                                                               [DO NOT PUBLISH]

              IN THE UNITED STATES COURT OF APPEALS

                      FOR THE ELEVENTH CIRCUIT
                        ________________________                   FILED
                                                          U.S. COURT OF APPEALS
                               No. 09-10665                 ELEVENTH CIRCUIT
                                                            SEPTEMBER 23, 2009
                           Non-Argument Calendar
                                                             THOMAS K. KAHN
                         ________________________
                                                                  CLERK

                          Agency No. A088-052-440

VICTOR HUGO JIMENEZ-MATEUS,

                                                                       Petitioner,

                                    versus

U.S. ATTORNEY GENERAL,

                                                                     Respondent.

                         ________________________

                    Petition for Review of a Decision of the
                         Board of Immigration Appeals
                         _________________________

                             (September 23, 2009)

Before MARCUS, PRYOR and ANDERSON, Circuit Judges.

PER CURIAM:

     Victor Hugo Jimenez-Mateus, a native and citizen of Colombia, petitions for
review of the denial of his application for asylum and withholding of removal

under the Immigration and Nationality Act and relief under the United Nations

Convention Against Torture and Other Cruel, Inhuman, or Degrading Treatment or

Punishment. 8 U.S.C. §§ 1158, 1231; 8 C.F.R. § 208.16(c). The immigration

judge and the Board of Immigration Appeals found that Jimenez-Mateus failed to

prove that he suffered past persecution or has a well-founded fear of future

persecution. We deny Jimenez-Mateus’s petition.

                                I. BACKGROUND

      Our discussion of the background of this petition is divided into two parts.

We first discuss Jimenez-Mateus’s entrance to the United States and his

application for asylum, withholding of removal, and relief under the Convention.

We next discuss his removal hearing, the decision of the immigration judge, and

ruling of the Board.

        A. Jimenez-Mateus’s Entrance to the United States and Application

      In 2005, Jimenez-Mateus entered the United States as a tourist. After he was

served a notice to appear, Jimenez-Mateus filed an application for asylum,

withholding of removal, and relief under the Convention. Jimenez-Mateus alleged

that he was persecuted because of his political opinion.

      In his application, Jimenez-Mateus argued that he was persecuted by the

Revolutionary Armed Forces of Colombia because he and his stepbrother, Carlos
                                          2
Mateus, campaigned for Alvaro Uribe. Jimenez-Mateus alleged that he became

involved in politics because of his father, Jose Jimenez, who served as a

councilman in Oicata even though the family lived in Bogota. Jose Jimenez was a

member of the Colombian Conservative Party, but Jimenez-Mateus never joined a

political party. In September 2001, Jimenez-Mateus and his stepbrother, Carlos

Mateus, joined the campaign to elect Uribe as president of Colombia.

      In February 2002, Jose Jimenez received a telephone call from a man who

stated “they were waiting for [Jose] at his house in the town of Villeta[,]” and Jose

canceled his vacation. Later that month, the watchman at a vacation home for

Jimenez-Mateus’s mother was murdered. The watchman had been shot in the back

of the head, his tongue cut off, and his fingernails removed. Two days later, Carlos

Mateus received a telephone call threatening to harm him and Jimenez-Mateus.

That same evening, Jimenez-Mateus received a telephone call and a man said,

“Listen you bastard, we already talked to your brother, now it is your turn . . . . Go

ahead and keep speaking in favor of the paramilitary Uribe and we are going to

take your tongue out, as we did to the watchman. You will be next if you don’t

wake up.” The next day, Jimenez-Mateus moved into his parent’s home. Jimenez-

Mateus and Carlos Mateus believed the caller was a member of the Revolutionary

Armed Forces because their father had been threatened by the organization and the

caller referred to Uribe as a paramilitary. Jimenez-Mateus and his stepbrother
                                           3
reported the telephone calls to the “State Attorney Office,” but the brothers were

unable to file a report because they could not identify the caller.

      In April 2002, Carlos Mateus received several threatening telephone calls

and moved to Medellin with his wife and children. Jimenez-Mateus also received

calls on his cellular telephone from “unknown numbers in which [he] was told that

‘they would kill me the way that grassy watchman was killed in the farm’ if [he]

continued to work for the ‘paramilitary Alvaro Uribe[.]’” Jimenez-Mateus kept

campaigning for Uribe, but changed the number for his cellular telephone. In May

2002, Uribe was elected president of Colombia and, later that year, Jose Jimenez

retired from politics.

      In December 2002, Jimenez-Mateus married and moved to the municipality

of Colina Campestre. The following year, Jimenez-Mateus and his stepbrother

continued their work with the Conservative Party to pass legislation promoted by

Uribe. In November 2003, Jimenez-Mateus traveled to the United States to take

aptitude tests to obtain a license as a commercial aviator and, later that month, he

returned to Colombia.

      In 2004, Jimenez-Mateus began to speak at meetings to promote Uribe’s

legislation. After one meeting in January 2005, three men riding in a jeep

approached Jimenez-Mateus and asked about the location of the meeting. Jimenez-

Mateus walked toward the jeep and noticed that the men were carrying guns and
                                           4
wearing uniforms of the Revolutionary Armed Forces. The men did not recognize

Jimenez-Mateus and told him they came “to protect the people of this village from

the . . . corrupt and oligarch politicians . . . .” When the jeep drove away, Jimenez-

Mateus got into his car and drove away. As Jimenez-Mateus entered the highway

to Bogota, he noticed the jeep behind him. The men followed Jimenez-Mateus

until he reached a toll plaza, where he reported the incident to three officers of the

National Police of Colombia. Jimenez-Mateus waited at the toll plaza for two

hours and took an alternate route to Bogota. Later, Jimenez-Mateus sought

protection from a local representative, who responded he would try to have police

present at future meetings. Jimenez-Mateus attended later meetings in different

vehicles or with members of the Conservative Party.

      In March 2005, Jimenez-Mateus received a telephone call from his mother-

in-law who said that Jimenez-Mateus’s wife “had a nervous breakdown as a

consequence of a telephone call” in which a man said that Jimenez-Mateus’s “life

and [his] destiny were no longer in [his] hands” because he continued to “support

the current corrupt political system of Colombia and the paramilitary of Alvaro

Uribe[.]” When Jimenez-Mateus reached the hospital, the doctors said that his

wife had suffered an “emotional shock” that sent her into premature labor.

Jimenez-Mateus disconnected his home telephone and changed the numbers of his

cellular telephones.
                                           5
      According to Jimenez-Mateus, the threats continued. In August 2005, one

month after “alleged[]” members of the Revolutionary Armed Forces attempted to

kill his stepbrother, Jimenez-Mateus received a call on his cellular telephone. The

caller told Jimenez-Mateus that he had been “order[ed] several times to stop

supporting . . . Alvaro Uribe” and he would receive “one last chance to repent” and

to “follow [his] father who retired on time and obeyed [their] orders” or otherwise

his son would “be left as an orphan[.]” Jimenez-Mateus sent his wife to live with

her mother, but he remained in Bogota. Jimenez-Mateus made arrangements for

his wife and son to live with “acquaintances” in the United States, but she refused

to leave Colombia because her father was in poor health.

      In October 2005, Jimenez-Mateus returned to his apartment to check his

mail and discovered two men inside. The men chased Jimenez-Mateus to his car

and, after he sped away, he heard gun shots. Jimenez-Mateus hid at his sister’s

house and fled to the United States even though he was unable to convince his wife

to leave the country.

      In November 2005, Jimenez-Mateus returned to Colombia to visit his

mother, who had suffered a heart attack. Jimenez-Mateus reunited with Carlos

Mateus, who had fled Cali after he was discovered by the Revolutionary Armed

Forces, and the two traveled to the United States. A family friend later visited

Jimenez-Mateus’s apartment and found a letter from the Revolutionary Armed
                                          6
Forces dated November 8, 2005 that declared Jimenez-Mateus a “‘military

objective’” because he had “support[ed] the paramilitary of Alvaro Uribe” and

failed to “obey[] their orders.” In October 2006, Jimenez-Mateus’s wife and son

traveled to the United States.

         Jimenez-Mateus submitted several documents to support his application. He

included a copy of an application for asylum filed by his stepbrother, a copy of a

letter from the Revolutionary Armed Forces dated November 9, 2005, that declared

Carlos Mateus a “military objective,” and a letter granting Carlos asylum.

Jimenez-Mateus also submitted affidavits from two former mayors of Oicata that

stated Jimenez-Mateus had participated in the campaigns of Jose Jimenez and

Uribe.

   B. Jimenez-Mateus’s Removal Hearing and Rulings of the Immigration Judge
                                 and Board

         At the removal hearing, Jimenez-Mateus repeated the allegations of

persecution he mentioned in his application, and he elaborated on one incident.

Jimenez-Martinez testified that, as he fled from his apartment, the men he

discovered in the apartment shot at and damaged the back window and left brake

light of his jeep. Jimenez-Martinez acknowledged that he did not have any

evidence of the damage to his jeep; of his encounter with members of the

Revolutionary Armed Forces after the town hall meeting; that the watchman at his

                                           7
mother’s vacation home had been murdered; that he had been followed by

members of the Revolutionary Armed Forces in a jeep; or that his wife had

received a telephone call threatening Jimenez-Mateus. Jimenez-Mateus also

acknowledged that he was not persecuted when, during the time he campaigned for

Uribe, he worked at the family store selling Honda parts, and he was not

discovered or threatened when he returned from the United States to visit his

mother at a hospital in Bogota.

      Jimenez-Mateus acknowledged that he had traveled to the United States in

December 2002, November 2003, October 2005, and November 2005. He testified

that his wife visited the United States on February 5, 2005, and again on January

25, 2006, but he corrected himself and stated that she visited in January and

February 2006 before she joined him permanently in October 2006. Jimenez-

Mateus also testified that his wife was “outside the Court with the baby.”

