alea-institute/kl3m-data-sample-004-shuffled huggingface dataset:
NOT FOR PUBLICATION

UNITED STATES COURT OF APPEALS

 FOR THE NINTH CIRCUIT

YUAN CHUN XIAO,

 Petitioner,

 v.

ERIC H. HOLDER, Jr., Attorney General,

 Respondent.

No. 09-73476

Agency No. A099-365-073

MEMORANDUM*

On Petition for Review of an Order of the

Board of Immigration Appeals

Submitted November 6, 2013** 

Seattle, Washington

Before: SCHROEDER and PAEZ, Circuit Judges, and BENITEZ, District Judge.***

 

Yuan Chun Xiao, a native and citizen of China, petitions for review of an

order of the Board of Immigration Appeals (BIA) dismissing his appeal of a

FILED

DEC 03 2013

MOLLY C. DWYER, CLERK

U.S. COURT OF APPEALS

 * This disposition is not appropriate for publication and is not precedent

except as provided by 9th Cir. R. 36-3.

 ** The panel unanimously concludes this case is suitable for decision

without oral argument. See Fed. R. App. P. 34(a)(2).

 *** The Honorable Roger T. Benitez, United States District Judge for the

Southern District of California, sitting by designation.
decision by an immigration judge (IJ) denying his application for asylum,

withholding of removal, and relief under the Convention Against Torture (CAT). 

The BIA erred in upholding the IJ’s adverse credibility determination on the

basis of the IJ’s conclusory demeanor characterization. Although adverse

credibility determinations are entitled to “a healthy measure of deference,” the IJ

may not base an adverse credibility determination on a generalized assertion about

demeanor; rather, the IJ should refer to “specific instances in the record that

support [his] conclusion . . . .” Shrestha v. Holder, 590 F.3d 1034, 1041, 1044 (9th

Cir. 2010); see also Arulampalam v. Ashcroft, 353 F.3d 679, 686 (9th Cir. 2003). 

The IJ’s unsupported assertion that Xiao began to stutter when he “got off script”

is contradicted by record evidence, including the IJ’s own observation that

throughout the entirety of his testimony, Xiao exhibited a repetitive pattern of

speech suggestive of an impediment. 

Moreover, the IJ’s apparent frustration with Xiao, and in particular, with

Xiao’s manner of speech, calls into question the IJ’s summary dismissal of

petitioner’s explanations of perceived inconsistencies. The agency must consider a

petitioner’s explanation of any inconsistencies in determining credibility, because

“[t]o ignore a petitioner’s explanation for a perceived inconsistency . . . would be

to make a credibility determination on less than the total circumstances in

2
contravention of the REAL ID Act’s text.” Shrestha, 590 F.3d at 1044; see also

Soto-Olarte v. Holder, 555 F.3d 1089, 1091-92 (9th Cir. 2009). 

Therefore, we remand to the BIA for proper consideration of whether

substantial evidence supports the IJ’s adverse credibility determination, including,

if necessary, a remand to the IJ for further consideration of Xiao’s asylum,

withholding of removal, and CAT claims. 

Petition GRANTED and REMANDED.

3
#### Xavier CRAVENWOLFE Plaintiff-Appellant v. Robert CARTER, ACI Director; Tim Lowery, ACI Furniture Factory Plant Manager; Randal Raper, ACI Furniture Factory Floor Manager Defendants-Appellees

No. 16-2665

United States Court of Appeals, Eighth Circuit.

Submitted: November 15, 2016

Filed: November 29, 2016

Xavier Cravenwolfe, Pro Se

Bourgon Burnelle Reynolds, Assistant Attorney General, Attorney General’s Office, Little Rock, AR, for Defendants-Ap-pellees

Before MURPHY, COLLOTON, and GRUENDER, Circuit Judges.

PER CURIAM.

Arkansas inmate Xavier Cravenwolfe appeals after the district court1 dismissed his 42 U.S.C. § 1983 action without prejudice, following its determination that Cra-venwolfe failed to exhaust administrative remedies.

