author: KAREN NELSON MOORE, Circuit Judge. SILER, Circuit Judge,

text:
    David ERMOLD and David Moore, Plaintiffs-Appellants, v. Kim DAVIS, Individually and in her Official Capacity as Rowan County Clerk, Defendant-Appellee.
    No, 16-6412
    United States Court of Appeals, Sixth Circuit.
    Argued: March 8, 2017
    Decided and Filed: May 2, 2017

      ARGUED: Michael J. Gartland, DEL-COTTO LAW GROUP, PLLC, Lexington, Kentucky, for Appellants. Roger K. Gan-nam, LIBERTY COUNSEL, Orlando, Florida, for Appellee. ON BRIEF: Michael J. Gartland, DELCOTTO LAW GROUP, PLLC, Lexington, Kentucky, Thomas Paul Szczgielski, Joseph D. Buckles, CHANEY BUCKLES SZCZYGIELSKI PLLC, Lexington, Kentucky, for Appellants. Roger K. Gannam, Matthew D. Staver, Horatio G. Mihet, LIBERTY COUNSEL, Orlando, Florida, A.C. Donahue, DONAHUE LAW GROUP, P.S.C., Somerset, Kentucky, for Appellee.
    Before: SILER, MOORE, and GRIFFIN, Circuit Judges.
   MOORE, J., delivered the opinion of the court in which SILER and GRIFFIN, JJ., joined. SILER, J. (pg. 720), delivered a separate concurrence.

OPINION

KAREN NELSON MOORE, Circuit Judge.

Plaintiffs-Appellants David Ermold and David Moore sought a marriage license from Rowan County, Kentucky, Clerk Kim Davis. Upon being denied the license, Er-mold and Moore filed this damages-only 42 U.S.C. § 1983 action against Davis in both her individual and official capacities. The district court sua sponte dismissed Er-mold’s and Moore’s case after we ordered the district court to vacate a preliminary injunction order in an entirely separate action. See Miller v. Davis, 667 Fed.Appx. 537, 538 (6th Cir. 2016) (mem.). For the reasons stated below, we REVERSE the district court’s judgment dismissing this case and REMAND for proceedings consistent with this opinion.

I. BACKGROUND

On June 26, 2015, the Supreme Court held in Obergefell v. Hodges, — U.S. -, 135 S.Ct. 2584, 2605, 192 L.Ed.2d 609 (2015), that Kentucky’s definition of marriage as a union between one man and one woman violated the Fourteenth Amendment to the United States Constitution, “to the extent [it] exclude[s] same-sex couples from civil marriage on the same terms and conditions as opposite-sex couples.” That same day, then-Governor of Kentucky, Steven Beshear, ordered all of Kentucky’s county clerks to begin issuing marriage licenses to same-sex couples. R. 1-1 (Gov. License Directive) (Page ID #7). On July 6, 2015, David Ermold and David Moore, two male residents of Rowan County, Kentucky, who had by that time been in. a committed relationship for seventeen years, applied for a marriage license at the Rowan County Clerk’s Office. R. 1 (Compl. at 2) (Page ID #2). Rowan County Clerk Kim Davis denied Ermold’s and Moore’s application, citing her personal religious beliefs about the origin of marriage. Id. at 3 (Page ID #3).

On July 10, 2015, Ermold and Moore filed a federal civil-rights complaint pursuant to 42 U.S.C. § 1983 against Davis both individually and in her official capacity as the Rowan County Clerk. R. 1 (Compl. at 1-3) (Page ID #1-3). The complaint alleged a violation of Ermold’s and Moore’s clearly established right to marry each other under the Fourteenth Amendment. Id. at 3-6 (Page ID #3-6). Because a putative class action seeking declaratory and injunctive relief had been filed against Davis one week earlier, Ermold and Moore sought only damages (both actual and punitive). Id. at 6 (Page ID #6). See Miller v. Davis, No. 0:15-ev-00046 (E.D. Ky. July 2, 2015).

Davis filed a motion to dismiss the complaint on August 4, 2015, arguing, inter alia, that Ermold’s and Moore’s constitutional rights were not violated because they could have traveled to other Kentucky counties to obtain marriage licenses and that Davis was protected by qualified immunity because Ermold and Moore had not pleaded a violation of a clearly established right. R. 11 (Mot. to Dismiss at 1) (Page ID #34); R. 11-1 (Mem. on Mot. to Dismiss at 9-12) (Page ID #51-54). R. 13 (Order) (Page ID #74). On August 25, Ermold and Moore filed their response in opposition to Davis’s motion to dismiss their complaint. R. 12 (Resp. in Opp. to Mot. to Dismiss) (Page ID #65). No reply was filed in this case. The district court sua sponte stayed briefing in this case on August 26, 2015. R. 13 (Stay Order) (Page ID #74).

On August 12, 2015, the district court entered a preliminary injunction in another case, Miller v. Davis, which enjoined Davis from refusing to issue marriage licenses to all of the Miller plaintiffs. 123 F.Supp.3d 924, 944 (E.D. Ky. 2015). Davis immediately appealed in Miller. We declined to grant Davis a stay pending ap-. peal in Miller, concluding that it “cannot be defensibly argued that the holder of the Rowan County Clerk’s office ... may decline to act in conformity with the United States Constitution as interpreted by a dispositive holding of the United States Supreme Court,” and that there was therefore “little or no likelihood that the Clerk in her official capacity will prevail on appeal.” Miller v. Davis, No. 15-5880, 2015 WL 10692640, at *1 (6th Cir. Aug. 26, 2015). Davis’s application for a stay in the Supreme Court was denied. Davis v. Miller, — U.S. -, 136 S.Ct. 23, 192 L.Ed.2d 994 (2015) (mem.).

Ermold and Moore moved in December 2015 in the district court to set a briefing schedule (i.e., setting a date for the filing of a reply) on the motion to dismiss filed in this case or to clarify the August 26 stay order. R. 14 (Mot. for Briefing Sched.) (Page ID #75). Davis filed a motion in opposition, R. 15 (Mot. in Opp. to Mot. for Briefing Sched.) (Page ID #81), and Er-mold and Moore replied, R. 16 (Reply to Mot. for Briefing Sched.) (Page ID #86).

On December 22, 2015, Kentucky Governor Matthew Bevin signed Executive Order 2015-048, which sought to resolve the conflict between the Kentucky Constitution’s definition of marriage as between one man and one woman and the Supreme Court’s decision in Obergefell. The Executive Order recognized that “the offices of the County Clerks of the Commonwealth are now required to issue marriage licenses in accordance with KRS Chapter 402 to all eligible applicants, including those intending to enter into same-sex marriages,” but asserted that requiring county clerks to issue marriage licenses to same-sex couples “creates a substantial burden on the freedom of religion of some County Clerks and employees of their offices because the current form bears the name of the issuing County Clerk,” which some could associate as an endorsement by the county clerk of same-sex marriage. Attached to the Executive Order was a revised Kentucky Marriage License form which removed from the form the name and authority of the county clerk.

On April 13, 2016, Governor Bevin signed Kentucky Senate Bill 216. See 2016 Ky. Laws Ch. 132 (SB 216). Senate Bill 2016 amended the Kentucky marriage-license issuance process so that county clerks’ names and signatures no longer appear on marriage-license forms, and removed the requirement that “authorizing statements” and statements of recordation be made by the county clerk. Senate Bill 216 took effect on July 14, 2016.

On July 13, 2016, we dismissed Davis’s appeal from the district court’s preliminary injunction issued in Miller, and remanded Miller back to the district court. Miller, 667 Fed.Appx. at 538. On August 18, 2016, the district court dismissed the Miller plaintiffs’ action, Ermold’s and Moore’s action, and a third case, Yates v. Davis, No. 0:15-cv-00062 (E.D. Ky. Aug. 18, 2016). R. 19 (Dismissal Order) (Page ID #95). The district court concluded that because “marriage licenses continue to [be] issued without incident, there no longer remains a case or controversy before the Court.” Id. at 2 (Page ID #96) (internal citation omitted).

II. ANALYSIS

A. Standard of Review

We review de novo a district court’s dismissal for a lack of case or controversy. Demis v. Sniezek, 558 F.3d 508, 512 (6th Cir. 2009) (“This Court reviews jurisdictional issues de novo.”). Section 1983 of Title 42 of the United States Code provides a civil cause of action for persons “who are deprived of any rights, privileges, or immunities secured by the Constitution or federal laws by those acting under color of state law.” Smith v. City of Salem, 378 F.3d 566, 576 (6th Cir. 2004).

B. Kentucky Senate Bill 216 Did Not Moot Plaintiffs’ Case

On August 18, 2016, the district court dismissed this action as moot, concluding that after the passage of Kentucky Senate Bill 216'“in view of the fact that the marriage licenses continue to [be] issued without incident, there no longer remains a case or controversy before the Court.” R. 19 (Dismissal Order at 2) (Page ID #96). According to the district court, “Plaintiffs filed the above-captioned actions to contest the ‘no marriage licenses’ policy implemented by Defendant Kim Davis, Rowan County Clerk.” Id. at 1 (Page ID #95). The district court concluded that because Ermold and Moore were eventually issued a marriage license, the dispute in their case was resolved. We conclude that the district court’s characterization of this case as simply contesting the “no marriage licenses” policy is inaccurate because Ermold and Moore did not seek an injunction — they sought only damages. This action is not a general challenge to Davis’s policy, but rather seeks damages for a particularized harm allegedly suffered by a specific set of plaintiffs.

Article III of the United States Constitution limits the power of the federal courts to “Cases” and “Controversies.” U.S. Const. Art. III, § 2. The case-or-controversy requirement “subsists through all stages of federal judicial proceedings, trial and appellate.” Chafin v. Chafin, 568 U.S. 165, 133 S.Ct. 1017, 1023, 185 L.Ed.2d 1 (2013) (quoting Lewis v. Cont'l Bank Corp., 494 U.S. 472, 477, 110 S.Ct. 1249, 108 L.Ed.2d 400 (1990)). A federal court “lacks jurisdiction to consider any case or issue that has lost its character as a present, live controversy and thereby becomes moot.” Demis, 558 F.3d at 512 (internal quotation marks omitted). “Simply stated, a case is moot when the issues presented are no longer ‘live’ or the parties lack a legally cognizable interest in the outcome.” Id. (quoting Int’l Union v. Dana Corp., 697 F.2d 718, 720-21 (6th Cir. 1983)). Therefore, “[i]f an intervening circumstance deprives the plaintiff of a ‘personal stake in the outcome of the lawsuit,’ at any point during the litigation, the action can no longer proceed and must be dismissed as moot.” Campbell-Ewald Co. v. Gomez, — U.S. -, 136 S.Ct. 663, 669, 193 L.Ed.2d 571 (2016) (quoting Genesis Healthcare Corp. v. Symczyk, — U.S. -, 133 S.Ct. 1523, 1528, 185 L.Ed.2d 636 (2013)).