      The immigration judge denied Jimenez-Mateus’s application. The

immigration judge ruled that Jimenez-Mateus’s “testimony was not sufficiently

detailed, consistent or believable to provide a plausible and coherent account of the

basis of his fears and thus [could not] suffice to establish his eligibility for asylum,

withholding of removal and/or Torture Convention relief.” Although the

immigration judge found that Jimenez-Mateus “for the most part testif[ied]

consistently with” his application, the judge “found that many aspects of [Jimenez-
                                            8
Mateus’s] claims [were] implausible” and uncorroborated, even though “there

[were] many documents which could and should have been presented . . . .” The

immigration judge “found it very odd” that Jimenez-Mateus’s family lived in

Bogota, but participated in politics in a town two hours away; Jimenez-Mateus

alleged that he was prosecuted only for his work with Uribe, even though his father

also was persecuted; and Jimenez-Mateus and his stepbrother received

corresponding threats when the two men did not campaign, live, or “have much

contact with each other.” The immigration judge also found it “to be a significant

coincidence” that the letters written by the Revolutionary Armed Forces and sent to

Jimenez-Mateus and his stepbrother were “written one day apart” and were

“identical in terms of content and format” even though they were “from allegedly

different commandants of different FARC units in different parts of Colombia.”

      The immigration judge ruled that the incidents involving the Revolutionary

Armed Forces did not amount to persecution and Jimenez-Mateus failed to provide

evidence to corroborate those incidents. In the absence of some corroboration, the

immigration judge found it “very implausible” that Jimenez-Mateus and Carlos

Mateus received threats that they would die like the watchman when the three men

were not “anyway associated with” each other; Jimenez-Mateus had been

confronted by members of the Revolutionary Armed Forces and escaped those

encounters; and Jimenez-Mateus’s wife went into premature labor because of a
                                         9
telephone call. The immigration judge “found it odd” that Jimenez-Mateus “gave a

much more graphic statement with respect to his wife’s reaction”; he failed to

provide any medical documents about the delivery or his wife’s condition; and he

did not call his wife to testify when she accompanied him to the removal hearing.

      The immigration judge found that the actions of Jimenez-Mateus and his

wife were not “consistent with the actions of [] individual[s] who [had] been

persecuted.” The immigration judge was troubled that Jimenez-Mateus and his

wife “misrepresented themselves as tourists”; Jimenez-Mateus left his wife and son

in Colombia for a year with the possibility that “they could be shot or substantially

harmed”; and Jimenez-Mateus and his wife returned to Colombia after they

escaped to the United States.

      The Board dismissed Jimenez-Mateus’s appeal. The Board “adopt[ed] and

affirm[ed]” the rulings by the immigration judge that Jimenez-Mateus failed to

“adequately corroborate[] his claim” or “demonstrate[] past persecution or a well-

founded fear of persecution in Colombia.” The Board “specifically concur[red] in

the . . . finding that it [was] unlikely that [Jimenez-Mateus] would return to

Colombia . . . , as he did after trips to the United States in December 2002,

November 2003, and October 2005, after the events in Colombia which form[ed]

the basis of his persecution claim.”

                                          10
                           II. STANDARD OF REVIEW

        Our standard of review is highly deferential. Mohammed v. U.S. Att’y Gen.,

547 F.3d 1340, 1345 (11th Cir. 2008). We review the decision of the Board to

determine whether it is “‘supported by reasonable, substantial, and probative

evidence on the record considered as a whole.’” Id. at 1344 (quoting Al Najjar v.

Ashcroft, 257 F.3d 1262, 1284 (11th Cir. 2001)). To reverse those findings of fact,

we must find that the record “‘compels a reversal; the mere fact that the record may

support a contrary conclusion is not enough to justify a reversal of the

administrative findings.’” Id. (quoting Adefemi v. Ashcroft, 386 F.3d 1022, 1027

(11th Cir. 2004)). Because the Board adopted the findings of the immigration

judge, we review the decision of the immigration judge. Al Najjar, 257 F.3d at

1284.

                                 III. DISCUSSION

        Jimenez-Mateus challenges the denial of his application on two grounds.

Jimenez-Mateus argues that he provided a consistent and detailed account about

his persecution to establish he suffered past persecution and had a well-founded

fear of future persecution. Jimenez-Mateus also argues that he was denied a full

and fair hearing before a neutral factfinder, but he did not present that argument to

the Board. “[A]bsent a cognizable excuse or exception, we lack jurisdiction to

consider claims that have not been raised before the [Board].’”
                                          11
Amaya-Artunduaga v. U.S. Att’y Gen., 463 F.3d 1247, 1250 (11th Cir. 2006). We

dismiss that portion of the petition challenging Jimenez-Mateus’s removal hearing.

      The record supports the findings that Jimenez-Mateus did not suffer past

persecution and does not have a well-founded fear of future prosecution on account

of his political opinion. According to Jimenez-Mateus, he was threatened on four

occasions and members of the Revolutionary Armed Forces followed him from a

meeting because he supported Uribe and his policies, but threats and harassment do

not constitute persecution. See Sepulveda v. U.S. Att’y Gen., 401 F.3d 1226, 1231

(11th Cir. 2005) (“[M]ere harassment does not amount to persecution.”). Jimenez-

Mateus was never physically harmed. See Silva v. U.S. Att’y Gen., 448 F.3d 1229,

1238 (11th Cir. 2006). Jimenez-Mateus’s accounts contained inconsistencies, and

he failed to provide any information to corroborate his encounters with the

Revolutionary Armed Forces or the telephone calls, even though his wife was

available to testify. Jimenez-Mateus also failed to prove a well-founded fear of

future persecution because his wife and son remained in Colombia for a year after

the threats without incident, Jimenez-Mateus traveled safely to Colombia three

times after he was threatened, and his father and mother have remained in

Colombia unharmed.

                                         12
                      IV. CONCLUSION

We DENY Jimenez-Mateus’s petition.

PETITION DENIED.

                              13


Dismissed and Memorandum Opinion filed August 14, 2014.

                                          In The

                       Fourteenth Court of Appeals

                                  NO. 14-14-00505-CR

                           FRANKIE L. POLK, Appellant
                                             V.
                         THE STATE OF TEXAS, Appellee

                      On Appeal from the 351st District Court
                              Harris County, Texas
                          Trial Court Cause No. 1175958

                MEMORANDUM                             OPINION
       This is an attempted appeal from the trial court’s order signed December 5,
2013, denying appellant’s post-conviction motion for forensic DNA testing
pursuant to Chapter 64 of the Texas Code of Criminal Procedure.1 Appellant filed a
pro se notice of appeal on May 19, 2014. Appellant’s notice of appeal is untimely.

       1
         This court affirmed appellant’s conviction for sexual assault of a child. See Polk v.
State, No. 14-09-00131-CR, 2010 WL 3354012 (Tex. App.—Houston [14th Dist.] Aug. 26,
2010, pet. dism’d) (not designated for publication).
      A defendant’s notice of appeal must be filed within thirty days after an
appealable order is signed. See Tex. R. App. P. 26.2(a)(1). A notice of appeal
which complies with the requirements of rule 26 is essential to vest the court of
appeals with jurisdiction. Slaton v. State, 981 S.W.2d 208, 210 (Tex. Crim. App.
1998). If an appeal is not timely perfected, a court of appeals does not obtain
jurisdiction to address the merits of the appeal and the court can take no action
other than to dismiss the appeal. Id.

      Accordingly, the appeal is ordered dismissed.

                                        PER CURIAM

Panel consists of Chief Justice Frost and Justices Donovan and Brown.
Do Not Publish — Tex. R. App. P. 47.2(b).

                                         2


102 B.R. 587 (1989)
In re Larry Gene STOGSDILL and Vicki Marie Stogsdill, Debtors.
Bankruptcy No. 89-10753-LC.
United States Bankruptcy Court, W.D. Texas, Austin Division.
June 29, 1989.
Marsha G. Kocurek, Austin, Tex., Chapter 7 Trustee.

