author: MASTROIANNI, District Judge.

text:
    Megon WALKER, Plaintiff, Appellant, v. PRESIDENT AND FELLOWS OF HARVARD COLLEGE, also known as Harvard Corporation, Ellen Cosgrove, Lloyd Weinreb, Defendants, Appellees, Bradley Hamburger, Lindsay Kitzinger, Defendants.
    No. 15-1154
    United States Court of Appeals, First Circuit.
    October 24, 2016

      John J.E. Markham, II, for appellant.
    Daryl J. Lapp, Boston, MA, with whom Elizabeth H. Kelley was on brief, for ap-pellee.
    Before THOMPSON and KAYATTA, Circuit Judges, and MASTROIANNI, District Judge.

       Of the District of Massachusetts, sitting by designation.

   MASTROIANNI, District Judge.

Between 2006 and 2009 Megon Walker (“Walker”) attended Harvard Law School (“HLS”). Walker was a member of the staff of a student-run law journal, the Journal of Law and Technology (“JOLT”). During her final semester at HLS, Walker delivered a draft article (the “Note”) to senior staff of JOLT. After concerns arose among the senior staff regarding the Note, an investigation was launched by HLS. The HLS Administrative Board (the “Board”) subsequently held a hearing and found the Note contained plagiarism in violation of the HLS Handbook of Academic Policies (the “Handbook”). Walker received a formal reprimand and a notation regarding the matter was added to her transcript. Despite the reprimand, Walker graduated on time from HLS. However, after the notation was placed on her transcript, at least one law firm rescinded a lucrative offer of employment.

Seeking to have the notation removed from her transcript, Walker initiated this suit asserting claims for breach of contract and defamation against the President and Fellows of Harvard College (“Harvard”); Ellen Cosgrove (“Cosgrove”), then-Dean of Students at HLS; and Lloyd Weinreb, a Professor at HLS and Chair of the Board in 2009 (together “Defendants”). After the completion of discovery and a stipulation of dismissal as to some claims, Defendants filed their Motion for Summary Judgment. The district court granted summary judgment for Defendants on all counts and dismissed the action. Walker has appealed the ruling on two of the counts.- After reviewing the issues de novo, we affirm.

I. Background

Walker initiated this suit in May 2012. Jurisdiction is based on diversity and the claims are brought under Massachusetts law. Four counts were pending when Defendants filed their Motion for Summary Judgment: Count I—breach of contract against Harvard based on the Board’s finding that Walker had sufficiently “submitted” the Note for it to be covered by the Handbook; Count II—breach of contract against Harvard based on alleged failures of the Board to comply with provisions in the Handbook; Count IV—defamation based on the inclusion of the plagiarism findings in Walker’s HLS transcript; and Count VI—asserting an entitlement to injunctive relief. Walker has appealed only the district court’s grant of summary judgment as to Counts I and IV. We, therefore, set out the facts we deem relevant to those counts in the light most favorable to her and draw all reasonable inferences in her favor. See Martinez v. Petrenko, 792 F.3d 173, 175 (1st Cir. 2015).

-A. Preparation of the Note

As a first year student at HLS, Walker joined the staff of JOLT. Walker first worked as a “sub-citer,” checking citations against their original source material. During her last year of law school, Walker applied to write a comment for JOLT on a recently decided patent case. Her application was accepted and she commenced work on the comment, which was to be published in the spring of her third year.

Upon acceptance of her application, JOLT informed Walker that an initial complete draft of the Note would be due on February 1, .2009. The deadline for the final draft of the. Note was February 22, 2009. Walker understood that the piece she turned in on (or after) the February 22, 2009 deadline would be subjected to the rigorous editing and citation-checking process she had helped with as a sub-citer. As that process normally unfolded, an author was not permitted to make changes to an article during the editing and citation-checking process. At the conclusion of that process, authors were permitted to make limited changes prior to publication.

Walker delivered a first draft of the Note to JOLT on February 2, 2009. She turned in a second draft on February 8, 2009, and a third draft on February 16, 2009. Around the time the third draft was due, Walker began experiencing problems with her laptop. On the day she sent the third draft to JOLT, her laptop was infected with a computer virus. While working on her computer with IT support, Walker saw Anna Volfstun (“Volfstun”), JOLT’s Submissions Editor. She told Volfstun about the virus and explained that due to the virus, the Note would require significant additional work to be made ready for publication. The next day, on February 17, 2009, Walker attended a JOLT student writing committee meeting where she discussed the virus causing her to lose data from her computer.

On February 20, 2009, Doug Kochelek (‘‘Kochelek”), the JOLT editor in charge of student articles, sent an email to remind Walker and other students their final draft articles were due on February 22, 2009. Kochelek said the articles would be “sub-cited” the following weekend before being returned “after spring break for [authors’] last round of review with opportunity for changes.” Walker responded, via email, on February 22, 2009: “I doubt that I can send [the Note] before 10 tonight. Footnotes and proofreading are taking all weekend.” When Kochelek asked Walker when she would be sending the Note, she replied it would be that night. She also wrote “I’m over the length limit again and cutting more.”

B. Concerns Regarding the Note

On February 24, 2009, two days after Walker said she would send the Note to JOLT, she sent an email to Kochelek and other JOLT senior staff, which read: “Here’s the latest draft of the ... piece. Sorry about the delay. Let me know if you have difficulty finding any sources.” The piece was still over the word limit. Walker subsequently met with Andrew Ungberg (“Ungberg”), the line editor responsible for part of the citation-checking process. During that meeting Walker gave Ung-berg two electronic files that contained versions of her sources obtained from Westlaw. She told Ungberg about the virus on her computer, indicating her draft had problems, including issues with citations and quotations, and she would need to “go back to the sources and compare the arguments ... and quotations.” Walker also sent an email to JOLT staff on February 27, 2009, stating that she continued to work on the Note after having provided the final draft on February 24, 2009.