We conclude that the district court did not err in its determination, as the record showed beyond genuine dispute that Cra-venwolfe omitted material information that was required on a grievance appeal form. *See*42 U.S.C. § 1997e(a) (no action shall be brought with respect to prison conditions under § 1983 by prisoner until such administrative remedies as are available are exhausted); *King v. Iowa Dep’t. of Corr.,*598 F.3d 1051, 1052 (8th Cir. 2010) (de novo review of district court’s interpretation of § 1997e(a)); *see also Jones v. Bock,*549 U.S. 199, 218, 127 S.Ct. 910, 166 L.Ed.2d 798 (2007) (prison’s administrative exhaustion requirements govern whether exhaustion has occurred); *Woodford v. Ngo,*548 U.S. 81, 90-91, 126 S.Ct. 2378, 165 L.Ed.2d 368 (2006) (proper exhaustion demands compliance with prison’s deadlines and other critical procedural rules); *Chelette v. Harris,*229 F.3d 684, 688 (8th Cir. 2000) (inmate’s subjective beliefs *904about grievance process cannot excuse exhaustion requirement).

Accordingly, we affirm. *See*8th Cir. R. 47B. We also deny as moot Cravenwolfe’s pending motion for appointment of counsel.

1

. The Honorable James M. Moody Jr., United States District Judge for the Eastern District of Arkansas.
#### UNITED STATES of America, Plaintiff-Appellee v. David SHEPPARD, Defendant-Appellant

No. 16-11105 Summary Calendar

United States Court of Appeals, Fifth Circuit.

Filed July 27, 2017

Amber Michelle Grand, Attorney, James Wesley Hendrix, Assistant U.S. Attorney, U.S. Attorney’s Office, Northern District of Texas, Dallas, TX, for Plaintiff-Appellee

Vincent Eugene Wisely, Attorney, Arlington, TX, for Defendant-Appellant

Before KING, ELROD, and HIGGINSON, Circuit Judges,

PER CURIAM: *

David Sheppard pleaded guilty to conspiracy to possess with intent to distribute a controlled substance in violation of 21 U.S.C. § 841(a)(1) and 21 U.S.C. § 846. The district court sentenced him to 235 *283months of imprisonment and a three-year term of supervised release. Sheppard appeals the application of the U.S.S.G. § 2D1.1(b)(5) enhancement for an offense that involved the importation of methamphetamine. He argues that there was an inadequate evidentiary basis for the offense level enhancement.

Because Sheppard did not present rebuttal evidence to contradict the information in the presentenee report, the district permissibly relied on it. *See United States v. Zuniga,*720 F.3d 687, 691 (5th Cir. 2013). Sheppard has not shown that the district court clearly erred when it applied the § 2D1.1(b)(5) importation enhancement. *See United States v. Serfass,*684 F.3d 648, 564 (5th Cir. 2012).

AFFIRMED.

*

 Pursuant to 5th Cir. R. 47.5, the court has determined that this opinion should not be published and is not precedent except under the limited circumstances set forth in 5th Cir. R. 47.5.4.
#### Tim KITTLESON; et al., Plaintiffs-Appellants, v. State of WASHINGTON; et al., Defendants-Appellees. Irene Jane Holmes; et al., Plaintiffs-Appellants, v. State of Washington; et al., Defendants-Appellees.

No. 16-35390, No. 16-35391

United States Court of Appeals, Ninth Circuit.

Submitted March 8, 2017 *

Filed March 20, 2017

Tim Kittleson, Pro Se

Before: LEAVY, W. FLETCHER, and OWENS, Circuit Judges.

*

 The panel unanimously concludes these cases are suitable for decision without oral argument. *See*Fed. R. App. P. 34(a)(2).

MEMORANDUM **

Tim Kittleson and Irene Jane Holmes appeal pro se from the district court’s orders denying their applications to proceed in forma pauperis (“IFP”) in their respective 42 U.S.C. § 1983 actions alleging federal and state law claims arising out of state dependency proceedings. We have jurisdiction under 28 U.S.C. § 1291. We review for an abuse of discretion, *O’Loughlin v. Doe,*920 F.2d 614, 616 (9th Cir. 1990), and we affirm.

The district court did not abuse its discretion in denying plaintiffs’ motions to proceed IFP because Kittleson and Holmes failed to allege facts in their proposed amended complaints sufficient to state a claim. *See id.*at 616-17 (district court may deny leave to proceed IFP “at the outset if it appears from the face of the proposed complaint that the action is frivolous or without merit”). Moreover, the district court provided plaintiffs notice of the deficiencies in their complaints and an opportunity to cure them, but both Kittleson and Holmes failed to cure those deficiencies.

Given the procedural posture of these cases, we reject as without merit plaintiffs’ contentions that the district court improperly denied them an opportunity to present evidence.

