judgment and commitment.” Remand is appropriate when the district court violates section 3553(c)(2), even though remand in these circumstances “will not result in any change in the conviction or sentence.” United States v. Hall, 499 F.3d 152, 154 (2d Cir.2007) (per curiam); see also United States v. Goffi, 446 F.3d 319, 322 n. 2 (2d Cir.2006).
The written order of judgment does not comply with this requirement. Accordingly, we remand the matter for the sole purpose of allowing the district court to amend its -written judgment to comply with section 3553(c)(2).
Finding no merit in McMillan’s remaining arguments, we hereby AFFIRM the judgment of the district court AND REMAND for the district court to amend its written judgment to comply with 18 U.S.C. § 3553(c)(2).
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SUMMARY ORDER
Bi Qi Liu, a citizen of the People’s Republic of China, seeks review of a September 8, 2008 order of the BIA affirming the April 11, 2007 decision of Immigration Judge (“IJ”) Sandy K. Horn denying Liu’s application for asylum, withholding of removal, and relief under the Convention Against Torture (“CAT”). In re Bi Qi Liu, No. A99 610 177 (BIA Sep. 8, 2008), affg No. A99 610 177 (Immig. Ct. N.Y. City Apr. 11, 2007). We assume the parties’ familiarity with the underlying facts and procedural history of the case.
Where, as here, the BIA does not adopt the decision of the IJ to any extent, this Court reviews only the decision of the *665BIA. See Yan Chen v. Gonzales, 417 F.3d 268, 271 (2d Cir.2005); Jin Yu Lin v. U.S. Dep’t of Justice, 413 F.3d 188, 191 n. 4 (2d Cir.2005).2 We review the agency’s findings of fact under the substantial evidence standard. 8 U.S.C. § 1252(b)(4)(B); see also Corovic v. Mukasey, 519 F.3d 90, 95 (2d Cir.2008). We review de novo questions of law and the application of law to undisputed fact. See Salimatou Bah v. Mukasey, 529 F.3d 99, 110 (2d Cir.2008).
The BIA properly concluded that Liu failed to demonstrate eligibility for asylum on account of his own “other resistance” to China’s family planning policy. See 8 U.S.C. § 1101(a)(42). Liu argues that he demonstrated “other resistance” when he was coerced into stamping his wife’s sterilization certificate as “voluntary.” However, Liu’s alleged resistance in no way “counteracted” or prevented “the force or effect of’ the family planning laws as he, in fact, complied with the policy and obeyed the Chinese authorities. Matter of S-L-L-, 24 I. & N. Dec. 1, 10 (B.I.A.2006). Liu failed to establish that he engaged in resistance. Moreover, he was never arrested, mistreated, or physically harmed due to his alleged “opposition to the procedure.” See Ivanishvili v. U.S. Dep’t of Justice, 433 F.3d 332, 340-41 (2d Cir.2006). The BIA properly concluded that Liu had not suffered past persecution.
Because Liu did not demonstrate “resistance,” any subjective fear he may have of returning to China cannot be said to be “on account of’ such resistance. See 8 U.S.C. § 1101(a)(42). Accordingly, where Liu established neither past persecution nor a well-founded fear of future persecution, there was no error in the agency’s denial of his application for asylum.
Further, because Liu was unable to show the objective likelihood of persecution needed to make out an asylum claim, he is necessarily unable to meet the higher standard required to succeed on a claim for withholding of removal. See Paul v. Gonzales, 444 F.3d 148, 156 (2d Cir.2006).
For the foregoing reasons, the petition for review is DENIED. As we have completed our review, any stay of removal that the Court previously granted in this petition is VACATED, and any pending motion for a stay of removal in this petition is DISMISSED as moot. Any pending request for oral argument in this petition is DENIED in accordance with Federal Rule of Appellate Procedure 34(a)(2), and Second Circuit Local Rule 34(b).
. Because the BIA found that the IJ's credibility determination was clearly erroneous, we do not review that finding. Moreover, Liu has not challenged the agency's denial of his CAT claim. Therefore, we deem any such argument waived. See Yueqing Zhang v. Gon*666zales, 426 F.3d 540, 541 n. 1, 545 n. 7 (2d Cir.2005).
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*346MEMORANDUM **
Darren Henderson, a California state prisoner, appeals pro se from the district court’s judgment dismissing his 42 U.S.C. § 1983 action .alleging deliberate indifference to his serious medical needs. We have jurisdiction under 28 U.S.C. § 1291. We review de novo, Hearns v. Terhune, 413 F.3d 1036, 1040 (9th Cir.2005), and we affirm in part, vacate in part, and remand.
In his opening brief, Henderson fails to address, and therefore waives any challenge to, the district court’s dismissal of his claims against defendants Cox, French, and Wolf, and his claim against defendant Roche premised on Roche’s alleged failure to provide medication. See Martinez-Serrano v. INS, 94 F.3d 1256, 1259-60 (9th Cir.1996) (issues not specifically raised and argued in a party’s opening brief are waived). Accordingly, we affirm the dismissal of those claims.
However, we vacate the judgment to the extent it dismisses the claims alleging that defendants Dovey, Felker, and Roche executed and enforced unconstitutional policies pertaining to the treatment of diabetic inmates. The district court dismissed the claims in part because the California Department of Corrections and Rehabilitation’s policies and procedures for treating diabetic inmates were previously found to meet the constitutional standard of care. Because we can find no support in the record for that conclusion, we vacate the judgment dismissing these claims against Dovey, Felker, and Roche, and remand for further proceedings. On remand, the district court should consider, independent of Plata v. Schwarzenegger, whether Henderson’s amended complaint states a claim against those defendants, and if not, whether leave to amend is appropriate. See Lopez v. Smith, 203 F.3d 1122, 1130-31 (9th Cir.2000) (en banc) (stating that leave to amend should be granted if it appears at all possible that a pro se plaintiff can correct the defect in the pleading).
The parties shall bear their own costs on appeal.
AFFIRMED in part, VACATED in part, and REMANDED.
This disposition is not appropriate for publication and is not precedent except as provided by 9th Cir. R. 36-3.
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MEMORANDUM **
Marquis Lee Johnson appeals pro se from the district court’s judgment denying his 28 U.S.C. § 2254 habeas petition. We have jurisdiction pursuant to 28 U.S.C. §§ 1291 and 2253, and we affirm.
Johnson contends that his appellate counsel was ineffective for failing to raise on direct appeal the various claims of prosecutorial misconduct and trial court error that he raises in his § 2254 petition. Johnson admits in his petition that counsel told him she had reviewed his suggested claims and found them to be without merit, and Johnson has not demonstrated that any of these claims were viable on direct appeal. Accordingly, Johnson has failed to meet his burden of showing that appellate counsel was deficient for declining to raise his suggested claims on direct appeal, or that he suffered prejudice as a result. See Strickland v. Washington, 466 U.S. 668, 688, 694, 104 S.Ct. 2052, 80 L.Ed.2d 674 (1984); see also Smith v. Robbins, 528 U.S. 259, 288, 120 S.Ct. 746, 145 L.Ed.2d 756 (2000) (noting that the presumption that appellate counsel acted reasonably will generally be overcome only when claims not raised are clearly stronger than those presented). The state court’s decision rejecting Johnson’s ineffective assistance of counsel claim was therefore not contrary to, nor an unreasonable application of, clearly established federal law. See 28 U.S.C. § 2254(d); see also Strickland, 466 U.S. at 694, 104 S.Ct. 2052.
Because Johnson has not set forth any specific facts that, if proven, would entitle him to relief, he has not shown that he is entitled to an evidentiary hearing. See Gonzalez v. Pliler, 341 F.3d 897, 903 (9th Cir.2003).
Finally, we construe Johnson’s briefing of uncertified issues as a motion to expand the certificate of appealability, and we deny the motion. See 9th Cir. R. 22 — 1(e); *348see also Hiivala v. Wood, 195 F.3d 1098, 1104-05 (9th Cir.1999) (per curiam).
AFFIRMED.
This disposition is not appropriate for publication and is not precedent except as provided by 9th Cir. R. 36-3.
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MEMORANDUM **
Julio Cortes appeals from the 120-month sentence imposed following his guilty-plea conviction for receipt of child pornography, in violation of 18 U.S.C. § 2252A(a)(2). We have jurisdiction pursuant to 28 U.S.C. § 1291, and we affirm.
Cortes contends that the district court erred by failing to grant his request for a sentence below the Guidelines range. We review for reasonableness. See United States v. Mohamed, 459 F.3d 979, 986-88 (9th Cir.2006). The record reflects that the district court thoroughly considered the § 3553(a) factors, including Cortes’ arguments in mitigation, prior to imposing a sentence in the middle of the Guidelines range. The district court did not proce*349durally err, and the sentence is substantively reasonable. See Gall v. United States, 552 U.S. 38, 128 S.Ct. 586, 596-97, 169 L.Ed.2d 445 (2007); see also United States v. Carty, 520 F.3d 984, 991-93 (9th Cir.2008) (en banc).
AFFIRMED.
This disposition is not appropriate for publication and is not precedent except as provided by 9th Cir. R. 36-3.
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SUMMARY ORDER
Jamal Scott appeals from a judgment of conviction entered in the United States District Court for the Eastern District of New York (Townes, J.). Scott was convicted of being a felon in possession of a firearm in violation of 18 U.S.C. § 922(g)(1) and was sentenced principally to imprisonment for 100 months. We assume the parties’ familiarity with the underlying facts and procedural history of this case, as well as the issues on appeal.
Scott first alleges that a government witness perjured himself when testifying to his understanding of the New York Police Department’s policy on fingerprinting firearms. To obtain relief on this ground, Scott must comply with Federal Rule of Criminal Procedure 33(b) and establish, inter alia, that “the evidence demonstrates that a witness in fact committed perjury.” United States v. Middlemiss, 217 F.3d 112, 122 (2d Cir.2000); see also United States v. White, 972 F.2d 16, 20 (2d Cir.1992). Because Scott neither complied with the Rule nor established that the witness knowingly gave false testimony about a New York Police Department policy, this argument fails.
Scott also contends that the government violated his Fifth Amendment privilege against self-incrimination when, with reference to a time after Scott was arrested and before he was read his Miranda warnings, the government attorney asked a government witness whether “the defendant state[d] anything to you as to whether he knowingly possessed a gun,” and the witness answered “No.” (App.25-26.) As the government concedes, eliciting such testimony was improper. In United States v. Nunez-Rios, 622 F.2d 1093, 1100-01 (2d Cir.1980), we held such an error to be harmless where the trial court gave a curative instruction when one was requested, and where the evidence of guilt was otherwise substantial. Here, the district court issued a curative instruction requiring that the jurors disregard the improper testimony which we presume the jury followed. See United States v. Elfgeeh, 515 F.3d 100, 127 (2d Cir.2008). Given that the government did not comment on the witness’s improper testimony for the remainder of the trial, the improper testimony itself was brief, and the government’s case was otherwise substantial, we conclude any error was harmless.
Next, Scott claims the district court abused its discretion by dismissing a juror who requested to be excused for illness after jury deliberations had begun, and permitting the remaining jurors to continue to deliberate. Federal Rule of Criminal Procedure 23(b) permits a court to excuse one juror and send the other jurors back to deliberate if the court has “good cause.” The circumstances under which a juror should be excused are entrusted to the sound discretion of the court, so long as *690the trial court had “sufficient information to make an informed decision.” United States v. Reese, 33 F.3d 166, 173 (2d Cir.1994). Here, the district court concluded that the brief (one-day) duration of the trial and the time that the juror requested to recuperate (four days) indicated that the juror should be excused. We see no error, and no abuse of discretion.
We have considered the remainder of Scott’s contentions, including the claims raised in Scott’s supplemental pro se brief, and find them to be without merit.
CONCLUSION
For the foregoing reasons, the judgment of conviction is AFFIRMED.
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*691SUMMARY ORDER
Defendant-Appellant Miguel OrlandoMena appeals from a judgment of the district court (Cote, J.) entered October 21, 2008, sentencing him principally to fifty-seven months’ imprisonment. OrlandoMena argues that the district court improperly included a prior Florida youthful offender adjudication in calculating his base offense level and criminal history categoiy points. We assume the parties’ familiarity with the facts and procedural history of the case.
The decision to include a youthful offender adjudication in a Sentencing Guidelines calculation is a question of law that we review de novo. See United States v. Matthews, 205 F.3d 544, 545 (2d Cir.2000). Section 2L1.2 of the Sentencing Guidelines provides that the offense level for illegal reentry be increased by sixteen levels if the defendant was previously deported after “a conviction for a felony that is ... a crime of violence.” U.S.S.G. § 2L1.2(b)(l)(A)(ii). The test for whether a youthful offender adjudication qualifies as a “conviction” for purposes of the Sentencing Guidelines was set forth in United States v. Driskell, 277 F.3d 150 (2d Cir.2002), and specifically applied to § 2L1.2 in United States v. Reinoso, 350 F.3d 51, 54 (2d Cir.2003)2 Under this framework, courts look to the “substance of the past conviction rather than the statutory term affixed to it by the state court,” Dniskell, 277 F.3d at 154, specifically considering “the nature of [the] prior proceeding, the sentence received and actually served, and where the defendant was incarcerated.” Id. at 151.
In this case, it is undisputed that Orlando-Mena was prosecuted as an adult in adult court in Florida. He was sentenced to four years’ incarceration and two years’ Community Control, and he served more than two years of his four year sentence. Nonetheless, he argues that his youthful offender adjudication does not qualify as a “conviction” under § 2L1.2 because, under Florida law, youthful offenders are required to be housed at separate institutions. Even assuming Orlando-Mena actually served his sentence in a youthful offender facility,3 however, that one factor is not dispositive. Because Orlando-Mena was prosecuted as an adult in adult court, and was sentenced to, and served, a substantial period of incarceration, we conclude that in substance the adjudication was a conviction for purposes of § 2L1.2. See Driskell, 277 F.3d at 157-58 (citing with approval a Ninth Circuit decision in which that court found two defendants had received adult sentences imposed pursuant to adult convictions for purposes of the Guidelines even though they had been committed to the California Youth Authority and not to state prison); United States v. Jackson, 504 F.3d 250, 253 (2d Cir.2007) (per curiam) (concluding that the youthful offender adjudication was a prior conviction for a felony drug offense under 21 U.S.C. § 841(b) even though the record did not indicate whether defendant had served his youthful offender sentence in an adult institution).
*692As to the criminal history category, under U.S.S.G. § 4A1.2(a)(1), a “prior sentence” means “any sentence previously imposed upon adjudication of guilt, whether by guilty plea, trial, or plea of nolo contendere.” In this case, it is undisputed that Orlando-Mena was sentenced to four years’ incarceration. However, a “sentence imposed for an offense committed prior to the defendant’s eighteenth birthday” is only counted if it “resulted from an adult conviction.” Id. § 4A1.1, Application Note 1. There is no need to consider whether Orlando-Mena’s sentence resulted from an adult conviction, because he committed the offense in question when he was eighteen years old. Orlando-Mena’s citation to Driskell in this regard is inapposite, because in that case the defendant committed the offense in question when he was seventeen years old. See 277 F.3d at 151-52. Moreover, even if Driskell required us to perform the analysis discussed above for the criminal history calculation as well, the result would be no different from the one we reached with regards to § 2L1.2. See Reinoso, 350 F.3d at 55 (“[T]here is no basis for distinguishing between the criminal history calculation and the base offense level calculation in applying Driskell’s conception of youthful offender status.”).