In early March, when JOLT staff began editing the Note, concerns arose that much of Walker’s argument was derivative of the dissent in the case' about which she was writing. The Article Editor for the Note prepared a summary of the draft for comparison with other publications and Ung-berg compared the Note with the dissent from the case. On March 11, 2009, Volfs-tun, the JOLT staffer who had spoken with Walker at the IT Help area on February 16, 2009, sent an email offering to help Walker fix issues with the Note. Around the same time, Hamburger used Google to run searches on full sentences from the Note. He created an annotated version of the Note showing which sentences were copied from other sources. He stopped after documenting 23 instances. In mid-March, Hamburger and Kitzinger discussed their attribution concerns with Walker and then with Cosgrove, the Dean of Students.

C. HLS Review and Disciplinary Process

Cosgrove referred the. Note to. the Board, which reviewed the matter and considered whether to move forward with a charge of plagiarism. The plagiarism policy of HLS reads in part as follows:

All work submitted by a student for any academic or nonacademic exercise is expected to be the student’s own work. In the preparation of their work, students should always take great care to distinguish their own ideas and knowledge from information derived from sources-Students who submit work that is not their own without clear attribution of all sources, even if inadvertently, will be subject to disciplinary action.

After the Board voted to move forward with the plagiarism charge, Walker was notified. The Board consulted with Walker’s attorneys and scheduled a hearing for May 7, 2009. Although Walker sought to resolve the situation without a hearing, she was told the plagiarism charge was too serious to be resolved informally. Following the hearing, the Board issued Walker a formal reprimand which ultimately appeared on her transcript and caused the loss of an employment offer.

II. Standard of Review

“Summary judgment is appropriate when the record shows that ‘there is no genuine dispute as to any material fact and the movant is entitled to judgment as a matter of law.’ ” Farmers Ins. Exch. v. RNK, Inc., 632 F.3d 777, 782 (1st Cir. 2011) (quoting Fed. R. Civ. P. 56(a)). “A genuine issue is one that can ‘be resolved in favor of either party and a material fact is one which ‘has the potential of affecting the outcome of the case.’ ” Gerald v. Univ. of P.R., 707 F.3d 7, 16 (1st Cir. 2013) (quoting Pérez-Cordero v. Wal-Mart P.R., Inc., 656 F.3d 19, 25 (1st Cir. 2011)). ‘We review de novo the grant of a motion for summary judgment.” Farmers Ins. Exch., 632 F.3d at 782. “[W]e may affirm the entry of summary judgment on any ground made manifest by the record, so long as the récord reveals that there is no genuine issue as to any material fact and that the moving party is entitled to judgment as a matter of law.” Batista v. Cooperativa De Vivienda Jardines De San Ignacio, 776 F.3d 38, 42 (1st Cir. 2015) (citations omitted).

III. Discussion

The parties agree the Student Handbook sets out the terms of a contract between Walker and HLS. We proceed under that assumption, applying Massachusetts law to interpret the Handbook. See Cloud v. Trs. of Boston Univ., 720 F.2d 721, 724 (1st Cir. 1983); Schaer, 735 N.E.2d at 378.

Where, as here, a private-school student or former student sues a school alleging breach of contract, the standard of reasonable expectation applies. Schaer, 735 N.E.2d at 378; see also Driscoll, 873 N.E.2d at 1185-86. Under this reasonable expectation standard, courts ask, in interpreting the contractual terms, “whát meaning the party making the, manifestation, the university, should reasonably expect the other party [, the student,] to give it.” Schaer, 735 N.E.2d at 378 (quoting Cloud, 720 F.2d at 724). A breach of contract is established if the facts show that the university has “failed to meet [the student’s] reasonable expectations.” Id.

Walker argues here, as she did below, that she reasonably expected that the word “submit” in the HLS plagiarism policy meant yielding or surrendering completed work to the will of another. The record, she asserts, establishes that, although she acquiesced to the JOLT senior staffs demands and emailed them her incomplete draft, she intended at some point in the future to go back and insert the missing citations. No student in her shoes, Walker claims, would reasonably have expected that turning in a draft in such an incomplete state would have constituted “submitting” the draft for purposes of the plagiarism policy. But even viewing all the facts in the light most favorable to Walker, we conclude that no student could reasonably have believed that the HLS plagiar rism policy did not apply to her February 24 Note, and thus summary judgment for HLS was proper.

By its terms, the HLS plagiarism policy applied to “[a]ll work submitted by a student for any academic or non-academic exercise,” regardless of intent. The policy uses the qualifier “all” to modify the phrase'“work submitted,” and goes so far as to state that the plagiarism ban applies, even if an attribution error was “inadvertent[].” Given such broad language, we think it clear that the plagiarism policy applied to Walker’s work turned in for the exercise of preparing a student note for publication, regardless of whether the work was in draft or final form.

Even if, as Walker argues, the facts establish that she, indeed, believed her Note was badly incomplete, they do not establish that a student could reasonably expect that the words “[a]ll work submitted” exempted such an incomplete draft. There is no evidence, for example, that the terms “[a]ll work submitted” were “word[s] of art,” or that they otherwise had “acquired any secondary meaning” in this context. Lyons v. Salve Regina Coll., 565 F.2d 200, 203 (1st Cir. 1977) (applying the reasonable expectation standard to a Rhode Island case involving a student manual dispute between a student and a college). The evidence proffered by Walker proves only that her own intentions were to go back and insert attributions for the uncited passages. It does not establish any “rational basis for believing that the word[s in the plagiarism policy] ... meant anything other than [their] normal, everyday meaning.” Id. at 202-03.

Thus, because the record, even viewed in the light most favorable to Walker, gives us no basis on which a reasonable student could have interpreted the words “[a]H work submitted” any differently, we give them their plain meaning here. In this case, Walker turned in the fourth draft of her Note (the draft in question) to JOLT senior staff for citation checks. Unlike with her preliminary drafts, this draft was slated to go directly into the subciting process, and there was to be no opportunity to make changes until the post-check “author edit” period at the end of March. No reasonable student could have expected that turning in a draft, even a woefully incomplete one, for this citation-check deadline did not constitute “submitting” the draft for the exercise of student publication.