*640Appeal No. 16-35390: AFFIRMED.

Appeal No. 16-35391: AFFIRMED.

**

 This disposition is not appropriate for publication and is not precedent except as provided by Ninth Circuit Rule 36-3.
<TABLE> <S> <C>

<ARTICLE> 9
       
<S>                             <C>
<PERIOD-TYPE>                   3-MOS
<FISCAL-YEAR-END>                          DEC-31-1996
<PERIOD-END>                               SEP-30-1996
<CASH>                                          24,963
<INT-BEARING-DEPOSITS>                               0
<FED-FUNDS-SOLD>                                     0
<TRADING-ASSETS>                                     0
<INVESTMENTS-HELD-FOR-SALE>                     16,817
<INVESTMENTS-CARRYING>                          34,013
<INVESTMENTS-MARKET>                            33,275
<LOANS>                                        344,159
<ALLOWANCE>                                      8,766
<TOTAL-ASSETS>                                 446,173
<DEPOSITS>                                     390,592
<SHORT-TERM>                                     6,693
<LIABILITIES-OTHER>                              4,121
<LONG-TERM>                                          0
<PREFERRED-MANDATORY>                                0
<PREFERRED>                                          0
<COMMON>                                            74 
<OTHER-SE>                                      44,693
<TOTAL-LIABILITIES-AND-EQUITY>                 446,173
<INTEREST-LOAN>                                 22,357
<INTEREST-INVEST>                                2,689
<INTEREST-OTHER>                                 1,144
<INTEREST-TOTAL>                                26,160
<INTEREST-DEPOSIT>                               6,430
<INTEREST-EXPENSE>                               6,558
<INTEREST-INCOME-NET>                           19,602
<LOAN-LOSSES>                                       70
<SECURITIES-GAINS>                                   0
<EXPENSE-OTHER>                                 16,467
<INCOME-PRETAX>                                  8,338
<INCOME-PRE-EXTRAORDINARY>                       8,338
<EXTRAORDINARY>                                      0
<CHANGES>                                            0
<NET-INCOME>                                     5,268
<EPS-PRIMARY>                                      .68
<EPS-DILUTED>                                      .67
<YIELD-ACTUAL>                                    6.55
<LOANS-NON>                                      9,209
<LOANS-PAST>                                         0
<LOANS-TROUBLED>                                   614
<LOANS-PROBLEM>                                      0
<ALLOWANCE-OPEN>                                 8,766
<CHARGE-OFFS>                                      489
<RECOVERIES>                                       318
<ALLOWANCE-CLOSE>                                8,766
<ALLOWANCE-DOMESTIC>                             8,766
<ALLOWANCE-FOREIGN>                                  0
<ALLOWANCE-UNALLOCATED>                              0
        

</TABLE>
#### The People of the State of New York, Respondent, v Kenneth Lewis, Appellant.

[770 NYS2d 616]

Judgment, Supreme Court, Bronx County (Caesar Cirigliano, J), rendered July 27, 2000, convicting defendant, after a jury trial, of burglary in the second degree (two counts), criminal possession of stolen property in the fifth degree (two counts), and criminal trespass in the second degree, and sentencing him, as a persistent violent felony offender, to concurrent terms of 21 years to life on each of the burglary convictions concurrent with terms of one year on each of the remaining convictions, unanimously affirmed.

The verdict was based on legally sufficient evidence and was not against the weight of the evidence. There is no basis for disturbing the jury’s determinations concerning credibility. In addition to the credible testimony of the codefendant, who testified pursuant to a cooperation agreement, there was an extensive chain of corroborating evidence, which included, *403among other things, physical evidence recovered from defendant and incriminating statements made by him in letters to the codefendant.

The court properly adjudicated defendant a persistent violent felony offender. The predicate felony statement filed by the People, taken together with its supporting materials, including proper documents from the Division of Criminal Justice Services, sufficiently complied with the statutory requirements *(see People v Bouyea,*64 NY2d 1140 [1985]), and properly established that defendant’s incarceration tolled the 10-year limitation on the use of predicate felonies.