We have considered all of OrlandoMena’s other arguments and find them without merit. Therefore, for the foregoing reasons, the judgment of the district court is AFFIRMED.
. Orlando-Mena specifically disclaims reliance on U.S.S.G. § 2L1.2, Application Note l(A)(iv), which provides that an offense committed before a defendant turned eighteen may not be used to enhance the base offense level “unless such conviction is classified as an adult conviction under the laws of the jurisdiction in which the defendant was convicted," because he was over eighteen at the time he committed the crimes in question here.
. Orlando-Mena does not argue that he was actually housed at such a facility. Indeed, the record does not indicate where OrlandoMena served his sentence.
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SUMMARY ORDER
Petitioner-Appellant Kareem Smith appeals from a judgment of the United States District Court for the Southern Dis*696trict of New York (Pauley, J.), entered on December 11, 2008, 2008 WL 5203726, denying his petition for a writ of habeas corpus pursuant to 28 U.S.C. § 2254. We assume the parties’ familiarity with the facts and procedural history of the case.
Smith asserts that he was denied his Fifth Amendment right to remain silent and his Fourteenth Amendment due process right to consult with his attorney, as both were defined by the Supreme Court in Brooks v. Tennessee, 406 U.S. 605, 92 5.Ct. 1891, 32 L.Ed.2d 358 (1972), when the trial court required Smith to testify, if at all, as the first defense witness in order to avoid a delay in the proceedings when other defense witnesses were unavailable. The Appellate Division affirmed Smith’s conviction on direct appeal, summarily rejecting his assertion that the trial court had committed error under Brooks. People v. Smith, 260 A.D.2d 253, 690 N.Y.S.2d 6, 6 (1999) (concluding that the trial court’s decision was “a proper exercise of ... [the court’s] power to control the flow of the proceedings in the interest of preventing the morning session of the trial from being wasted”). Because the state court denied Smith’s claim on the merits, we must deny the petition unless the state court’s adjudication resulted in a decision that “was contrary to, or involved an unreasonable application of, clearly established Federal law, as determined by the Supreme Court of the United States.” 28 U.S.C. § 2254(d)(1).
“Notwithstanding ... some of the broad language the Court employed in Brooks,... Brooks does not constitute a general prohibition against a trial judge’s regulation of the order of trial in a way that may affect the timing of a defendant’s testimony.” Harris v. Barkley, 202 F.3d 169, 173 (2d Cir.2000). In Harris, we concluded that the trial court could, consistent with Brooks, order a defendant to testify, if at all, prior to the last defense witness, who was not available until the next day because the defendant had failed to subpoena the witness. Id. at 173-74. Smith argues that the circumstances of his trial were unlike those we confronted in Harris, and that even if Brooks does not constitute a general prohibition against a trial judge’s regulation of the order of trial in a way that may affect the timing of a defendant’s testimony, it nonetheless prohibits the particular regulation of the order of trial at issue here. Although we agree that the circumstances of Smith’s trial are different in many ways from the trial we considered in Harris, we cannot agree that the circumstances are so different that the state court’s decision “was contrary to, or involved an unreasonable application of,” Brooks.
For the foregoing reasons, the judgment of the district court is hereby AFFIRMED.
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SUMMARY ORDER
Petitioner Mei Yun Ni, a citizen of China, seeks review of an August 1, 2008 order of the Board of Immigration Appeals (“BIA”) affirming Immigration Judge (“IJ”) Philip L. Morace’s October 24, 2006 decision denying Ni’s application for asylum, withholding of removal, and relief under the Convention Against Torture (“CAT”). In re Mei Yun Ni, No. A200 031 128 (B.I.A. Aug. 1, 2008), aff'g No. A200 031 128 (Immig. Ct. N.Y. City Oct. 24, 2006). We assume the parties’ familiarity with the underlying facts and procedural history of the case.
Where, as here, the BIA issues an opinion that fully adopts the IJ’s decision, this Court reviews the IJ’s decision. See Mei Chai Ye v. U.S. Dep’t of Justice, 489 F.3d 517, 523 (2d Cir.2007). This Court reviews the agency’s factual findings, including adverse credibility determinations, under the substantial evidence standard, overturning them only if any reasonable adjudicator would be compelled to conclude to the contrary. See 8 U.S.C. § 1252(b)(4)(B); Corovic v. Mukasey, 519 F.3d 90, 95 (2d Cir.2008).
As an initial matter, because Ni’s brief does not challenge the agency’s denial of her request for CAT relief based on her claim that she will be tortured in China for illegally departing the country, we deem any such argument waived. Yueqing Zhang v. Gonzales, 426 F.3d 540, 541 n. 1, 545 n. 7 (2d Cir.2005).
We find no error in the BIA’s conclusion that Ni failed to demonstrate that she was eligible for asylum. The agency correctly concluded that, while credible, Ni’s testimony failed to establish that she was eligible for asylum on the basis of “other resistance” to China’s coercive family planning policies. See 8 U.S.C. § 1101(a)(42). Ni argues that she demonstrated “other resistance” to the coercive family planning policy as a seven-year old by hanging on to her mother’s leg when family planning officials dragged her mother away for a forced sterilization. However, even if her acts constituted resistance to the family planning policy, Ni offered no evidence that *661she suffered any persecution at the hands of the officials. See id; see also Tao Jiang v. Gonzales, 500 F.3d 137, 140-41 (2d Cir.2007).
The agency also correctly determined that Ni failed to demonstrate an objectively reasonable fear of future persecution. A fear is not objectively reasonable if it lacks “solid support” in the record and is merely “speculative at best.” Jian Xing Huang v. INS, 421 F.3d 125, 129 (2d Cir.2005). Ni argues that her mother’s sterilization and the psychological problems that resulted from Ni witnessing the family planning officials drag her mother away are evidence that Ni has a well-founded fear of sterilization. Ni, however, failed to offer any evidence that she is likely to be sterilized or otherwise persecuted if she returns to China. Thus, her fear of future persecution lacks the “solid support” in the record necessary for it to be objectively reasonable. Jian Xing Huang, 421 F.3d at 129.
Finally, because Ni was unable to show the objective likelihood of persecution needed to make out an asylum claim, she was necessarily unable to meet the higher standard required to succeed on a claim for withholding of removal. See Paul v. Gonzales, 444 F.3d 148, 156 (2d Cir.2006); Gomez v. INS, 947 F.2d 660, 665 (2d Cir.1991).
For the foregoing reasons, the petition for review is DENIED. As we have completed our review, any stay of removal that the Court previously granted in this petition is VACATED, and any pending motion for a stay of removal in this petition is DISMISSED as moot. Any pending request for oral argument in this petition is DENIED in accordance with Federal Rule of Appellate Procedure 34(a)(2), and Second Circuit Local Rule 34(b).
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SUMMARY ORDER
Fiqiri Nela, a native and citizen of Albania, seeks review of a July 28, 2008 order of the BIA affirming the February 26, 2007 decision of Immigration Judge (“IJ”) Alan A. Vomacka, which denied his application for asylum, withholding of removal, and relief under the Convention Against Torture (“CAT”). In re Fiqiri Nela, No. A078 934 386 (B.I.A. July 28, 2008), affg No. A078 934 386 (Immig. Ct. N.Y. City Feb. 26, 2007). We assume the parties’ familiarity with the underlying facts and procedural history in this case.
I. Asylum, Withholding of Removal, and CAT Relief
Where, as here, the BIA affirms the IJ’s decision in some respects but not others, and supplements the IJ’s decision, we review the IJ’s decision as modified and supplemented by the BIA. See Xue Hong Yang v. U.S. Dep’t of Justice, 426 F.3d 520, 522 (2d Cir.2005). We review the agency’s factual findings under the substantial evidence standard. See 8 U.S.C. § 1252(b)(4)(B); Corovic v. Mukasey, 519 F.3d 90, 95 (2d Cir.2008). We review de novo questions of law and the application of law to undisputed fact. See Monter v. Gonzales, 430 F.3d 546, 553 (2d Cir.2005).
We find that substantial evidence supports the agency’s conclusion that con*663ditions in Albania have fundamentally changed such that Nela does not have a well-founded fear of persecution. See 8 C.F.R. § 1208.13(b)(1)(i); see also Hoxhallari v. Gonzales, 468 F.3d 179, 187 (2d Cir.2006) (per curiam) (upholding agency’s finding that an applicant was ineligible for asylum and withholding of removal based on a fundamental change in Albania’s political structure). Nela acknowledges that the Democratic Party, of which he is a member, presently controls the Albanian government. Further, the 2006 State Department Report on Albania in the administrative record contains no indication of systematic persecution of Democratic Party members in Albania. In addition, Nela points to no evidence compelling the conclusion that he would be specifically targeted for persecution as a Democratic Party member. See 8 U.S.C. § 1252(b)(4)(B). Under these circumstances, the agency properly denied Nela’s application for asylum and withholding of removal. See Paul v. Gonzales, 444 F.3d 148, 156 (2d Cir.2006) (noting a withholding claim necessarily fails if applicant is unable to show objective likelihood of persecution needed to make out an asylum claim).
The agency properly denied relief under the CAT based on its finding that there was no evidence in the record that Nela would be subjected to torture upon his return to Albania. Because Nela has failed to cite any evidence in the record compelling a contrary conclusion, we will not disturb the agency’s decision. See Mu Xiang Lin v. U.S. Dep’t of Justice, 432 F.3d 156, 161 (2d Cir.2005).
II. Motion to Remand
We review the BIA’s denial of motions to remand for abuse of discretion, applying the substantive requirements of a motion to reopen. See Li Yang Cao v. Dep’t of Justice, 421 F.3d 149, 156 (2d Cir.2005). The BIA did not abuse its discretion in denying Nela’s motion to remand on the basis of new evidence, namely, an order granting his brother asylum and withholding of removal. Nela contends that the BIA abused its discretion in denying his motion “because it indicates that the IJ did not ensure uniformity of the adjudication of similar claims.” The BIA, however, properly concluded that such evidence was not material to Nela’s claim, reasoning that “the adjudicative result rendered in other asylum proceedings are of no probative, circumstantial value because the Executive Office for Immigration Review adjudicates applications for asylum and related relief on a case-by-case basis without regard for results rendered in separate proceedings.” The BIA was reasonable in so finding, as the order of the IJ granting asylum to Nela’s brother does not state the grounds for granting that relief, despite Nela’s assertion that he and his brother “had the same story.” Moreover, the BIA properly found that Nela’s brother’s statement was not previously unavailable. 8 C.F.R. § 1003.2(c)(1). As a result, the BIA did not abuse its discretion in denying Nela’s motion for a remand. See Li Yong Cao, 421 F.3d at 156.
For the foregoing reasons, the petition for review is DENIED. As we have completed our review, any stay of removal that the Court previously granted in this petition is VACATED, and any pending motion for a stay of removal in this petition is DISMISSED as moot. Any pending request for oral argument in this petition is DENIED in accordance with Federal Rule of Appellate Procedure 34(a)(2), and Second Circuit Local Rule 34(b).
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SUMMARY ORDER
Bi Qi Liu, a citizen of the People’s Republic of China, seeks review of a September 8, 2008 order of the BIA affirming the April 11, 2007 decision of Immigration Judge (“IJ”) Sandy K. Horn denying Liu’s application for asylum, withholding of removal, and relief under the Convention Against Torture (“CAT”). In re Bi Qi Liu, No. A99 610 177 (BIA Sep. 8, 2008), affg No. A99 610 177 (Immig. Ct. N.Y. City Apr. 11, 2007). We assume the parties’ familiarity with the underlying facts and procedural history of the case.
Where, as here, the BIA does not adopt the decision of the IJ to any extent, this Court reviews only the decision of the *665BIA. See Yan Chen v. Gonzales, 417 F.3d 268, 271 (2d Cir.2005); Jin Yu Lin v. U.S. Dep’t of Justice, 413 F.3d 188, 191 n. 4 (2d Cir.2005).2 We review the agency’s findings of fact under the substantial evidence standard. 8 U.S.C. § 1252(b)(4)(B); see also Corovic v. Mukasey, 519 F.3d 90, 95 (2d Cir.2008). We review de novo questions of law and the application of law to undisputed fact. See Salimatou Bah v. Mukasey, 529 F.3d 99, 110 (2d Cir.2008).
The BIA properly concluded that Liu failed to demonstrate eligibility for asylum on account of his own “other resistance” to China’s family planning policy. See 8 U.S.C. § 1101(a)(42). Liu argues that he demonstrated “other resistance” when he was coerced into stamping his wife’s sterilization certificate as “voluntary.” However, Liu’s alleged resistance in no way “counteracted” or prevented “the force or effect of’ the family planning laws as he, in fact, complied with the policy and obeyed the Chinese authorities. Matter of S-L-L-, 24 I. & N. Dec. 1, 10 (B.I.A.2006). Liu failed to establish that he engaged in resistance. Moreover, he was never arrested, mistreated, or physically harmed due to his alleged “opposition to the procedure.” See Ivanishvili v. U.S. Dep’t of Justice, 433 F.3d 332, 340-41 (2d Cir.2006). The BIA properly concluded that Liu had not suffered past persecution.
Because Liu did not demonstrate “resistance,” any subjective fear he may have of returning to China cannot be said to be “on account of’ such resistance. See 8 U.S.C. § 1101(a)(42). Accordingly, where Liu established neither past persecution nor a well-founded fear of future persecution, there was no error in the agency’s denial of his application for asylum.
Further, because Liu was unable to show the objective likelihood of persecution needed to make out an asylum claim, he is necessarily unable to meet the higher standard required to succeed on a claim for withholding of removal. See Paul v. Gonzales, 444 F.3d 148, 156 (2d Cir.2006).
For the foregoing reasons, the petition for review is DENIED. As we have completed our review, any stay of removal that the Court previously granted in this petition is VACATED, and any pending motion for a stay of removal in this petition is DISMISSED as moot. Any pending request for oral argument in this petition is DENIED in accordance with Federal Rule of Appellate Procedure 34(a)(2), and Second Circuit Local Rule 34(b).
. Because the BIA found that the IJ's credibility determination was clearly erroneous, we do not review that finding. Moreover, Liu has not challenged the agency's denial of his CAT claim. Therefore, we deem any such argument waived. See Yueqing Zhang v. Gon*666zales, 426 F.3d 540, 541 n. 1, 545 n. 7 (2d Cir.2005).
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SUMMARY ORDER
Petitioner Bing Xin Lin, a native and citizen of China, seeks review of a September 11, 2008 order of the BIA affirming the March 2, 2007 decision of Immigration Judge (“IJ”) Joanna Miller Bukszpan denying her application for asylum, withholding of removal, and relief under the Convention Against Torture (“CAT”). In re Bing Xin Lin, No. A 200 125 684 (B.I.A. Sept. 11, 2008), aff'g No. A 200 125 684 (Immig. Ct. N.Y. City Mar. 2, 2007). We assume the parties’ familiarity with the underlying facts and procedural history in this case.