DECISION AND ORDER
LEIF M. CLARK, Bankruptcy Judge.
The Chapter 7 Trustee in this case has filed an Application To Sell Property by Auction free and clear of liens and other interests. In accordance with the standard *588 procedures employed in this district with respect to sales free and clear of liens, the Application was set for hearing. The Trustee at the scheduled hearing indicated his dissatisfaction with the local procedure, stating that in point of fact, he should have been permitted to file his Application with "negative notice," i.e., notice to creditors indicating that, unless objections were filed within a certain period of time, an order would be entered without further hearing on the Application. The Court agrees with the Trustee, and accordingly enters this decision to clarify the procedure both for the benefit of our clerk's office and practitioners in this district.
The confusion is created by the precise language of Bankruptcy Rule 6004. Subparagraph (c) of that Rule reads as follows:
A motion for authority to sell property free and clear of liens or other interests shall be made in accordance with Rule 9014 and shall be served on the parties who have liens or other interests in the property to be sold. The notice required by subdivision (a) of this Rule shall include the date of the hearing on the motion and the time within which objections may be filed and served on the debtor-in-possession or trustee.
Bankr.R. 6004(c) (emphasis added).[1]
The "negative notice" procedure referenced above is authorized by Section 102(1) and Bankruptcy Rule 9014. The rule specifies that relief in contested matters shall be requested "by motion, and reasonable notice and opportunity for hearing shall be afforded the party against whom relief is sought." Bankr.R. 9014. The language "notice and an opportunity for a hearing" is in turn defined in § 102(1) of the Bankruptcy Code so as to obviate the requirement of an actual hearing, provided due notice and an opportunity for a hearing has been afforded all affected parties and no one has objected to the relief requested in the motion or application. 11 U.S.C. § 102(1); see In re Wideman, 84 B.R. 97, 99 (Bankr.W.D.Tex.1988). However, Bankruptcy Rule 6004(c) specifies that the notice "shall include the date of the hearing on the motion." Bankr.R. 6004(c). According to Colliers,
Practice under Rule 604(c) requires a hearing date to be set in the original notice; a hearing must be held even if no responses are filed. (Responses are not required under Rule 9014).
8 Collier on Bankruptcy ¶ 6004.08 (15th ed. 1987).
In my view, Bankruptcy Rule 6004(c) is at odds with the Bankruptcy Code. Section 363(b)(1) of the Code states that "the trustee, after notice and a hearing, may use, sell, or lease other than in the ordinary course of business, property of the estate." 11 U.S.C. § 363(b)(1). Subparagraph (f) of that section in turn states that the Trustee may sell property in subsections (b) of § 363 free and clear of any interest in such property subject to certain conditions precedent specified in the statute. 11 U.S.C. § 363(f).
As this Court discussed at some length in its previous ruling regarding Bankruptcy Rule 6007, the Bankruptcy Rules may not amend the Bankruptcy Code. In re Wideman, supra at 100-101. Section 102(1)'s definition of "after notice and a hearing" is Congress' statutorily enacted policy statement regarding the appropriate role of bankruptcy judges in the administration of cases under the Code. The legislative history to that section is explicit:
Paragraph (1) defines the concept of "after notice and a hearing." The concept is central to the bill and to the separation of the administrative and judicial functions of bankruptcy judges. . . . This is a significant change from present law, which requires the affirmative approval of the bankruptcy judge for almost every *589 action. The change will permit the bankruptcy judge to stay removed from the administration of the bankruptcy reorganization case, and to become involved only when there is a dispute about a proposed action, that is, only when there is an objection.
H.R.Rep. No. 595, 95th Cong, 1st Sess 315 (1977), U.S.Code U.S.Code Cong. & Adm. News 1978, pp. 5787, 6272. Bankruptcy Rule 6004(c) imposes a hearing requirement where the Bankruptcy Code explicitly specifies (by its use of the phrase "after notice and a hearing") utilization of the negative notice procedure created by Section 102(1). The Rule thus tends to defeat the clearly expressed purpose of Congress to remove the bankruptcy judge from the administration of the bankruptcy case and "amends" Section 363(b) by, in effect, deleting the phrase "after notice and a hearing." In fact, Rule 6004(c) returns bankruptcy courts to the sale practice under the Bankruptcy Act, a result directly contrary to the letter and spirit of the Bankruptcy Code. See "Report of the Commission on the Bankruptcy Laws of the United States," H.R.Doc. No. 137, 93rd Cong, 1st Sess 16-17 (1973). The Code contemplates that hearings will be held on sales of estate property, including sales of property free and clear of liens, "only when there is an objection." See House Report, supra.
Where the Bankruptcy Rules and the Bankruptcy Code are inconsistent, the Bankruptcy Code must control. 28 U.S.C. § 2075; 1 Collier on Bankruptcy, § 3.04[2][c] (15th ed. 1987). Therefore, this Court holds that for this case and all future such cases, notwithstanding the express language of Bankruptcy Rule 6004(c), a sale free and clear of liens and other interests may be accomplished by means of an application which specifies the requisite information regarding the sale and includes negative notice language which otherwise conforms to the requisites of Bankruptcy Rule 6004(a) and which affords creditors, parties in interest, and affected parties not less than 20 days opportunity to object to the proposed action (unless the Court shortens the notice period upon appropriate motion). See In re Wideman, supra. In general, a hearing on such motions containing negative notice will not be held in this district unless an objection is timely filed.
SO ORDERED.[2]
NOTES
[1]  Subdivision (a) of the rule specifies that notice of a proposed use, sale or lease of property must be given in accordance with Bankruptcy Rule 2002(a)(2) (which requires notice to all creditors), 2002(c)(1) (which requires the notice to specify the time and place of sale, the terms and conditions of any private sale, and the time fixed for filing objections), and 2002(i) (which directs notice to committees in lieu of notice to all creditors in certain circumstances). Bankr.R. 6004(a).
[2]  In view of the ruling of this court, there is no further reason to delay approval of the proposed sale. It is therefore further ordered that the trustee's application is in all things approved.


UNPUBLISHED

UNITED STATES COURT OF APPEALS

FOR THE FOURTH CIRCUIT

UNITED STATES OF AMERICA,
Plaintiff-Appellee,

v.

LEROY RAGIN,
Claimant-Appellant,
                                       No. 94-1970
and

215 PEYTON ROAD S.W., ATLANTA
(DESCRIBED AT DEED BOOK 10344,
PAGE 496, LAND RECORDS OF FULTON
COUNTY, GA)AND $4,290,
Defendant.

Appeal from the United States District Court
for the Western District of North Carolina, at Charlotte.
Graham C. Mullen, District Judge.
(CA-93-165-3-MU)
Submitted: March 10, 1997

Decided: May 21, 1997

Before RUSSELL, WIDENER, and HALL, Circuit Judges.

_________________________________________________________________

Affirmed by unpublished per curiam opinion.

_________________________________________________________________

COUNSEL
Leroy Ragin, Appellant Pro Se. B. Frederic Williams, Jr., OFFICE
OF THE UNITED STATES ATTORNEY, Charlotte, North Carolina,
for Appellee.
Unpublished opinions are not binding precedent in this circuit. See
Local Rule 36(c).

_________________________________________________________________

OPINION

PER CURIAM:

Leroy Ragin appeals the district court's order adopting the magis-
trate judge's recommendation to deny his motion for extension of
time in which to file a claim of ownership and to grant the govern-
ment's motion for default judgment in his civil forfeiture case. We
grant Ragin leave to proceed in forma pauperis and affirm.
I.

The United States filed a complaint for in rem civil forfeiture of
certain property owned by Leroy Ragin pursuant to 18 U.S.C. § 981
(1994), and 21 U.S.C. § 881 (1994). This property included the real
property located at 215 Peyton Road at issue here. On May 27, 1993,
a lis pendens on this property was filed. Consistent with the law
at
that time, the warrant for arrest in rem had been issued upon an ex
parte demonstration of probable cause before a magistrate judge,
and
Ragin did not have an opportunity to be heard prior to the issue of
the
warrant.

On June 13, 1993 Ragin was served with the complaint, warrant for
arrest in rem, and accompanying orders, and he signed an acknowl-
edgment to that effect. Ragin also has acknowledged that he
received
a "Notice and Acknowledgment of Receipt of Complaint, Warrant for
Arrest In Rem and Order" which in pertinent part stated ". . . you
(or
the party on whose behalf you are being served) must file a claim
within 10 days and answer the complaint within 20 days. If you fail
to do so, judgment by default will be taken against you for the
relief
demanded in the complaint."

The government on July 8, 1993 moved for entry of default given
Ragin's acknowledgment of receipt of service and his subsequent
fail-
ure to file a claim of ownership within the above time limits, as

                                 2
required of him by Rule C(6) of the Supplemental Rules for Certain
Admiralty and Maritime Claims. On that date, default, but not
default
judgment, was entered by the clerk, who recited that as of that day
Ragin had failed to file a claim, answer, or responsive pleading.

Ragin did not file his response to the complaint until August 3,
1993. In that response he neither explained his failure to file a
claim
of ownership nor requested an extension of time.

On September 13, 1993 the government moved for judgment of
forfeiture by default, or in the alternative, judgment on the
pleadings.
On September 23, 1993, Ragin filed a "Motion to File Out of Time"
and a claim of ownership as to the property, 102 days after he
received notice. The claim was unverified. 1

On November 5, 1993 the district clerk's office received from
Ragin a set of documents, with a handwritten letter declaring the
papers to constitute his answer to the motion for default judgment.
The magistrate judge noted that although it appeared the clerk's
office
did not formally accept the submission for filing and tabulating,
the
government responded to it on November 23, 1993.
On January 31, 1994 the magistrate judge filed his decision recom-
mending the denial of Ragin's motion to file his claim out of time
and
the granting of the government's motion for entry of default
judgment
in the forfeiture proceeding. First, the magistrate judge construed
Ragin's motion filed after default as arising under Federal Rule of
Civil Procedure 6(b)(2) (Enlargement of Time), rather than the more
stringent requirements of Rule 55(c) (Setting Aside Default). Rule
6(b)(2) permits a court to exercise its discretion to order an
extension
even after the expiration of a specified time period, but only for
"cause shown" and if the failure to act in a timely fashion was the
result of excusable neglect. The magistrate judge noted that such
a
motion must also comply with the requirements of Rule 7(b)(1) that
the application state with particularity the grounds therefor, and
it
must allege the facts constituting excusable neglect, such that
mere
assertion of excusable neglect unsupported by facts is
insufficient.
_________________________________________________________________
1 We need not and so do not attach significance to the fact that
various
papers of Ragin's were not verified.
3
Fed. R. Civ. P. 7(b)(1). See 4A Wright & Miller, Federal Practice
and Procedure, § 1165 (2d ed. (1987)). The magistrate judge
observed that because Rule 55(c) imposes the additional
requirements
that the party in default act quickly to correct the default and
assert
a meritorious defense to the claim, if Ragin did not meet the
require-
ments of Rule 6(b) (which Rule 55(c) includes), then a fortiori
Ragin
would not satisfy the requirements of Rule 55(c).

As to the second motion, the magistrate judge recommended grant-
ing the government's motion for entry of judgment of forfeiture by
default under Federal Rule of Civil Procedure 55(b)(2) (Default
Judg-
ment by Court). Rule 55(b)(2) allows the court in its discretion to
enter a judgment of default where the party entitled to the
judgment
applies to the court, and if the party against whom it is sought
has
appeared in the matter, that party must be served written notice of
the
application at least three days prior to the hearing on such
application.
Fed. R. Civ. P. 55(b)(2). Finding that Ragin had been properly
served
written notice and, that even in the light most favorable to him,
he had
shown neither good cause or excusable neglect for failing to timely
file his claim of ownership, the magistrate judge recommended
enter-
ing the default judgment. He noted, in weighing the possible
equities,
that if the pro se claimant had advanced even an inchoate basis of
a
meritorious defense, perhaps denial of the motion might be in
order.
However, the magistrate judge found no such defense in Ragin's sub-
mission. Having recommended the granting of the motion for default
judgment, the magistrate judge did not reach the question of
judgment
of forfeiture on the pleadings.