Claims for damages are largely able to avoid mootness challenges. 13C Charles Alan Wright, Arthur R. Miller & Edward H. Cooper, Federal Practice and Procedure § 3553.3 (3d ed. 2017). Damages claims “are retrospective in nature— they compensate for past harm. By definition, then, such claims cannot be moot.” CMR D.N. Corp. v. City of Philadelphia, 703 F.3d 612, 622 (3d Cir. 2013) (internal quotation marks omitted). The Supreme Court has held that a damages claim is not rendered moot because a related injunc-tive-relief claim becomes moot. See Powell v. McCormack, 395 U.S. 486, 498, 89 S.Ct. 1944, 23 L.Ed.2d 491 (1969) (holding that a claim for back pay survived even after the ongoing harm an injunction sought to remedy was removed); Bd. of Pardons v. Allen, 482 U.S. 369, 370 n.1, 107 S.Ct. 2415, 96 L.Ed.2d 303 (1987) (concluding that pa roled prisoners seeking injunctive relief regarding their prison’s parole procedures could proceed on a damages claim even after they were released on parole); City of Richmond v. J.A. Croson Co., 488 U.S. 469, 478 n.1, 109 S.Ct. 706, 102 L.Ed.2d 854 (1989) (noting that the expiration of Richmond’s affirmative-action ordinance did not moot a damages claim relating to a contract denial under the ordinance). We have similarly held that although “the repeal or amendment of a law moots challenges to the original law ... [t]he existence of [a] damages claim preserves the plaintiffs’ backward-looking right to challenge the original law and to preserve a live case or controversy over that dispute.” Midwest Media Prop., L.L.C. v. Symmes Twp., 503 F.3d 456, 460-61 (6th Cir. 2007). See also Ohio Citizen Action v. City of Englewood, 671 F.3d 564, 581 (6th Cir. 2012) (“However, if the plaintiffs complaint includes a claim for damages, that claim ‘preserves the plaintiff[’s] backward-looking right to challenge the original law and to preserve a live case or controversy over that dispute.’”) (quoting Midwest Media, 503 F.3d at 461); Prime Media, Inc. v. City of Brentwood, 398 F.3d 814, 824 (6th Cir. 2005) (holding that a court’s order invalidating part of a city billboard ordinance did not moot a claim for damages arising from that invalidated portion of the ordinance). Even “a claim for nominal damages ... is normally sufficient to establish standing [and] defeat mootness .... ” Lynch v. Leis, 382 F.3d 642, 646 n.2 (6th Cir. 2004).

Ermold and Moore contend that Governor Bevin’s signing of Senate Bill 216 did not moot their case because they sought damages for harms allegedly caused by Davis’s refusal to issue them a marriage license. They argue that Senate Bill 216, “is irrelevant to Plaintiffs’ entitlement to damages for the denial of their marriage license one year prior.” Appellants Br. at 15. Davis responds that Governor Bevin’s Executive Order “fundamentally changed the legal .framework for analyzing Davis’ conduct prior to” its enactment, and that Senate Bill 216 “further answered the tension” that the Executive Order sought to remedy. Appellee Br. at 36, 25. We disagree. Neither the Executive Order nor Senate Bill 216 rendered this damages-only case moot because, as we have held, “ ‘so long as the plaintiff has a cause of action for damages, a defendant’s change ■in conduct will not moot the case.’ Indeed where a claim for injunctive relief is moot, relief in the form of damages for a past constitutional violation is not affected.” Gottfried v. Med. Planning Servs., Inc., 280 F.3d 684, 691 (6th Cir. 2002) (quoting Buckhannon Bd. & Care Home, Inc. v. W. Va. Dep’t of Health & Human Res., 532 U.S. 598, 608-09, 121 S.Ct. 1835, 149 L.Ed.2d 855 (2001) (citation omitted)).

Ermold and Moore concede that “[t]here is only one potentially relevant exception to the rule that actions containing damages claims cannot be moot,” but argue that “it is not applicable here.” Appellants Br. at 15. Damages claims may be moot where the damages would be “so insubstantial or so clearly foreclosed by prior decisions that th[e] ease may not proceed.” Id. (quoting Memphis Light, Gas & Water Div. v. Craft, 436 U.S. 1, 9, 98 S.Ct. 1554, 56 L.Ed.2d 30 (1978)). We conclude that this exception does not apply to Ermold’s and Moore’s case. The record does not support an argument that Appellants’ damages claims are insubstantial or otherwise foreclosed. We therefore conclude that the enactment of Senate Bill 216 did not moot Ermold’s and Moore’s case.

III. CONCLUSION

Whether Ermold and Moore will prevail on the merits is not a question currently before us. We hold today that our July 13, 2016 order instructing the district court to vacate its preliminary injunction in Miller did not render this damages-only action moot. Therefore, we REVERSE the district court’s judgment and REMAND for further proceedings consistent with this opinion.

CONCURRENCE

SILER, Circuit Judge,

concurring.

I concur in the majority decision, but I wish to amplify on the pending case on remand. The district court may have meant to dismiss this case because Kim Davis was protected by the Kentucky Religious Freedom Restoration Act, KRS § 446.350 (2013), but it did not discuss the issue. The statute provides as follows:

Government shall not substantially burden a person’s freedom of religion. The right to act or refuse to act in a manner motivated by a sincerely held religious belief may not be substantially burdened unless the government proves by clear and convincing evidence that it has a compelling governmental interest in infringing the specific act or refusal to act and has used the least restrictive means to further that interest. A “burden” shall include indirect burdens such as withholding benefits, assessing penalties, or an exclusion from programs or access to facilities.

That law was passed by the Kentucky General Assembly before Obergefell v. Hodges, — U.S. -, 135 S.Ct. 2584, 192 L.Ed.2d 609 (2015), was decided. To be sure, maybe Davis was not using that law as a shield to excuse her from issuing the marriage licenses after Obergefell. Or maybe no defense could be made based upon that statute once Obergefell was decided in 2015. But the district court has never ruled on the effect of that statute upon the conduct of the county clerk. It should have the first opportunity upon remand to decide whether that or any other provision of the law would protect Davis as a qualified-immunity or absolute-immunity defense under the circumstances.


source: Caselaw Access Project

author: JANE B. STRANCH, Circuit Judge.

license: Public Domain

text:
    IN RE: TOWN CENTER FLATS, LLC, Debtor. Town Center Flats, LLC, Appellant, v. ECP Commercial II LLC, Appellee.
    No. 16-1812
    United States Court of Appeals, Sixth Circuit.
    Argued: March 8, 2017
    Decided and Filed: May 2, 2017

      ARGUED: Robert N. Bassel, Clinton, Michigan, for Appellant. Jeremy S. Fried-berg, LEITESS FRIEDBERG, P.C., Baltimore, Maryland, for Appellee. ON BRIEF: Robert N. Bassel, Clinton, Michigan, for Appellant. Jeremy S. Friedberg, LEITESS FRIEDBERG, P.C., Baltimore, Maryland, for Appellee.
    Before: CLAY, GIBBONS, and STRANCH, Circuit Judges.
   OPINION

JANE B. STRANCH, Circuit Judge.

This bankruptcy case centers on property rights in an assigned stream of rents. The extent of a debtor’s rights in those rents under Michigan law determines whether the rents are properly included in a Chapter 11 bankruptcy estate. The bankruptcy court decided that an assignment of rents creates a security interest, but does not change ownership, and held that an assignor continues to have a property interest in the rents. Accordingly, the bankruptcy court included the rents in the bankruptcy estate. The district court vacated the order of the bankruptcy court, finding that an assignment of rents is a transfer of ownership under Michigan law and thus the rents should not be included in the bankruptcy estate. Agreeing with the district court’s reasoning, we hold that the debtor, Town Center Flats, LLC, did not retain sufficient rights in the assigned rents under Michigan law for those rents to be included in the bankruptcy estate. We therefore reverse the order of the bankruptcy court.

I. BACKGROUND

A. Factual History

The parties do not dispute the underlying facts. Debtor Town Center Flats, LLC owns a 53-unit residential complex in Shelby Township, Michigan. Town Center financed construction of the building with a $5.3 million loan from KeyBank that was later assigned to ECP Commercial II LLC. The loan was secured with a mortgage and an agreement to assign rents to the creditor in the event of default. In the agreement to assign rents, Town Center “irrevocably, absolutely and unconditionally [agreed to] transfer, sell, assign, pledge and convey to Assignee, its successors and assigns, all of the right, title and interest of [Town Center] in ... income of every nature of and from the Project, including, without limitation, minimum rents [and] additional rents.... ” The agreement purported to be a “present, absolute and executed grant of the powers herein granted to Assignee,” while simultaneously granting a license to Town Center to collect and retain rents until an event of default, at which point the license would “automatically terminate without notice to [Town Center].” Rents from the residential complex are Town Center’s only source of income.

On December 31, 2013, Town Center defaulted on its obligation to repay the loan. On December 22, 2014, ECP sent a notice of default and a request for the payment of rents to all known tenants of the Town Center property. The notice complied with the terms of the agreement and with Mich. Comp. Laws § 554.231, which allows creditors to collect rents directly from tenants of certain mortgaged properties. The following day, ECP recorded the notice documents in Macomb County, Michigan, completing the last step required by the statute to make the assignment of rents binding against both Town Center and the tenants of the property.

On January 23, 2015, ECP filed a complaint in the Circuit Court for Macomb County alleging breach of contract, initiating foreclosure on the mortgage, and requesting appointment of a receiver to take possession of the Town Center property. Approximately one week later on January 31, 2015, Town Center filed for Chapter 11 bankruptcy relief. At the time Town Center filed its petition, Town Center owed ECP $5,329,329 plus attorney’s fees and costs. The parties have reached an interim agreement to allow Town Center to continue to collect rents from the tenants of the complex, with $15,000 per month used to pay down the debt to ECP and the remainder of the rents used for authorized expenses.

B. Procedural History

Town Center’s bankruptcy petition resulted in an automatic stay on the state-court case filed by ECP. See 11 U.S.C. § 362(a) (placing a stay on most judicial actions involving the debtor when a bankruptcy petition is filed). In February 2015, ECP filed a motion to prohibit Town Center from using rents collected after the petition was filed. Town Center opposed the motion and pointed out to the bankruptcy court that the company would have no income to work with in its Chapter 11 reorganization plan if the rents were not part of the bankruptcy estate. The bankruptcy court agreed with Town Center and denied ECP’s motion. The bankruptcy court determined that the assigned rents would qualify as cash collateral in the bankruptcy estate, meaning, under Chapter 11, that Town Center must provide “adequate protection” to ECP before using the cash. In re Buttermilk Towne Ctr., LLC, 442 B.R. 558, 565 (B.A.P. 6th Cir. 2010).