When the BIA adopts the decision of the IJ and supplements it, we review the IJ’s decision as supplemented by the BIA. See Yan Chen v. Gonzales, 417 F.3d 268, 271 (2d Cir.2005). We review the agency’s factual findings under the substantial evidence standard. 8 U.S.C. § 1252(b)(4)(B); see Manzur v. U.S. Dep’t of Homeland Sec., 494 F.3d 281, 289 (2d Cir.2007). We review de novo questions of law and the application of law to undisputed fact. See Salimatou Bah v. Mukasey, 529 F.3d 99, 110 (2d Cir.2008).
Lin has waived any argument that she has a well-founded fear of future persecution. See 8 U.S.C. § 1101(a)(42); Yueqing Zhang v. Gonzales, 426 F.3d 540, 541 n. 1, 545 n. 7 (2d Cir.2005). Moreover, the agency properly found that Lin failed to *667demonstrate that she suffered past persecution in undergoing mandatory gynecological examinations. As Lin observes in her brief, “when it has been determined that an alien has not suffered a per se form of persecution, i.e., an abortion or sterilization ... she must establish that: (1) she resisted China’s family planning policy; (2) she has been persecuted (or has a well-founded fear of persecution); and (3) the persecution was or would be because of the respondent’s resistance to the policy.” Matter of M-F-W- & L-G-, 24 I. & N. Dec. 633, 637 (BIA 2008). In Matter of M-F-W-, the BIA analyzed the question, analogous to that presented in this case, of whether an applicant’s forcible IUD insertion constituted persecution. 24 1. & N. Dec. at 642. The BIA explained that it did not “intend to imply that having an IUD inserted can never be found to be persecutive. However, to rise to the level of harm necessary to constitute persecution, the insertion of an IUD must involve aggravating circumstances.” Id. We agree with Lin that the BIA’s analysis in Matter of M-F-W- is applicable here, because mandatory gynecological examinations are not a per se form of persecution. See id. at 637. However, we are not persuaded by Lin’s argument that the gynecological examinations she endured were conducted under “aggravated circumstances.” In denying Lin’s claims for relief, the BIA relied on Ai Feng Yuan v. U.S. Dep’t of Justice, 416 F.3d at 198 (2d Cir.2005), stating that “while a free a society respects physical autonomy, absent more, we cannot conclude that the required examinations in this case evidence past persecution.” Lin argues that the gynecological examinations that she underwent were highly abhorrent to her “deeply held beliefs” and that she felt shame, embarrassment, and humiliation during the examinations. There is no evidence, however, that the examinations were performed under “aggravating circumstances” sufficiently harmful to rise to the level of persecution described in Matter of M-F-W-. 24 I. & N. Dec. at 641-42 (explaining that “examples of routine acts implementing China’s family planning policy that are lacking in harm sufficient to constitute persecution include ... regularly required gynecological exams, and other routine fines and threats for disobeying the policy”). Were we to hold otherwise, virtually any female asylum applicant from China would establish that she suffered past persecution solely by having attended a mandatory gynecological examination despite her opposition to such examinations. The Immigration and Nationality Act does not “anticipate or require such a result.”2 See Mu Xiang Lin v. U.S. Dep’t of Justice, 432 F.3d 156, 160 (2d Cir.2005).
For the foregoing reasons, the petition for review is DENIED. As we have completed our review, any pending motion for a stay of removal in this petition is DISMISSED as moot. Any pending request for oral argument in this petition is DENIED in accordance with Federal Rule of Appellate Procedure 34(a)(2), and Second Circuit Local Rule 34(b).
. Lin argues, for the first time, that she is entitled to relief on account of her membership in the particular social group of "all women in China over the age of 18 who refuse to submit to mandatory gynecological examinations due to their belief that such examinations are abhorrent to their physical integrity.” We decline to consider Lin’s argument because she failed to exhaust it before the BIA. See Lin Zhong v. U.S. Dep’t of Justice, 480 F.3d 104, 119-20 (2d Cir.2007).
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SUMMARY ORDER
Bhupendrakumar Ambalal Patel, a native and citizen of India, seeks review of the BIA’s order affirming Immigration Judge Sandy Horn’s (the “IJ”) decision, which denied Patel’s motion to reopen his removal proceedings. In re Bhupendra-*669kumar Patel, No. A73-604-399 (B.I.A. Nov. 29, 2006), aff'g No. A73-604-399 (Immig. Ct. N.Y. City June 12, 2006). The BIA upheld the IJ’s decision on the grounds that Patel had not adequately complied with the procedural requirements set forth in Matter of Lozada, 19 I. & N. Dec. 637, 639 (B.I.A.1988), aff'd sub nom. Lozada v. INS, 857 F.2d 10 (1st Cir.1988). We assume the parties’ familiarity with the underlying facts, issues on appeal and procedural history of the case. We review an agency’s denial of a motion to reopen for abuse of discretion. See Kaur v. BIA, 413 F.3d 232, 233 (2d Cir.2005)
On appeal, Patel argues that his former counsel’s ineffective assistance at the initial proceeding resulted in the IJ granting Patel voluntary departure, rather than the opportunity to proceed with his other applications for relief. In order to prevail on an ineffective assistance of counsel claim, a petitioner must comply with the procedural requirements set forth in Lozada. See Twum v. INS, 411 F.3d 54, 59 (2d Cir.2005). While we do not require “slavish adherence” to Lozada’srequirements, see Yang v. Gonzales, 478 F.3d 133, 142-43 (2d Cir.2007), our “review on the merits may be conditioned on substantial compliance with the reasonable requirements set forth in Lozada.” Zheng v. U.S. Dep’t of Justice, 409 F.3d 43, 46 (2d Cir.2005). Patel acknowledges that he has not notified his former counsel of the ineffective assistance of counsel allegations, nor has he given his former counsel the opportunity to respond to these allegations, as Lozada requires. Patel also acknowledges that he has not filed a disciplinary complaint against his former counsel. However, Patel submits that the IJ incorrectly denied him access to his case file, preventing him from reviewing the record before confronting his former attorney.
We cannot say that the BIA abused its discretion because Patel, represented by new counsel before the BIA, did not comply with two of the three Lozada requirements. Furthermore, Patel’s excuse for failing to comply with Lozada does not suffice. Even taking into account the fact that Patel did not receive a copy of the record of his first hearing, which the BIA found was the fault of Patel’s new counsel, Patel’s failure to comply with Lozada is not excused because he could have contacted his former attorney and filed a disciplinary complaint even without the formal record. Without more, we see no abuse of discretion.1
We have considered Patel’s remaining contentions and find them to be without merit.
For the foregoing reasons, the petition for review is DENIED.
. We note, without expressing any opinion on the merits, that in support of Patel's ineffective assistance of counsel claim against his former attorney, Patel may still be able to comply with Lozada by filing another motion to reopen based upon his current counsel's failure to comply with Lozada.
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MEMORANDUM **
Henry Estuardo Fuentes Coronado, a native and citizen of Guatemala, petitions for review of the Board of Immigration Appeals’ (“BIA”) order dismissing an immigration judge’s (“IJ”) decision denying his application for relief under the Nicaraguan Adjustment and Central American Relief Act of 1997 (“NACARA”). Our jurisdiction is governed by 8 U.S.C. § 1252. We review de novo due process claims and questions of law. Vasquez-Zavala v. Ashcroft, 324 F.3d 1105, 1107 (9th Cir.2003). We dismiss in part and deny in part the petition for review.
We lack jurisdiction to review the BIA’s determination that Fuentes Coronado did not establish eligibility for NA-CARA relief. See Illegal Immigration Reform and Immigrant Responsibility Act of 1996, § 309(c)(5)(C)(ii).
Contrary to Fuentes Coronado’s contention, the Illegal Immigration Reform and Immigrant Responsibility Act § 309(c)(5) stop-time provision applies to his case, and the BIA therefore did not err in finding him ineligible for traditional suspension of deportation where he lacked the requisite continuous physical presence. See Ram v. INS, 243 F.3d 510, 518 (9th Cir.2001) (“Congress did not intend for aliens to circumvent the stop-time rule by accruing the requisite years of continuous physical presence in the United States after deportation proceedings commence.”).
Fuentes Coronado’s due process claim fails because the record reflects that he was given a “full and fair hearing” and a “reasonable opportunity to present evidence on his behalf.” See Colmenar v. INS, 210 F.3d 967, 971 (9th Cir.2000).
We lack jurisdiction over Fuentes Coronado’s claim that his case should be repapered because he failed to raise the issue before the BIA. See Barron v. Ashcroft, 358 F.3d 674, 678 (9th Cir.2004) (exhaustion is mandatory and jurisdictional).
PETITION FOR REVIEW DISMISSED in part; DENIED in part.
This disposition is not appropriate for publication and is not precedent except as provided by 9th Cir. R. 36-3.
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MEMORANDUM **
Avelino Fernandes, a native and citizen of India, petitions pro se for review of the Board of Immigration Appeals’ order dismissing his appeal from an immigration judge’s decision denying his motion to reopen removal proceedings conducted in absentia. We have jurisdiction pursuant to 8 U.S.C. § 1252. We review for abuse of discretion the denial of a motion to reopen *355and review de novo claims of constitutional violations in immigration proceedings. Iturribarria v. INS, 321 F.3d 889, 894 (9th Cir.2003). We deny the petition for review.
The agency did not abuse its discretion in denying Fernandes’ motion to reopen for failure to establish “exceptional circumstances.” See 8 U.S.C. § 1229a(e)(l).
It follows that the denial of Fernandes’ motion to reopen did not violate due process. See Lata v. INS, 204 F.3d 1241, 1246 (9th Cir.2000) (requiring error for a due process violation).
PETITION FOR REVIEW DENIED.
This disposition is not appropriate for publication and is not precedent except as provided by 9th Cir. R. 36-3.
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MEMORANDUM **
Felipe Ramiro Angón Martinez, a native and citizen of Mexico, petitions for review of the Board of Immigration Appeals’ (“BIA”) order denying his motion to reconsider. Our jurisdiction is governed by 8 U.S.C. § 1252. We review for abuse of discretion both the denial of a motion to reconsider, Cano-Merida v. INS, 311 F.3d 960, 964 (9th Cir.2002), and the denial of a continuance, Sandoval-Luna v. Mukasey, 526 F.3d 1243, 1246 (9th Cir.2008) (per curiam), and we deny in part and dismiss in part the petition for review.
The BIA acted within its discretion in denying Angón Martinez’s motion to reconsider because the motion failed to identify any error of fact or law in the BIA’s prior order. See 8 C.F.R. § 1003.2(b)(1).
The BIA also acted within its discretion in denying a continuance on the ground that Angón Martinez failed to demonstrate good cause. See Sandoval-Luna, 526 F.3d at 1247.
To the extent Angón Martinez challenges the BIA’s February 7, 2006, order, we lack jurisdiction because Angón Martinez did not timely petition for review of that order. See 8 U.S.C. § 1252(b)(1); Singh v. INS, 315 F.3d 1186, 1188 (9th Cir.2003).
PETITION FOR REVIEW DENIED in part; DISMISSED in part.
This disposition is not appropriate for publication and is not precedent except as provided by 9th Cir. R. 36-3.
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MEMORANDUM **
Henry Estuardo Fuentes Coronado, a native and citizen of Guatemala, petitions for review of the Board of Immigration Appeals’ (“BIA”) order dismissing an immigration judge’s (“IJ”) decision denying his application for relief under the Nicaraguan Adjustment and Central American Relief Act of 1997 (“NACARA”). Our jurisdiction is governed by 8 U.S.C. § 1252. We review de novo due process claims and questions of law. Vasquez-Zavala v. Ashcroft, 324 F.3d 1105, 1107 (9th Cir.2003). We dismiss in part and deny in part the petition for review.
We lack jurisdiction to review the BIA’s determination that Fuentes Coronado did not establish eligibility for NA-CARA relief. See Illegal Immigration Reform and Immigrant Responsibility Act of 1996, § 309(c)(5)(C)(ii).
Contrary to Fuentes Coronado’s contention, the Illegal Immigration Reform and Immigrant Responsibility Act § 309(c)(5) stop-time provision applies to his case, and the BIA therefore did not err in finding him ineligible for traditional suspension of deportation where he lacked the requisite continuous physical presence. See Ram v. INS, 243 F.3d 510, 518 (9th Cir.2001) (“Congress did not intend for aliens to circumvent the stop-time rule by accruing the requisite years of continuous physical presence in the United States after deportation proceedings commence.”).
Fuentes Coronado’s due process claim fails because the record reflects that he was given a “full and fair hearing” and a “reasonable opportunity to present evidence on his behalf.” See Colmenar v. INS, 210 F.3d 967, 971 (9th Cir.2000).
We lack jurisdiction over Fuentes Coronado’s claim that his case should be repapered because he failed to raise the issue before the BIA. See Barron v. Ashcroft, 358 F.3d 674, 678 (9th Cir.2004) (exhaustion is mandatory and jurisdictional).
PETITION FOR REVIEW DISMISSED in part; DENIED in part.
This disposition is not appropriate for publication and is not precedent except as provided by 9th Cir. R. 36-3.
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MEMORANDUM **
Felipe Ramiro Angón Martinez, a native and citizen of Mexico, petitions for review of the Board of Immigration Appeals’ (“BIA”) order denying his motion to reconsider. Our jurisdiction is governed by 8 U.S.C. § 1252. We review for abuse of discretion both the denial of a motion to reconsider, Cano-Merida v. INS, 311 F.3d 960, 964 (9th Cir.2002), and the denial of a continuance, Sandoval-Luna v. Mukasey, 526 F.3d 1243, 1246 (9th Cir.2008) (per curiam), and we deny in part and dismiss in part the petition for review.
The BIA acted within its discretion in denying Angón Martinez’s motion to reconsider because the motion failed to identify any error of fact or law in the BIA’s prior order. See 8 C.F.R. § 1003.2(b)(1).
The BIA also acted within its discretion in denying a continuance on the ground that Angón Martinez failed to demonstrate good cause. See Sandoval-Luna, 526 F.3d at 1247.
To the extent Angón Martinez challenges the BIA’s February 7, 2006, order, we lack jurisdiction because Angón Martinez did not timely petition for review of that order. See 8 U.S.C. § 1252(b)(1); Singh v. INS, 315 F.3d 1186, 1188 (9th Cir.2003).
PETITION FOR REVIEW DENIED in part; DISMISSED in part.
This disposition is not appropriate for publication and is not precedent except as provided by 9th Cir. R. 36-3.
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OPINION
PER CURIAM.
Appellant Daniel L. Spuck, a pro se prisoner, appeals from the District Court’s order granting Defendants’ motions to dismiss. For the reasons set forth below, we will summarily affirm. See I.O.P. 10.6.
I.
On November 6, 2007, Spuck, who is incarcerated at the State Regional Correctional Facility at Mercer (“SRCF-Mercer”), filed a civil rights action under 42 U.S.C. § 1983 and/or Bivens v. Six Unknown Named Agents of Federal Bureau *729of Narcotics, 403 U.S. 388, 91 S.Ct. 1999, 29 L.Ed.2d 619 (1971).1 Spuck named the following Defendants in his complaint: Thomas Ridge, Former Governor of the Commonwealth of Pennsylvania (“Ridge”); the Commonwealth of Pennsylvania (“Commonwealth”); Paul Stowitsky, Superintendent at SRCF-Mercer (“Stowitsky”); the Pennsylvania Attorney General (“AG”); Pennsylvania Department of Corrections (“DOC”); and Robert V. Barth, Jr., Clerk of Courts for the United States District Court for the Western District of Pennsylvania (“Barth”).