We perceive no basis for reducing the sentence. Concur— Buckley, P.J., Mazzarelli, Saxe, Sullivan and Rosenberger, JJ.
<PAGE>   1


             EXHIBIT 11.1-COMPUTATION OF EARNINGS (LOSS) PER SHARE
                     (in thousands, except per share data)




<TABLE>
<CAPTION>
                                                             Three Months Ended March 31,
                                                               1999                1998
                                                         ----------------   ------------------
<S>                                                      <C>                <C>
Income applicable to common shares:

Net Income (Loss)                                        $           456    $              (5)

                                                         ----------------   ------------------
       Income (Loss) applicable to common shares                    $456                  $(5)
                                                         ================   ==================


  Weighted average number of common shares outstanding             7,338                7,282

       Weighted average common shares                              7,338                7,282
                                                         ================   ==================


  Income (Loss) per common share                         $          0.06    $           (0.00)
                                                         ================   ==================
</TABLE>
#### UNITED STATES of America, Plaintiff-Appellee v. Mario GUAJARDO-GARCIA, Defendant-Appellant

No. 16-40524 Conference Calendar

United States Court of Appeals, Fifth Circuit.

Date Filed: 12/20/2016

Renata Ann Gowie, Assistant U.S. Attorney, U.S. Attorney’s Office, Southern District of Texas, Houston, TX, for Plaintiff-Appellee

Mario Guajardo-Garcia, Pro Se

Before DENNIS, PRADO, and OWEN, Circuit Judges.

PER CURIAM: *

The Federal Public Defender appointed to represent Mario Guajardo-Garcia has moved for leave to withdraw and has filed a brief in accordance with *Anders v. California,*386 U.S. 738, 87 S.Ct. 1396, 18 L.Ed.2d 493 (1967), and *United States v. Flores,*632 F.3d 229 (5th Cir. 2011). Guajardo-Garcia has not filed a response. We have reviewed counsel’s brief and the relevant portions of the record reflected therein. We concur with counsel’s assessment that the appeal presents no nonfrivolous issue for appellate review. Accordingly, counsel’s motion for leave to withdraw is GRANTED, counsel is excused from further responsibilities herein, and the APPEAL IS DISMISSED. *See*5th Cir. R. 42.2.

*

 Pursuant to 5th Cir. R. 47.5, the court has determined that this opinion should not be published and is not precedent except under the limited circumstances set forth in 5th Cir. R. 47.5.4-.
**EXHIBIT - 31.2**

 

MOSSIMO,INC.

 

CERTIFICATIONOF PRINCIPAL EXECUTIVE OFFICER

 

I, Edwin Lewis, Vice Chairman and Co-ChiefExecutive Officer of the registrant, certify that:

 

1.     I have reviewed this quarterly report on Form 10-Q of Mossimo,Inc.;

 

2.     Based on my knowledge, this report does not contain any untruestatement of a material fact or omit to state a material fact necessary to makethe statements made, in light of the circumstances under which such statementswere made, not misleading with respect to the period covered by this report.

 

3.     Based on my knowledge, the financial statements, and otherfinancial information included in this report, fairly present in all materialrespects the financial condition, results of operations and cash flows of theregistrant as of, and for, the periods presented in this report;

 

4.     The registrant’s other certifying officers and I are responsiblefor establishing and maintaining disclosure controls and procedures (as definedin Exchange Act Rules 13a-15(e) and 15d-15(e)) for the registrant and have:

 

(a)     Designed such disclosure controls and procedures, or caused suchdisclosure controls and procedures to be designed under our supervision, toensure that material information relating to the registrant is, including its consolidatedsubsidiaries, made known to us by others, particularly during the period inwhich this report is being prepared;

 

(c)     Evaluated the effectiveness of the registrant’s disclosurecontrols and procedures and presented in this report our conclusions about theeffectiveness of the disclosure controls and procedures, as of the end of theperiod covered by this report based on such evaluation; and

 

(d)    Disclosed in this report any change in the registrant’s internalcontrol over financial reporting that occurred during the registrant’s mostrecent fiscal quarter (the registrant’s first fiscal quarter) that hasmaterially affected, or is reasonably likely to materially affect, theregistrant’s internal control over financial reporting; and

 

5.     The registrant’s other certifying officers and I have disclosed,based on our most recent evaluation of internal controls over financialreporting, to the registrant’s auditors and the audit committee of theregistrant’s board of directors (or persons performing the equivalentfunctions):

 

(a)     All significant deficiencies and material weaknesses in the designor operation of internal controls over financial reporting which are reasonablylikely to adversely affect the registrant’s ability to record, process, summarizeand report financial information; and

 

(b)    Any fraud, whether or not material, that involves management orother employees who have a significant role in the registrant’s internalcontrol over financial reporting.

 
| /s/ EDWIN LEWIS                               |   |
|-----------------------------------------------|--------|
| Edwin Lewis                                   |
| Vice-Chairman and Co-Chief Executive  Officer |
| May 19, 2006                                  |

 

----
### Project Overview
PSNH implemented a major project at their Merrimack Station to reduce mercury emissions from Units 1 and 2. Liquid effluent from the FGD and heavy metals removal process requires treatment and recovery for re-use as scrubber makeup. The Zero Liquid Discharge (ZLD) process is designed to treat the wastewater. The solid discharged from the ZLD process is then landfilled. 