ECP appealed to the district court and argued that Michigan law established a transfer of ownership in the assigned rents from Town Center to ECP. The district court agreed with ECP and vacated the bankruptcy court’s decision. Town Center appealed to this court. ECP moved to dismiss the appeal for lack of jurisdiction, arguing that the decisions of the lower courts were not final because the bankruptcy case is still open. A motions panel of this court decided that additional proceedings in the bankruptcy court would be purely ministerial and that we have jurisdiction over an appeal from a final order. We therefore reach the merits to decide whether the assigned rents are property of ECP or are part of Town Center’s bankruptcy estate.

II. ANALYSIS

A. Standard of Review and Applicable Law

This court has jurisdiction under 28 U.S.C. § 158(d)(1) over appeals of final orders from district courts that have reviewed bankruptcy court decisions. We review the decision of the bankruptcy court “rather than the intermediate decision of the district court.” Lowenbraun v. Canary (In re Lowenbraun), 453 F.3d 314, 319 (6th Cir. 2006). Findings of fact are reviewed for clear error and conclusions of law are reviewed de novo. Id.

Property rights are determined under the law of the state in which the real property is located, which in this case is Michigan. Using state law to define rights promotes the “[u]niform treatment of property interests by both state and federal courts,” which serves to “reduce uncertainty, to discourage forum shopping, and to prevent a party from receiving ‘a windfall merely by reason of the happenstance of bankruptcy.’ ” Butner v. United States, 440 U.S. 48, 55, 99 S.Ct. 914, 59 L.Ed.2d 136 (1979) (quoting Lewis v. Mfrs. Nat’l Bank of Detroit, 364 U.S. 603, 609, 81 S.Ct. 347, 5 L.Ed.2d 323 (1961)). When the highest court of a state has not spoken directly on an issue, this court must make an Erie guess as to how that court would resolve it and may look to decisions of intermediate state appellate courts as persuasive authority. Conlin v. Mortg. Elec. Registration Sys., Inc., 714 F.3d 355, 358-59 (6th Cir. 2013); see also Erie R.R. Co. v. Tompkins, 304 U.S. 64, 78, 58 S.Ct. 817, 82 L.Ed. 1188 (1938). Once property rights have been determined under state law, “federal bankruptcy law dictates to what extent that interest is property of the estate.” Bavely v. United States (In re Terwillinger’s Catering Plus, Inc.), 911 F.2d 1168, 1172 (6th Cir. 1990) (quoting N.S. Garrott & Sons v. Union Planters Nat’l Bank of Memphis (In re N.S. Garrott & Sons), 772 F.2d 462, 466 (8th Cir. 1985)).

We begin by analyzing the extent of property rights held by the assignor and assignee of rents under Michigan law. We then answer the ultimate question — whether the rights retained by the assignor are sufficient for those rents to be included in the bankruptcy estate.

B. Assignment of Rents in Michigan

As with many issues of property rights, the history of the legal doctrine sheds light on the traditional legal rule, which serves to illuminate more recent developments. The traditional rule in Michigan, created by statute in 1843, was that an assignment of rents was unenforceable because it would interfere with a mortgagor’s right of redemption. Smith v. Mut. Ben. Life Ins. Co., 362 Mich. 114, 106 N.W.2d 515, 518 (1960). The default rule in Michigan is therefore that an assignment of rents is unenforceable. Id. A 1925 statute subsequently created a right to assign rents for properties subject to trust mortgages. Id. at 518-19. The Michigan Supreme Court determined that the statute made the “[collection of rents ... not merely an incident to the right of possession of the land, but ... a distinct remedy and additional security.” Security Trust Co. v. Sloman, 252 Mich. 266, 233 N.W. 216, 219 (1930). Central to this case, a 1953 statute titled “Assignment of Rents to Accrue from Leases as Additional Mortgage Security” extended the ability to assign rents to additional categories of property:

Hereafter, in or in connection with any mortgage on commercial or industrial property ... it shall be lawful to assign the rents, or any portion thereof, under any oral or written leases upon the mortgaged property to the mortgagee, as security in addition to the property described in such mortgage. Such assignment of rents shall be binding upon such assignor only in the event of default in the terms and conditions of said mortgage, and shall operate against and be binding upon the occupiers of the premises from the date of filing by the mortgagee in the office of the register of deeds for the county in which the property is located of a notice of default in the terms and conditions of the mortgage and service of a copy of such notice upon the occupiers of the mortgaged premises.

Mich. Comp. Laws § 554.231.

The Michigan statute also contains a provision about the validity of the assignment:

The assignment of rents, when so made, shall be a good and valid assignment of the rents to accrue under any lease or leases in existence or coming into existence during the period the mortgage is in effect, against the mortgagor or mortgagors or those claiming under or through them from the date of the recording of such mortgage, and shall be binding upon the tenant under the lease or leases upon service of a copy of the instrument under which the assignment is made, together with notice of default as required by [the above section].

Id. § 554.232.

1. Assignment of Rents

Michigan courts generally discuss assignments of rents under § 554.231 as ownership transfers. The Michigan Supreme Court held that this statute puts the assignee “in the shoes of the mortgagor until the debt is paid, with all his rights to the rents and profits as long as he, under the general law of mortgages, could enjoy them.” Smith, 106 N.W.2d at 520 (quoting Sloman, 233 N.W. at 220). In 1994, the Michigan Court of Appeals held that a prior-perfected interest in assigned rents had priority over an interest held by a judgment creditor who sought to garnish rents. Otis Elevator Co. v. Mid-America Realty Investors, 206 Mich.App. 710, 522 N.W.2d 732, 733 (1994). The judgment creditor “could not garnish rents because [the assignor] no longer had an interest in the rents.” Id. Once an assignee has: 1) entered into an agreement to assign rents; 2) recorded that agreement; and 3) default has occurred, then the assignee’s rights “are perfected and binding against the assignor” and the assignor “no longer ha[s] a valid property interest in the rents.” Id. at 734. The assignor has the legal right to collect the rents directly from tenants once notice of the default has been filed in the county’s register and served on the tenants. Mich. Comp. Laws §§ 554.231, 554.232. Michigan courts have generally treated the assignment of rents as a transfer of ownership once the agreement has been completed and recorded and a default has occurred. See Otis Elevator, 522 N.W.2d at 733 (stating “once [the assignee] recorded the mortgage and the mortgagor’s default, the assignment of rents was valid and enforceable as between the mortgagor ... and the mortgagee”)- Otis Elevator implies that this should be regarded as a transfer of all rights in the rents. 522 N.W.2d at 738 (finding that the assignor “no longer had an interest in the rents”). A more recent decision of the Michigan Court of Appeals confirmed that the assignor loses “any right to collect the rents” after the assignee has perfected its rights following an event of default. Ashley Livonia A&P, L.L.C. v. Great Atl. & Pac. Tea Co., Inc., No. 319288, 2015 WL 3757546, at *5 (Mich. Ct. App. June 16, 2015) (per curiam). We therefore,predict, under Erie v. Tompkins, that the Michigan Supreme Court would treat a completed assignment of rents as a transfer of ownership.

Town Center argues that the title and language of the Michigan statute make it clear that only a security interest, not an ownership interest, is assigned under this law. (Appellant Br., App. R. 11, p. 28-29) Section 554.231 is titled “Assignment of Rents to Accrue as Additional Mortgage Security” and the body of the statute says “it shall be lawful to assign the rents ... as security in addition to the property described in [the] mortgage.” Town Center would have us read the statute as expressing the Michigan legislature’s intention to allow only transfers of security interests, and .not ownership, based on its language authorizing assignments “as security in addition to the property.” Mich. Comp. Laws § 554.231. Town Center reasons that the statute allows only for a security interest in the assigned rents, so any attempt to transfer ownership of the rents is blocked by the default rule that an assignment of rents is unenforceable.

Language that the assignment is “as security,” however, does not foreclose an ownership transfer. For example, a deed of trust transfers a deed — which is commonly thought of as an ownership transfer — to a trustee to hold as security for obligations associated with a mortgage on the property. See Sloman, 233 N.W. at 218-19 (discussing respective rights of the mortgagor, trustee, and purchaser). And Michigan courts have consistently read § 554.231 as allowing for assignments of rents to be transfers of ownership once the statutory steps for perfection have been completed. We follow their lead in interpreting the language of § 554.231 as allowing for ownership interests to be transferred with an assignment of rents.

In the agreement at issue in this case, Town Center used broad language to “irrevocably, absolutely and unconditionally” transfer its right in a “present, absolute and executed assignment of the Rents and of the Leases” from the Town Center property. The only fair reading of this language is that Town Center assigned the rents to the maximum extent permitted by Michigan law. Because we hold that Mich. Comp. Laws § 554.231 allows for an ownership transfer in these circumstances, we find that Town Center did transfer ownership in the assigned rents to ECP before the bankruptcy petition was filed in this case. The broad language of the agreement evidences an intention to transfer ownership.

2. Residual Rights of Assignor

Even with a transfer of ownership under § 554.231, Town Center argues that it retains some rights in the rents under Michigan law. If an assignor cures the default according to the agreement’s terms, then the assignor is able to start collecting rents again. See Sloman, 233 N.W. at 220 (noting, under the analogous 1925 statute, that “the purpose of the act is to put the [assignee] in the shoes of the [assignor] until the debt is paid.” (emphasis added)). Town Center reasons that if the rents from the property are thought of as a stream of money, Town Center continues to hold a contingent future interest in collecting those rents. The future interest is realized if and when Town Center cures the default. On the other hand, if the rents are thought of as payments that occur during the discrete time period between the event of default and a (potential) future cure, then ECP has the sole interest in those payments and Town Center has no interest in them. This holds true even if Town Center later cures the default. We find the latter conceptualization of a discrete period to be more aligned with the text of the statute. See Mich. Comp. Laws § 554.232 (creating right to assign “rents to accrue ... during the period the mortgage is in effect”).

Town Center also points to a second residual right: Michigan courts have created restrictions on how the assignee can use rents collected under the law. In Smith, the court filled in the “obviously intended requirement that rents collected by the [assignee] shall be applied on the mortgage debt.” 106 N.W.2d at 519 (quoting Sloman, 233 N.W. at 218). The court approved use of the collected rents to pay the debt, property taxes, and insurance policy premiums. Id. at 517-18. Neither the Michigan Supreme Court nor the Michigan Court of Appeals has concluded that these restrictions on the assignee’s use of rent money create a property right vested in the assignor. We decline to create a new rule of Michigan property law on this issue, especially because such a rule would conflict with language used by Michigan appellate courts. See Otis Elevator, 522 N.W.2d at 733 (concluding that the assignor “no longer had an interest in the rents”).

In summary, Michigan law treats a completed assignment of rents as a change of ownership and the assignor of those rents does not retain residual property rights in the assigned rents.