In the complaint, Spuck alleged that around 1996, while he was imprisoned at SCRF-Mercer, Defendants Ridge and the AG unlawfully permitted the DOC to change its policy regarding inmate furloughs, such that prison officials could no longer grant inmate furlough requests. Spuck further alleged that the policy which replaced it only allowed inmates residing in Community Corrections Centers (“CCC”) to be furloughed. As a result of the policy change, Spuck claims that his requests to be furloughed from SRCFMercer have been repeatedly denied, in violation of his constitutional rights.
After Spuck filed his complaint, the Defendants moved to dismiss it under Rule 12(b)(6) of the Federal Rules of Civil Procedure.2 After reviewing the parties’ submissions, the District Court dismissed Spuck’s complaint as to all Defendants. Spuck filed a timely notice of appeal.
II.
We have jurisdiction over this appeal pursuant to 28 U.S.C. § 1291. Our review of the District Court’s dismissal for failure to state a claim is plenary. Port Auth. of N.Y. & N.J. v. Arcadian Corp., 189 F.3d 305, 311 (3d Cir.1999). When considering a district court’s grant of a motion to dismiss under Rule 12(b)(6), we “accept all factual allegations as true [and] construe the complaint in the light most favorable to the plaintiff.” Phillips v. County of Allegheny, 515 F.3d 224, 233 (3d Cir.2008). “To survive a motion to dismiss, a complaint must contain sufficient factual matter, accepted as true, to ‘state a claim to relief that is plausible on its face.’ ” Ashcroft v. Iqbal, — U.S. -, -, 129 S.Ct. 1937, 1949, 173 L.Ed.2d 868 (2009).
III.
A. Ex Post Facto Claim
First, Spuck claimed that the 1996 changes in DOC policy have been applied to him retroactively to deny him the ability to obtain a furlough, in violation of the Ex Post Facto Clause contained in the United States Constitution.3 As the District Court properly concluded, there is no ex post facto violation where the retroactively applied law does not make one’s punishment more burdensome, but merely creates a disadvantage. See Hameen v. Delaware, 212 F.3d 226, 236 (3d Cir.2000). Spuck’s sentence was not lengthened or made more severe by the new guidelines. The mere fact that furlough opportunities are now not available to him does not make his punishment more onerous. Accordingly, the District Court properly dismissed this claim.
*730B. Due Process Claims
Spuck also alleged that Defendant Stowitsky has unlawfully denied him prerelease and has refused to place him in a CCC (in order to be eligible for a furlough) because Spuck has failed to complete prescriptive programming. However, an inmate does not have an inherent constitutional right to determine the place of his confinement, nor does he have a state-created liberty interest which allows him to be incarcerated at an institution of his choosing. See Olim v. Wakinekona, 461 U.S. 238, 103 S.Ct. 1741, 75 L.Ed.2d 813 (1983). Moreover, inmates do not have a constitutional right to be furloughed. See Bowser v. Vose, 968 F.2d 105, 106-07 (1st Cir.1992) (“It is clear that the denial of a furlough implicates no inherent liberty interest”). Thus, Stowitsky’s decision to deny Spuck pre-release and/or placement in a CCC does not implicate any pi'otected liberty interest.4
C. Denial of Access to Courts Claim
Next, Spuck claimed that Defendant Barth unlawfully denied him access to the courts: “[Barth] failed to file or return the Plaintiffs writ of habeas corpus petition appealing the November 1, 2005, Order from the Pennsylvania Supreme Court challenging Ex Post Facto Clause violations involving furloughs from prisons in Pennsylvania.” (See Plaintiffs Complaint at Section IV.C). While inmates have the right to adequate, effective, and meaningful access to the courts, see Bounds v. Smith, 430 U.S. 817, 828, 97 S.Ct. 1491, 52 L.Ed.2d 72 (1977), the Supreme Court has restricted who may bring an access-to-courts claim. See Lewis v. Casey, 518 U.S. 343, 355, 116 S.Ct. 2174, 135 L.Ed.2d 606 (1996). In Lewis, the Court held that in order to state a claim for denial of the right of access to the courts, a plaintiff must show actual injury. Id. at 351-2, 116 S.Ct. 2174. In this case, Spuck had to have demonstrated that he lost the ability to present an “arguably actionable” claim. Id.
We agree with the District Court that Spuck was unable to meet that requirement. The action that he claims Barth denied him the ability to pursue was a habeas corpus action wherein he raised the identical Ex Post Facto challenge to the DOC’s furlough policy that had been previously raised and rejected on the merits in his prior habeas proceeding. Accordingly, the District Court correctly dismissed this claim against Defendant Barth.
D.Claim against Defendant Ridge
Finally, the District Court properly dismissed Spuck’s complaint as to Defendant Ridge. Spuck failed to effect service of the complaint as to Ridge. A plaintiff is responsible for serving a complaint within 120 days after the complaint is filed with the court. Fed.R.Civ.P. 4(c)(1), (m). The District Court’s docket indicates that Spuck filed his action on November 6, 2007, but the docket does not reflect that Ridge was ever served with the complaint during the span in which the parties litigated the case. Thus, the claims against Ridge are appropriately denied on those grounds.
As Spuck’s appeal presents no substantial question, we will summarily affirm. See Third Cir. LAR 27.4; I.O.P. 10.6. Spuck’s “motion to waive or suspend 20% deduction of appellant’s inmate account and court appointment of counsel (pro bono)” is also denied. See Porter v. Dep’t of Treasury, 564 F.3d 176, 179-80 (3d Cir. *7312009); Tabron v. Grace, 6 F.3d 147, 155-56 (3d Cir.1993).
. Because Defendant Barth is a federal employee, the District Court construed the claims against him as brought under Bivens.
. Defendant Ridge did not file a motion to dismiss as he was never served with the complaint.
.Spuck previously raised this identical claim in a habeas corpus action that he initiated in the District Court in February 2005, which was denied on the merits. See Spuck v. Desuta, et al., No. 05-85J, 2006 WL 1428249, 2006 U.S. Dist. LEXIS 32094 (W.D.Pa. May 22, 2006).
. Spuck's related claim — that Stowitsky unlawfully demoted him to level 2 custody — was also correctly dismissed as this claim similarly failed to implicate a protected liberty interest. See Griffin v. Vaughn, 112 F.3d 703, 705-06 (3d Cir.1997).
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MEMORANDUM **
Luis Enriquez-Corral appeals from his guilty-plea conviction and 78-month sentence for illegal reentry after deportation, in violation of 8 U.S.C. § 1326(a).
Pursuant to Anders v. California, 386 U.S. 738, 87 S.Ct. 1396, 18 L.Ed.2d 493 (1967), Enriquez-Corral’s counsel has filed a brief stating there are no grounds for relief, along with a motion to withdraw as counsel of record. We have provided the appellant with the opportunity to file a pro se supplemental brief. No pro se supplemental brief or answering brief has been filed.
Our independent review of the record pursuant to Penson v. Ohio, 488 U.S. 75, 80-81, 109 S.Ct. 346, 102 L.Ed.2d 300 (1988), discloses no arguable grounds for relief on direct appeal.
Accordingly, counsel’s motion to withdraw is GRANTED, and the district court’s judgment is AFFIRMED.
This disposition is not appropriate for publication and is not precedent except as provided by 9th Cir. R. 36-3.
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MEMORANDUM *
Loren Goldtooth (“Goldtooth”) appeals his conviction and sentence for violation of 18 U.S.C. § 1163. We affirm.
Viewed in the light most favorable to the prosecution, a rational trier of fact could have found from the evidence that Goldtooth had the requisite intent to defraud or injure the Tohono O’Odham Indian Nation (the “Tribe”) by submitting paperwork misrepresenting his entitlement to overtime and reimbursement for work-related expenses, and by instructing lower-level employees to approve his requests. Even if there were insufficient evidence of “deceit,” Goldtooth would still be guilty of conversion because he intentionally and improperly converted tribal property for his own use. See United States v. Janis, 556 F.3d 894, 898 (8th Cir.2009).
Goldtooth argues the district court erred by failing to sua sponte give a “theory of the case” instruction. The district court, however, believed it was conveying the defense theory in its instructions concerning “willfulness” and “knowingly,” and told counsel as much.
Because Goldtooth did not object or propose any specific instruction on his defense theory that was not given, we review for plain error. United States v. Bear, 439 F.3d 565, 568 (9th Cir.2006). However, there was no error in this case because the instructions, viewed as a whole and especially those regarding state of mind, adequately covered the theory of defense, which Goldtooth himself described (in briefing and at argument) as a lack of requisite intent to injure the Tribe. See *233United States v. Duran, 59 F.3d 938, 941 (9th Cir.1995) (court is not required to give defendant’s proposed instructions if the given instructions adequately cover the defense theory).
To the extent Goldtooth contends he should have had a specific instruction on ratification or approval by the Tribe, that theory was not supported by the evidence at trial. See United States v. Bowman, 720 F.2d 1103, 1105 (9th Cir.1983) (court is only required to give instruction on theory of defense if supported by the evidence); cf. Bear, 439 F.3d at 569 (noting public authority defense was a viable defense and required sua sponte instruction). We certainly cannot say it was plain or obvious error not to give a more specific instruction under these circumstances, or, even assuming error, that it affected Goldtooth’s substantial rights.
Nor did the district court plainly err by instructing the jury it could infer intent to convert from the facts and circumstances attending the act. Unlike the impermissible evidentiary inference instructions disapproved of by United States v. Rubio-Villareal, 967 F.2d 294 (9th Cir.1992) (en banc), the instruction here did not isolate any particular piece of evidence or preclude consideration of all the evidence submitted at trial. Rather, it is a classic circumstantial evidence instruction that is relevant and appropriate in a case involving intent. See United States v. Sullivan, 522 F.3d 967, 974 (9th Cir.2008) (“intent to defraud may be established by circumstantial evidence”); Taylor v. United States, 320 F.2d 843, 849 (9th Cir.1963) (unlawful and willful purpose to retain money “is not generally susceptible of direct proof but may be inferred from the facts and circumstances of the act.”).
AFFIRMED.
This disposition is not appropriate for publication and is not precedent except as provided by Ninth Circuit Rule 36-3.
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IKUTA, J.,
dissenting.
Although the ALJ made two factual errors in stating his reasons for discrediting the testimony of Kennedy and Dr. Bothamley (one of his treating physicians), our analysis cannot stop there; we must still determine “whether the ALJ’s decision remains legally valid, despite such error.” Carmickle v. Comm’r, Soc. Sec. Admin., 533 F.3d 1155, 1162 (9th Cir.2008); see also Batson v. Comm’r, Soc. Sec. Admin., 359 F.3d 1190, 1197 (9th Cir.2004). In this case, the ALJ’s errors were harmless. The ALJ identified specific, cogent facts supporting its credibility decision, such as the disparity between Kennedy’s statements and his medical records. Moreover, the ALJ’s reasons for rejecting Dr. Bothamley’s disability conclusion were specific, legitimate, and supported by substantial evidence, including the ALJ’s determination that Dr. Bothamley’s treatment notes were inconsistent with his written statement regarding Kennedy’s level of disability. Because the ALJ’s reasoning, other than the narrow misstatements about Kennedy’s ibuprofen use and lumbar-spine degeneration, were adequately supported by substantial evidence in the record, “the ALJ’s error ... was inconsequential to the ultimate nondisability determination.” Carmickle, 533 F.3d at 1162 (quoting Stout v. Comm’r, Soc. Sec. Admin., 454 F.3d 1050, 1055 (9th Cir.2006)). Because the errors identified by the majority were harmless, I would affirm the order of the district court.
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MEMORANDUM **
Rita M. Hymes and Donald L. Hymes appeal pro se from the district court’s summary judgment in an action brought by the United States to reduce to judgment unpaid income taxes, penalties, and interest assessed against appellants and to foreclose tax liens against certain real property. We have jurisdiction under 28 U.S.C. § 1291. We review de novo, Hughes v. United States, 953 F.2d 531, 541 (9th Cir.1992), and we affirm.
The district court properly granted summary judgment to the United States because the Hymes failed to controvert Certificates of Assessments and Payments demonstrating that the assessments were properly made. See id. at 540 (explaining that Certificates of Assessments and Payments are “probative evidence in and of themselves and, in the absence of contrary evidence, are sufficient to establish that ... assessments were properly made.”); see also 26 U.S.C. § 6322 (providing that tax liens arise at the time of assessment and continue until the liability is satisfied).
Appellants’ arguments on appeal are unpersuasive.
AFFIRMED.
This disposition is not appropriate for publication and is not precedent except as provided by 9th Cir. R. 36-3.
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MEMORANDUM **
Melanie Hughes, an attorney, appeals pro se from the district court’s judgment affirming the bankruptcy court’s partial summary judgment that her debt to defendants was nondischargeable in bankruptcy pursuant to 11 U.S.C. § 523(a)(6). We have jurisdiction pursuant to 28 U.S.C. § 158(d). We review de novo the district court’s decision on appeal from a bank*361ruptcy court and the bankruptcy court’s decision to grant summary judgment. Ditto v. McCurdy, 510 F.3d 1070, 1075 (9th Cir.2007), and we affirm.
The bankruptcy court did not err when it granted summary judgment on the non-dischargeability of Hughes’s debt based on her willful and malicious conduct. See 11 U.S.C. § 523(a)(6) (providing for exceptions to discharge “for willful and malicious injury by the debtor to another entity or to the property of another entity”).
Contrary to Hughes’s contentions, the bankruptcy court properly gave preclusive effect to the state court order awarding attorney’s fees because the issue of Hughes’s willfulness and maliciousness was squarely before the court when it determined whether her conduct was unreasonable, frivolous, meritless, or in bad faith under California Government Code § 12965. See Mangano v. Verity, Inc., 167 Cal.App.4th 944, 84 Cal.Rptr.3d 526, 529 (2008) (explaining that prevailing defendants may recover attorney’s fees under Cal. Gov.Code § 12965 “only if the plaintiffs lawsuit is deemed unreasonable, frivolous, meritless, or vexatious”); People v. Carter, 36 Cal.4th 1215, 32 Cal.Rptr.3d 838, 117 P.3d 544, 562 (2005) (explaining that an issue is actually litigated when it is properly raised, submitted for determination, and determined).
Hughes’s contention that nondischarge-ability under 11 U.S.C. § 523(a)(6) is conditioned on an intentional tort, rather than a general intention to cause injury, is equally unavailing. See Ditto, 510 F.3d at 1078 (explaining that the critical inquiry is whether the debtor desires to cause consequences of her act, or that she believes the consequences are substantially certain to result from it).
Hughes’s remaining contentions are unpersuasive.
We grant Hughes’s motion to file a page missing from her excerpts of record. The clerk shall file the missing excerpt page received on March 27, 2009.
We deny Hughes’s motion to augment the excerpts of record.
We grant appellees’ motion to strike portions of the excerpts of record.
AFFIRMED.