Ragin objected to the magistrate judge's recommendations. On
June 27, 1994 the district court adopted the magistrate judge's
recom-
mendation and entered a judgment of forfeiture by default or alter-
nately judgment of forfeiture on the pleadings.

II.

On December 13, 1993, United States v. James Daniel Good Real
Property, 510 U.S. 43 (1993), established that in civil forfeiture
pro-
ceedings, absent exigent circumstances, Fifth Amendment Due Pro-
cess concerns require the government to provide both pre-seizure
notice and a meaningful opportunity to be heard. We applied this
rule

                                4
in the case of Ragin's aunt, United States v. Marsh, 105 F.3d 927
(4th
Cir. 1997), and found that in that case, the remedy for a
forfeiture pro-
ceeding in which real property was seized without a pre-seizure
hear-
ing was a government accounting for the seizure of the rents
derived
from the property seized during the period of illegal seizure. 105
F.3d
at 931.

In Marsh we noted that insofar as the case was still on direct
appeal
when the rule in Good was announced, the claimant was not pre-
cluded from availing herself of that rule. Marsh , 105 F.3d at 931
(citing Harper v. Virginia Dep't of Taxation , 509 U.S. 86, 96-97
(1993)). However, the judgment of forfeiture in Ragin's case
differs
from Marsh in that here the judgment resulted from Ragin's failure
to timely file a claim of ownership, and the consequent entry of
default judgment.

Rule C(6) of the Supplemental Rules for Certain Admiralty and
Maritime Claims governs the time requirements for filing a claim in
forfeiture proceedings. It provides in relevant part:
     (6) Claim and Answer; Interrogatories. The claimant of
     property that is the subject of an action in rem shall file a
     claim within 10 days after process has been executed, or
     within such additional time as may be allowed by the court,
     and shall serve an answer within 20 days after filing the
     claim.
It is well established that before a claimant in a forfeiture case
can file
an answer and defend on the merits, the claimant must file a claim
of
ownership. In the absence of a timely filed claim, the claimant
lacks
standing to contest a forfeiture. United States v. One Urban Lot,
978
F.2d 776, 778 (1st Cir. 1992); United States v. $38,570 U.S.
Currency, 950 F.2d 1108, 1114-15 (5th Cir. 1992); United States v.
Currency in the Amount of $2,857.00, 754 F.2d 208, 212-13 (7th Cir.
1985); United States v. Properties Described in Complaints, 612 F.
Supp. 465 (N.D. Ga. 1984), aff'd, 779 F.2d 58 (11th Cir. 1985)
(table).

Ragin acknowledged that he was served with the complaint and

                                 5
warrant for arrest in rem on June 13, 1993. 2 As of July 8, 25 days
later, Ragin had filed neither a claim nor any other response.
Conse-
quently, the government requested a default pursuant to Rule 55(a),
and the clerk properly entered the default on the same date. Ragin
still
did not respond until August 3, and this filing, some 51 days after
he
was served with the complaint did not include a claim of ownership
and did not explain his failure to file one. Rather, in it Ragin
merely
recited a baseless claim that the forfeiture proceeding was the
result
of a government conspiracy against him.
Pursuant to Rule 55(b) the government, on September 13, 1993,
filed its motion for default judgment. Because the judgment
involved
the forfeiture of a res, and not a sum certain, the motion was
properly
made to the court under Rule 55(b)(2), rather than to the clerk
under
55(b)(1). F. R. Civ. P. 55(b). Subsequently, on September 23, Ragin
filed an unverified claim of ownership, along with a motion to file
out
of time. This was 102 days after June 13, 1993, the date as of
which
Ragin acknowledged service of the warrant for arrest in rem. A
review of the filings reveals that Ragin's only explanation for his
fail-
ure to timely file a claim was that he says he mistakenly believed
that
signing the Acknowledgment of Receipt constituted filing a claim,
_________________________________________________________________
2 The complaint, warrant for arrest in rem, and accompanying orders
were mailed to Ragin pursuant to the then existing Federal Rule of
Civil
Procedure 4(c)(2)(C)(ii). That rule provided for service of process
by
"the mailing of a copy of the summons and of the complaint (by
first-
class mail, postage pre-paid) to the person to be served, together
with
two copies of a notice and acknowledgment conforming substantially
with form 18-A and a return envelope, postage pre-paid, addressed
to the
sender." F. R. Civ. P. 4(c)(2)(C)(ii) (West 1993). The notice the
govern-
ment submits as the one it sent to Ragin is styled after form 18-A,
as is
the Acknowledgment of Receipt Ragin signed. While the record does
not
indicate the manner of mailing, there is no doubt that Ragin
received the
service and had actual notice of the forfeiture proceedings.

We have held that "the real purpose of service of process is to
give
notice to the defendant that he is answerable to the claim of the
plaintiff"
and that "where actual notice of the commencement of the action and
the
duty to defend has been received by the one served," service under
Rule
4(d) "should be liberally construed to effectuate service and
uphold the
jurisdiction of the court . . . ." Karlsson v. Rabinowitz, 318 F.2d
666,
668-669 (4th Cir. 1963).

                                 6
due to an alleged ambiguity in the wording of the Acknowledgment
of Receipt. However, we find the explanation of the ten-day rule
con-
tained in the Acknowledgment of Receipt to be both accurate and
unambiguous.

Accordingly, Ragin having failed to file his claim until 102 days
after required service, and the district court within its
discretion hav-
ing refused to accept the claim filed out of time, Ragin lacked
stand-
ing to challenge the forfeiture. One Urban Lot , 978 F.2d at 778;
United States v. $38,570 U.S. Currency, 950 F.2d at 1114-15. Stand-
ing being a jurisdictional requirement, and because Ragin lacked
standing, the court did not have jurisdiction to enter an order as
to the
merits of the forfeiture at the instance of Ragin.

Additionally, even though the court's final order, that Ragin
lacked
standing, was not entered until its judgment on June 27, 1994,
which
was after Ragin contended that Good applied, any orders by the
court
giving relief under Good before the judgment would have been void
following such a final judgment finding no jurisdiction to
entertain
Ragin's claims. See United Catholic Conference v. Abortion Rights
Mobilization, Inc., 487 U.S. 72, 76 (1988) (finding that where
district
court lacked jurisdiction over the underlying matter the issuance
of a
subpoena was void and order of civil contempt based on refusal to
honor the subpoena required reversal).
We recognize that one case has required an accounting for rents
under Good even though the forfeiture resulted from a default judg-
ment. See United States v. 51 Pieces of Real Property Roswell N.M.,
17 F.3d 1306, 1316 (10th Cir. 1994) (requiring accounting for rent
collected where judgment of forfeiture followed entry of default
judg-
ment in favor of government). In 51 Pieces, however, the court held
there was no jurisdiction over the real estate because of process
sent
outside the State, a condition not appertaining here, so that case
is not
inconsistent with our decision.

Of course, the district court could have granted Ragin's motion to
file outside the ten-day deadline for filing a claim. That is a
decision
which we review for abuse of discretion. One Urban Lot, 978 F.2d
at 777; United States v. Borromeo, 945 F.2d 750, 753-54 (4th Cir.
1991). Whether a claimant's circumstances constitute excusable

                               7
neglect under Rule 6(b)(2) "is equity ridden, and the peculiar
facts of
each case involve different equities." Borromeo, 945 F.2d at 753.
We
are of opinion that the district court did not abuse its discretion
in
finding that Ragin did not show his delay was due to excusable
neglect. The equities here plainly are on the side of the
government.
Likewise, we agree that where Ragin could not meet Rule 6(B)(2)'s
standard of excusable neglect, he could not get relief under Rule
55(c), owing to its additional requirements of quick remedial
action
and a meritorious defense.

III.

In conclusion, where Ragin's claim of ownership and answer were
not timely filed, the district court acted within its authority in
entering
a judgment of forfeiture by default. Ragin's failure to file a
timely
claim of ownership deprives him of standing to challenge the
forfei-
ture.

We therefore affirm the district court's order adopting the magis-
trate judge's recommendation and entering a judgment of forfeiture
in favor of the government. We dispense with oral argument because
the facts and legal contentions are adequately presented by the
materi-
als before the court and argument would not aid the decisional pro-
cess.

AFFIRMED
                                 8


506 F.2d 1403
Boothv.McGarr
74-1242
UNITED STATES COURT OF APPEALS Seventh Circuit
11/4/74

1
N.D.Ill.

MANDAMUS DISMISSED


334 F.Supp.2d 60 (2004)
Matthew COBB, Plaintiff,
v.
SUPREME JUDICIAL COURT OF MASSACHUSETTS, et al., Defendants.
No. C.A.04-10390-MLW.
United States District Court, D. Massachusetts.
August 31, 2004.
*61 Matthew Cobb, Acton, MA, pro se.
John R. Hitt, Attorney General's Office, Boston, MA, for The Supreme Judicial Court of Massachusetts, Board of Bar Overseers, Massachusetts Office of Bar Counsel, Defendants.