C. Scope of Bankruptcy Estates under the Federal Bankruptcy Code

Federal law determines the scope of the bankruptcy estate, which is broad. Demczyk v. Mut. Life Ins. Co. of New York (In re Graham Square, Inc.), 126 F.3d 823, 831 (6th Cir. 1997). The Supreme Court has explained that “[b]oth the congressional goal of encouraging reorganizations and Congress’ choice of methods to protect secured creditors suggest that Congress intended a broad range of property to be included in the estate.” United States v. Whiting Pools, Inc., 462 U.S. 198, 204, 103 S.Ct. 2309, 76 L.Ed.2d 515 (1983). In Whiting Pools, personal property that had been seized by the Internal Revenue Service under a tax lien was determined to be part of the bankruptcy estate. Id. at 211, 103 S.Ct. 2309. The Court found that the IRS had a secured interest in the property, but that the debtor still retained an ownership interest until sale to a bona fide purchaser at a tax sale. Id. A broad definition of the bankruptcy estate was in line with the congressional intent to allow Chapter 11 reorganization so “the business would continue to provide jobs, to satisfy creditors’ claims, and to produce a return for its owners.” Id. at 203, 103 S.Ct. 2309 (quoting H.R. Rep. No. 95-595, p. 220 (1977)).

Despite the broad scope of Chapter 11 bankruptcy estates, the assigned rents in this case are not properly included in the Town Center estate. As discussed above, Town Center does not retain ownership of the rents and does not hold residual property rights in those rents. Instead, the rents belong to ECP. Our holding is in line with the majority of bankruptcy court decisions that have addressed this issue. In 1992, a bankruptcy court in the Western District of Michigan held that assigned rents under Mich. Comp. Laws § 554.231 were not part of the bankruptcy estate because the debtor maintained only an inchoate right to future rents. In re Mount Pleasant Ltd. P’ship, 144 B.R. 727, 738 (Bankr. W.D. Mich. 1992). A recent decision from the Eastern District of Michigan agreed that assigned rents are property of the assignee, not part of the bankruptcy estate. In re Madison Heights Grp., LLC, 506 B.R. 734, 744 (Bankr. E.D. Mich. 2014). A bankruptcy court in the Southern District of New York, interpreting § 554.231, reached a similar conclusion, finding the language in Otis Elevator to be especially persuasive. In re Woodmere Inv’rs Ltd. P’ship, 178 B.R. 346, 359-60 (Bankr. S.D.N.Y. 1995).

The bankruptcy court in this case relied on its own previous opinion that came to the opposite conclusion. In re Town Center Flats, LLC, 531 B.R. 176, 179 (Bankr. E.D. Mich. 2015) (citing In re Newberry Square, Inc., 175 B.R. 910 (Bankr. E.D. Mich. 1994)). These two decisions were motivated by a policy concern that excluding the assigned rents from the estate would effectively foreclose Chapter. 11 relief for companies like Town Center that own a single property and receive their sole stream of revenue from rents of that property. Toim Center, 531 B.R. at 181-82. We recognize the concern of Town Center — and the bankruptcy court — that single-asset real estate entities may have limited options under Chapter 11 in this situation. Michigan law, however, is clear on the matter and governs despite other policy concerns.

III. CONCLUSION

Mich. Comp. Laws § 554.231 allows for transfers of ownership when an agreement to assign rents indicates an intention to do that, has been recorded, and default has occurred. Because Town Center does not have rights under Michigan law in the perfected assignment of rents here, those rents are not included in the bankruptcy estate. Accordingly, we reverse the order of the bankruptcy court.

      . The statute includes two additional steps regarding service of the notice of default and filing that notice, Mich. Comp. Laws §§ 554.231, 554.232, that are not at issue here because all five statutory steps were completed before the bankruptcy petition was filed.

      . Under Michigan law, ”[a]n act’s title is not itself authority of any sort, but it is properly considered to assist in determining the act’s purpose and scope.” Cheboygan Sportsman Club v. Cheboygan Cty. Prosecuting Attorney, 307 Mich.App. 71, 858 N.W.2d 751, 756 (2014).


author: POSNER, Circuit Judge.

text:
    Stephen SUSINKA, Applicant, v. UNITED STATES of America, Respondent.
    No. 17-1110
    United States Court of Appeals, Seventh Circuit.
    Submitted January 17, 2017
    Decided February 9, 2017
    Stephen Susinka, Pro Se.

      Debra Riggs Bonamici, Attorney, Office of the United States Attorney, Chicago, IL, for Respondent.
    Before WOOD, Chief Judge, and POSNER and EASTERBROOK, Circuit Judges.
   POSNER, Circuit Judge.

Stephen Susinka has filed his third application for permission to file a successive motion under 28 U.S.C. § 2255 to vacate his 20-year sentence for participating in a RICO conspiracy. He wants to challenge his sentence on the authority of Hurst v. Florida, — U.S. —, 136 S.Ct. 616, 193 L.Ed.2d 504 (2016), which held that Florida’s sentencing procedure for capital cases, whereby the jury delivers an advisory verdict but the judge decides whether to impose a death sentence, violated a defendant’s Sixth Amendment right to a jury trial. Id. at 620-21. Of course the present case is not a capital case; and anyway Hurst was decided in January 2016— months before Susinka filed either of his previous applications, and 28 U.S.C. § 2255(h)(2) permits a successive motion to vacate a sentence on the basis of a new rule of constitutional law only if the new rule was previously unavailable to the movant, which it was not in this case.

Nor can Susinka prevail by basing his motion on newly discovered evidence, even though 28 U.S.C. § 2255(a) provides that “a prisoner in custody under sentence of a court established by Act of Congress claiming the right to be released upon the ground that the sentence was imposed in violation of the Constitution or laws of the United States, or that the court was without jurisdiction to impose such sentence, or that the sentence was in excess of the maximum authorized by law, or is otherwise subject to collateral attack, may move the court which imposed the sentence to vacate, set aside or correct the sentence.” For if the motion is rejected and the prisoner later files a new motion, even one based on a valid ground, that motion must be “certified ... by a panel of the appropriate court of appeals to contain ... newly discovered evidence that, if proven and viewed in light of the evidence as a whole, would be sufficient to establish by clear and convincing evidence that no reasonable factfinder would have found the movant guilty of the offense.” 28 U.S.C. § 2255(h)(1) (emphasis added).

That is a very harsh rule for a prisoner who, like Susinka, is not challenging his guilt of the offense — in effect he is acknowledging his guilt — but only the severity of the sentence. For by virtue of the rule just quoted he could get nowhere even with new facts that proved conclusively that his sentence was indeed too long— could get nowhere for having failed to challenge an irrelevancy: his conviction, irrelevant because he is not challenging it, but only his sentence. As explained in Hope v. United States, 108 F.3d 119, 120 (7th Cir. 1997), “a successive motion under 28 U.S.C. § 2255 ... may not be filed on the basis of newly discovered evidence unless the motion challenges the conviction and not merely the sentence.” That is an unavoidably correct reading of 28 U.S.C. § 2255(h)(1), whether we like it or not.

We therefore have no alternative to dismissing Susinka’s application.


author: ROVNER, Circuit Judge.

text:
    Timothy OZINGA, et al., Plaintiffs-Appellants, v. Thomas E. PRICE, Secretary of Health and Human Services, et al., Defendants-Appellees.
    No. 15-3648
    United States Court of Appeals, Seventh Circuit.
    Argued November 1, 2016
    Decided April 28, 2017
    Kevin Edward White, Attorney, KEVIN EDWARD WHITE & ASSOCIATES, Chicago, IL, for Plaintiffs-Appellants.
    Benjamin L. Berwick, Attorney, DEPARTMENT OF JUSTICE, Civil Division, Federal Programs Branch, Patrick Nemeroff, Alisa B. Klein, Attorneys, DEPARTMENT OF JUSTICE, Civil Division, Appellate Staff, for Defendants-Ap-pellees.
    Before EASTERBROOK, ROVNER, and SYKES, Circuit Judges.
   ROVNER, Circuit Judge.

Ozinga Brothers, Inc. (“Ozinga Brothers”) is a family-owned firm supplying ready-mix concrete products and services to builders primarily in the Chicago metropolitan area. The company, along with its owners and senior managers (collectively, “Ozinga”) filed this suit in 2013, challenging the so-called contraception mandate emanating from the Patient Protection and Affordable Care Act of 2010 (the “Affordable Care Act”), 124 Stat. 119 (Mar. 23, 2010). The mandate is embodied in federal regulations implementing a requirement of the Affordable Care Act that non-exempt and non-grandfathered group health plans provide specified preventative-health services to plan participants without cost-sharing; among those services are contraceptives approved by the Food and Drug Administration. See 42 U.S.C. § 300gg-13(a)(4); 45 C.F.R. § 147.130(a)(l)(iv); 29 C.F.R. § 2590.715-2713(a)(1)(iv); 26 C.F.R. § 54.9815-2713(a)(1)(iv); http://hrsa.gov/ womensguidelines2016/index.html (women’s preventative service guidelines) (visited April 26, 2017). Employers who refuse to provide such services are subject to substantial fines. See 26 U.S.C. § 4980H. Ozinga regards certain of the contraceptives covered by the mandate as potential abortifacients, the use of which is proscribed by the firm owners’ and managers’ religious tenets. Invoking the Religious Freedom Restoration Act (“RFRA”), 42 U.S.C. § 2000bb, et seq., among other statutory and constitutional provisions, Ozinga sought declaratory and injunctive relief barring the enforcement of the mandate.

By the time Ozinga filed suit in 2013, the government had established an accommodation for certain religious employers that provided for alternate means of ensuring employee access to the contraceptive services specified by the mandate without payment or direct involvement by an objecting employer. 76 Fed. Reg. 46,621, at 46,623 (Aug. 3, 2011); 77 Fed. Reg. 8725 (Feb. 15, 2012); see also 78 Fed. Reg. 39,870, at 39,873-882 (July 2, 2013) (simplifying and clarifying criteria identifying employers eligible for exemption); 45 C.F.R. § 147.131(a) & b(2)(i). However, the accommodation was not then available to any for-profit employers like Ozinga Brothers. Ozinga’s complaint highlighted the discrepancy. See R. 1 ¶¶ 105-08, 112-16, 170-76, 206, 227-28, 245. At the same time, the complaint made no allegation suggesting that an extension of the accommodation to for-profit firms would be insufficient to resolve Ozinga’s religious objections to the mandate.