This disposition is not appropriate for publication and is not precedent except as provided by 9 th Cir. R. 36-3.
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ON MOTION
PER CURIAM.
ORDER
Willie E. Turner responds to the court’s order directing him to show cause why his appeal should not be dismissed as untimely. The Secretary of Veterans Affairs moves to dismiss Turner’s appeals. Turner opposes.
The Board of Veterans’ Appeals denied Turner’s application to reopen claims for service connection for a lumbar spine condition and chronic myalgia in his right hip. Before the United States Court of Appeals for Veterans Claims, the Secretary conceded that the Board had not ensured compliance with the duty to assist and requested that the Board decision be vacated and the case remanded. On January 5, 2009, the Court of Appeals for Veterans Claims agreed with the Secretary and vacated the Board decision and remanded the case to allow the Board to seek to obtain records identified by Turner in support of his case. Turner filed two notices of appeal seeking review of that decision. The first notice of appeal, 2009-7084, was filed directly with the United States Court of Appeals for the Ninth Circuit and the second, 2009-7079, was filed with the clerk of the United States Court of Appeals for Veterans Claims and transmitted to this court in the usual course.
The Secretary argues that Turner’s appeal should be dismissed because it is untimely and because Turner seeks review of a nonfinal remand order that is not appeal-able pursuant to Williams v. Principi, 275 F.3d 1361 (Fed.Cir.2002). Turner asserts that he timely filed his appeal.
A notice of appeal of a judgment of the Court of Appeals for Veterans Claims must be filed within 60 days of entry of judgment in order to be timely. See 38 U.S.C. § 7292(a); Fed. R.App. P. 4(a)(1). The time limit for filing a notice of appeal is jurisdictional, Griggs v. Provident Consumer Discount Co., 459 U.S. 56, 61, 103 S.Ct. 400, 74 L.Ed.2d 225 (1982) (“It is well settled that the requirement of a timely notice of appeal is ‘mandatory and jurisdictional.’ ” (citation omitted)), and may not be waived, Oja v. Army, 405 F.3d 1349, 1358 (Fed.Cir.2005) (time provisions of Fed.R.App. P. 4(a) are not subject to equitable tolling).
The notice of appeal in 2009-7079 was filed on March 13, 2009, 67 days after entry of judgment. Thus, it is untimely and must be dismissed. The timeliness of appeal no.2009-7084 is less clear. Turner submits United States Postal Service correspondence and a receipt showing that a package he sent to the Ninth Circuit was delivered on March 5, 2009. The notice of *563appeal is stamped with a “received” date of March 6, 2009. If the notice of appeal was filed on either of those dates, it would be timely. However, the appeal was docketed as having been filed on March 11, 2009, more than 60 days after entry of judgment. Thus, there is conflicting evidence about the filing date of this appeal. We need not decide whether appeal no.2009-7084 is timely, however, because in any event, in both appeals Turner seeks review of a nonfinal remand and thus we dismiss.
“This court typically will not review remand orders by the Court of Appeals for Veterans Claims ‘because they are not final judgments.’” Williams, 275 F.3d at 1364 (citation omitted). We will review remand orders of the Court of Appeals for Veterans Claims “only if three conditions are satisfied: (1) there must have been a clear and final decision of a legal issue that (a) is separate from the remand proceedings, (b) will directly govern the remand proceedings, or (c) if reversed by this court, would render the remand proceedings unnecessary; (2) the resolution of the legal issues must adversely affect the party seeking review; and (3) there must be a substantial risk that the decision would not survive a remand.” Id.
In this case, the criteria set forth in Williams are not met. The January 5 decision of the Court of Appeals for Veterans Claims does not finally resolve any legal issues that are separate from the remand proceedings, that will govern the remand proceedings, or that would, if reversed, render the remand proceedings unnecessary. Thus, we must dismiss. In the event that, on remand, Turner does not prevail before the Board and the Court of Appeals for Veterans Claims, he may file a new notice of appeal in the Court of Appeals for Veterans Claims seeking review of that court’s final judgment.
Accordingly,
IT IS ORDERED THAT:
(1) The Secretary’s motion to dismiss is granted. The appeals are dismissed.
(2) All pending motions are moot.
(3) Each side shall bear its own costs.
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SUMMARY ORDER
Plaintiff-Appellant Dov Levine appeals from the entry of judgment after a jury trial in the United States District Court for the Southern District of New York (Fox, Mag. J.). Levine claims that Reader’s Digest Association, Inc. (“RDA”) is liable for discrimination and retaliation in violation of the Age Discrimination in Employment Act (“ADEA”) in connection with the conduct of its Swiss subsidiary, Das Beste de Reader’s Digest (“Das Beste”). The court below dismissed the retaliation claim as moot prior to trial, and the jury subsequently returned a verdict finding that RDA and Das Beste did not constitute a “single employer” such that RDA could be held liable for Das Beste’s employment-related acts. Based on evidence adduced at trial, the court also granted RDA’s post-trial motion to dismiss the complaint as untimely. Levine now seeks reinstatement of the retaliation claim, a new trial on the age discrimination claim due to asserted errors in the jury instructions, and a reversal of the post-trial dismissal of his complaint.
We assume the parties’ familiarity with the facts, procedural history of the case, and issues presented on appeal.
First, taken as a whole, the trial court’s instruction to the jury regarding the single employer doctrine did not mislead the jury as to the correct legal standard. See Anderson v. Branen, 17 F.3d 552, 556 (2d Cir.1994) (noting that a jury instruction is erroneous if it “misleads the jury as to the correct legal standard or does not adequately inform the jury on the law”). The trial court properly instructed the jury as to the four factors relevant to determining joint liability for discrimination. See Murray v. Miner, 74 F.3d 402, 404 (2d Cir.1996) (listing the factors). With respect to the most important of the four factors, whether there was centralized control of labor relations, the court advised the jury that the “critical” question was “what entity made final decisions regarding employment matters related to the person claiming discrimination.” Far from being misleading, this language is taken directly from our precedent. See Cook v. Arrowsmith Shelburne, Inc., 69 F.3d 1235, 1240 (2d Cir.1995) (noting with approval the Fifth Circuit’s holding that “the critical question to be answered” with regard to the centralized control criterion is “what *604entity made the final decisions regarding employment matters related to the person claiming discrimination?”) (internal quotation marks omitted); see also Murray, 74 F.3d at 405. Moreover, the instructions did not encourage the jury to place undue weight on any one factor, such as what entity made the final termination decision, because the court advised that “[n]o one factor is determinative” in order to find joint liability. See Murray, 74 F.3d at 404-05.
Second, the court appropriately dismissed Levine’s retaliation claim, because the primary harm alleged in that claim — the loss of the 90,000 Swiss francs in severance funds and the incurrence of attorney’s fees — has already been redressed by the Swiss courts. See Burlington Northern and Santa Fe Ry. Co. v. White, 548 U.S. 53, 67-68, 126 S.Ct. 2405, 165 L.Ed.2d 345 (2006) (emphasizing that actionable retaliation must involve materially adverse injury or harm). Levine asserts for the first time in his reply brief on appeal that he has recovered only 19,862 of the 48,248 Swiss francs he spent on attorney’s fees in connection with the Swiss case. Levine’s eleventh-hour and unsubstantiated assertion that he has not recovered the entirety of his legal fees related to the Swiss proceedings does not command reinstatement of the retaliation claim.
Finally, even if Levine could prevail on his arguments regarding the jury charge and the retaliation claim, the complaint was nonetheless properly dismissed as time-barred. Levine’s trial testimony indicates that the letter he received on October 29, 2003 constituted a definite notice of termination. See Economu v. Borg-Warner Corp., 829 F.2d 311, 315 (2d Cir.1987) (internal quotation marks omitted); see also id. (instructing that in making timeliness determinations, courts are to identify the date on which the employer established an official position [as to the termination] and made that position known to the employee). Levine did not file his EEOC charge until May 12, 2004,196 days after receiving the termination letter. In light of the additional evidence revealed at trial, the court below was entitled to reach a different result with respect to the timeliness analysis than the district court did in ruling on the motion to dismiss and the summary judgment motion. See Corporacion de Mercadeo Agricola v. Mellon Bank Int’l, 608 F.2d 43, 48 (2d Cir.1979) (noting that where a party renews a motion for summary judgment after further development of the record, the law of the case “may be departed from in the sound discretion of the district court,” since “further reflection may allow a better informed ruling in accordance with the conscience of the court”).
We have examined Levine’s remaining contentions on appeal and find them to be without merit.
For the foregoing reasons, the judgment is AFFIRMED.
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SUMMARY ORDER
Yemisi Akinyemi, an American citizen of Nigerian origin, appeals from a judgment dismissing her employment discrimination complaint against her former employer, United States Customs and Border Protection (“CBP”), a component of the Department of Homeland Security, pursuant to a *607jury verdict. We assume the parties’ familiarity with the facts, proceedings below, and specification of issues on appeal.
We review the district court’s challenged evidentiary rulings for abuse of discretion and hold that the district court acted well within its discretion in making each of these rulings. See Arlio v. Lively, 474 F.3d 46, 51 (2d Cir.2007). First, the district court properly excluded evidence concerning the misconduct and subsequent discipline of fellow employee, Jolanta Gluba, because Gluba’s negligence was not of comparable seriousness to Akinyemi’s intentional misconduct. See Cruz v. Coach Stores, Inc., 202 F.3d 560, 567-68 (2d Cir.2000) (affirming grant of summary judgment where plaintiff was terminated for a physical assault, her putative comparator was not terminated for a verbal assault). Second, the district court properly excluded proof concerning nine unnamed comparators who were not identified by race or national origin. See Graham v. Long Island R.R., 230 F.3d 34, 39 (2d Cir.2000) (holding that in order to create an inference of discrimination, differently treated comparators must not be members of the plaintiffs protected group). Although Akinyemi subsequently offered evidence of the race of some of the comparators, the district court properly adhered to the law of the case because Akinyemi offered no proof that this evidence was not available earlier and gave the court no other reason to deviate from its prior ruling. See ATSI Commc’ns v. Shaar Fund, Ltd., 547 F.3d 109, 112 n. 3 (2d Cir.2008). Testimony by one CBP officer that there had been profiling of Nigerian passengers but not of employees was also properly excluded because the risk of prejudice and the time required for both parties to offer evidence on this point far outweighed its tangential relevance to employment discrimination. See Fed.R.Evid. 403. Finally, portions of an investigative report related to Gluba and the unnamed comparators were properly excluded for the same reasons that any direct evidence concerning these individuals was properly excluded.
Based on a footnote in the district court’s summary judgment decision indicating that, even though Akinyemi’s case survived summary judgment, it was weak, and one colloquy during trial, Akinyemi accuses the district court of bias. “Reversal for judicial bias is appropriate only where an examination of the entire record demonstrates that the jurors have been impressed with the trial judge’s partiality to one side to the point that this became a factor in the determination of the jury.” United States v. Mulder, 273 F.3d 91, 109 (2d Cir.2001) (quoting United States v. Salameh, 152 F.3d 88, 128 (2d Cir.1998)). The jury did not see the summary judgment ruling and accordingly could have formed no perception based on it. And the colloquy was both not improper and quite short in the context of the entire trial.
Finally, there was no error in the district court’s refusal to give two charges that Akinyemi requested. A charge allowing the jury to draw an adverse inference against CBP from a non-party witness’s invocation of her Fifth Amendment privilege against self-incrimination was not required because (1) the witness, although an employee of CBP, was a very low level employee; (2) the witness had no control over the key facts and issues in the litigation; (3) there was no showing that the witness was “pragmatically a noncaptioned party in interest”; and (4) there was insufficient information to determine that an adverse inference against CBP would have been “trustworthy under all of the circumstances.” LiButti v. United States, 107 F.3d 110, 123-24 (2d Cir.1997). Akinyemi also requested that the court instruct the *608jury that it could draw an adverse inference from the non-production of a document that a CBP witness believed — but was not certain — existed. Because Akinyemi offered no proof that (1) any such document was destroyed or encompassed within a discovery request that she made but not produced, or (2) CBP had a culpable state of mind with respect to any action or inaction concerning the putative document, the district court’s refusal was proper. See Residential Funding Corp. v. DeGeorge Fin. Corp., 306 F.3d 99, 107 (2d Cir.2002).
We, therefore, affirm the judgment of the district court.
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SUMMARY ORDER
Appellant George W. Drance, pro se, appeals the district court’s order denying his motion for reconsideration of the district court’s March 2007 order granting the defendants’ motion to dismiss and denying Drance’s cross-motion to amend his 42 U.S.C. §§ 1983 and 1985 complaint. We assume the parties’ familiarity with the underlying facts, the procedural history of the ease, and the issues on appeal.
An appeal from an order denying a Rule 60(b) motion filed more than ten days after entry of the judgment brings up for review only the order denying the motion. See “R” Best Produce, Inc. v. DiSapio, 540 F.3d 115, 122 n. 5 (2d Cir.2008) (citation omitted). The appeal “does not permit the appellant to attack the underlying judgment for error that could have been complained of on direct appeal.” Daily Mirror, Inc. v. New York News, Inc., 533 F.2d 53, 56 (2d Cir.1976) (citation omitted). Relief pursuant to Rule 60(b) motions is available only in “exceptional circumstances.” See Ruotolo v. City of New York, 514 F.3d 184, 191 (2d Cir.2008). We review rulings on Rule 60(b) motions for abuse of discretion. See Transaero, Inc. v. La Fuerza Aerea Boliviana, 162 F.3d 724, 729 (2d Cir.1998). “A district could would necessarily abuse its discretion if it based its ruling on an erroneous view of the law or on a clearly erroneous assessment of the evidence.” Id. In this case, Drance filed his motion for reconsideration on April 2, 2007, more than ten days after the entry of judgment on March 15, 2007. Aceordingly, only the denial of the Rule 60(b) motion is properly before this Court for review. See Phillips v. Corbin, 132 F.3d 867, 869 (2d Cir.1998).
As conceded by the Defendants, because Drance was served with the Report and Recommendation on February 1, 2008, he had until February 21, 2008 (taking into account intermediate weekends, Washington’s Birthday, and three days for mail service) to file his objections. See Fed.R.Civ.P. 6(a), (d) and 72(b). Accordingly, Drance did not waive his right to appellate review of the magistrate judge’s report and recommendation. See, e.g., Small v. Sec’y of Health and Human Servs., 892 F.2d 15, 16 (2d Cir.1989) (noting that failure to timely object to a magistrate judge’s report and recommendation may “operate as a waiver of the right to appellate review of the district court’s adoption of the magistrate’s recommendation”). Nevertheless, Drance has not made any argument on appeal as to why his motion for reconsideration should have been granted, or why the district court abused its discretion in denying his motion. Instead, Drance merely contests the district court’s entry of an order adopting the magistrate judge’s January 2008 Report prior to his having filed his objections. In its decision granting the Defendants’ motion to dismiss, the district court discussed Drance’s prior action, and properly found that it was precluded by the doctrine of collateral estoppel. Drance has not submitted any newly discovered evidence or made any argument that the district court based its ruling on an erroneous view of the law or facts. Accordingly, the district court did not abuse its discretion in denying Drance’s motion for reconsideration.