MEMORANDUM AND ORDER
WOLF, District Judge.
On February 26, 2004 plaintiff Matthew Cobb, Esq., pro se, filed this federal case seeking a preliminary and permanent injunction against state judicial proceedings to review a Board of Bar Overseer's ("BBO") recommendation that he be disbarred. On April 30, 2004, Cobb filed a motion for preliminary injunction and a 77-page Verified Brief in support of it. On May 3, 2004, Cobb filed a Verified First Amended Complaint. On May 4, 2004, the defendants, the Supreme Judicial Court of Massachusetts (the "SJC") and its Justices in their official capacities, filed a motion to dismiss based on the abstention doctrine enunciated in Younger v. Harris, 401 U.S. 37, 91 S.Ct. 746, 27 L.Ed.2d 669 (1971), and its progeny.
After a hearing on May 5, 2004, the court denied Cobb's motion to preliminarily enjoin the proceedings concerning him before a Single Justice of the SJC without prejudice to a renewed motion for preliminary injunction being filed after the Single Justice rendered his decision. The court deferred deciding the motion to dismiss.
On August 2, 2004, the Single Justice issued a decision that ordered Cobb's disbarment as of September 1, 2004. On August 9, 2004, Cobb filed a renewed motion for preliminary injunctive relief and responded to the motion to dismiss. The SJC opposed the request for an injunction and requested that the court decide its motion to dismiss. On August 26, 2004, Cobb filed a reply brief.
On August 27, 2004, the court conducted a lengthy hearing on the motions to dismiss and for preliminary injunction with a view to deciding them before Cobb's disbarment would become effective on September 1, 2004. At the conclusion of the hearing, the court took the motions under advisement after telling Cobb that, in order to avoid be prejudiced with regard to filing a timely appeal to the full SJC from the Single Justice's decision, he "should proceed on the assumption ... that the motion to dismiss is going to be allowed and the motion for preliminary injunction is going to be denied." Aug. 27, 2004 Tr. at 50.
On August 30, 2004, at 4:35 p.m., Cobb filed a motion for leave to file a second *62 amended complaint and a proposed second amended complaint. As Cobb recognizes, in the circumstances of this case, leave of court is required to file the proposed second amended complaint. See Fed.R.Civ.P. 15(a). While the court understands that "leave shall be freely given when justice so requires," id., this is not such a case.
Cobb has not certified that he consulted with defendants' counsel before filing the motion as required by Rule 7.1(a)(2) of the Local Rules of the United States District Court of the District of Massachusetts. In any event, there is an urgent need to decide the pending motions and defendants could not reasonably be expected to respond to the proposed new complaint before September 1, 2004.
Moreover, there is no good cause for Cobb's delay in seeking to amend his complaint again. It is not claimed that the proposed second amended complaint is necessary to include allegations based on newly discovered evidence. Rather, it is an obvious effort to respond to issues raised at the August 27, 2004 hearing and to avert the dismissal of the case that the court stated was likely to be forthcoming. Moreover, as addressed in the Memorandum and Order granting the defendants' motion to dismiss, the proposed amendment appears to be futile. Therefore, Cobb's motion for leave to file a second amended complaint is not meritorious. See Foman v. Davis, 371 U.S. 178, 182, 83 S.Ct. 227, 9 L.Ed.2d 222 (1962) (a motion to amend may be denied because of undue delay and/or because the amendment would be futile); Kennedy v. Josephthal & Co., Inc., 814 F.2d 798, 806 (1st Cir.1987) (a motion to amend may be denied when "the additional allegations contained no newly discovered evidence or facts of a different character that would change ... [the] basic claims" and when the request to amend "could be viewed as an attempt to avoid an adverse ruling" on a motion that was under advisement.).
Accordingly, the August 30, 2004 Plaintiff's Fed.R.Civ.P. 15(d) Motion for Leave to File Second Amended Supplemental Complaint is hereby DENIED.


     15-1568
     Chen v. Lynch
                                                                                BIA
                                                                                Cheng, IJ
                                                                               A089 224 983
                          UNITED STATES COURT OF APPEALS
                              FOR THE SECOND CIRCUIT

                                 SUMMARY ORDER
RULINGS BY SUMMARY ORDER DO NOT HAVE PRECEDENTIAL EFFECT. CITATION TO A SUMMARY ORDER FILED
ON OR AFTER JANUARY 1, 2007, IS PERMITTED AND IS GOVERNED BY FEDERAL RULE OF APPELLATE
PROCEDURE 32.1 AND THIS COURT=S LOCAL RULE 32.1.1. WHEN CITING A SUMMARY ORDER IN A DOCUMENT
FILED WITH THIS COURT, A PARTY MUST CITE EITHER THE FEDERAL APPENDIX OR AN ELECTRONIC DATABASE
(WITH THE NOTATION “SUMMARY ORDER”). A PARTY CITING TO A SUMMARY ORDER MUST SERVE A COPY
OF IT ON ANY PARTY NOT REPRESENTED BY COUNSEL.

 1        At a stated term of the United States Court of Appeals for
 2   the Second Circuit, held at the Thurgood Marshall United States
 3   Courthouse, 40 Foley Square, in the City of New York, on the
 4   13th day of September, two thousand sixteen.
 5
 6   PRESENT:
 7            PIERRE N. LEVAL,
 8            REENA RAGGI,
 9            RAYMOND J. LOHIER, JR.,
10                 Circuit Judges.
11   _____________________________________
12
13   MIN XIU CHEN,
14            Petitioner,
15
16                   v.                                              15-1568
17                                                                   NAC
18   LORETTA E. LYNCH, UNITED STATES
19   ATTORNEY GENERAL,
20            Respondent.
21   _____________________________________
22
23   FOR PETITIONER:                     Ning Ye, Flushing, NY.
24
25   FOR RESPONDENT:                     Benjamin C. Mizer, Principal Deputy
26                                       Assistant Attorney General; Daniel
27                                       E. Goldman, Senior Litigation
28                                       Counsel; Samuel P. Go, Senior
29                                       Litigation Counsel, Office of
30                                       Immigration Litigation, United
31                                       States Department of Justice,
32                                       Washington, DC.
 1       UPON DUE CONSIDERATION of this petition for review of a

 2   Board of Immigration Appeals (“BIA”) decision, it is hereby

 3   ORDERED, ADJUDGED, AND DECREED that the petition for review is

 4   DENIED.

 5       Petitioner Min Xiu Chen, a native and citizen of China,

 6   seeks review of an April 13, 2015, decision of the BIA affirming

 7   a May 1, 2013, decision of an Immigration Judge (“IJ”) denying

 8   Chen’s application for asylum, withholding of removal, and

 9   relief under the Convention Against Torture (“CAT”).   In re Min

10   Xiu Chen, No. A089 224 983 (B.I.A. Apr. 13, 2015), aff’g No.

11   A089 224 983 (Immig. Ct. N.Y. City May 1, 2013).   We assume the

12   parties’ familiarity with the underlying facts and procedural

13   history in this case.

14       We have reviewed the IJ’s decision “as modified by the BIA’s

15   decision.”   Xue Hong Yang v. U.S. Dep’t of Justice, 426 F.3d

16   520, 522 (2d Cir. 2005).    The applicable standards of review

17   are well established. See 8 U.S.C. § 1252(b)(4)(B); see also

18   Yanqin Weng v. Holder, 562 F.3d 510, 513 (2d Cir. 2009).

19       Chen did not claim to have suffered past persecution, and

20   so she needed to show a well-founded fear of future persecution.

21   8 C.F.R. § 1208.13(b)(2).   To do so, she needed to “make some
                                    2
1    showing that authorities in [her] country of nationality are

2    either aware of [her] activities or likely to become aware of

3    [her] activities.”    Hongsheng Leng v. Mukasey, 528 F.3d 135,

4    143 (2d Cir. 2008).

5        To make that showing, Chen testified that she has joined

6    two pro-democracy organizations in the United States, the Party

7    for Freedom and Democracy in China and the Chinese Democracy

8    National Committee (“DPC”).   She described her activism in the

9    United States and submitted letters from her mother, which

10   reported that the police had admonished her to stop her

11   daughter’s activism.    The agency gave these letters little

12   weight because Chen’s mother was an interested witness not

13   subject to cross-examination; the letters were unsigned and

14   unsworn; and the accompanying envelopes and identification

15   documents did not establish authorship or authenticity.      We

16   “generally defer to the agency’s evaluation of the weight to

17   be afforded an applicant’s documentary evidence,” and do so

18   here.   Y.C. v. Holder, 741 F.3d 324, 332 (2d Cir. 2013); Matter

19   of H-L-H- & Z-Y- Z-, 25 I. & N. Dec. 209, 215 (B.I.A. 2010)

20   (agency can give little weight to document drafted by interested

21   witness not subject to cross examination), rev’d on other
                                    3
1    grounds by Hui Lin Huang v. Holder, 677 F.3d 130 (2d Cir. 2012).

2         Chen argues that this treatment was problematic in light

3    of   agency     regulations   governing     the    admission     of   prior

4    statements in removal proceedings.              8 C.F.R. §§ 1240.7(a),

5    1240.46(c).      These regulations have no bearing here: Chen’s

6    mother did not make her statements during a previous hearing

7    or trial.       Chen also cites various court of appeals and BIA

8    decisions dealing with the due process and Fourth Amendment

9    implications of admitting hearsay and alienage evidence during

10   removal proceedings.      These cases are inapposite: the IJ did

11   not reject the mother’s letter as hearsay, but rather discounted

12   it as unreliable.

13        The      agency’s    alternative       determination--that         the

14   background evidence on China did not demonstrate that Chen’s

15   fear of persecution is well founded even if the Chinese

16   government      was   aware   of   her   U.S.     activities--was      also

17   reasonable.       As the BIA observed, the evidence does not

18   identify returning Chinese who were harmed for being ordinary

19   members    of    pro-democracy     groups   in    the   United    States.

20   Consequently, the agency was entitled to find that, even if the

21   Chinese government knows about Chen’s activities, a reasonable
                                         4
1    person in her shoes would not fear persecution.            Chen points

2    to the Department of State’s 2007 Profile of Asylum Claims and

3    Country Conditions for the proposition that ordinary members

4    of pro-democracy groups have reason to fear.           But that report

5    states      that    “persons     who   participate   in   high-profile

6    pro-democracy activities in the United States still run the risk

7    of arrest and imprisonment should they return to China.”             As

8    the IJ reasoned, Chen is not similarly situated to those

9    persons: she merely joined in some protests and wrote four

10   internet articles.       See Jian Hui Shao v. Mukasey, 546 F.3d 138,

11   161   (2d    Cir.   2008)   (affirming     BIA’s   determination    that

12   petitioner had not demonstrated a reasonable possibility of

13   forced sterilization because, among other things, petitioner

14   failed to present “evidence of forced sterilizations to persons

15   similarly situated to himself”)

16         Chen    counters,        somewhat    confusingly,   that     “[t]o

17   distinguish ‘ordinary members’ from ‘prominent figures’ and

18   ‘leading members’ does not make sense for a ‘statutorily defined

19   group’ in its primitive development stage.”          The Government is

20   correct that Chen did not raise this argument before the BIA.