Ozinga’s suit was part of an initial wave of lawsuits challenging the application of the contraception mandate to for-profit firms. In the first such cases to reach this court, we held that the objecting closely-held firms were entitled to preliminary injunctions barring enforcement of the mandate. We concluded that the firms were likely to prevail on their claims under the RFRA that the mandate substantially burdened the religious rights of both the firms and their owners, see § 2000bb-l(a), and that the government was unlikely to show that it had employed the least restrictive means of furthering its asserted interest in increasing access to contraceptives, see § 2000bb-1(b). Korte v. Sebelius, 528 Fed.Appx. 583 (7th Cir. 2012) (non-precedential decision) (“Korte I”) (granting interim relief pending appeal); Grote v. Sebelius, 708 F.3d 850 (7th Cir. 2013) (same); Korte v. Sebelius, 735 F.3d 654 (7th Cir. 2013) (“Korte II”) (holding plaintiff companies were entitled to preliminary injunctive relief).

Without opposition from the government, and in light of our decisions in Korte I and Grote, the district court granted Ozinga’s motion for a preliminary injunction barring enforcement of the mandate against Ozinga Brothers; it also stayed further proceedings pending our resolution of the merits of the Korte and Grote appeals.

This first wave of litigation culminated in the Supreme Court’s decision in Burwell v. Hobby Lobby Stores, Inc., — U.S. -, 134 S.Ct. 2751, 189 L.Ed.2d 675 (2014). Hobby Lobby concluded that the contraception mandate, as applied to closely-held private firms whose owners objected on religious grounds to one or more types of contraceptives covered by the mandate, substantially burdened the exercise of religion by those owners — and by extension, their companies — in view of the fines to which the firms were subject if they did not comply with the mandate. Id. at 2768-79. The Court reasoned that the mandate was not the least restrictive means of furthering the government’s interest in making contraceptives widely available, given that the government could (among other alternatives), extend the existing accommodation for religiously-affiliated, not-for-profit employers to closely-held for-profit employers. Id. at 2782-83. The Court left open the question whether that accommodation in its particulars “complies with RFRA for purposes of all religious claims.” Id. at 2782; see also id. at 2763 n.9.

In the wake of the Hobby Lobby decision, the government in July 2015 extended the accommodation to closely held for-profit employers who object to the mandate on religious grounds. 80 Fed. Reg. 41,318, at 41,322-328 (July 14, 2015); see 45 C.F.R. § 147.131(b)(2)(h).

In the meantime, a second wave of litigation challenging the contraception mandate had commenced in federal courts around the country. This round of litigation was instigated by various not-for-profit, religiously-affiliated employers to whom the accommodation had been available from the start. These employers contested the adequacy of the accommodation, which imposés certain procedural requirements on an objecting employer, to protect their religious interests. This court rejected the challenges brought by these not-for-profit employers in multiple decisions. See Univ. of Notre Dame v. Burwell, 786 F.3d 606 (7th Cir. 2015), cert. granted, j. vacated, & remanded, — U.S. -, 136 S.Ct. 2007, 195 L.Ed.2d 210 (2016); Wheaton Coll. v. Burwell, 791 F.3d 792 (7th Cir. 2015); Grace Schools v. Burwell, 801 F.3d 788 (7th Cir. 2015), cert. granted, j. vacated, & remanded, — U.S. -, 136 S.Ct. 2010, 2011, 195 L.Ed.2d 211 (2016). Ultimately, when the Supreme Court took up this line of challenges in Zubik v. Burwell, — U.S. -, 136 S.Ct. 1557, 194 L.Ed.2d 696 (2016) (per curiam), the Court declined to reach the merits of the issues presented. Instead, the Court remanded these cases to the lower courts in order to afford the parties an opportunity to see if the accommodation could be modified in such a way as to address the religious concerns of the objecting employers while continuing to meet the government’s interest in making contraceptive services available to employees. The government solicited public comments on possible modifications, 81 Fed. Reg. 47,741 (July 22, 2016); the period for such comments has closed, and potential revisions to the accommodation are under advisement.

This second wave of litigation challenging the sufficiency of the accommodation was in full swing in September 2015 when the parties in this case came before the district court with competing proposals as to what form of permanent injunctive relief they viewed as appropriate in view of the Supreme Court’s decision in Hobby Lobby. Notwithstanding the fact that the regulatory accommodation had by this time been expanded to include closely held for-profit employers, Ozinga believed it was entitled to a broad injunction precluding enforcement of any regulation promulgated in furtherance of the mandate, including the newly-revised accommodation. The government, by contrast, asked the court to enter an injunction limited to the original version of the contraception mandate, which of course had made no accommodation available to for-profit employers. The court decided to adopt the government’s proposal (R. 53) and entered a permanent injunction limited to the mandate as it existed prior to the Supreme Court’s decision in Hobby Lobby (R. 54). But the injunction provided that “nothing herein prevents plaintiffs from filing a new civil action to challenge the accommodations or any other post-Hobby Lobby changes in statute or regulation.” R. 54 at 2-3.

Ozinga contends on appeal that the district court abused its discretion and otherwise erred in entering the more limited injunction proposed by the government rather than the injunction that Ozinga itself proposed. Ozinga reasons that the injunction as entered provides no lasting relief to the plaintiffs because it is limited to a state of affairs pre-dating Hobby Lobby — one that no longer exists. Ozinga makes other objections to the injunction, but we need not reach the merits of these challenges. We agree with Ozinga that it was error for the court to enter an injunction directed to a version of the regulatory framework that has been superseded — although not on the grounds that Ozinga has advanced. In fact, for the reasons that follow, we conclude that it was error for the court to enter any injunctive relief at all once the regulatory accommodation was revised to include for-profit employers like Ozinga Brothers. At that point, the case was moot.

Ozinga’s suit was focused exclusively on the mandate as it was originally adopted, with no accommodation addressed to closely held for-profit employers like Ozinga Brothers that object to the mandate on religious grounds. Ozinga’s complaint was that the accommodation was limited to not-for-profit employers and that for-profit employers, like Ozinga Brothers, were categorically excluded from the accommodation. Nothing in the complaint presented any question as to the adequacy of the accommodation itself, nor at any time during the pendency of the suit did the plaintiffs seek to amend their complaint to challenge the particulars of the accommodation (beyond who could invoke it), notwithstanding the second wave of litigation by other employers presenting such challenges. See R. 53 at 3 (district court’s order adopting government’s proposed injunction) (“Whether the post-Hobby Lobby regulations are valid is beyond the scope of Plaintiffs’ current complaint, and they have not sought to amend it.”).

Our jurisdiction as a federal court is limited by Article III to live cases and controversies, U.S. Const. art. III, § 2, and “an actual controversy must exist not only at the time the complaint is filed, but through all stages of the litigation.” Kingdomware Technologies, Inc. v. United States, — U.S. -, 136 S.Ct. 1969, 1975, 195 L.Ed.2d 334 (2016) (quoting Already, LLC v. Nike, Inc., 568 U.S. 85, 133 S.Ct. 721, 726, 184 L.Ed.2d 553 (2013)); see also Campbell-Ewald Co. v. Gomez, — U.S. -, 136 S.Ct. 663, 669, 193 L.Ed.2d 571 (2016). Wfiien a plaintiffs complaint is focused on a particular statute, regulation, or rule and seeks only prospective relief, the case becomes moot when the government repeals, revises, or replaces the challenged law and thereby removes the eom-plained-of defect. See, e.g., Lewis v. Cont’l Bank Corp., 494 U.S. 472, 474, 478, 110 S.Ct. 1249, 1252, 1254, 108 L.Ed.2d 400 (1990) (amendments to statute); Princeton Univ. v. Schmid, 455 U.S. 100, 103, 102 S.Ct. 867, 869, 70 L.Ed.2d 855 (1982) (per curiam) (amendment of regulations). At that point, there is no longer -an ongoing controversy: the source of the plaintiffs prospective injury has been removed, and there is no “effectual relief whatever” that the court can order. Church of Scientology of Cal. v. United States, 506 U.S. 9, 12, 113 S.Ct. 447, 449, 121 L.Ed.2d 313 (1992) (quoting Mills v. Green, 159 U.S. 651, 653, 16 S.Ct. 132, 133, 40 L.Ed. 293 (1895)); see, e.g., Fed’n of Adver. Indus. Representatives, Inc. v. City of Chicago, 326 F.3d 924, 930 (7th Cir. 2003) (repeal of challenged statute) (collecting cases); City of Milwaukee v. Block, 823 F.2d 1158, 1163-64 (7th Cir. 1987) (repeal of regulations that plaintiff alleged defendants were ignoring). Only when there is a substantial likelihood that the offending policy will be reinstated if the suit is terminated will a court recognize that the controversy remains live. See City of Mesquite v. Aladdin’s Castle, Inc., 455 U.S. 283, 289 & n.11, 102 S.Ct. 1070, 1074-75 & n.11, 71 L.Ed.2d 152 (1982) (case not moot despite repeal of challenged statute where city had announced its intent to reenact the statute if district court’s judgment were vacated). Otherwise, we presume that government officials have acted in good faith in repealing the challenged law or policy. See, e.g., Fed’n of Adver. Indus. Representatives, 326 F.3d at 929.

In this case, the revision of the regulatory framework in July 2015 rendered moot Ozinga’s challenge to the contraception mandate. As we have said, that challenge was focused solely on the exclusion of for-profit companies from the regulatory accommodation for employers with religious objections to the mandate. Ozinga had enjoyed the benefit of preliminary injunctive relief during the litigation, so it had suffered no injury as a result of the mandate; what it sought was prospective relief. Once the government, in response to the Hobby Lobby decision, re-wrote the regulations to permit closely held for-profit firms to invoke the accommodation (and there was no dispute that Ozinga Brothers had become eligible for and entitled to invoke the revised accommodation), the mandate no longer posed a prospective harm to the company, and there was no longer any action for the court to take on Ozinga’s behalf. Any injunction directed to the prior regulations foreclosing the accommodation to Ozinga Brothers (which is the very sort of injunction that the district court entered here) necessarily would be meaningless, as those regulations no longer exist. See N.E. Fla. Chapter of Assoc’d Gen. Contractors of Am. v. City of Jacksonville, Fla., 508 U.S. 656, 670, 118 S.Ct. 2297, 2305, 124 L.Ed.2d 586 (1993) (O’Connor, J., dissenting) (collecting cases). True, regulations are transitory, see Chicago Observer, Inc. v. City of Chicago, 929 F.2d 325, 328 (7th Cir. 1991), and in light of the second-wave challenges to the sufficiency of the accommodation and Zubik’s directive to see if those challenges can be accommodated, further revisions to the regulatory framework may be in the offing. But we have no reason to think that any such revisions might result in the renewed exclusion of corporations like Ozinga Brothers from the accommodation, given the Supreme Court’s holding in Hobby Lobby that such corporations otherwise have a valid First Amendment objection to the mandate. In short, “the issue of the validity of the old regulation[s] is moot, [and] this case has ‘lost its character as a present, live controversy of the kind that must exist if we are to avoid advisory opinions on abstract questions of law.’ ” Princeton Univ., 455 U.S. at 103, 102 S.Ct. at 869 (quoting Hall v. Beals, 396 U.S. 45, 48, 90 S.Ct. 200, 201-02, 24 L.Ed.2d 214 (1969) (per curiam)).