Finally, to the extent that Walker argues that her communications with JOLT senior staff, in which the editors acknowledged that her draft was in rough shape, gave her reason to expect that the HLS plagiarism policy would not apply to the Note, such an argument must also fail. The contract in question is one between Walker and HLS. Although members of the JOLT senior staff may have had discretion to respond with some flexibility to citation issues in student-authored work, no student could reasonably expect that the student editors could somehow have exempted Walker from being held to the HLS plagiarism policy once her work was before the Board. See Mangla v. Brown Univ., 135 F.3d 80, 83 (1st Cir. 1998) (finding it reasonable for Brown to expect its students not to rely on oral statements by faculty or administrators as binding promises by the university when such statements ran contrary to its school catalog).

IV. Conclusion

Walker has not presented facts a student could have relied upon to form a reasonable expectation that the plagiarism policy had the meaning she is asserting. The HLS plagiarism policy refers to “[a]ll work submitted,” a phrase that on its face applies to any student work for any academic or nonacademic exercise, whether in draft or final form, turned in to an instructor or student editor of an extracurricular law journal. We affirm the district court’s grant of summary judgment to Defendants on Count I. Walker’s failure to prevail as to Count I undermines her arguments with respect to the defamation claims she made in Count IV. We, therefore, also affirm the district court’s grant of summary judgment to Defendants on Count IV.

      . This entity has ultimate authority over HLS and the conferral of degrees.

      . Initially, the two students who were co-Editors-in-Chief of JOLT, Bradley Hamburger (‘‘Hamburger”) and Lindsay Kitzinger ("Kit-zinger”), were also named as defendants. Walker filed a stipulation of dismissal as to all claims against them before Defendants filed their Motion for Summary Judgment.

      .Count III and Count V were resolved by stipulation of dismissal before the motion for summary judgment was filed.

      . Suspension is the normal punishment following a finding of plagiarism.

      . Because HLS does not dispute that the Handbook sets out the terms of a contract, we assume without deciding that a contract exists. We note, however, that while courts have treated student handbooks as contracts between students and schools, the question of whether such a document always constitutes a contract is, arguably, an unsettled issue under Massachusetts law. Compare Pacella v. Tufts Univ. Sch. of Dental Med., 66 F.Supp.2d 234, 240 (D. Mass. 1999) (noting that "[wjhether a student handbook can supply the terms of the contract between a university and its students is unclear under Massachusetts law"), with Driscoll v. Bd. of Trs. of Milton Acad., 70 Mass.App.Ct. 285, 873 N.E.2d 1177, 1185 (2007) (deciding to treat school's student handbook as a contract); see also Schaer v. Brandeis Univ., 432 Mass. 474, 735 N.E.2d 373, 378 (2000) (assuming without deciding that the student handbook gave rise to a contractual relationship between the student and the school).

      . We credit Walker’s claims that she only emailed her draft to JOLT senior staff when they insisted, saying, "We need your draft.... [E]very other student author has gotten their piece in”, and that her communications with the student editors made it otherwise clear that she intended to continue to malee changes.
      Specifically, on February 22 (the original deadline for the Note), Walker told the student editors in an email, "I doubt that I can send it before 10 tonight. Footnotes and proofreading are taking all weekend,” and on February 24, as she finally prepared to send in the Note two days late, she emailed to say, "ok, sending it out now. All the. sources are included, but I’m still moving words around," and then later described the attached document as "the latest draft” (and not the final draft). Finally, on February 27, after the Note was turned in, Walker emailed again to ask, "I’m still getting comments/feedback from partners at [a law firm]. If I send a revised copy TONIGHT, [i]s that too late??? ... Did you guys pull sources already?”


source: Caselaw Access Project

author: SELYA, Circuit Judge.

license: Public Domain

text:
    Douglas Jimmy BBALE, Petitioner, v. Loretta E. LYNCH, Attorney General of the United States, Respondent.
    No. 15-2372
    United States Court of Appeals, First Circuit.
    October 24, 2016

      George Charles Maroun, Jr. and Mar-oun & Cabelus LLC on brief for petitioner.
    Benjamin C. Mizer, Principal Deputy Assistant Attorney General, Civil Division, United States Department of Justice, John S. Hogan, Assistant Director, Office of Immigration Litigation, and Ashley Martin, Trial Attorney, Office of Immigration Litigation, on brief for respondent.
    Before THOMPSON, SELYA and STAHL, Circuit Judges.
   SELYA, Circuit Judge.

The petitioner, Douglas Jimmy Bbale, seeks judicial review of a final decision of the Board of Immigration Appeals (BIA), which denied his motion to reopen removal proceedings. Discerning no abuse of the BIA’s broad discretion, we deny the petition.

I. BACKGROUND

The petitioner, a Ugandan national, was admitted to the United States as a visitor for a six-month period that expired on November 22, 2000. He overstayed, and almost nine years elapsed before the Department of Homeland Security (DHS) instituted removal proceedings against him.

The petitioner initially pursued an application to adjust his status to that of a lawful permanent resident based on a petition filed by his citizen-spouse. That strategy backfired when, on December 5, 2011, United States Citizenship and Immigration Services issued a notice of intent to revoke the petition, citing inconsistencies in the testimony of the petitioner and his wife.

After withdrawing his adjustment application, the petitioner applied for asylum and. withholding of removal. His claim for asylum was predicated on an asserted fear of persecution in Uganda premised on genuine and imputed political opinion, Specifically, he alleged that in April of 1998, his father was imprisoned—and ultimately never seen again—because he was an active member of the Democratic Party of Uganda, a political party , that opposed the Ugandan President, Yoweri Museveni. He added that between 1998 and 1999, he himself was detained by Ugandan police on four occasions. Withal, he was not physically harmed and the longest period he was detained was one day. The petitioner also suggested that his more recent political activities would subject him to persecution in Uganda: while living in the United States, the petitioner has organized and participated in anti-Museveni demonstrations.

The petitioner also averred that in 2009 his brother was arrested in Uganda qn a murder charge. The petitioner branded this arrest as bogus, contending that the Museveni government had fabricated allegations that his brother was practicing voodoo and witchcraft on small children, including child sacrifice. Although the brother was initially acquitted, he was subsequently convicted and remains in prison. According to the petitioner, both the arrest and prosecution were politically motivated, and his brother is innocent.