21   Lin Zhong v. U.S. Dep't of Justice, 480 F.3d 104, 122, 124 (2d
                                            5
1    Cir. 2007) (describing doctrine of issue exhaustion).    In any

2    event, Chen cites no evidence to support the counterintuitive

3    assertion.

4        Chen argues that the agency erroneously applied the

5    standard for withholding of removal, which requires that

6    persecution be “more likely than not,” to her claim for asylum,

7    which requires only a “well-founded fear” of persecution.

8    Compare 8 C.F.R. § 1208.16(b) (withholding), with 8 U.S.C.

9    § 1101(a)(42) (asylum).   Chen does not identify where or how

10   the IJ made this purported error, but she may be focused on the

11   IJ’s statement that an applicant must show that her persecutors

12   are either aware of her activities or “likely to become aware

13   of his activities.”   Hongsheng Leng, 528 F.3d at 143.   That is

14   a correct statement of our law.

15       Chen argues that she deserved relief based on her credible

16   testimony.   She cites a pre-REAL ID Act decision, Matter of

17   Mogharrabi, in which the BIA wrote, “The alien’s own testimony

18   may in some cases be the only evidence available, and it can

19   suffice where the testimony is believable, consistent, and

20   sufficiently detailed to provide a plausible and coherent

21   account of the basis for his fear.”   19 I. & N. Dec. 439, 445
                                    6
1    (B.I.A. 1987).    But as the Government points out, Chen does not

2    claim that her own testimony is the only evidence available--she

3    relies heavily on her mother’s letter.      Moreover, the REAL ID

4    Act provides that “[w]here the trier of fact determines that

5    the   applicant   should   provide   evidence   that   corroborates

6    otherwise credible testimony, such evidence must be provided

7    unless the applicant does not have the evidence and cannot

8    reasonably obtain the evidence.”       8 U.S.C. § 1158 (emphasis

9    added).

10         Chen argues that the IJ failed to recognize that her party

11   is an alias of the China Democracy Party (“CDP”), which the

12   Chinese government has banned, and argues that as a consequence

13   the IJ may have denied her due process.     The BIA, however, did

14   not review the IJ’s findings about the two similarly named

15   parties, and so this issue is not under review here.       Xue Hong

16   Yang, 426 F.3d at 522.

17         In a related due process claim, Chen alleges that the IJ

18   denied her request to present the testimony of Liqun Chen, a

19   DPC leader who could have explained the relationship between

20   that party and the CDP.    But the IJ did not deny Chen’s request.

21   Rather, the parties stipulated that Liqun Chen would testify
                                      7
1    in accordance with her written statement, and agreed to forgo

2    the   formality.      Given    that       stipulation,     Chen   cannot

3    demonstrate   that   “that    she   was    denied   a    full   and   fair

4    opportunity to present her claims” or that the agency “otherwise

5    deprived her of fundamental fairness.”        Burger v. Gonzales, 498

6    F.3d 131, 134 (2d Cir. 2007).

7          For the foregoing reasons, the petition for review is

8    DENIED.    As we have completed our review, any stay of removal

9    that the Court previously granted in this petition is VACATED,

10   and any pending motion for a stay of removal in this petition

11   is DISMISSED as moot.    Any pending request for oral argument

12   in this petition is DENIED in accordance with Federal Rule of

13   Appellate Procedure 34(a)(2), and Second Circuit Local Rule

14   34.1(b).

15                                   FOR THE COURT:
16                                   Catherine O=Hagan Wolfe, Clerk

                                         8


                                                                                Filed
                                                                                Washington State
                                                                                Court of Appeals
                                                                                Division Two

                                                                                December 22, 2015
IN THE COURT OF APPEALS OF THE STATE OF WASHINGTON

                                          DIVISION II

       THE STATE OF WASHINGTON,                                  No. 45613-3-II

                            Respondent,

            v.                                             UNPUBLISHED OPINION

       ADAM P. THOMAS,

                            Appellant.

           BJORGEN, A.C.J. — Adam P. Thomas appeals his conviction for first degree robbery with

   a deadly weapon enhancement, arguing that because he consumed his restaurant meal before he

   threatened his server with a knife, insufficient evidence supports his robbery conviction. We

   disagree and affirm Thomas’s conviction.1

                                               FACTS

           Jorge Estrada owns El Presidente Mexican Cantina, a restaurant in Vancouver,

   Washington. He was waiting tables on August 18, 2013, when Thomas came in for dinner.

   Thomas ordered a salad and a drink and went outside to smoke a cigarette. During the meal, he

   left the table, went outside, and returned to his meal approximately three times. This caught

   1
    This matter was initially considered by a commissioner of this court pursuant to RAP 18.14,
   and subsequently referred to a panel of judges.
No. 45613-3-II

Estrada’s attention. When he was halfway through his meal, Thomas again left to smoke. He

brought his backpack with him, which caused Estrada to think Thomas was finished eating.

       Estrada followed Thomas out the front door and asked for payment for the meal. Thomas

handed Estrada a Washington State identification card and a credit card, and Estrada went inside

to process the payment. The credit card was declined, so Estrada returned outside to ask Thomas

if he had another form of payment. Thomas replied, “I sure do,” and pulled out a pocket knife and

unfolded it. 1A Verbatim Report of Proceedings at 67. Estrada retreated inside the restaurant and

Thomas ran off. Estrada called 911, and police later apprehended Thomas. Thomas admitted

leaving the restaurant without paying for his meal, but denied threatening Estrada.

       The State charged Thomas with first degree robbery with a deadly weapon enhancement.

During trial, Thomas moved to dismiss this charge, arguing that because he had consumed the

meal before threatening Estrada and leaving the restaurant, there was insufficient evidence that he

used force to obtain or retain possession of the meal. The trial court denied the motion. Thomas

requested, and received, a jury instruction on the lesser included offense of third degree theft.2

The jury found Thomas guilty of first degree robbery and found the deadly weapon enhancement

applied. The trial court imposed an 81-month sentence. Thomas appeals.

                                           ANALYSIS

       In reviewing an insufficient evidence claim, we view the evidence in the light most

favorable to the State and determine whether any rational trier of fact could have found the

2
 On the theft charge, the jury was instructed that the definition of “services” includes “restaurant
services” and that the State was required to prove the defendant wrongfully obtained the
“property or services of another.” Supp. Clerk’s Papers at 35; see also RCW 9A.56.010(15).

                                                 2
No. 45613-3-II

elements of the charged crime beyond a reasonable doubt. State v. Brown, 162 Wn.2d 422, 428,

173 P.3d 245 (2007). We draw all reasonable inferences from the evidence in the State’s favor

and most strongly against the defendant. Brown, 162 Wn.2d at 428.

       To convict Thomas of first degree robbery, the State had to prove beyond a reasonable

doubt that he (1) unlawfully took personal property3 from the person of another, (2) by the use or

threatened use of immediate force,4 and (3) during the commission of the robbery, was (i) armed

with a deadly weapon, (ii) displayed what appeared to be a deadly weapon, or (iii) inflicted bodily

injury. RCW 9A.56.190, .200(1)(a); see also RCW 9.94A.533(4) (deadly weapon sentencing

enhancement). Thomas argues that because he had consumed the meal and left the restaurant

before displaying a weapon, the evidence is insufficient to support his robbery conviction. See

State v. Hornaday, 105 Wn.2d 120, 125, 713 P.2d 71 (1986) (superseded by statute) (holding that

a minor could not possess alcohol after consuming it). The State responds that Washington’s

“transactional” analysis of robbery encompasses Thomas’s actions. Br. of Resp’t at 8.

       Under Washington’s “transactional” analysis of robbery, the taking of property is “ongoing

until the assailant has effected an escape.” State v. Truong, 168 Wn. App. 529, 535-36, 277 P.3d

74 (2012). The definition of “robbery,” thus, includes “violence during flight immediately

following the taking.” State v. Manchester, 57 Wn. App. 765, 770, 790 P.2d 217 (1990); see also

State v. Handburgh, 119 Wn.2d 284, 287-89, 830 P.2d 641 (1992) (the forceful retention of a

3
  “Property” was defined in the instructions as “anything of value, whether tangible or
intangible.” 1B Verbatim Report of Proceedings at 189.
4
 Pursuant to RCW 9A.56.190, “[s]uch force or fear must be used to obtain or retain possession
of the property, or to prevent or overcome resistance to the taking; in either of which cases the
degree of force is immaterial.”

                                                3
No. 45613-3-II

stolen bicycle constitutes a robbery); State v. Robinson, 73 Wn. App. 851, 856, 872 P.2d 43 (1994)

(“Pursuant to [the transactional view of robbery], a robbery can be considered an ongoing offense

so that, regardless of whether force was used to obtain property, force used to retain the stolen

property or to effect an escape can satisfy the force element of robbery.”).

       In Manchester, for example, the defendant hid cigarettes under his coat and left a store. A

guard followed him out of the store and took his arm to escort the defendant back inside. 57 Wn.

App. at 766-67. The defendant broke away and displayed a weapon as he left. Manchester, 57

Wn. App. at 766-67. The defendant argued that the robbery statute required “that the use of force

occur prior to completion of the taking.” Manchester, 57 Wn. App. at 769. The court rejected his

argument:

       The fatal flaw in Manchester’s argument is that it ignores the plain language of the
       statute: “force or fear . . . used to . . . retain possession of the property, or to prevent
       or overcome resistance to the taking. . . .” In each instance, it is undisputed that
       Manchester used force to retain at least some of the stolen property. In doing so,
       his actions fall squarely within the provisions of the statute.

Manchester, 57 Wn. App. at 769 (alteration in original).