The parties’ shared belief that there remains a live controversy — because the plaintiffs have asked for a broad injunction permanently barring any enforcement of the mandate against Ozinga Brothers— mistakenly presumes that Ozinga has made a case that might plausibly support such relief. But as we have said, Ozinga’s complaint focused on its exclusion from the accommodation made available to not-for-profit entities, and at no time in the litigation has Ozinga alleged that the accommodation itself is inadequate to address its religious concerns. Its briefing on the subject of mootness merely hints at the possibility that the accommodation may be insufficient (by referencing the Zubik line of challenges), without bothering to explain why the accommodation as presently constructed may pose a problem for Ozinga Brothers or its principals. If, indeed, Ozin-ga continues to face the threat of injury notwithstanding the fact that closely held for-profit firms may now invoke the accommodation, it has made no such showing in any form. See Steel Co. v. Citizens for a Better Environment, 523 U.S. 83, 108-09, 118 S.Ct. 1003, 1019-20, 140 L.Ed.2d 210 (1998). It could have sought leave to amend its complaint to pursue such allegations and did not; it is free to file a new suit if it believes the existing accommodation is flawed in some way.

To be sure, the revised regulations do not alter Ozinga’s status as a prevailing party in this case. The change occurred after Ozinga sought and obtained preliminary injunctive relief and after Hobby Lobby validated the legal theory that Ozinga and other employers had pursued in this and similar suits. See Cerajeski v. Zoeller, 794 F.3d 828, 880-31 (7th Cir. 2015). Consequently, nothing prevents the district court from entering an appropriate award of fees to Ozinga pursuant to 42 U.S.C. § 1988(b).

We therefore VACATE the judgment and REMAND with directions to dismiss the case as moot. The district court retains the authority to entertain Ozinga’s request for an award of costs and attorney’s fees. The parties shall bear their own costs of appeal.

      . Earlier this year, in the waning days of President Obama’s administration, the government indicated that no further revisions to the regulatory accommodation would be made at that time. See FAQs About Affordable Care Act Implementation Part 36, at 4, 5 (January 9, 2017), https://www.cms.gov/_CCIIO/ Resources/Fact-Sheets-and-FAQs/Downloads/ ACA-FAQs-Par36_l -9-17-Final.pdf (visited April 26, 2017). However, when President Trump assumed office, he immediately issued an executive order directing the Secretary of Health and Human Services and the heads of all other executive departments and agencies with authorities and responsibilities under the Patient Protection and Affordable Care Act to "exercise all authority and discretion available to them to waive, defer, grant exemptions from, or delay the implementation of any provision or requirement of the Act that would impose ... a cost, fee, tax, penalty, or regulatory burden on ... health insurers, ... [or] purchasers of health insurance....” Exec. Order No. 13,765 of Jan. 20, 2017, Minimizing the Economic Burden of the Patient Protection and Affordable Care Act Pending Repeal § 2, 82 Fed. Reg. 8351 (publ. Jan. 24, 2017). Post-Zubik status updates submitted to this court in cases challenging the sufficiency of the accommodation indicate that the parties have not yet ruled out the possibility of a mutually-agreeable settlement of those disputes. See, e.g., Grace Schools, et al. v. Price, et al., Nos. 14-1430 & 14-1431, Doc. 132 at 2 (Status Report of Plaintiffs-Appellees) ("On February 13, 2017, counsel for Plaintiffs-Appellees submitted a letter to the Attorney General to reinitiate discussions concerning a resolution of these cases, as was contemplated by the Supreme Court’s order in Zubik. Plaintiffs-Appellees are awaiting the Government’s response.’’); Doc. 131 (Status Report of Appellants) (“The Departments respectfully request that they be permitted to file another status report in 60 days on May 15, 2017, to allow incoming leadership personnel adequate time to consider the issues.”). We take it then, that further revision of the accommodation remains a possibility.

      . Following oral argument, we asked the parties to submit supplemental briefs as to whether this case became moot after the accommodation was revised in July 2015.


author: FLAUM, Circuit Judge.

text:
    Hernel SILAIS, Petitioner, v. Jefferson B. SESSIONS III, Attorney General of the United States, Respondent.
    No. 15-3277
    United States Court of Appeals, Seventh Circuit.
    Argued April 11, 2017
    Decided April 28, 2017
    Rehearing and Rehearing En Banc Denied June 27, 2017

      Geoffrey Heeren, Attorney, VALPARAISO UNIVERSITY LAW CLINIC, Valparaiso, IN, for Petitioner.
    Janette L. Allen, OIL, Attorneys, DEPARTMENT OF JUSTICE, Civil Division, Immigration Litigation, for Respondent.
    Before WOOD, Chief Judge, and FLAUM and EASTERBROOK, Circuit Judges.
   FLAUM, Circuit Judge.

Hernel Silais, a Haitian citizen and opposition political party member, petitioned the United States for asylum, withholding of removal, and relief under the Convention Against Torture (“CAT”). The Immigration Judge, and later the Board of Immigration Appeals (collectively, the “Agency”), denied his petition. We do the same.

I. Background

On February 5, 2011, Silais arrived in the United States without an immigrant visa or other valid entry document. The Department of Homeland Security (“DHS”) charged Silais with inadmissibility under 8 U.S.C. § 1182(a)(7)(A)(i). In response, Silais conceded his inadmissibility, based on his lack of valid documents, but requested asylum, withholding of removal, and protection under CAT.

A. Removal Hearing

On April 30, 2013, an Immigration Judge (“IJ”) conducted Silais’s removal hearing. Silais testified and submitted documentary evidence. The IJ then continued the removal hearing to May 15, when Silais’s country-conditions expert, Brian Concan-non, was available to testify. Concannon is a human-rights attorney and the director, of the Institute for Justice and Democracy in Haiti, a non-profit organization based in Boston.

1. Silais’s Testimony

Silais testified to the following alleged facts: He was born in Aux Cayes, Haiti. In 2003, he joined a Haitian political party known as the Óganizasyon Pep Kap Lité (the “OPL”). At that time, the OPL was one of the two largest opposition political parties in Haiti. A group known as the Chimeres, who supported then-President Jean-Bertrand Aristide, often disturbed OPL meetings that Silais had organized, beating participants, firing guns, or throwing rocks. Although the Chimeres was not a government entity, it allegedly received benefits from various officials and included police officers in their ranks. Silais identified two particular Chimeres members he claimed he repeatedly encountered between 2002 and 2010: Ronald Felix and Charles Bertrand.

During a soccer game in 2002 where Silais was distributing political information, for example, both Felix and Bertrand allegedly threw rocks at the spectators and asked Silais about the papers he was distributing. They did not injure Silais at this incident.

At a later event, however, Felix purportedly attacked Silais in his neighborhood, pushing Silais down, placing a revolver in his mouth, and threatening to kill him. When other people approached them, Felix released Silais, who ran away. Felix allegedly threw rocks at Silais as he escaped.

Silais further testified that on February 22, 2004, Felix and Bertrand went to a political meeting Silais was attending and began asking him about his political affiliation. Silais informed them that he only wanted to educate people, and the Chim-eres did not harm him. During a Mardi Gras celebration soon afterward, though, both Felix and Bertrand allegedly attacked Silais in his neighborhood. Consequently, he fled and hid at his friend James Lete’s house. Silais then testified that when the Chimeres found Silais, they hit him with their hands and a pistol and struck his leg with a machete. After Silais began to bleed, Felix and Bertrand stopped, and Silais escaped to another friend’s house. The Chimeres then went to Silais’s family’s house and allegedly beat certain family members.

Silais then stated that, in September 2004, the Chimeres attacked him while he was speaking at a political meeting and forced him to run away.

According to Silais, he left Haiti in November 2004 for the Dominican Republic, where he remained until January 2006, when he heard that Haiti’s condition had improved. Silais testified that he wanted to complete his studies in Haiti on “veterinary and agricultural techniques” that required two years of classroom work and one year of practice. He graduated from the program in January 2007.

Afterward, he worked with an organization that he had cofounded to assist Haiti’s orphaned children. Silais’s organization hosted an event for World AIDS Day on December 1, 2009, and Felix, Bertrand, and other Chimeres attended. They allegedly questioned Silais about what he was doing there, beat him, and forced him to leave the event.

Silais finally testified that during Haiti’s 2010 presidential election, Silais was a representative for the Repons Peyizan political party, supporting then-candidate Michel Martelly. While working as a “poll watcher,” Silais witnessed Felix and Bertrand attempt to commit voter fraud by stuffing ballots for Jude Celestin, their preferred candidate. When Silais tried to stop them, Felix purportedly hit and kicked him. As Silais tried to flee, Felix and Bertrand threw rocks at him. The police arrived and detained Felix, but released him after Silais de-parted without filing a report. Silais testified that he currently experiences lingering pain from this incident.

Silais never contacted the Haitian police to report any of the above alleged encounters with the Chimeres. After the election, Silais left Haiti by boat to Guatemala. Eventually, in 2011, Silais sought refuge in the United States.

2. Documentary Evidence

In addition to his testimony, Silais presented written statements and over twenty pieces of documentary evidence, including, in part, (1) documents concerning his identity, political party membership, employment, and education; (2) James Lete’s declaration; (3) Dr. Nora Rowley’s affidavit opining that Silais’s scars were consistent with his alleged abuse; (4) Brian Concan-non’s affidavit; (5) a letter of support from Lawrence Hock, a church acquaintance; and (6) media reports and articles concerning Haiti’s condition.

Silais also unsuccessfully attempted to enter other documentary evidence. During the break between April 80 and May 15, the government had submitted an unsolicited, written closing argument, highlighting that Silais’s testimony was vague, inconsistent, and uncorroborated. On May 13, two days before the hearing was scheduled to continue, Silais submitted a response to the government’s closing and moved to submit additional evidence “since DHS ha[d] called Mr. Silais’ credibility into question.” The additional evidence included: (1) Silais’s own amended affidavit; (2) a declaration from Silais’s brother-in-law addressing the chain of custody of the evidence he had collected in Haiti; (3) an affidavit from Silais’s former attorney and interpreter discussing interpretation issues that arose in drafting Silais’s original statement; and (4) a media account of a recent armed robbery of an OPL member in Haiti. The IJ denied Silais’s motion to submit the additional evidence, because DHS had only recently received the materials and Silais had failed to make the subjects of the evidence available for cross-examination.