The petitioner conceded removability in 2012 and later testified at a merits hearing in the immigration court on January 27, 2014, At the conclusion of the hearing, the immigration judge (IJ)' denied the petitioner’s applications for asylum and withholding of removal in a bench decision. The IJ denied the asylum application as untimely, noting that the petitioner had not- alleged changed or extraordinary circumstances that could justify the 18-year delay in seeking asylum. The IJ also concluded that the petitioner had failed to establish his eligibility for withholding of removal.

The petitioner appealed to the BIA. He argued that he did not apply earlier for asylum because he was not then aware of either the filing deadline or the severity of his brother’s circumstances. With respect to withholding of removal, he argued that the IJ'had failed to consider the connection between the accusations of witchcraft against his brother and the petitioner’s membership in a family now associated with witchcraft. On June 10, 2015, the BIA rejected these arguments and 'dismissed the petitioner’s appeal.

The petitioner did not seek judicial review of the BIA’s decision but, on August 10, 2015, moved to reopen removal proceedings. The petitioner submitted that a key witness—his niece—had been unable to testify at his merits hearing because she was mentally incapacitated due to the psychological trauma that she suffered as a result of her father’s (the petitioner’s brother’s) immurement. He added that his niece had received asylum based on circumstances substantially similar to those that pertained in his case.

The BIA denied the motion to reopen. It concluded that the petitioner had failed to satisfy the requirements for reopening, as he did not demonstrate that the motion was supported by new, previously unavailable, material evidence. The BIA went on to explain that the fact that the petitioner’s niece was granted asylum in 2012 was not a new fact supported by previously unavailable evidence that could not have been presented at the removal hearing; and it determined that a medical report submitted by the. petitioner did not demonstrate that his niece was incapable of providing testimony at the merits hearing.

This timely petition for judicial review followed. The only issue open to us is whether the BIA abused its discretion in denying the petitioner’s motion to reopen.

II. ANALYSIS

We preface our analysis with a summary of the applicable legal standards. Motions to reopen removal proceedings are contrary to “the compelling public interests in finality and the expeditious processing of proceedings” and are thus disfavored. Roberts v. Gonzales, 422 F.3d 33, 35 (1st Cir. 2005) (quoting Falae v. Gonzáles, 411 F.3d 11, 14-15 (1st Cir. 2005)). Consistent with this principle, the BIA enjoys wide latitude in deciding whether to grant or deny such a motion. See INS v. Doherty, 502 U.S. 314, 323, 112 S.Ct. 719, 116 L.Ed.2d 823 (1992). Judicial review of such a decision is solely for abuse of discretion. See Roberts, 422 F.3d at 35; Falae, 411 F.3d at 14. Consequently, the BIA’s decision will stand unless the petitioner can show that the BIA committed an error of law or exercised its judgment in an arbitrary, capricious, or irrational manner. See Raza v. Gonzales, 484 F.3d 125, 127 (1st Cir. 2007).

An alien seeking to reopen removal proceedings based on newly discovered evidence must both “introduce new, material evidence that was not available at the original merits hearing” and “make out a ‘pri-ma facie case of eligibility for the relief sought.’ ” Perez v. Holder, 740 F.3d 57, 62 (1st Cir. 2014) (quoting Jutus v. Holder, 723 F.3d 105, 110 (1st Cir. 2013)). The alien’s motion “shall state the new facts that will be proven at a hearing to be held if the motion is granted and shall be supported by affidavits or other evidentiary material.” 8 C.F.R. § 1003.2(c)(1).

With this' framework in place, we turn to the case at hand. To begin, the petitioner claims that the BIA abused its discretion in finding that his niece’s anticipated testimony was not new, previously unavailable material evidence. The record belies this claim: it shows that the anticipated testimony of the petitioner’s niece (who was granted asylum in 2012) was neither new, previously unavailable, nor material. We explain briefly.

As an initial matter, we note that the petitioner’s motion was procedurally flawed; it did not sufficiently articulate what testimony his niece would provide if the proceedings were reopened. This flaw is fatal because we—like the BIA—are unable adequately to assess the materiality of the proffered testimony. Though the petitioner stated conclusorily that his niece had been granted asylum based on the same circumstances as those asserted in his application, his motion failed to describe the nature and extent of her expected testimony.

Nor was this the only shortcoming in the petitioner’s motion to reopen. For the most part, the petitioner failed to support his motion with the requisite “affidavits or other evidentiary material.” 8 C.F.R. § 1003.2(c)(1). A party’s factual assertions in pleadings are not evidence and are not sufficient to establish material facts. See Jupiter v. Ashcroft, 396 F.3d 487, 491 (1st Cir. 2005).

The petitioner attempts to excuse himself from this requirement by arguing that information pertaining to his niece’s asylum application is confidential and, thus, within the ambit of 8 C.F.R. § 208.6. But this is whistling past the graveyard: nothing in the cited regulation prevented the petitioner’s niece from recounting the substance of her anticipated testimony in an affidavit or declaration. The regulation bars the government from disclosing certain confidential information; it does not bar either the asylum-seeker or prospective witnesses from testifying about facts within their personal knowledge.

Apart from these procedural shortcomings, the petitioner’s proffer—as the BIA recognized—failed on the merits: even if the petitioner had adequately stated the facts that would be presented and duly supported that account with affidavits or other evidentiary materials, the information that he relied on. was not new. The petitioner’s argument is that the fact that his niece was granted asylum under substantially the same circumstances is new, previously unavailable, material evidence. But the record shows with conspicuous clarity that the petitioner’s niece received asylum in 2012—more than a year before the petitioner’s January 2014 removal hearing. The record also reveals beyond any shadow of a doubt that the petitioner was aware of his niece’s asylum status prior to his merits hearing. After all, his niece wrote a letter in support of his application for asylum and withholding of removal in September of 2013 (in which she mentioned her own asylum experience).