# Project Profile

The Facility
Merrimack Station is Public Service of New Hampshire’s (PSNH) largest power plant. Merrimack Station produces enough energy to supply 190,000 New Hampshire households, and employs more than 100 people under normal operating conditions. Guided by state and federal clean power laws, PSNH and its customers have invested millions in environmental initiatives to reduce emissions at Merrimack Station. The plant today meets or exceeds all environmental regulations; and, with the completionof the Clean Air Project in 2013, it will be one of the cleanest coalfired power plants in the nation. 

### Aquatech Provides Wastewater Treatment Solution for New Hampshire’s Largest Coal Power Plant



### Project Profile #81 www.aquatech.com Scope of Service
Aquatech provided a 65 GPM (15 m 3 /hr) Brine Concentrator and an 8 GPM (1.8 m 3 /hr) Two-Effect Crystallizer and a 1 x 100% Belt Filter Press. Aquatech’s integrated solution includes physical/chemical and evaporation technologies that will enable customers with scrubbers to achieve greater environmental responsibility and development of environmentally friendly power facilities. 

### Design Water Analysis
Flowrate, gpm 100

Magnesium 22 Potassium 714

Sodium 18,282 Barium 0.1 Strontium 6.0 Iron 5 Bicarbonate as HCO 3 320 Calcium 645 Chloride 10,200 Fluoride 13.9 Sulfate 24,416 Nitrates 2,800 Phosphates 1.0 Suspended Solids 0 pH 7.0 TOC as ppm Not Reported Total Dissolved Solids 57,554

### Aquatech Provides Wastewater Treatment Solution for New Hampshire’s Largest Coal Power Plant



### Project Profile #81 www.aquatech.com 

# Project Profile

Process Flow Diagrams
14264

#### CITY OF BEAUFORT v. AMAN

(185 S. E., 33)

August, 1935.

*129
      *Mr. W. W. Elliott,*for appellant,

*Mr. Claude M. Aman,*for respondent.

March 30, 1936.

The opinion of the Court was delivered by

Mr. Justice Baker.

This is an appeal by City of Beaufort from order of Hon. J. Henry Johnson, Circuit Judge, reversing the recorder’s Court of the City of Beaufort, wherein respondent was found guilty of practicing law in the City of Beaufort without having procured a license as required by the ordinance of the city; and was sentenced to pay a fine of $25.00, or serve thirty days imprisonment, the sentence being suspended conditioned upon the respondent at once paying the license fee of $25.00.

It is the well-settled law of this State that a debtor when he makes a payment has the right to direct and control the application. See *Bell v. Bell,*20 S. C., 34, and cases therein cited. Counsel for appellant admit in printed argument that appellant did not have a lien on respondent’s property.

After a careful study of the record in this case, we are of the opinion that the Circuit Judge reached the proper conclusion, and the exceptions to his order, are overruled. Let the order be reported.

*130Affirmed.

Mr. ChiEE Justice Stabler and Messrs. Justices Carter, Bonham and FishburnE concur.
EXHIBIT 23.1

                          Independent Auditors' Consent

The Board of Directors
Central Freight Lines, Inc.:

We consent to incorporation by reference in the registration statement (No.
333-111795) on Form S-8 of Central Freight Lines, Inc. of our report dated
February 4, 2004, except as to Note 19 to the consolidated financial statements,
which is as of March 5, 2004, with respect to the consolidated balance sheets of
Central Freight Lines, Inc. and subsidiaries as of December 31, 2003 and 2002,
and the related consolidated statements of operations, stockholders' equity, and
cash flows for each of the years in the three-year period ended December 31,
2003, which report appears in the December 31, 2003 annual report on Form 10-K
of Central Freight Lines, Inc. Our report refers to a change in the method of
accounting for goodwill and other intangible assets in 2002.

/s/ KPMG LLP
Dallas, Texas
March 29, 2004