3. Brian Concannon’s Testimony

On May 15, Silais presented his country-conditions expert, Brian Concannon. Con-cannon stated that Haiti had experienced escalating conflict between 2000 and 2004. Some groups, including a few associated with the government, had engaged in suppression of anti-government political activity through intimidation, rock throwing, and gun violence. Meanwhile, the Haitian police had struggled with issues of discipline, corruption, and inexperience, rendering the Haitian justice system ineffective in prosecuting political killings. Over time, however, the relationship between Concannon’s organization and Haitian justice officials improved, and the violence declined from previous levels. Later, however, during Haiti’s 2010 presidential elections, the country suffered from incidents of voter fraud, including ballot stuffing. Moving forward, Concannon noted, Haiti remained vulnerable to political violence, particularly during presidential elections.

B. The Immigration Judge’s Decision

On January 21, 2014, the IJ denied Si-lais’s petition for two alternative reasons: (1) he had not met his burden of proof, because (a) his testimony was vague and inconsistent, and (b) he had failed to present sufficient corroboration; and (2) he had not established eligibility for relief on the merits.

First, the IJ highlighted Silais’s “vague and inconsistent testimony and the lack of evidence to corroborate events central to his claim.” The judge then discussed a number of gaps in Silais’s memory and inconsistencies among Silais’s testimony, his written statements, and Lete’s declaration. The IJ found Silais credible despite these inconsistencies, but found the substantial lack of corroboration fatal to his claim. For example, the IJ observed that Silais “did not submit affidavits or statements from key parties in his case, such as his brother-in-law, who currently lives in the United States and who went to Haiti to retrieve documents for [Silais].” Silais had also failed to present any evidence from any family members or coworkers to corroborate his specific claims of Chimeres violence, and had not provided any medical reports related to his alleged injuries, despite reportedly seeking treatment. Further, he had not made any reasonable efforts to obtain this additional corroborative evidence, or explained why it would have been unreasonable to do so. Relatedly, Concannon’s testimony, Silais’s media articles, and Dr. Rowley’s affidavit all failed to corroborate Silais’s specific claims. In sum, the IJ concluded, Silais did “not me[e]t his burden of proof to establish eligibility for asylum, withholding of removal, or relief under CAT.”

Alternatively, the IJ concluded that Si-lais was not eligible for relief on the merits. The harms Silais alleged constituted harassment but did not rise to the level of past persecution. Further, though the Chimeres had harassed Silais, he could not show that the Haitian government was unwilling or unable to protect him if he were to return — Silais had never attempted to file a police report or otherwise prompt law enforcement officers to intervene.

C. The Board of Immigration Appeals’s Decision

The Board of Immigration Appeals (“BIA”) incorporated and affirmed the IJ’s decision in a September 29, 2015 opinion. In its supplemental comments, the BIA pointed out inconsistencies throughout Si-lais’s statements, criticized Concannon’s and Dr. Rowley’s evidence as too general, and noted the lack of testimony from Si-lais’s brother-in-law. The BIA then rejected Silais’s argument that the IJ’s exclusion of the supplemental evidence prevented him from presenting his case. The BIA noted that the parties completed Silais’s direct, cross, and redirect, and the IJ then continued the hearing only to make time for Concannon’s testimony. The BIA further explained that the supplemental evidence “did not independently satisfy his burden of proof and did not address the weaknesses that the Immigration Judge identified in [Silais’s] claim; namely, the lack of testimony and evidence from witnesses who could corroborate the events upon which [Silais’s] claim was based.” Specifically, the BIA repeatedly expressed its shared concern with the IJ: Silais had “not provide[d], or adequately explained] the absence of, reasonably available corroborating evidence regarding critical elements of his claim, such as affidavits or other evidence from coworkers or family members in Haiti.” Thus, concluded the BIA, Silais could not show that the IJ’s actions prejudiced him.

II. Discussion

“Where the Board affirms the immigration judge’s decision and adds its own analysis, as it did here, we review the immigration judge’s decision and the Board’s additional reasoning.” Santashbekov v. Lynch, 834 F.3d 836, 839 (7th Cir. 2016). The Agency is not required to “write an exegesis on every contention.” Mansour v. INS, 230 F.3d 902, 908 (7th Cir. 2000) (citation omitted). All it must do is “consider the issues raised, and announce its decision in terms sufficient to enable a reviewing court to perceive that it has heard and thought and not merely reacted.” Id.

We review the decisions to deny Silais’s requested relief “under the highly deferential version of the substantial evidence test.” Mansour, 230 F.3d at 905 (citation and internal quotation marks omitted). Under this standard of review, we must affirm the Agency’s decisions if they are “supported by reasonable, substantial, and probative evidence on the record considered as a whole, and reverse when the evidence is so compelling that no reasonable factfinder could fail to find the requisite fear of persecution.” Id. at 905 (citation and internal quotation marks omitted); see also Mema v. Gonzales, 474 F.3d 412, 416 (7th Cir. 2007) (citation omitted). “To win á reversal under this deferential standard, [the petitioner] must show not merely that the record evidence supports a conclusion contrary to that reached by the BIA but that the evidence compels that contrary conclusion.” Kholyavskiy v. Mukasey, 540 F.3d 555, 569 (7th Cir. 2008) (quoting Bradvica v. INS, 128 F.3d 1009, 1011 (7th Cir. 1997)).

On appeal, Silais challenges the Agency’s denial of his petition for asylum and withholding of removal. To qualify for asylum, Silais must show “a well-founded fear of persecution on account of race, religion, nationality, membership in a particular social group, or political opinion” upon return to Haiti. 8 U.S.C. § 1101(a)(42); see also 8 C.F.R. § 208.13(b)(1). Silais’s eligibility for withholding of removal hinges on whether his “life or freedom would be threatened” in Haiti due to his political opinion, among other things. 8 U.S.C. § 1231(b)(3)(A); 8 C.F.R. § 208.16(b). “A finding of past persecution creates a rebuttable presumption of future persecution.” Stanojkova v. Holder, 645 F.3d 943, 946 (7th Cir. 2011) (citing 8 C.F.R. §§.208.16(b)(Z)(i), 1208.16(b)(( )(i)). Bad acts by private individuals may constitute persecution only if the foreign government was complicit in those acts or was unable or unwilling to take steps to prevent them. N.L.A. v. Holder, 744 F.3d 425, 440 (7th Cir. 2014) (citing Cece v. Holder, 733 F.3d 662, 675 (7th Cir. 2013)).

Silais argues that the Agency (1) ignored or misconstrued various arguments and evidence; (2) violated his statutory and due-process right to present evidence; and (3) incorrectly concluded that the alleged violence did not amount to past persecution. We address each contention in turn.

A. Agency Handling of Arguments and Evidence

Silais makes various arguments that the Agency abused its discretion by ignoring or misconstruing certain arguments and pieces of evidence. We have explained that “completely ignoring an argument” constitutes legal error, Iglesias v. Mukasey, 540 F.3d 528, 530-31 (7th Cir. 2008), as does ignoring evidence or failing to address necessary elements of a legal analysis, Jawad v. Holder, 686 F.3d 400, 404 (7th Cir. 2012). If, however, the record reveals that the Agency did not ignore an argument or evidence {e.g., if “the IJ described [the] testimony [at issue] in detail and evaluated its relevance,” id.), there is no error. Id. In those instances, the IJ’s findings of fact are conclusive unless a “reasonable adjudicator would be compelled to conclude to the contrary.” 8 U.S.C. § 1252(b)(4)(B); see also Santashbekov, 834 F.3d at 839.

First, Silais contends that both the IJ and BIA ignored Concannon’s testimony and Dr. Rowley’s affidavit. He relatedly asserts that the BIA misconstrued his argument that the IJ had ignored this evidence — incorrectly understanding his argument to be that the IJ had erred by ascribing the evidence little weight. Neither the IJ nor the BIA, however, ignored Concannon’s testimony or Dr. Rowley’s affidavit. The IJ spent nearly two pages describing Concannon’s testimony in detail. In the end, however, the IJ concluded that “[w]hile there is no reason to doubt the credibility of Concannon’s testimony and affidavit, he does not know the respondent personally and could not attest to any specific facts of his claim.” Likewise, the IJ “considered ... [the] Affidavit and Curriculum Vitae of Dr. Nora Row-ley” and referenced “a statement from Dr. Nora Rowley about [Silais’s] claimed trauma and its likely causes.” Again, however, the IJ took issue with the evidence, highlighting that “Dr. Rowley did not testify, she was not available for cross-examination on her assertions, and she was not qualified as an expert by the court.” The BIA made the same findings. Apart from incorporating the IJ’s findings of fact, the BIA also added the following regarding Concannon: “While [Silais’s] evidence of country conditions, including [Concan-non’s] testimony, do provide some support for the plausibility of his claim, such evidence is general in nature and does not address the specific incidents he allegedly endured.” (citation omitted). Continuing to Dr. Rowley’s affidavit, the BIA concluded, “[T]he medical evidence [Silais] submitted was created years after the alleged incidents, not at the time of the events in question, and the doctor was not made available for cross-examination.” So the Agency evaluated the evidence at issue and simply found that it was insufficient to corroborate Silais’s specific claims of harm. As such, Silais’s argument that the Agency ignored or misconstrued Concan-non’s and Dr. Rowley’s evidence amounts-to nothing more than frustration with the IJ’s factual findings. Without more,.we see no reason to disturb them.

Mansour does not change this outcome. There, we held that the BIA’s reference to the petitioner and his family as “Syrian Christians” — when they were actually “Assyrian Christians” — was a potentially critical mistake: According to the evidence, Assyrians were non-Arab Christians, while Syrians were largely Muslim. 230 F.3d at 908. This mistake carried with it the potential for serious repercussions for the petitioner’s religion-based torture claim, and forced us to question whether the BIA had adequately addressed that claim; so we remanded. Id. at 909. Silais argues that the Agency’s misinterpretation of his arguments and evidence is analogous to the mistake in Mansour. We cannot, he concludes, be sure the BIA understood his claim. In Mansour, however, the BIA’s mistake was so fundamental to the petitioner’s torture claim that the Board had effectively ignored it, which is a legal error. Here, the BIA made no such mistake. Far from misunderstanding Silais’s claim or evidence, both the BIA and the IJ dealt extensively with Concannon’s testimony and Dr. Rowley’s affidavit and simply found them insufficient.

Second, Silais maintains that the BIA failed to address his argument that the IJ had incorrectly summarized Concannon’s testimony. The IJ concluded that “the [Haitian justice] system ha[d] gradually been getting better” since 2006. Silais argues, however, that Concannon had testified that his team’s relationship with Haitian justice officials was getting better. Again, this is simply a factual disagreement. After detailing Concannon’s testimony, the IJ understood the Haitian justice system to be gradually improving. And there was evidence to support this conclusion: Concannon testified in part that armed groups in Haiti had recently been less organized and less directly tied to political leaders, and, at the time, the level of violence in Haiti was lower than it was in 2004. Nothing in the record compels us to disagree.