The petitioner’s cause is not advanced by his assertion that his niece would testify that she genuinely fears for his safety should he be repatriated. Since these statements were previously made in the niece’s September 2013 letter, they can scarcely be regarded as “new.’” See Morgan v. Holder, 634 F.3d 53, 61 (1st Cir. 2011) (explaining that evidence that is cumulative of other evidence in the record is not “new” evidence sufficient to warrant reopening).

To say more would be pointless. Given that the BIA supportably found that the petitioner failed to introduce new, previously unavailable, material evidence in connection with his motion to reopen, it was within the BIA’s discretion to deny the motion without reference to whether the petitioner had made out a prima facie case for asylum. See Perez, 740 F.3d at 62-63.

III. CONCLUSION

For the reasons elucidated above, we deny the petition for judicial review. But although we need go no further, we think it appropriate to note that this appears to be a case in which the exercise of prosecu-torial discretion may be appropriate under the DHS’s detention and removal priorities. See Memorandum from Jeh Charles Johnson, Sec’y, U.S. Department of Homeland Sec., on Policies for the Apprehension, Detention and Removal of Undocumented Immigrants to Thomas S. Winkowski, Acting Dir., U.S. Immigration & Customs Enft, et al. (Nov. 20, 2014). We explain briefly.

DHS divides its civil immigration enforcement priorities into three categories of decreasing importance: (1) threats to national security, border security, and public safety; (2) misdemeanants and new immigration violators; and (3) aliens who have been issued final removal orders. Id. at 3-4. DHS acknowledges that it “must exercise prosecutorial discretion in the enforcement of the law” and should exercise this discretion “as early in the case or proceeding as possible in order to ... pursu[e] enforcement and removal of higher priority cases.” Id. at 2. We are not convinced that DHS’s stated enforcement priorities are intended to cover someone in the petitioner’s situation.

The petitioner has meaningful family connections in the United States and has presented credible testimony that he would face a significant threat to his safety if he were to be returned to Uganda, especially given his familial history of political persecution in that country and his recent political activities in the United States. Although the one significant blemish on the petitioner’s record as a law-abiding person—an incident in which he was operating a motor vehicle while under the influence of alcohol and left the scene of an accident—is serious and likely qualifies under the letter of DHS’s second priority category (for “significant misdemeanors”), DHS’s policy provides that removal orders should be set aside if .“there are factors indicating the alien is not a threat to national security, border security, or public safety.” Id. at 5. Such factors include the alien’s length of time in the United States, the alien’s family or community ties in the United States, and other “compelling humanitarian factors.” Id. at 6. Here, it appears that the petitioner and his family have long been opposed to the ruling regime in Uganda, opposition which has not gone unnoticed and which the IJ plausibly concluded would cause the petitioner to be exposed to imprisonment or more grievous harm if he was repatriated.

We summarize succinctly. Even though we find that the petitioner’s argument for reopening of removal proceedings fails under the precedent established in this circuit, the administration’s enforcement priorities strongly indicate that the petitioner should be a candidate for prose-cutorial discretion. After all, a removal decision should not be made or effectuated “under a misapprehension of the governing departmental policy.” Ortiz v. Lynch, 640 Fed.Appx. 42, 45 (2d Cir. 2016).

The petition for judicial review is denied.

      . The petitioner also asked for relief under the United Nations Convention Against Torture. Because this initiative was not pursued before the BIA, we make no further reference to it.

      . To be sure, the petitioner did include a piece of evidence—the medical report—with his motion papers. But this report, in and of itself, was insufficient to cure the petitioner’s failure.

      . Section 208.6(a) states in pertinent part that, with certain exceptions not relevant here, “[i]nformation contained in or pertaining to any asylum application ... shall not be disclosed without the written consent of the applicant-” Relatedly, section 208.6(b) states in pertinent part that "[t]he confidentiality of other records kept by the Service and the Executive Office for Immigration Review that indicate that a specific alien has applied for asylum ... shall also be protected from disclosure.”

      . Our conclusion that the niece's statements are not new disposes of the matter. For the sake of completeness, however, we note that Dr. Husson's medical report, relied on by the petitioner, nowhere states, either directly or by fair implication, that the petitioner’s niece was unable to testify at the January 2014 removal hearing. Though the report notes that she “had difficulties” discussing her father’s alleged crimes during a period that arguably included the date of the petitioner’s removal hearing, it does not attest that she Was unable to testify. Moreover, in September of 2013, the niece wrote a letter in furtherance of her uncle’s application that described the events surrounding her father’s arrest. This letter undercuts any intimation in Dr. Husson’s report that the petitioner's niece was incapacitated during the time leading up to his January 2014 merits hearing.


author: PER CURIAM

text:
    Jerome MARSHALL, Appellant v. COMMISSIONER PENNSYLVANIA DEPARTMENT OF CORRECTIONS; Superintendent Greene SCI; District Attorney Philadelphia; Attorney General Pennsylvania; Secretary Department of Corrections; William S. Stickman
    No. 16-9000
    United States Court of Appeals, Third Circuit.
    Submitted By the Clerk for Possible Dismissal Due to a Jurisdictional Defect, July 13, 2016
    (Opinion filed: October 25, 2016)

      Maureen C. Coggins, Esq., 523 West Linden Street, Allentown, PA 18101.
    Christian J. Hoey, Esq., Rubino & Hoey, 50 Darby Road, Paoli, PA 19301, Counsel for Appellant.
    Susan E. Affronti, Esq., Philadelphia County Office of District Attorney, 3 South Penn Square, Philadelphia, PA 19107, Counsel for Appellees.
    Before: SMITH, Chief Judge, HARDIMAN, and RESTREPO, Circuit Judges
   OPINION OF THE COURT

PER CURIAM

Jerome Marshall is currently pursuing a petition for a writ of habeas corpus in the District Court. Marshall is represented by counsel, but he filed a motion to remove counsel and to proceed pro se. He later filed a notice of appeal challenging the District Court’s purported denial of that motion. The District Court, however, had not yet entered or announced any decision on that motion. To the contrary, the District Court had expressly advised Marshall that it had not made a decision and would do so only later. Thus, when Marshall filed his notice of appeal, the District Court had not yet entered or announced any decision that could be brought before us for appellate review. The District Court later denied Marshall’s motion.