       This transactional analysis, however, has an outer limit. In State v. Johnson, relied upon

by Thomas, a defendant abandoned stolen property before punching a security guard. 155 Wn.2d

609, 610, 121 P.3d 91 (2005). The Johnson court, in reversing the robbery conviction, wrote:

       [T]he force must relate to the taking or retention of the property, either as force
       used directly in the taking or retention or as force used to prevent or overcome
       resistance “to the taking.” Johnson was not attempting to retain the property when
       he punched the guard but was attempting to escape after abandoning it.

Johnson, 155 Wn.2d at 611. Under Johnson, then, the State cannot prove robbery if the force is

unrelated “to the taking or retention” of the property or is not “used to prevent or overcome

                                                    4
No. 45613-3-II

resistance to the taking.”5 Johnson, 155 Wn.2d at 611; see also RCW 9A.56.190 (“Such force or

fear must be used to obtain or retain possession of the property, or to prevent or overcome

resistance to the taking; in either of which cases the degree of force is immaterial.”).

       Here, unlike in Johnson, Thomas’s use of force was employed to overcome Estrada’s

resistance to his taking of a meal for which he did not intend to pay. Unlike the defendant in

Johnson, Thomas did not abandon the personal property of another (the meal) when he consumed

it.6 Rather, Thomas’s act of consuming the meal converted the personal property for his own use.

This conversion, or taking, of the personal property then became unlawful when Thomas attempted

to leave the restaurant without paying for the meal. Because the State presented evidence that

Thomas displayed a knife while trying to prevent Estrada’s resistance to his taking of the meal

without paying for it, sufficient evidence supported the jury’s verdict finding Thomas guilty of

5
 Also, the transactional analysis is inapplicable
       [w]hen it is undisputed that the defendant used force to take personal property
       unlawfully from a person “or in his presence against his will” but used no additional
       force to retain the property or to effect an escape. . . . Such a taking is the common
       law form of robbery, codified in the first sentence of RCW 9A.56.190, where force
       is used to effect the unlawful taking. It is unnecessary in that situation to consider
       whether any force was used to retain the stolen property or to effect an escape.
Robinson, 73 Wn. App. at 857 (robbery was completed when co-defendant grabbed victim’s
purse after a struggle and walked away).
6
  Thomas asserts in his supplemental brief that, because the robbery statute requires the unlawful
taking of “personal property,” his taking of restaurant services cannot form the basis for his first
degree robbery conviction. RCW 9A.56.190. However, even though “services” is defined by
RCW 9A.56.010(15) to include “restaurant services,” Thomas’s consumption of the meal also
constituted a taking of personal property, in addition to a taking of restaurant services. Thus, we
need not decide in this appeal whether a defendant commits robbery when taking a pure service.

                                                  5
No. 45613-3-II

first degree robbery. Accordingly, we affirm Thomas’s conviction.

        A majority of the panel having determined that this opinion will not be printed in the

Washington Appellate Reports, but will be filed for public record in accordance with RCW 2.06.040,

it is so ordered.

                                                    BJORGEN, A.C.J.
 We concur:

 MAXA, J.

 LEE, J.

                                                6


NO. 07-02-0334-CV

IN THE COURT OF APPEALS

FOR THE SEVENTH DISTRICT OF TEXAS

AT AMARILLO

PANEL C

APRIL 28, 2003

______________________________

IN THE INTEREST OF SILAS J. HURD & MONIQUE C. HURD, MINOR CHILDREN

       _______________________________

FROM THE 320
TH
 DISTRICT COURT OF POTTER COUNTY;

NO. 51098-D; HON. DON EMERSON, PRESIDING

_______________________________

Before JOHNSON, C.J., and QUINN and REAVIS, JJ.

Through this appeal, we are asked by the Office of the Attorney General of Texas (the State) to determine the rate at which interest accrues on child support payments becoming delinquent before January 1, 2002.  The trial court ordered that it accrue at the rate of six percent per annum.  The State argues that the rate should be 12 percent.  We agree with the State and reverse, in part, the order of the trial court adopting the master’s report.

Background

According to the record before us, Beverly Ann Hurd and Silas Hurd were divorced in November of 1994.  They had two children at the time, and Silas was ordered to pay Beverly $165 per month in child support.  He did not, and because of that the State moved to enforce the child support order on March 23, 2001.

A hearing was had on the motion, and the trial court entered findings of fact and conclusions of law.  It found that Silas owed $9,866.48 in delinquent child support.  This sum represented accumulated arrearage from December 1, 1994, through March 13, 2002.  The trial court also determined that interest on the entire delinquency accrued at six percent per annum “pursuant to Section 157.265, Texas Family Code.”   Finally, the sum of  $11,556.95 was awarded the State.  Of that amount, $9,866.48 represented delinquent child support and $1,690.47 accrued interest.

Authority

Prior to the Texas Legislature convening in 2001, the statute dictated that interest accrued

on the portion of delinquent child support that is greater than the amount

of the monthly periodic support obligation at the rate of 12 percent simple

interest per year from the date the support is delinquent until the date the

support is paid or the arrearages are confirmed and reduced to money

judgment.

Tex. Fam. Code Ann.
 §157.265(a).  However, during the 2001 session, the legislature amended the provision by reducing the rate from 12 percent to six.
Tex. Fam. Code Ann.
§157.265(a) (Vernon 2002).  Furthermore, in the enabling legislation accompanying the amendment, it directed that 1) the amendment was to become effective on January 1, 2002 and 2) the change applied “only to . . . a child support payment that [became] due on or after the effective date of this Act . . . and . . . unpaid child support that became due before the effective date of this Act and for which a court has not confirmed the amount of arrearages and rendered a money judgment.”  Act of May 25, 2001, 77
th
 Leg., R.S., ch. 1491, §3, 2001 Tex. Gen. Laws 4995.  However, a “money judgment for child support rendered before the effective date of this Act [was to be] governed by the law in effect on the date the judgment was rendered, and the former law [was] continued in effect for that purpose,” according to the same body.
Id.
  This amendment caused the dispute now before us.  Simply put, the State argues that the change from 12 to six percent did not apply retroactively to reduce the amount of interest which had accrued before January 1, 2002.  Silas contends otherwise.  Who is right depends upon application of various concepts of statutory construction.

The first such rule of construction obligates us to presume that statutes and amendments thereto operate prospectively “unless expressly made retrospective.”
Tex. Gov’t Code Ann.
 §311.022 (Vernon 1998);
Reames v. Police Officers’ Pension Bd.
, 928 S.W.2d 628, 631 (Tex. App.--Houston [14th Dist.] 1996, no writ).  Next, a statute is to be applied retroactively only if it appears by fair implication from language used that it was the intention of the legislature to make it applicable to both past and future transactions.
State v. Humble Oil & Refining Co.
, 141 Tex. 40, 169 S.W.2d 707, 708-09 (1943);
Rice v. Louis A. Williams & Assoc., Inc.
, 86 S.W.3d 329, 335 (Tex. App.--Texarkana 2002, pet. denied).  Third, we must also presume that the legislature intended to comply with the United States and Texas Constitutions.
Tex. Gov’t Code Ann.
 §311.021(1) (Vernon 1998). Consequently, interpretations of an edict which render it constitutionally infirm must be avoided.
Barshop v. Medina County Underground Water Conservation Dist.,
925 S.W.2d 618, 629 (Tex. 1996).  For instance, a statute cannot be read as depriving one of a vested right.
Id.
 at 633.  With this said, we turn to the dispute before us.

Application of Authority

In reducing the interest rate to six percent, the legislature did not simply state that the modification became effective on January 1, 2002.  It added that the change applied to “unpaid child support that became due before the effective date of this Act and for which a court has not confirmed the amount of arrearages and rendered a money judgment.”  In other words, the legislature stated that though the Act would become effective on January 1, 2002, the reduction from 12 to six percent nonetheless would apply to arrearages in existence before January 1, 2002, which had yet to be confirmed and reduced to a money judgment.  In so reading the proviso and affording the words contained therein their common meaning,
see
 Tex. Gov’t Code Ann.
 §311.011(a) (Vernon 1998) (stating that words and phrases contained in a statute shall be read in context and construed according to the rules of grammar and common usage), one cannot but read it as fairly implying that the reduction was to apply to both past and future arrearages as long as they had yet to be confirmed and reduced to an actual money judgment.  Simply put, if the change is to affect arrearages that accrued before the Act became effective, then the change must have retrospective affect.
(footnote: 1)

Yet, our analysis is not over for another statutory provision must be taken into consideration.  It is found at §157.261(a) of the Family Code and states that a “child support payment not timely made constitutes a final judgment for the amount due and owing, including interest as provided in this chapter.”
Tex. Fam. Code Ann.
 §157.261(a) (Vernon 2002).  Through it, the legislature has categorized the status of the delinquent payment as delinquent and due at the instant it becomes unpaid and memorialized the liability, including interest thereon, in a final judgment.
(footnote: 2)

Having categorized the sum due, including interest, as a final judgment, the legislature has also effectively vested the beneficiary of the support payment with the right to receive the amount due, including interest, at the instant it went unpaid.  Simply put, if final relief has not been granted to one on the enforcement of a demand before modification of the law upon which it is based, then the right to the demand is not vested.
Walls v. First State Bank
, 900 S.W.2d 117, 122 (Tex. App.--Amarillo 1995, writ denied). However, when the demand has been merged into and recognized by a final judgment, then it becomes a vested right which cannot be divested through retroactive application of a law.
Id.
  So, because the right to delinquent child support payments, including interest thereon, is incorporated into a final judgment through legislative fiat, then, logically, the right to the payment and interest thereon vests at the instant the delinquency arises.  And, being vested, the right cannot be denied via our interpretation of another statute.