*610To the extent Drance intends to appeal the March 2007 judgment dismissing his complaint, as discussed above, we lack jurisdiction to review the judgment because his motion for reconsideration was filed more than ten days after the entry of judgment.
For the foregoing reasons, the order of the district court is hereby AFFIRMED.
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SUMMARY ORDER
Plaintiff-appellant Carol F.C. Paladino, a former letter carrier for the United States Postal Service (“USPS”), appeals the December 3, 2007 judgment of the United States District Court of the Eastern District of New York (Bianco, J.), granting summary judgment to defendant-appellee, John E. Potter, Postmaster General of the USPS, and dismissing Paladino’s complaint alleging employment discrimination. See Paladino v. Potter, No. 06-CV-5930, 2007 WL 4255247 (E.D.N.Y. Nov. 29, 2007). We assume the parties’ familiarity with the underlying facts, procedural history, and specification of issues for review.
We review a grant of summary judgment de novo, examining the facts in the light most favorable to the non-moving party and resolving all factual ambiguities in that party’s favor. Cioffi v. Averill Park Cent. Sch. Dist. Bd. of Educ., 444 F.3d 158, 162 (2d Cir.2006).
We affirm the district court’s conclusion that Paladino failed to timely exhaust her administrative remedies vrithin the requisite 45-day period, see Pauling v. Sec’y of the Dep’t of Interior, 160 F.3d 133, 133-34 (2d Cir.1998), because it is undisputed that Paladino initiated contact with the EEO counselor on March 28, 2006, more than 45 days after the latest alleged discriminatory act on December 2, 2005.
We also agree with the district court that Paladino has not established that the circumstances of this case warrant equitable tolling. Equitable tolling requires a showing by plaintiff that she “(1) has acted with reasonable diligence during the time period she seeks to have tolled, and (2) has proved that the circumstances are so extraordinary that the doctrine should apply.” Zerilli-Edelglass v. N.Y. City Transit Auth., 333 F.3d 74, 80-81 (2d Cir.2003) (quotation marks omitted). This standard is not met here, given that Paladino, who was familiar with the EEO process, and was represented by counsel, had signed the pre-complaint counseling form on February 14, 2006 but failed to forward it to the EEO office until March 28, 2006.
Finally, we reject Paladino’s arguments that the 45-day period should be tolled or did not start to run until the grievance proceedings were completed. See Del. State Coll. v. Ricks, 449 U.S. 250, 261, 101 S.Ct. 498, 66 L.Ed.2d 431 (1980) (“[P]endency of a grievance, or some other method of collateral review of an employ*615ment decision, does not toll the running of the [EEO] limitations periods.”); Alleyne v. Am. Airlines, Inc., 548 F.3d 219, 222 (2d Cir.2008) (“ ‘The proper focus for calculating the limitations period is upon the time of the discriminatory acts, not upon the time at which the consequences of the acts became most painful.’” (alterations omitted) (quoting Ricks, 449 U.S. at 258, 101 S.Ct. 498)).
Accordingly, the judgment of the district court is AFFIRMED.
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01-04-2023
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11-05-2022
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https://www.courtlistener.com/api/rest/v3/opinions/8472520/
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SUMMARY ORDER
This appeal seeks review of the September 10, 2008, order of the District Court for the Southern District of New York (Shirley Wohl Kram, District Judge), prohibiting disclosure of documents that Defendant-Appellee National Association of Securities Dealers (“NASD”) turned over to Plaintiff-Appellant Standard Investment Chartered, Inc. (“Standard”) during discovery in litigation concerning a challenge to the consolidation of NASD and the New York Stock Exchange.1 The protective order decision was initially considered in a ruling issued September 26, 2007, see Standard Investment Chartered, Inc. v. National Ass’n of Securities Dealers, Inc., 621 F.Supp.2d 55 (S.D.N.Y.2007) (“Standard I ”), and considered again, after supplemental briefing, in a ruling dated January 23, 2008, see Standard Investment Chartered, Inc. v. National Ass’n of Securities Dealers, No. 07 Civ. 2014, 2008 WL 199537 (S.D.N.Y. Jan. 22, 2008) (“Standard II ”), prior to the formal ruling of September 10, 2008, which is the immediate subject of this appeal. We were advised at oral argument that the parties have narrowed their dispute so that what remains at issue is protection only for certain financial data contained in correspondence between NASD and the Internal Revenue Service (“IRS”). As to this data, we affirm the order of the District Court. We assume the parties’ familiarity with the facts and procedural developments in this litigation.
Although the protective order was entered after the District Court dismissed the underlying action, the Court retained jurisdiction to “dispose of material in its files as it thinks appropriate.” Gambale v. Deutsche Bank AG, 377 F.3d 133, 139 (2d Cir.2004).
The District Court properly recognized that the normal burden upon the proponent of a protective order to establish good cause for protection, see id. 377 F.3d at 142, is significantly enhanced with respect to “judicial documents,” see Lugosch v. Pyramid Co. of Onondaga, 435 F.3d 110, 119 (2d Cir.2006), as to which “a common law presumption of access attaches,” id. We have described “judicial documents” as those that are “ ‘relevant to the performance of the judicial function,’ ” id. 435 F.3d at 119 (quoting United States v. Amodeo, 44 F.3d 141, 145 (2d Cir.1995)), but we have also said that the monitoring of the judicial function is not possible without access to “documents that are used in the performance of Article III functions,” United States v. Amodeo, 71 F.3d 1044, 1048 (2d Cir.1995) (“Amodeo II ”) (emphasis added). In the pending case, the District Court considered the documents at issue to be judicial documents, and we will assume that this conclusion was correct for purposes of this appeal. The District Court also recognized the extra force in favor of disclosure supplied by the qualified First Amendment right of access that we discussed in Lugosch, 435 F.3d at 120. However, Lugosch pointed out that even this qualified First Amendment right of access “does not end the inquiry.” Id. Analogizing to the courtroom closure context, we observed that “ ‘[documents may *617be sealed if specific, on the record findings are made demonstrating that closure is essential to preserve higher values and is narrowly tailored to serve that interest.’ ” Id. (quoting In re New York Times, 828 F.2d 110, 116 (2d Cir.1987)).
After carefully considering NASD’s reasons for protection and Standard’s reasons for disclosure, the District Court concluded that NASD had justified protection of information that would subject it to “financial harm,” Standard II, 2008 WL 199537, at *10, and that redaction of only the financial data in the IRS correspondence would satisfy the narrow tailoring requirement. The Court relied on the reasons discussed in Part II.C.2.b of its September 2007 opinion, reasons that in turn relied on the reasons discussed in Part II.C.2.a of that opinion dealing with Fairness Opinion Documents (no longer at issue). The Court accepted NASD’s contention that “an outsider with knowledge of the final terms of the Consolidation could, upon viewing the facts and figures in NASD’s records, use that information to deduce NASD’s negotiation tactics.” Id. at *7, and stated that “[disclosure could cause NASD significant competitive disadvantage,” id. at *8. The District Court noted that the protected information “sheds almost no light on either the substance of the underlying proceeding or the basis for the Court’s decision.” Id. “Where testimony or documents play only a negligible role in the performance of Article III duties, the weight of the presumption is low and amounts to little more than a prediction of public access absent a countervailing reason.” Amodeo II, 71 F.3d at 1050. These factual findings are not clearly erroneous.
The District Court concluded “that NASD’s interest in protecting confidential business information outweighs the qualified First Amendment presumption of public access.... ” Standard II, 2008 WL 199537, at *8. To the extent that the Court’s balancing of NASD’s interests in protection against Standard’s interests in disclosure is reviewed for abuse of discretion, see Dove v. Atl. Capital Corp., 963 F.2d 15, 19 (2d Cir.1992), we see no abuse of that discretion. Even upon de novo review, arguably appropriate in light of First Amendment considerations, we would still affirm the District Court, given the limited public, as distinguished from private, interest in disclosure on the facts of this case.
We have considered all of Standards contentions and conclude that they lack merit. Accordingly the District Court’s decision to protect from disclosure the redacted financial data in the IRS correspondence is affirmed.
. An appeal from the District Court’s dismissal of the lawsuit for failure to exhaust administrative remedies was dismissed as moot. See Standard Investment Chartered, Inc. v. National Ass'n of Securities Dealers, Inc., 560 F.3d 118 (2d Cir.2009).
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01-04-2023
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11-05-2022
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https://www.courtlistener.com/api/rest/v3/opinions/8472522/
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SUMMARY ORDER
Plaintiff Panther Partners Inc. and all others similarly situated (“Panther Partners”) appeals from the March 8, 2008, 538 F.Supp.2d 662, and June 12, 2008, 2008 WL 2414047, orders of the District Court dismissing plaintiffs amended complaint with prejudice, denying leave to amend the complaint, and denying a motion for reconsideration. Plaintiff alleged that defendant Ikanos Communications, Inc. (“Ikanos” or “the company”), along with various directors and underwriters, negligently made false statements in connection with the company’s September 22, 2005 initial public offering and a March 17, 2006 secondary offering in violation of sections 11, 12, and 15 of the Securities Act of 1933. Defendants moved to dismiss the amended complaint for failure to state a claim on which relief can be granted, Fed.R.Civ.P. 12(b)(6), asserting that plaintiff failed to meet the plausibility standard for pleadings under Rule 8 of the Federal Rules of Civil Procedure set forth in Bell Atlantic Corp. v. Twombly, 550 U.S. 544, 127 S.Ct. 1955, 167 L.Ed.2d 929 (2007). The District Court granted this motion to dismiss and denied plaintiff leave to amend. The District Court then denied plaintiffs motion for reconsideration. On appeal, plaintiff asks our Court to consider the following questions: (1) whether the motion to dismiss was improperly granted because the District Court applied a particularity standard, rather than the plausibility standard set forth in Twombly, 550 U.S. 544, 127 S.Ct. 1955, and Ashcroft v. Iqbal, — U.S. -, 129 S.Ct. 1937, 173 L.Ed.2d 868; (2) whether the District Court erred when it denied plaintiffs motion for leave to amend the complaint; and (3) whether the District Court erred when it denied plaintiffs motion for reconsideration. We assume the parties’ familiarity with the facts and procedural history of this case.
Motion To Dismiss
This court reviews de novo a district court’s dismissal of a complaint pursuant to Rule 12(b)(6), “construing the complaint liberally, accepting all factual allegations in the complaint as true, and drawing all reasonable inferences in the plaintiffs’ favor.” Chambers v. Time Warner, Inc., 282 F.3d 147, 152 (2d Cir.2002); see also E & L Consulting, Ltd. v. Doman Indus., 472 F.3d 23, 28 (2d Cir.2006).
Plaintiff argues that the District Court misapplied Twombly, and improperly required pleading with particularity. Plaintiff further asserts that the allegations in the amended complaint support a “plausible” claim sufficient to satisfy the Twombly standard. Under Twombly (and confirmed by Iqbal), Rule 8 requires that a plaintiff allege in its complaint “enough facts to state a claim to relief that is plausible on its face.” Twombly, 550 U.S. at 570, 127 S.Ct. 1955. To meet this standard, plaintiffs must “nudge[ ] their claims across the line from conceivable to plausible.” Id. This requires alleging “enough fact to raise a reasonable expectation that discovery will reveal evidence” to prove the claim. Id. at 556, 127 S.Ct. 1955.
Even applying the standard set forth in Twombly — -a more lenient standard than that which the District Court imposed — we find that the allegations in plaintiff’s amended complaint fail to support a “plausible” claim. Plaintiff’s amended complaint states that (1) “[b]y January 2006, *620Ikanos learned that the VDSL Version Four chips were failing,” Am. Compl. ¶ 49; and (2) “Ikanos determined that the VDSL Version Four chips had a failure rate of 25% [to] 80%, which was extremely high,” Am. Compl. ¶ 51. Learning that some chips were defective would be expected, so the critical question is when Ikanos determined that the failure rate was abnormally high. The amended complaint need not, despite the District Court’s suggestion, allege when Ikanos knew the failure rate was specifically twenty-five to thirty percent. Panther Partners, Inc. v. Ikanos Commc’ns, Inc., 538 F.Supp.2d 662, 673 (S.D.N.Y.2008). Instead, plaintiff needs only allege that Ikanos knew of abnormally high failure rates before the company published the registration statement accompanying its March 2006 secondary offering. As the District Court noted, “[n]o plausibly pleaded fact suggests that Ikanos knew or should have known the scope or magnitude of the defect problem at the time of the Secondary Offering.” Id.
Again, it is worth emphasizing that the District Court order may have required plaintiff to allege facts with more particularity than the Twombly standard requires. The District Court stated that “[p]laintiff must tell the Court what was going on when — and how much the defect experienced actually differed from the norm.” Id. Additionally, the District Court noted, “here there is no pleading as to what a ‘normal’ defect rate is.... ” Id. The plausibility standard would not require that plaintiff assert, for example, exactly when the company knew the difference in defect rates between the VDSL chips and other chips was statistically significant. The plausibility standard, however, does require a statement alleging that they knew of the above-average defect rate before publishing the registration statement.
Although we do not agree that as much specificity is required in pleading as required here by the District Court, our de novo review leads us to the same conclusion as the District Court. Without an allegation in the amended complaint that Ikanos knew of the abnormally high defect rate in the VDSL chips before publishing their registration statement, the amended complaint failed to meet the plausibility requirements of Twombly because it did not allege facts sufficient to complete the chain of causation needed to prove that defendants negligently made false statements Therefore, it was proper for the District Court to dismiss the amended complaint.
Leave to Amend
We review denial of leave to amend under an “abuse of discretion” standard. See, e.g., McCarthy v. Dun & Bradstreet Corp., 482 F.3d 184, 200 (2d Cir.2007) (leave to amend); Devlin v. Transps. Commc’ns Int’l Union, 175 F.3d 121, 131-32 (2d Cir.1999) (motion for reconsideration); cf. Sims v. Blot, 534 F.3d 117, 132 (2d Cir.2008) (“A district court has abused its discretion if it based its ruling on an erroneous view of the law or on a clearly erroneous assessment of the evidence, or rendered a decision that cannot be located within the range of permissible decisions.” (internal citation, alterations, and quotation marks omitted)).
First, it is well established that although leave to amend should be “freely given,” Fed.R.Civ.P. 15(a), there is no rule that every request to amend must be granted. See McCarthy, 482 F.3d at 200. Second, though we have observed that complaints assessed under Rule 9(b) of the Federal Rules of Civil Procedure are routinely allowed “at least one opportunity to plead fraud with greater specificity,” ATSI Commc’ns, Inc. v. Shaar Fund, Ltd., 493 F.3d 87, 108 (2d Cir.2007), we assess this *621complaint under Rule 8, not Rule 9(b), because this plaintiff alleges negligent preparation of the registration statement and prospectus, rather than fraudulent preparation. See Rombach v. Chang, 355 F.3d 164, 171, 178 (2d Cir.2004) (applying Rule 9(b) requirements to claims under sections 11 and 12(a)(2) of the Securities Act of 1933 when they allege fraud, but applying Rule 8 requirements when they allege negligence); Am. Compl. ¶ 46 (“The Secondary Offering Registration Statement and Secondary Offering Prospectus were negligently prepared.... ”). There is no general rule that just because the complaint is brought under the federal securities laws, a plaintiff will automatically receive leave to amend.