The question presented by these circumstances is whether Marshall’s notice of appeal has ripened now that the District Court has issued its decision. We conclude that it has not. Consequently, we will dismiss this appeal for lack of jurisdiction.

I. Background

Marshall was sentenced to death in Pennsylvania in 1984, and he has been pursuing a federal habeas petition since 2003. Marshall initially filed his petition through the Federal Community Defender. Many years later, however, Marshall became dissatisfied with the Community Defender’s services and filed a motion for appointment of new counsel. The District Court granted that motion and appointed Christian Hoey and Maureen Coggins to represent Marshall.

Marshall soon became dissatisfied with their services'as well, apparently because they would not withdraw the habeas petition filed by the Community Defender and assert different claims. Marshall eventually filed pro se a document titled “Petitioner’s Pro Se Omnibus Motion.” (ECF No. 102.) In that document, Marshall requested an order: (1) removing his new counsel; (2) striking the habeas petition and all other documents filed by the Community Defender; (3) allowing the filing of a new habeas petition “nunc pro tunc”; and (4) remanding for a new hearing “nunc, pro tunc” in state court. It appears that Marshall sought to proceed pro se in order to dismiss all of his counseled claims and assert different claims that may be both procedurally defaulted and untimely (though we express no opinion on that issue).

By order entered April 1, 2015, the District Court scheduled a hearing on Marshall’s request to remove counsel but dismissed Marshall’s last three requests without prejudice because he remained represented by counsel at the time. (ECF No. 101.) Shortly thereafter, counsel filed a motion seeking a determination of Marshall’s mental competence. Marshall responded with a supplemental motion to remove counsel. (ECF No. 113.) In light of these developments, two issues remained to be determined by the District Court— whether Marshall was mentally competent, and whether to remove Hoey and Coggins as counsel and permit Marshall to proceed pro se.

The District Court held three hearings on these issues before Marshall ultimately consented to a psychiatric evaluation. Dr. Francis Dattilio conducted the evaluation and issued a report opining that Marshall is not competent either to assist his counsel or to proceed pro se. The District Court then held a fourth hearing on February 17, 2016. At the hearing, Dr. Dattilio testified consistently with his report that Marshall is not competent. The District Court then took the issues-of Marshall’s competence and the removal of counsel under advisement. In doing so, the District Court made it very clear at the conclusion of the hearing that it had not yet decided those issues:

There are two things that need to be decided ... first, whether or not Mr. Marshall is competent and, if not, in what ways is he not competent. And then, second, whether or not I’m going to grant his request to discharge his current counsel. I will be deciding these matters sooner rather than later. I’m not going to make any rash promises about how soon is soon, but I’m talking weeks, not months or years. And when I do decide them, there will be- a briefing schedule....

(ECF No. 136; N.T. 2/17/16, at 73-74.) Marshall was present at the hearing.

Eight days later, however, and before the District Court had announced any decision, Marshall filed pro se the notice of appeal at issue here. (ECF No. 137.) The notice states in relevant part that Marshall “appeals ... from the Order [of] ... Judge James Knoll Gardner, on the date of February 18th, 2016, denying petitioner’s motions to remove counsel and denying petitioner’s Sixth Amendment right to proceed pro-se. Petitioner seeks reversal of that order.” (Id. at 1) (capitalization and punctuation standardized). In fact, there was no such order, and Marshall’s reference to a February 18 order appears to be a reference to the February 17 hearing.

The District Court ultimately made its decision on these issues and, by order entered March 24, 2016, it found Marshall mentally incompetent to proceed pro se and denied his request for removal of counsel. (ECF No. 141.) Marshall’s 30-day deadline to appeal that ruling expired on April 25, 2016 (April 23 being a Saturday). See Fed. R. App. P.' 4(a)(1)(A)! Neither Marshall nor his counsel filed anything with the District Court or this . Court by that time, and Marshall himself has filed nothing since. After Marshall filed his notice of appeal, the Clerk notified the parties that this appeal would be considered for possible dismissal due to a jurisdictional defect and gave them an opportunity to respond. No party has filed a response.

II. Analysis

“An appellate court lacks jurisdiction over an appeal that is untimely filed, including premature appeals,” Lazorko v. Pa. Hosp., 237 F.3d 242, 248 (3d Cir. 2000). Marshall’s notice of appeal was premature because, when he filed it, the District Court had not yet issued or announced its decision on his motion for removal of. counsel. Thus, unless there is some basis to deem Marshall’s notice of appeal to have ripened now that the District Court has ruled, we must dismiss this appeal as “premature and void.” Lazy Oil Co. v. Witco Corp., 166 F.3d 581, 585 (3d Cir. 1999).

We conclude that there is no such basis and therefore will dismiss this . appeal. There are two ways in which premature appeals can ripen in this Circuit—under Rule 4(a)(2) of the Federal Rules of Appellate Procedure, and under the doctrine based on Cape May Greene, Inc. v. Warren, 698 F.2d 179 (3d Cir. 1983). See ADAPT of Phila. v. Phila. Hous. Auth., 433 F.3d 353, 364 (3d Cir. 2006). Neither applies in this situation. Even if their requirements were otherwise satisfied, neither permits the ripening of an appeal filed before the District Court announces the decision sought to be challenged.

A. Rule 4(a)(2)

Rule 4(a)(2) is the rule governing premature notices of appeal. The rule provides that “[a] notice of appeal filed after the court announces a decision or order—but before the entry of the judgment or order—is treated as filed on the date of and after the entry.” Fed. R. App. P. 4(a)(2) (emphasis added). By its terms, this rule applies only when the District Court actually has announced some decision or order. See United States v. Cooper, 135 F.3d 960, 962 (5th Cir. 1998) (holding that Rule 4(a)(2) requires an actual District Court “decision” and does not permit the ripening of an appeal from a Magistrate Judge’s recommendation); Williams v. Roberts, 116 F.3d 1126, 1127 n.3 (5th Cir. 1997) (per curiam) (holding that a pro se prisoner’s appeal filed before the District Court announced its decision did not ripen under Rule 4(a)(2)).