Finally, Silais argues that the Agency abused its discretion by misrepresenting the 2010 election incident. He claims that the Agency erroneously considered only that the Haitian police had detained the Chimeres who had attacked Si-lais and that he had fled the scene without filing a police report. In doing so, Silais concludes, the Agency ignored the fact that the police had released the Chimares soon afterward — a mistake, he argues, that we found determinative in Chitay-Pirir v. INS, 169 F.3d 1079, 1081 (7th Cir. 1999). There, however, we observed that the BIA’s assertion that four assailants were arrested and two of them were convicted of murder “ha[d] no support in the record,” which showed that the police had only detained and quickly released the four assailants, and then detained two of them a second time. Id. at 1081 (emphasis added). Here, the Agency’s assertions were supported by the record. And, although the Agency did not mention that the police had released Felix, the Agency relied on this incident as another example of how Silais had failed to avail himself of police protection. The fact that the police eventually released the assailant after no incident report or charges were filed does not detract from that conclusion.

B. Right to Present Evidence

Silais also argues that the Agency violated his right to present evidence. “A petitioner’s claim that the immigration hearing was procedurally insufficient is reviewed de novo.” Pronsivakulchai v. Gonzales, 461 F.3d 903, 907 (7th Cir. 2006) (citation omitted).

According to Silais, the Agency violated both his statutory and constitutional due-process right to present evidence by denying his request to submit supplemental materials during the removal hearing. We have stated that “[n]on-constitutional arguments always come first; constitutional contentions must be set aside until their resolution is unavoidable.” Boyanivskyy v. Gonzales, 450 F.3d 286, 292 (7th Cir. 2006) (citations omitted, alteration in original).

Silais’s right to a reasonable opportunity to present all relevant evidence at an impartial hearing is protected by statute and regulation. Id. at 292-93 (citing 8 U.S.C. § 1229a(b)(4)(B) (“the alien shall have a reasonable opportunity ... to present evidence on the alien’s own behalf, and to cross-examine witnesses presented by the Government”); 8 C.F.R. § 1240.1(c) (“The immigration judge shall receive and consider material and relevant evidence, rule upon objections, and otherwise regulate the course of the hearing.”)). Thus, we evaluate the IJ’s action for compliance with these provisions rather than with constitutional due process. Id. “[T]he appropriate characterization of the IJ’s action is, in essence, a matter of degree. In the end, we must determine whether, given the totality of circumstances, the petitioner had a full and fair opportunity to put on [his] case.” Rodriguez Galicia v. Gonzales, 422 F.3d 529, 538 (7th Cir. 2005); see also 8 U.S.C. § 1229a(b)(4)(B).

Courts, however, “do not set aside agencies’ decisions unless mistakes cause prejudice.” Rehman v. Gonzales, 441 F.3d 506, 509 (7th Cir. 2006) (citation omitted). To prevail, Silais must show “prejudice such that the IJ’s mistake impacted the outcome of the proceedings.” Pronsivakulchai, 461 F.3d at 907 (citation omitted). In other words, Silais must “produce some concrete evidence indicating that the violation of a procedural protection actually had the potential for affecting the outcome of ... deportation proceedings.” Shahandeh-Pey v. INS, 831 F.2d 1384, 1389 (7th Cir. 1987) (emphasis removed); see also Roman v. INS, 233 F.3d 1027, 1033 (7th Cir. 2000). He stresses that the Agency denied Silais’s “asylum claim because he did not provide the very evidence the IJ rejected.” It is true that the Agency denied his claim in part due to inconsistencies across his written and oral testimony and a lack of corroborating evidence from his brother-in-law, who retrieved certain documentary evidence from Haiti. And some of the rejected evidence arguably would have addressed these issues. Yet, none of the supplemental proffer addressed the Agency’s repeated concern: the lack of evidence specifically corroborating the incidents of violence about which Silais testified. Silais provided no me'dieal-treatment records related to his own alleged injuries and no testimony from family or co-workers who were also allegedly beaten and threatened. Likewise, he failed to demonstrate to the Agency that obtaining such evidence would have required unreasonable efforts. These omissions alone were sufficient to preclude Silais from receiving relief. As none of the additional evidence would have filled this gap, Silais cannot show that the outcome would have been different had the IJ admitted his supplemental evidence.

Silais maintains that the Agency erred by neither warning him that specific corroborating evidence was necessary nor giving him an opportunity to supplement the record. In Darinchuluun v. Lynch, however, we stated that no such prior notice or later opportunity is required, because the REAL ID Act itself informs petitioners that the IJ may require corroborating evidence-even if, as here, they are found to be credible. 804 F.3d 1208, 1216 n.21, 1216-17 (7th Cir. 2015) (citing 8 U.S.C. § 1158(b)(1)(B)(ii); Rapheal v. Mukasey, 583 F.3d 521, 530 (7th Cir. 2008)); see also Abraham v. Holder, 647 F.3d 626, 633 (7th Cir. 2011). Silais asserts that Darinchulu-un was incorrectly decided and must be overturned; but he waives this argument by failing to support it in any way. See Puffer v. Allstate Ins. Co., 675 F.3d 709, 718 (7th Cir. 2012) (recognizing the well-established principle that arguments that are “underdeveloped, conclusory, or unsupported by law” are waived).

Next, relying on Boyanivskyy, 450 F.3d at 291, Silais argues that the IJ’s rejection of the supplemental evidence prejudiced him by essentially manufacturing an underdeveloped record. In that case, however, the IJ knowingly scheduled the hearing for a day it knew the petitioner’s three crucial witnesses could not testify, and seemingly forced the petitioner to prematurely rest his case. Id. The IJ then highlighted the lack of corroboration as a principal reason for denying the petitioner’s claim. Id. We determined that the IJ’s actions had prejudiced the petitioner, as the witnesses were crucial to his claim and likely would have altered the outcome. Id. at 294. Here, the IJ allowed Silais to testify fully, to submit over twenty pieces of documentary evidence, and to present a country-conditions expert. And even if the IJ had admitted the extra materials at issue, Silais’s case still would have lacked corroborating evidence of the specific incidents of harm and violence to him and his family. Further, this is not evidence that Silais had unsuccessfully tried to submit, as occurred in Boyanivskyy, rather, Silais did not present or reasonably try to obtain it. Given this omission in the record, Silais cannot demonstrate prejudice.

Silais finally posits that the Agency should have considered and admitted the supplemental evidence given that we have required them to do so in the motion-to-reopen context. See, e.g., Boika v. Holder, 727 F.3d 735, 738-40 (7th Cir. 2013). This comparison is inapt. The Agency cannot adequately consider whether there is good cause to reopen a case without reviewing evidence relevant to the question. This logic does not map neatly onto submissions of evidence during a hearing, where the IJ receives evidence, rules on admissibility, en-forces deadlines and adheres to considerations of procedural efficiency. See 8 C.F.R. § 1240.1(c) (“The immigration judge shall ... regulate the course of the hearing.”); 8 C.F.R. § 1003.31(c) (“If an application or document is not filed within the time set by the Immigration Judge, the opportunity to file that application or document shall be deemed waived.”).

C. Past Persecution

Lastly, Silais challenges the Agency’s conclusion that the alleged harm he had experienced did not amount to past persecution. The evidence of his and his family’s harm, while disturbing, was uncorroborated and does not compel us to conclude differently. In addition, Silais failed to successfully demonstrate that the Haitian government was unable or unwilling to protect him — a required showing given that Silais’s claim was based on the violent acts of the Chiméres. See N.L.A., 744 F.3d at 440 (citing Cece, 733 F.3d at 675). As the Agency stressed, Silais did not report any of the alleged incidents of harm to the Haitian police to give them an opportunity to intervene. While he challenged the Agency’s conclusion tangentially by arguing that the Agency had ignored related evidence, we have rejected those arguments. This leaves the Agency’s finding otherwise undisturbed.

In any event, the primary case upon which Silais relies, Gomes v. Gonzales, 473 F.3d 746 (7th Cir. 2007), reflects harms on a wholly different level than what he was forced to endure. There, the petitioner was brutally attacked while riding his motorcycle: He was knocked unconscious, broke his jaw, required twenty stitches in his head, had his lips stitched together, spent over a week in the hospital, and suffered from memory loss. Id. at 750. After he returned home from the hospital, his attackers broke down his door, ransacked his house, set fire to his curtains, pushed him and his wife to the ground, and placed large knives at their throat, threatening to kill them. Id. at 750-51, 754. His family was also attacked on multiple occasions (e.g., having their head, arms, and tongues sliced with knives; getting robbed; having guns pointed at their heads), and one of his relatives was murdered. Id. at 751. Moreover, unlike Silais, the petitioner in Gomes was able to corroborate these attacks with medical records, dental records, letters from witnesses, and newspaper articles of the specific incidents. Id. at 750-51.

In sum, while we do not intend to downplay what Silais allegedly experienced in Haiti, we hold that the record does not compel us to reject the Agency’s decision.

III. Conclusion

For the foregoing reasons, the petition for review of the Board’s decision is Denied.

      .In his initial written statement, Silais had stated that he was at a “political meeting” when Felix and Bertrand attacked him, forcing him to run to Lete's home. His second written statement, however, reflected that he had encountered the Chimeres “in the street.” During the hearing, Silais expressed that his first statement was incorrect. In yet another account, Lete noted that Silais was at his “family’s home” before fleeing : from the Chimeres to Lete’s home. Silais also could not recall during the hearing whether he had hidden at Lete’s house for hours or days.

      . Silais’s written statement asserts that he had returned to Haiti in November 2006.

      . Silais could not remember the last name of one of the other three cofounders.

      . In his written statements, Silais claimed that there were about ten other individuals on the boat; however, during the hearing, he claimed that he had never reported that number because he had not counted the boat’s passengers.

      . Silais did not contest, and thus waived any right to challenge, the Agency’s conclusion that he was ineligible for relief under CAT. See Tandia v. Gonzales, 487 F.3d 1048, 1050 (7th Cir. 2007) ("Although [petitioner’s] opening brief in this court mentions his claims for withholding of removal. and CAT relief, he does not set forth any arguments in support of these claims, so they are waived.”) (citation omitted).

      . We would reach the constitutional inquiry only if Silais had complained that the procedures outlined in the statutes and regulations were constitutionally deficient. Boyanivskyy, 450 F.3d at 292 (citation omitted); see also Pronsivakulchai, 461 F.3d at 907 (cautioning against "leading with an open-ended due process argument” and advising petitioners to "stick with claims based on the statutes and regulations unless they believe that one of these rules violated the Constitution or that lacunae in the rules have been filled with defective procedures”) (citation omitted). Si-lais makes no such claim.

      . Silais did not explicitly contest the fact that he had never filed a police report, but his assertions that the Agency ignored or improperly rejected related arguments and evidence suffice to raise the issue on appeal.