Because there is no requirement to grant leave to amend under the circumstances presented here, it was within the District Court’s discretion to deny leave to amend.
Motion for Reconsideration
We generally review motions for reconsideration under an “abuse of discretion” standard. Devlin, 175 F.3d at 131-32. When the denial of leave to amend is based on a legal interpretation, such as for futility, a reviewing court conducts a de novo review. See, e.g., Littlejohn v. Artuz, 271 F.3d 360, 362 (2d Cir.2001) (“[I]f the denial of leave to amend is based upon a legal interpretation ... we review the decision de novo.”); see also Gorman v. Consol. Edison Corp., 488 F.3d 586, 592 (2d Cir.2007) (reviewing de novo a district court’s denial of leave to amend on grounds of futility). Because the District Court did not consider the issue of futility until it decided the motion for reconsideration, we turn to that question in reviewing the District Court’s order denying the motion for reconsideration, which we review de novo.
Despite alleging new facts, the proposed second amended complaint does not cure the deficiencies of the dismissed (first) amended complaint. Plaintiffs proposed second amended complaint does allege additional facts, but none of these facts answers the critical question about when the company knew that the defect rate was unusually high. Plaintiff primarily cites evidence from the “former Director of Quality and Reliability” (the “former Director”) at Ikanos. Proposed Second Am. Compl. ¶ 33. Plaintiff states that the former Director “learned that there were quality issues with VDSL Version Four chip in January 2006.” Id. Panther Partners does not allege, however, that the quality issues deviated from normal quality issues the company would expect in any production run. Plaintiff further asserts that “in the weeks leading up to the Secondary offering, the defect issues ... became more pronounced.” Proposed Second Am. Compl. ¶ 34. One would expect, however, that normal defects would also become more pronounced as the new product entered the market. Furthermore, plaintiff does not allege that, even “in the weeks leading up to the Secondary Offering,” the company knew that the defect rates were unusually high and therefore could materially affect earnings. Panther Partners in fact concedes that it was not until June 2006 — three months after the secondary offering — that Ikanos decided to replace all chips on a board with one defective chip. Proposed Second Am. Compl. ¶ 37. This remedy proved costly for Ikanos. Proposed Second Am. Compl. ¶39. Although these assertions “nudge[d] [plaintiffs] claims” closer “to the line from conceivable to plausible,” they were not enough to push the proposed second amended complaint across that line. See Twombly, 550 U.S. at 570, 127 S.Ct. 1955 (requiring that plaintiffs “nudge[] their claims across the line from conceivable to *622plausible”). The proposed second amended complaint thus failed to allege plausibly that the company knew of abnormally high and potentially problematic defect rates before Ikanos published the registration statement.
Despite the deficiencies in the proposed second amended complaint, granting leave to amend anew may not be futile in this case. Granting leave to amend is futile if it appears that plaintiff cannot address the deficiencies identified by the court and allege facts sufficient to support the claim. Joblove v. Barr Labs., Inc., 466 F.3d 187, 220 (2d Cir.2006). Although courts commonly look to proposed amendments to determine futility, courts need not determine futility based only on an assessment of the proposed amendments— that is, the complaint presented to the court for its consideration. Cf. Kassner v. 2nd Ave. Delicatessen, Inc., 496 F.3d 229, 235 (2d Cir.2007) (directing the district court to consider “whether the proposed amendment or different amendments to the complaint should be allowed”) (emphasis added). Instead, courts may consider all possible amendments when determining futility. Because it seems to us possible that plaintiff could allege additional facts that Ikanos knew the defect rate was above average before filing the registration statement, and that this allegation, if made, would be sufficient to meet the high standards that Iqbal and Twombly require for pleadings, further amendment may not be futile.
Finally, we recognize that Iqbal and Twombly raised the pleading requirements substantially while this case was pending. Although plaintiff has had an opportunity to further amend its complaint after Twombly was decided, we proceed cautiously in light of the rapidly changing contours of the pleadings standard in order to ensure justice.
For these reasons, we vacate the order of the District Court denying the motion to reconsider its decision to deny leave to amend and remand the cause to the District Court.
CONCLUSION
After considering all of plaintiffs arguments, we AFFIRM the District Court’s judgment insofar as it dismissed the amended complaint and VACATE the District Court’s judgment insofar as it denied the motion to reconsider its denial of leave to amend. Accordingly, we REMAND the cause to the District Court for further proceedings consistent with this order, which may, upon reconsideration, include affording an opportunity to plaintiff to seek leave to amend the complaint further. We emphasize that in doing so we intimate no view on the substance of amendments that would meet the relevant pleading standards, much less a view on how the District Court should evaluate any further motion to amend.
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01-04-2023
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11-05-2022
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https://www.courtlistener.com/api/rest/v3/opinions/8472525/
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SUMMARY ORDER
Defendants-appellants-eross-appellees Certain Underwriters at Lloyd’s London and London Market Insurance Companies (collectively “defendants” or “LMI”) appeal from the judgment of September 8, 2008 and from the order of September 25, 2008 denying LMI’s motion for judgment as a matter of law or for a new trial. Plaintiff-appellee-cross-appellant Olin Corporation (“plaintiff’ or “Olin”) cross-appeals from the judgment of September 8, 2008 inasmuch as it declines to hold LMI liable for defense costs prior to Olin’s settlement with its primary insurer. On appeal, defendants argue as follows: (1) the District Court erred when it denied LMI’s motion for reconsideration of their previous motion for judgment as a matter of law on remand from this Court; (2) the District Court erred in its jury instructions when it improperly defined “property damage” and when it instructed the jury that the task of determining the amount of property damage in each period is “one of estimation”; (3) the District Court erred when it found that multi-year policies issued by LMI have a single deductible or underlying limit; and (4) the District Court erred when it found that LMI waived their “late notice” defense. Plaintiff, on cross-appeal, argues that the District Court erred in failing to require LMI to reimburse Olin for defense costs incurred prior to Olin’s settlement with its primary insurer. We assume the parties’ familiarity with the facts and procedural history of this case.
First, defendants argue that the District Court erred when it denied LMI’s motion for reconsideration of their previous Rule 50 motion for judgment as a matter of law, Fed.R.Civ.P. Rule 50(b), on remand from this Court and instead grant*626ed a new trial.1 See generally Olin Corp. v. Certain Underwriters at Lloyd’s, 468 F.3d 120 (2d Cir.2006) (“Olin I”). Our decision in Olin I stated that “a new trial is almost certainly required” but also that the District Court should review the record to determine if “Olin has introduced any evidence by which a rational juror could conclude [that] property damage ... ended before remediation.” Id. at 132. If Olin had presented evidence sufficient to meet this burden, then the District Court should hold a new trial. In the first trial, Olin had introduced evidence that active contamination at the Niagara Falls site was complete by 1957-forty years before Olin began remediation in 1997. Although it is arguable that some passive contamination occurred for years after the active contamination was complete, we conclude that a rational juror could reasonably find that passive contamination ended at some point before 1997. Olin presented similar evidence for the other relevant sites. For this reason, the District Court did not err in denying LMI’s motion and instead ordering a new trial.
Next, defendants contend that the District Court improperly instructed the jury on the definition of “property damage.” We review a district court’s jury instructions de novo, determining “whether considered as a whole, the instructions adequately communicated the essential ideas to the jury.” United States v. Schultz, 333 F.3d 393, 414 (2d Cir.2003) (alteration and quotation marks omitted). In our opinion in Olin I, we clearly outlined the proper definition of “property damage.” Specifically, we held that “property damage occurs as long as contamination continues to increase or spread, whether or not the contamination is based on active pollution or the passive migration of contamination into the soil and groundwater.” Olin I, 468 F.3d at 131. In its instructions to the jury during the second trial, the District Court stated in relevant part:
To illustrate [the definition of passive contamination], if Olin introduces pollutants into an area during a given year and if by the force of nature the area of contamination grows or if the contamination moves into a new area and if this occurs in a subsequent year, then there is new property damage during that subsequent year to the extent of the growth or movement into the new area. If such a process keeps on happening year after year, there is new property damage in each of those years. If the contamination moves into a new area in a given year, there is new property damage, increasing what Olin must remedy and so increasing Olin’s liability.
Let us not forget that the question is always whether there is new property damage which increases Olin’s liability. This relates to the ultimate question of *627whether in any given year a percentage of Olin’s ultimate total liability for the particular site can be assigned to a given year and what is that percentage.
Tr.1965-66.
When considering the jury instructions as a whole, we conclude that, though not a model of clarity, the jury instructions “adequately communicated the essential ideas to the jury,” Schultz, 833 F.3d at 414, and did not “misled the jury regarding the applicable legal rule.” United States v. Ford, 435 F.3d 204, 209-10 (2d Cir.2006). The instructions clearly stated that passive contamination was one cause of property damage and that LMI were responsible only for the damage that Olin ultimately remediated. For these reasons, we conclude that the District Court did not err when instructing the jury in this manner.
Similarly, LMI argue that the District Court improperly instructed the jury that the task of determining the amount of property damage in each period is “one of estimation.” In Olin I, we held that the “costs of remediation should be allocated over the period in which property damage occurred, as nearly as possible according to the amount of property damage that occurred in each policy period.” Olin I, 468 F.3d at 123. When instructing the jury, the District Court stated that the task of allocation of property damage across years in the policy period was “one of estimation, although surely estimation, not guesswork.” Tr.1970. The District Court continued: “[A]ny finding you make obviously must be based on evidence, based on reason, and of course not mere guesswork.” Tr.1971. Reasonable estimation, it seems to us, allocates property damage “as nearly as possible” to the aetual amount of damage incurred in a given year — especially when much of the damage occurred a half century ago. Therefore, we conclude that the District Court did not err in giving this instruction.
Third, LMI argue that the District Court erred in holding that LMI’s multiyear policies required only one deductible. We review the District Court’s ruling of law de novo. See, e.g., Somoza v. N.Y. City Dep’t of Educ., 538 F.3d 106, 112 (2d Cir.2008). In its September 8, 2008 judgment, the District Court held that “[w]here there is one policy limit for a Multi-Year Policy, ... there is only one deductible or underlying limit for that period of time.” The policy language that the parties provide states in relevant part: “Underwriters hereon shall only be liable for the ultimate net loss the excess of ... the amounts recoverable under underlying insurances ... (all hereinafter called the ‘underlying limits’) and then only up to a further $300,000.00 in all in respect of each occurrence.” J.A. 845 (emphases added).2 “When the provisions [of an insurance policy] are unambiguous and understandable, courts are to enforce them as written.” Parks Real Estate Purchasing Group v. St. Paul Fire and Marine Ins. Co., 472 F.3d 33, 42 (2d Cir.2006). Deciding “[wjhether a contract is ambiguous is a threshold question of law to be determined by the court.” Duane Reade, Inc. v. St. Paul Fire and Marine Ins. Co., 411 F.3d 384, 390 (2d Cir.2005). We find the plain language of the policy ambiguous. Because we must resolve any ambiguity “in favor of the insured,” Goldberger v. Paul Revere Life Ins. Co., 165 F.3d 180, 182 (2d Cir.1999); see also Olin I, 468 F.3d at 131 (applying this principle to sophisticated *628parties), we must find in favor of Olin that there was only one underlying limit. For these reasons, we conclude that the District Court did not err in finding that where there was only one policy limit, there was only one underlying limit.
Fourth, LMI contends that the District Court erred when it held that LMI waived its “late notice” defense. Again, we review the District Court’s ruling of law de novo. See, e.g., Somoza, 538 F.3d at 112. We have consistently held that under New York law, which the parties agree is applicable here, “an insurer is deemed, as a matter of law, to have intended to waive a defense to coverage where other defenses are asserted, and where the insurer possesses sufficient knowledge (actual or constructive) of the circumstances regarding the unasserted defense.” New York v. Amro Realty Corp., 936 F.2d 1420, 1431 (2d Cir.1991) (applying New York law). In this case, LMI expressly reserved certain rights regarding coverage upon receiving notice of the claim, J.A. 901, and had sufficient knowledge of the circumstances regarding the unasserted defense. We therefore conclude that the District Court did not err in holding that LMI waived its late notice defense.
Finally, on cross-appeal, Olin argues that the District Court erred in failing to require LMI to reimburse Olin for defense costs incurred prior to Olin’s settlement with its primary insurer. The policy states, “The underwriter shall not be liable for expenses as aforesaid when such expenses are included in other valid and collectible insurance.” Reading the plain language of the policy and resolving ambiguities in favor of the insured, we agree with the District Court’s conclusion that the legal expenses incurred prior to the settlement were covered by other valid and collectible insurance and therefore that LMI are not liable for those legal expenses.
CONCLUSION
For the reasons stated above, the judgment of the District Court is AFFIRMED.
. We generally review motions for reconsideration under an "abuse of discretion” standard. See Devlin v. Transp. Commc'ns Int'l Union, 175 F.3d 121, 131 (2d Cir.1999); cf. Sims v. Blot, 534 F.3d 117, 132 (2d Cir.2008) ("A district court has abused its discretion if it based its ruling on an erroneous view of the law or on a clearly erroneous assessment of the evidence, or rendered a decision that cannot be located within the range of permissible decisions.” (internal citation, alterations, and quotation marks omitted)). In this case, however, the District Court considered the motion after we reviewed and refined the definition of "property damage” in Olin Corp. v. Certain Underwriters at Lloyd’s, 468 F.3d 120 (2d Cir.2006) ("Olin I"). Because the District Court was applying this new definition, we conclude that its review of the motion for reconsideration was more akin to a review of a motion for judgment as a matter of law. We review a district court's ruling on Rule 50 motions for judgment as a matter of law de novo, see, e.g., Cobb v. Pozzi, 363 F.3d 89, 101 (2d Cir.2004), and therefore review this ruling de novo.
. We note, however, that the plaintiff's brief twice misquotes the policy by failing to make "insurance” and "limit” plural. Although we have no reason to believe that this is anything other than a drafting error, rather than a deliberate attempt to mislead the Court, we must remind counsel to use care in drafting.
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01-04-2023
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11-05-2022
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https://www.courtlistener.com/api/rest/v3/opinions/8472527/
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SUMMARY ORDER
Petitioner-Appellant Carrington Capital Management, LLC (“Carrington”) filed a petition to compel arbitration pursuant to 9 U.S.C. § 4 and Respondent-Appellee Spring Investor Services, Inc. (“Spring”) moved to dismiss the petition. The District Court for the District of Connecticut (Eginton, J.) adopted a Magistrate Judge’s recommendation that Carrington’s motion to compel compliance with the agreement to arbitrate be denied and that Spring’s motion to dismiss the petition be granted. We assume the parties’ familiarity with the underlying facts and the procedural history of the case, as well as the issues on appeal. See Carrington Capital Mgmt., LLC v. Spring Investment Servs., Inc., No. 06 Civ. 1665(WWE), 2007 WL 2684728, at *1-3 (D.Conn. Aug. 2, 2007).
Carrington, a manager of hedge funds, and Spring, a broker-dealer which promotes and sells interests in hedge funds, entered into a consultancy agreement in which Spring was to promote and market Carrington’s funds on an exclusive basis. A dispute subsequently arose concerning whether Carrington breached the agreement by failing to make payments after the parties discontinued their relationship. The agreement included a provision requiring the mediation and arbitration of disputes, stating, in relevant part:
The party initiating arbitration shall give written notice of arbitration to the party against whom a claim is being made of its intention to have the claim finally settled by confidential and bind*630ing arbitration in a location mutually agreeable by the parties governed by the laws of the Commonwealth of Massachusetts.