Rule 4(a)(2) does not apply here because Marshall filed his notice of appeal before the District Court announced. its decision. The District Court announced its decision only later, and “not even Rule 4(a)(2) can cause a notice of appeal that is filed before a ruling has even been announced to encompass the later-announced ruling.” 16A Charles Alan Wright et al., Federal Practice and Procedure § 3950.5 (4th ed. 2008); see also DeJohn v. Temple Univ., 537 F.3d 301, 306, 307 n.3 (3d Cir. 2008) (holding that Rule 4(a)(2) did not permit challenge to the final judgment on an appeal from a prior interlocutory order).

Applying the rule in this situation also would not comport with its purpose. Rule 4(a)(2) is “intended to' protect the unskilled litigant who files a notice of appeal from a decision that he reasonably but mistakenly believes to be a final judgment[.]” FirsTier Mortg. Co. v. Investors Mortg. Ins. Co., 498 U.S. 269, 276, 111 S.Ct. 648, 112 L.Ed.2d 743 (1991). The Rule does not apply when “[a] belief that ... a decision is a final judgment would not be reasonable.” Id. In this case, it was not reasonable for Marshall to conclude that the District Court announced a final decision because the District Court did not announce any decision at all. To the contrary, the District Court expressly stated that it had not made a decision and would do so in the future. Even making allowances for Marshall’s pro se status, this situation does not present the kind of trap for the unwary that Rule 4(a)(2) was designed to prevent.

B. The Cape May Greene Doctrine

The Cape May Greene doctrine also does not apply in this situation. Under that doctrine,

where there is no showing of prejudice by the adverse party and we have not taken action on the merits of an appeal, a premature notice of appeal, filed after disposition of some of the claims before a district court, but before entry of final judgment, will ripen upon the court’s disposal of the remaining claims.

Khan v. Att’y Gen., 691 F.3d 488, 493 (3d Cir. 2012) (quoting DL Res., Inc. v. First-Energy Sols. Corp., 506 F.3d 209, 215 (3d Cir. 2007)). The doctrine ensures that “practical, not technical considerations” govern the determination of finality, id. (quoting Cape May Greene, 698 F.2d at 185), and it avoids “elevat[ing] a mere technicality above the important substantive issues” raised by an appeal, id. (quoting Lazy Oil, 166 F.3d at 587).

In Cape May Greene, the plaintiff appealed from an order entering summary judgment in favor of the last remaining defendant. See Cape May Greene, 698 F.2d at 184. The order was not final when the plaintiff filed its notice of appeal because one defendant’s cross-claim against another defendant remained pending. See id. We nevertheless exercised jurisdiction over the District Court’s entry of summary judgment because the District Court later dismissed the cross-claim, and thus rendered final the order appealed from, before we took action on the appeal. See id. at 184-85.

The Cape May Greene doctrine is broader than Rule 4(a)(2) in one respect. See ADAPT of Phila., 433 F.3d at 363-64. Rule 4(a)(2) permits the ripening of a notice of appeal from a decision that is immediately appealable if the District Court has announced the decision but has not yet formally entered it. The Cape May Greene doctrine, by contrast, permits the ripening of a notice of appeal from a decision that is not immediately appealable but that becomes appealable before we take action on the appeal.

What both Rule 4(a)(2) and the Cape May Greene doctrine have in common, however, is that they permit the ripening only of appeals that are taken from actual District Court decisions. We appear never to have made that point explicitly, so we take the opportunity to do so now. In the absence of circumstances not presented here, the Cape May Greene doctrine does not permit the ripening of a notice of appeal filed before the District Court announces the decision sought to be challenged. Instead, we have applied the doctrine in civil actions only to permit the ripening of appeals from actual decisions, and we have done so only to entertain challenges to those decisions themselves and not to subsequent rulings made after the filing of the notice of appeal. See, e.g., DL Res., 506 F.3d at 214-16 (addressing order entering summary judgment on liability but not damages); Lazy Oil, 166 F.3d at 585-87 (addressing order approving class settlement but not an allocation plan); Batoff v. State Farm Ins. Co., 977 F.2d 848, 851 & n.5 (3d Cir. 1992) (addressing order dismissing complaint with leave to amend); Presinzano v. Hoffman-La Roche, Inc., 726 F.2d 105, 108 (3d Cir. 1984) (addressing order entering partial summary judgment); cf. ADAPT of Phila., 433 F.3d at 361-65 (declining to apply Cape May Greene to interlocutory discovery orders).

The distinguishable situation presented in Khan aside, we have located no authority permitting the ripening of a notice of appeal filed before the District Court has announced any decision at all. That is for good reason. Extending the Cape May Greene doctrine to this situation would permit a litigant to file a preemptive notice of appeal before the District Court makes or announces any decision and then proceed with the appeal if the decision later proves unfavorable. Other courts have declined to sanction that approach. As the Fifth Circuit has explained, “[systemic interests in the conservation of judicial resources dictate that a party must not appeal an order simply because he believes it will be adverse. Only where the appealing party is fully certain of the court’s disposition ... will appeal be ' proper.” Cooper, 135 F.3d at 963.

We likewise decline to sanction that approach in this case, for three reasons. First, the statute and rule governing the filing of the notice of appeal in this case require that it be filed “after” the judgment or order sought to be appealed. 28 U.S.C. § 2107(a); Fed. R. App. P. 4(a)(1)(A). Indeed, Rule 4 was amended in 1979 to make that point explicit. See Fed. R. App. P. 4(a)(1) advisory committee’s notes to 1979 amendment. Applying the Cape May Greene doctrine in this situation would conflict with these provisions.