So, we must avoid construing the amendment to §157.265(a) in a manner that divests a beneficiary of delinquent child support of its vested right to receive the arrearage and interest thereon encompassed by the final judgment arising via §157.261(a).  And, to construe the amendment to be retroactive would be to effectively divest the beneficiary of a portion of his entitlement encompassed by the final judgment.  This is so because reducing the interest which already 1) had accrued at 12 percent and 2) had been encompassed within a final judgment via §157.261(a) would be to divest the beneficiary of the payment (or judgment creditor) of a portion of his vested right.  Consequently, the amendment to §157.265(a) cannot be interpreted as retroactive.
(footnote: 3)

Finally, the record at bar discloses that a significant portion of the arrearage due from Silas accrued before the effective date of the amendment to §157.265(a).  Additionally, in calculating interest on the entire sum (which had effectively been reduced to a final judgment via §157.261(a) and thereby constituted a vested right) the trial court utilized a rate of six percent.  It did not differentiate between unpaid support which accrued before the amendment to §157.265(a) became effective and unpaid support accruing thereafter.  Given our construction of the amendment to that statute and our conclusion that its effect is not retrospective, the trial court was obligated to use a rate of 12 percent when calculating the interest accruing upon the pre-January 1, 2002 delinquency.  Thus, it erred.

We reverse the April 30, 2002 order approving and adopting the master’s report and remand the cause for further proceedings.

Brian Quinn

              Justice

FOOTNOTES
1:We note that the court in
In re A.J.R.
, 97 S.W.3d 833 (Tex. App.--Dallas  2003, no pet. h.) held differently.  It concluded that “unpaid child support obligations that have not been confirmed and reduced to judgment as of January 1, 2002 are subject to the twelve percent interest rate until January 1, 2002.  On that date, however, interest begins accruing on those unpaid obligations at the new six percent rate.”
Id.
at 835.  The reason for this was because “[t]here is nothing to suggest that the legislature intended the changed rate to apply retroactively.”
Id.
  In reaching that conclusion, the court did not mention the passage in the enabling legislation stating that the change “applies to . . . unpaid child support that became due before the effective date of this Act and for which a court has not confirmed the amount of arrearages and rendered a money judgment.”  Nor did it explain why that language failed to evince an intent to apply the changes retroactively.  Nor did the court attempt to explain what it believed that passage to mean.  Instead, it read into the enabling legislation wording that divided unpaid child support into different categories, those categories being unpaid support that accrued before January 1, 2002, and unpaid support that accrued after January 1st.  The former would accrue interest at 12 percent and the latter at six, according to the court.  Yet, the legislators did not themselves make that distinction; indeed, they expressly rejected it by stating that the new rate applied to both “child support payment[s] that become due on or after the effective date of [the] Act and . . . unpaid support that became due before the effective date . . . .”  Act of May 25, 2001, 77
th
 Leg., R.S., ch. 1491, §3, 2001 Tex. Gen. Laws 4995.  In short, it appears that the court in
A.J.R.
 gave effect to merely that portion of the enabling legislation stating that the change affected “child support . . . that becomes due on or after the effective date of [the] Act.”  Thus, we choose not to follow the holding and instead conclude that the reduction was intended to apply to support payments becoming delinquent after January 1, 2002,
as well as
 support that became delinquent prior thereto and had yet to be confirmed and incorporated into a monetary judgment.

2:We realize that other sections of the Family Code provide for actually confirming the amount of arrearage which the legislature has already categorized as a “final judgment” and reducing that “final judgment” into a “cumulative money judgment”.
Tex. Fam. Code Ann.

§
157.263(a) (Vernon 2002).  Yet, because the legislature expressly decreed that the delinquency constitutes a “final judgment” at the time the payment becomes delinquent, we are bound by its categorization for purposes of this appeal.
See
Tex. Gov’t Code Ann.
 §311.011(b) (Vernon 1998) (stating that words and phrases that have acquired a technical or particular meaning shall be construed accordingly).  We do not address, however, whether in using the term “final judgment” the legislature sought to perform the inherently judicial function of adjudicating a dispute.  It may well be that the lawmakers simply intended to cloak the unpaid child support payment and interest on it with indicia of finality given that the trial court previously ordered that the amounts be paid as they accrue.

3:So, while we disagree with the reasoning of the court in
In re A.J.R.
, we nonetheless arrive at the same result.


568 F.Supp. 8 (1982)
Qaid Rafeeq AZEEZ, Plaintiff,
v.
Richard W. DeROBERTIS, Warden and Melvin Allen, Inquiry Board Chairman, Defendants.
No. 81 C 7163.
United States District Court, N.D. Illinois, E.D.
November 2, 1982.
*9 Qaid Rafeeq Azeez, pro se.
Thomas A. Ioppolo, Asst. Atty. Gen., Sp. Litigation Div., Chicago, Ill., for defendants.

MEMORANDUM OF DECISION AND ORDER
NORDBERG, District Judge.
Plaintiff Qaid Rafeeq Azeez brings this pro se action pursuant to 42 U.S.C. § 1983 asserting the jurisdiction of the Court under 28 U.S.C. § 1343. Plaintiff alleges violations of his state and federal constitutional rights, and seeks compensatory and punitive damages along with the costs of this action from Richard W. DeRobertis, Chief Administrative Officer of the Stateville Correctional Center ("Stateville") and Melvin Allen, Chairman of the Institutional Inquiry Board ("Board") at Stateville. In addition, plaintiff seeks disposition of five grievances filed with the Board. Before the Court is defendants' motion to dismiss pursuant to Rule 12(b)(6) of the Federal Rules of Civil Procedure and 28 U.S.C. § 1915(d), and cross-motions for summary judgment under Rule 56(b) of the Federal Rules of Civil Procedure. For the reasons that follow, the defendants' motion to dismiss is granted, therefore rendering moot the motions for summary judgment.
Plaintiff, a prisoner assigned to Stateville since August 31, 1982, maintains that the defendants' failure to comply with the grievance procedure mandated by Illinois Department of Corrections Administrative *10 Regulation No. 845 ("A.R. 845")[1] violates his due process and equal protection rights as guaranteed by Articles I and V of the Illinois State Constitution, and the First and Fourteenth Amendments of the United States Constitution. Plaintiff alleges that he filed grievances on September 7, September 9, September 17, September 21, and October 8, 1981. The Board held a hearing on the first two grievances on September 25, 1981 and on the latter three on October 14, 1981. On October 21, 1981, plaintiff filed another grievance concerning the defendants' alleged failure to issue rulings on his grievances as provided for in A.R. 845. When, by November 23, 1981, defendants had failed to act on his grievances, plaintiff commenced this action.
Plaintiff's first contention is that the defendants violated his state constitutional rights. Section 1983, by its very terms, applies only to deprivations of federally protected rights. See Parratt v. Taylor, 451 U.S. 527, 535, 101 S.Ct. 1908, 1912, 68 L.Ed.2d 420 (1981). Thus, it does not provide a remedy for deprivations of state protected rights. See Partee v. Lane, 528 F.Supp. 1254, 1264 (N.D.Ill.1981). For this reason, plaintiff's state constitutional claims do not state a claim for relief under § 1983. Likewise, his allegations of a violation of the Illinois Revised Statutes in conjunction with A.R. 845 do not give rise to a claim cognizable under § 1983.
Plaintiff's next contention is that defendants have violated his first amendment right to petition the government for a redress of grievances. The defendants' actions have not, however, barred plaintiff from seeking a remedy for his grievances. See Cruz v. Beto, 405 U.S. 319, 321, 92 S.Ct. 1079, 1081, 31 L.Ed.2d 263 (1972). His ability to seek redress is underscored by his pro se invocation of the judicial process. Plaintiff therefore alleges no facts to support his claim that defendants have violated his first amendment right to petition for redress.
Plaintiff's third contention is that the defendants have violated his fourteenth amendment due process rights. Under this theory, plaintiff contends that a liberty interest giving rise to due process protections springs from the Illinois statutes which created the prison grievance procedure. Shango v. Jurich, 681 F.2d 1091 (7th Cir.1982), rejects this theory. A liberty interest within the meaning of the fourteenth amendment is a substantive interest of the individual. Id. at 1101-02. Although state created procedural protections may be evidence of a parent substantive right, they do not in themselves trigger a protected liberty interest. Id. at 1102.
Illinois, by statute, has created a prison grievance procedure which entitles inmates to present their complaints to the prison officials. But the grievance procedure is a procedural right only, it does not confer any substantive right upon the inmates. Hence, it does not give rise to a protected liberty interest requiring the procedural protections envisioned by the fourteenth amendment. Thus, the Board's failure to process plaintiff's grievances as required by A.R. 845 is not actionable under § 1983.
Plaintiff's final contention rests on equal protection grounds. In order to establish an equal protection violation, a plaintiff must show intentional or purposeful discrimination. See Bloomenthal v. Lavelle, 614 F.2d 1139, 1141 (7th Cir.1980). Purposeful discrimination implies that the decision-maker singled out a particular group for disparate treatment and "selected his course of action for the purpose of causing its adverse effects on the identifiable group." Shango v. Jurich, supra at 1104.
Even with the liberal construction accorded pro se pleadings under Haines v. Kerner, 404 U.S. 519, 92 S.Ct. 594, 30 L.Ed.2d 652 (1972), plaintiff has failed to demonstrate any invidious classification resulting from the Board's failure to act on his grievances in accordance with A.R. 845. He has not alleged any set of facts implying purposeful, intentional discrimination in the Board's processing of grievances. An inconsistency *11 in prison management, without more, does not constitute a cognizable equal protection claim. Snowden v. Hughes, 321 U.S. 1, 8, 64 S.Ct. 397, 401, 88 L.Ed. 497 (1944), because plaintiff has failed to allege any facts to support a finding that the prison officials had purposefully and intentionally discriminated against him in the processing of his grievances, his equal protection claim cannot stand.
Finding that the allegations of the complaint fail to state a claim upon which relief may be granted, the Court grants defendants' motion to dismiss and directs that judgment be entered in their favor.
NOTES
[1]  A.R. 845 is set out in full in Secret v. Brierton, 584 F.2d 823, 831-32 app. (7th Cir.1978).