During negotiations over the location of the arbitration, Carrington filed a petition in district court to compel arbitration pursuant to 9 U.S.C. § 4.
The district court referred the case to a magistrate judge, who recommended denying Carrington’s motion to compel arbitration and granting Spring’s motion to dismiss the petition. See 2007 WL 2684728, at *1. The magistrate judge concluded that Spring did not refuse to arbitrate within the meaning of 9 U.S.C. § 4 and thus held that “the court does not have jurisdiction to either compel arbitration or to order a location for such arbitration.” Id. at *4.1 The district court adopted the magistrate judge’s recommendation and dismissed the petition.
On appeal, Carrington argues that Spring has “refused” to arbitrate by failing to confer on a “mutually agreeable” location for arbitration. Carrington specifically argues that Spring’s unilateral commencement of an arbitration in the location of its choice — rather than a mutually agreeable location — constituted a refusal by Spring to arbitrate in the manner provided for in the agreement. Spring contends, however, that in order to have standing to compel arbitration under 9 U.S.C. § 4, the petitioning party must demonstrate that they are aggrieved by the other party’s complete refusal to arbitrate.
We review a district court’s denial of a petition to compel arbitration de novo. See Jacobs v. USA Track & Field, 374 F.3d 85, 88 (2d Cir.2004). Section four of the Federal Arbitration Act (“FAA”) provides, in relevant part:
A party aggrieved by the alleged failure, neglect, or refusal of another to arbitrate under a written agreement for arbitration may petition any United States district court which, save for such agreement, would have jurisdiction under Title 28, in a civil action or in admiralty of the subject matter of a suit arising out of the controversy between the parties, for an order directing that such arbitration proceed in the manner provided for in such agreement.
9 U.S.C. § 4. (emphasis added). Pursuant to this provision, when a party moves to compel arbitration, “[t]he court shall hear the parties, and upon being satisfied that the making of the agreement for arbitration or the failure to comply therewith is not in issue, the court shall make an order directing the parties to proceed to arbitration in accordance with the terms of the agreement.” 9 U.S.C. § 4.
“Under the FAA, the role of courts is limited to determining two issues: i) whether a valid agreement or obligation to arbitrate exists, and ii) whether one party to the agreement has failed, neglected or refused to arbitrate.” Jacobs, 374 F.3d at 88 (internal citation and quotation marks omitted). “A party has refused to arbitrate if it ‘commences litigation or is ordered to arbitrate the dispute [by the relevant arbitral authority] and fails to do so.’ ” LAIF X SPRL v. Axtel, S.A. de C.V., 390 F.3d 194, 198 (2d Cir.2004) (alterations in original) (quoting Jacobs, 374 F.3d at 89); see also PaineWebber Inc. v. Faragalli, 61 F.3d 1063, 1066 (3d Cir.1995) *631(holding that “an action to compel arbitration under the [FAA] accrues only when the respondent unequivocally refuses to arbitrate, either by failing to comply with an arbitration demand or by otherwise unambiguously manifesting an intention not to arbitrate the subject matter of the dispute”).
Applying these principles, we conclude that Spring has not refused to arbitrate within the meaning of 9 U.S.C. § 4 because it has neither commenced litigation in lieu of arbitration (in fact, it was Carrington that commenced the instant litigation) nor has it refused to abide by an order from an arbitrator to arbitrate its dispute with Carrington. See Jacobs, 374 F.3d at 89. Indeed, it was Spring that initiated the arbitration.2 Because there is undisputedly a valid agreement to arbitrate and the party opposing this petition to compel arbitration — Spring—has not refused to arbitrate, Carrington cannot employ 9 U.S.C. § 4 to compel arbitration.
Carrington argues, however, that it was nevertheless “aggrieved” by a refusal to arbitrate because Spring did not fulfill its obligation under the arbitration agreement to provide Carrington with notice of the arbitration and to meet and confer with Carrington on the location issue. Relying on our decision in Bear, Stearns & Co. v. Bennett, 938 F.2d 31 (2d Cir.1991), Carrington argues that when a party commences an arbitration in violation of a forum selection provision, as Spring purportedly did here, a district court has the power under 9 U.S.C. § 4 to compel arbitration “in accordance with the terms” of the forum provision. According to Carrington, even though the respondent in Bear Steams did not completely refuse to arbitrate, this Court nevertheless ruled that a district court may entertain a 9 U.S.C. § 4 petition in circumstances where a respondent has commenced an arbitration proceeding in a manner contrary to a venue selection clause in an arbitration agreement.
We disagree; Bear Steams is readily distinguishable from the case at hand. There, the petitioner, a resident of Florida, filed an arbitration demand to have his dispute with Bear Stearns (in which he alleged account mismanagement) arbitrated in Naples, Florida. 938 F.2d at 31. Bear Stearns, relying upon the parties’ customer agreement, filed a petition in the Southern District of New York to compel arbitration in New York City. Id. The district court dismissed the petition, “holding in substance that the hearing venue was a procedural matter to be determined by the [American Arbitration Association], not the court.” Id. at 32. We disagreed, concluding “that the clear and explicit contractual terms at issue herein cannot be disregarded so readily.” Id. We rejected the petitioner’s argument that the “situs of suit” should be determined by the arbitrators rather than by the district court. Id. *632at 32. This Court concluded that the “situs of suit” was New York City and “[w]here there is a valid agreement for arbitration, Congress has directed the district courts to order that arbitration proceed ‘in accordance with the terms of the agreement.’ ” Id. (quoting 9 U.S.C. § 4).
In this case, although the agreement at issue specifies that the arbitration will be “governed by the laws of the Commonwealth of Massachusetts,” it further provides that the arbitration must take place “in a location mutually agreeable by the parties.” Unlike in Bear Steams, the arbitration provision here does not specify a particular place for the arbitration that has been ignored by a party or the arbitrator. This Court in Bear Steams determined that a district court can order an arbitration to proceed in the “situs of suit” that has been specified in a forum selection clause of an arbitration agreement if arbitration has been commenced in a location different from that explicitly identified. Am agreement-to-agree locale clause is not a clause that identifies a specific “situs of suit.” Thus, because there is neither a specified location in this forum selection clause nor an arbitration pending in a locale different from that identified in such a clause, we do not read Bear Steams to confer jurisdiction upon the district court to entertain Carrington’s grievances — ie., that Spring failed to provide proper prearbitration notice and that it failed to engage in discussions regarding a mutually agreeable arbitration location.
The Court has considered Petitioner’s remaining arguments and finds them to be without merit. Accordingly, for the reasons set forth above, the judgment of the district court is hereby AFFIRMED.
. The magistrate judge also concluded that if the parties cannot agree on an arbitration location the American Arbitration Association ("AAA”) may choose a site. See 2007 WL 2684728, at *4. We disagree. In a letter sent to the parties, the AAA expressly rejected the proposition that it possessed such authority, citing the wording of the parties' arbitration agreement and the AAA’s rules.
. Carrington’s post-oral argument conduct before this Court suggests that it is the party obstructing the arbitration process. At oral argument, counsel for both parties indicated the possibility of resolving the location dispute and specifically noted that an arbitration in Rhode Island with a New York arbitrator might be a “mutually agreeable” arbitration location within the meaning of the parties' contract. Unfortunately, a settlement was not reached. Carrington’s post-argument submissions suggest continued intransigence on the location issue. For instance, in a letter to Spring’s counsel, Carrington stated that it would only agree to the Court's proposal that the arbitration take place in Rhode Island (Spring had already agreed to Rhode Island) if Spring paid 50% of Carrington's travel expenses. This new condition is clearly not a part of the arbitration agreement. In reality, Carrington, through its post-submission conduct, is functionally refusing to arbitrate by making demands to which it is not entitled under the arbitration agreement.
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11-05-2022
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https://www.courtlistener.com/api/rest/v3/opinions/8472529/
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SUMMARY ORDER
Appellants Clarke et al. appeal from judgments by the United States District Court for the Southern District of New York (Lynch, J.), after a jury verdict, dismissing the complaint and denying judgment as a matter of law. We assume the parties’ familiarity with the underlying facts, the procedural history of the case, and the issues on appeal.
This case falls squarely under the previously decided Singh v. City of New York, 524 F.3d 361 (2d Cir.2008). In Singh, a group of inspectors with the Fire Alarm Inspection Unit of the New York Fire Department brought a claim under the Fair Labor Standards Act (“FLSA”), as amended by the Portal-to-Portal Act, demanding compensation for their commuting time because they were required by their employer to transport and protect inspection documents. Id. The collective weight of their materials was between 15 and 20 pounds. Id. at 365.
We analyzed the claim in two parts, looking first to whether plaintiffs were entitled to compensation for the entire commute and, if not, whether they were entitled to compensation for the additional commuting time that resulted from their transport of these materials. Id. at 366-67. For the first part of the analysis, we applied a “predominant benefit test,” asking whether the employer’s restrictions hindered the employees’ ability to use *634their commuting time as they otherwise would have. Id. at 369. We determined that the inspectors’ commute was not materially altered by their document transport responsibilities, and thus they were not entitled to compensation for the entire commute. Id. at 370. We then looked to the second part of the test to determine if the additional commuting time that resulted from the transport of the documents was compensable. Id. While noting that the additional time was time spent “necessarily and primarily for the benefit of the City” and thus was compensable, we looked to a three-part test to determine if such compensable time qualified as de minimis. Id. The three factors were: “(1) the practical administrative difficulty of recording additional time; (2) the size of the claim in the aggregate; and (3) whether the claimants performed the work on a regular basis.” Id. at 371. Under this test, we determined that the additional commuting time was de minimis as a matter of law. Id. Thus, none of the plaintiffs’ commuting time was compensable under the FLSA. Id. at 372.
The facts of the case before us are materially indistinguishable from Singh. Plaintiffs in this case, like Singh, are responsible for the transport of a 20-pound bag of equipment.1 This 20-pound bag, however, does not burden the plaintiffs to such a degree as to make the City the predominant beneficiary of their commute. Their responsibility is limited to transporting the bag; there are no other active work-related duties required during the commute. Transporting a bag in a car trunk, or at plaintiffs’ feet on a train or bus, allows them to use their commuting time as they wish. To the extent that the bag adds time to their commute, we find, just as in Singh, that such time is de minimis and non-compensable.
We reviewed the jury instructions and found no error.
For the foregoing reasons, the judgment of the district court is AFFIRMED.
. Though there appeared to be a dispute at trial as to the weight of the equipment, Appellants’ brief uses an estimate of "at least 20 pounds.”
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01-04-2023
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11-05-2022
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https://www.courtlistener.com/api/rest/v3/opinions/8472531/
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SUMMARY ORDER
Defendant Stanford Frederick Brown was convicted, after a jury trial, of one count of making a false statement for the purpose of influencing an insured state-chartered credit union, see 18 U.S.C. § 1014, and one count of aggravated identity theft, see id. § 1028A. Sentenced principally to 32 months’ incarceration, Brown has completed his term of imprisonment and been removed to his native Jamaica. On appeal, Brown challenges the district court’s supplemental jury instructions regarding venue and the suffi*636ciency of the evidence on the issue of venue. We assume the parties’ familiarity with the facts and the record of prior proceedings, which we reference only as necessary to explain our decision.
1. Reference to Loan Application in Supplemental Instruction
Brown contends that the district court erred in referencing the loan application containing the alleged false statement in its supplemental venue instruction. A trial court “has broad discretion to decide which facts, if any, it will mention in its comments to the jury,” limited only “by the requirement that the charge be fair to both sides.” United States v. GAF Corp., 928 F.2d 1253, 1263 (2d Cir.1991). In this case, clarification specifically referred to the loan application and the court’s supplemental instruction commented only on the law that would apply “if’ the government made the necessary venue showing regarding receipt, approval or communication of the loan application. Trial Tr. 326. We identify no abuse of discretion on this record.
2. Supplemental Venue Instruction
Brown next argues that the district court erred as a matter of law in charging the jury that venue would properly lie in the Southern District of New York on the two counts of conviction “if a loan application was made or submitted in another district ... but received or approved or caused to be communicated in this district.” Id. Because this particular challenge was not presented to the district court, we review only for plain error. See United States v. Joseph, 542 F.3d 13, 25 (2d Cir.2008) (noting that plain error review applies, inter alia, where a defendant “fail[s] to state his objection with sufficient clarity” or makes an “objection [that] focuses on a different problem than that targeted on appeal”). We encounter no such error here.
“At a minimum,” an error is not “plain” unless it is “clear under current law.” United States v. Olano, 507 U.S. 725, 734, 113 S.Ct. 1770, 123 L.Ed.2d 508 (1993). Brown, however, has cited no authority addressing the statute here at issue, 18 U.S.C. § 1014, and reaching a different conclusion as to venue from that expressed by the district court. Nor are we aware of any such controlling law. In fact, several courts of appeals, relying in part on our decision in United States v. Candella, 487 F.2d 1223 (2d Cir.1973) (analyzing 18 U.S.C. § 1001), have reached a result consistent with the district court’s charge. See United States v. Angotti, 105 F.3d 539, 543 (9th Cir.1997) (citing cases from Seventh, Tenth, and Eleventh Circuits). That the First Circuit in United States v. Salinas, 373 F.3d 161, 168 (1st Cir.2004), distinguished certain of these cases in analyzing the venue requirements of a different statute, 18 U.S.C. § 1542, is of no moment, as any error in the district court’s unprotested failure to apply a similar analysis here is far from “clear under current law.” United States v. Olano, 507 U.S. at 734, 113 S.Ct. 1770. We therefore reject Brown’s challenge on this point.
3.Sufficiency of the Evidence on Venue
Finally, Brown contends that the trial evidence was insufficient to permit a reasonable jury to find that venue was established in the Southern District of New York. Again, Brown failed to raise this argument below. Because venue is not an element of the charged offense, see United States v. Rommy, 506 F.3d 108, 119 (2d Cir.2007), we have consistently “held that [a] defendant’s objections to venue are waived unless specifically articulated in defense counsel’s motion for acquittal,” United States v. Bala, 236 F.3d *63787, 95 (2d Cir.2000) (internal quotation marks and alteration omitted), even where defense counsel engages in cross-examination on venue and requests a venue instruction, see id. (citing United States v. Potamitis, 739 F.2d 784, 791 (2d Cir.1984)). Defense counsel’s statement at the close of the government’s case — “I have a motion,” Trial Tr. at 243 — was thus insufficient to preserve the challenge offered here. See United States v. Potamitis, 739 F.2d at 791 (“A general motion for a judgment of acquittal, or a general motion for a directed verdict of acquittal at the close of the Government’s case, is not sufficient to raise and preserve for appeal the question of venue.”). We therefore deem this challenge waived. In any event, in view of the fact that the defendant’s false loan application was on its face addressed to the lending institution at an address in the Southern District of New York, it appears that there is no merit to the defendant’s claim that venue was not established.
4. Conclusion
For the foregoing reasons, the judgment of conviction is AFFIRMED.
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