We have made that point in the criminal context, in which appellants similarly must file their notices of appeal “after” the judgment or order being appealed. Fed. R. App. P. 4(b)(1). We adopted the Cape May Greene doctrine in that context to permit premature appeals, filed after a conviction but before the final judgment of sentence, to ripen upon entry of the final judgment of sentence. See United States v. Hashagen, 816 F.2d 899, 905-06 (3d Cir. 1987) (en banc). In doing so, however, we recognized that the language of Rule 4(b) must render certain premature appeals “inoperative.” Id. at 903. As we explained:

There must be some limits to the circumstances in which a premature notice can be given effect; it hardly would do to permit a party to file a general notice of appeal at the start of the action as a precaution to ensure timely filing.... Indeed, the language of Rule 4(b) does not support the extreme prematurity of a general notice of appeal, for the rule requires the appeal to be filed after either a decision, a sentence, or an order.

Id. at 903-04 (emphasis added) (quotation marks and internal citation omitted). The same principle applies in this civil context. Marshall did not file a “general notice of appeal at the start of the action,” but he filed his notice of appeal before the District Court announced its decision and after the District Court advised him that it had not made a decision at all.

Second, notices of appeal must “designate the judgment, order, or part thereof being appealed.” Fed. R. App. P. 3(c)(1)(B). Applying the Cape May Greene doctrine here would conflict with this- rule as well. Even when the Cape May Greene doctrine permits the ripening of a premature appeal from a decision that is not yet appealable, it does so only to permit review of that decision once it becomes ap-pealable. It does not permit review of subsequent rulings that were not (and could not have been) designated in the notice of appeal. See Bonner v. Perry, 564 F.3d 424, 429-30 (6th Cir. 2009) (applying version of the Cape May Greene doctrine); B. Willis, C.P.A., Inc. v. BNSF Ry. Corp. 531 F.3d 1282, 1296 (10th Cir. 2008) (same); see also Gov’t of the V.I. v. Leonard A., 922 F.2d 1141, 1146 n.6 (3d Cir. 1991) (rejecting appellant’s “attempt[ ] to appeal from a determination and order made ... after he filed the appeal” because “[t]hat issue could not possibly have been raised by the notice of appeal”). A District Court’s subsequent ruling in this situation is not subject to review unless the appellant files another notice of appeal designating that ruling, and Marshall has filed nothing that could be construed as another notice of appeal in this case.

Finally, even if we were at liberty to apply the Cape May Greene doctrine in this situation, we would decline to do so because applying it here would not be consistent with its purpose. As noted above, we apply the Cape May Greene doctrine to avoid “elevat[ing] a mere technicality above the important substantive issues” raised by an appeal. Lazy Oil, 166 F.3d at 587. In ADAPT of Philadelphia, we declined to apply the doctrine to permit the ripening of appeals from interlocutory discovery orders. See 433 F.3d at 364-65. We did so because applying the doctrine in that situation “would do more than overcome a mere technicality—it would invite the very piecemeal litigation discouraged by 28 U.S.C. § 1291.” Id. at 364.

There is even less of a basis to apply the Cape May Greene doctrine when an appellant appeals before the District Court has announced a decision at all. Doing so would erode our “[sjystemic interests in the conservation of judicial resources” by encouraging litigants to file preemptive appeals to challenge future rulings that may or may not prove unfavorable to them. Cooper, 135 F.3d at 963. Court ultimately denied Marshall’s motion in this case, but there .was no basis for Marshall to file his notice of appeal when he did. The District Court had not announced any decision at that time and instead had expressly advised. Marshall that it would make its decision in the future. Thus, Marshall filed his appeal before there was anything that he could bring before us for appellate review, prematurely or otherwise. Marshall also knew or should have known' as much. Under these circumstances, the prematurity of Marshall’s notice of appeal cannot be characterized as a mere technicality.

We have described the Cape May Greene doctrine as taking an “expansive view of appellate, jurisdiction,” and it is one that not all Courts of. Appeals share. ADAPT of Phila., 433 F.3d at 362. However expansive the doctrine may be, it does not permit the ripening of an appeal filed before the District Court makes or announces the decision sought to be challenged. Cf. Hashagen, 816 F.2d 899 at 903-06. Because the District Court had not yet announced its decision when Marshall filed his notice of appeal in this case, the Cape May Greene doctrine does not permit Marshall’s notice to ripen into an appeal from the District Court’s subsequent decision. And because Marshall did not file another notice of appeal after the District Court announced that decision, we lack jurisdiction to review it.

III. Conclusion

For these reasons, we will dismiss this appeal. We express no opinion on whether the District Court’s order denying Marshall’s motion to remove counsel remains subject to challenge on appeal from the District Court’s final judgment.

      . While Cooper is consistent with our Rule 4(a)(2) jurisprudence in its recognition that only an actual District Court decision triggers the rule, Cooper is in some tension with our Cape May Greene jurisprudence. See Lazy Oil, 166 F.3d at 586-87. That tension exists because, unlike this court, the Fifth Circuit has concluded that FirsTier Mortgage abrogated its own version of the Cape May Greene doctrine. See id.

      . To the extent that our decision in the administrative context in Khan represents an exception to this principle, it is distinguishable. In that case, the petitioners filed their petition for review after a clerk with the Board of Immigration Appeals informed them on the day they were scheduled for removal that the Board would not consider their motion to reopen and emergency motion for a stay. See Khan, 691 F.3d at 492. The Board later denied their motion to reopen, and we permitted petitioners to challenge that ruling. Id. at 492-93. We did so by applying the Cape May Greene doctrine "to the circumstances presented in th[at] case.” Id. at 494. Those specific circumstances are instructive. The petitioners in Khan initially sought review of a statement by the Board’s clerk that they understandably interpreted as "an effective denial of their motion.” Id. at 495. Then, after the Board denied their motion on the merits, petitioners filed with this Court a response in opposition to dismissal that we construed "as updating the petition for review into a challenge to” that later ruling, Id. at 494. Thus, Khan involved both (1) a petition for review from the functional equivalent of an actual decision and (2) the functional equivalent of an amended petition for review filed after the decision that petitioners ultimately challenged. There was no functional equivalent of a decision in this case because the District Court expressly advised Marshall that it had not made a decision and'would do so in’ the future. There also is no functional equivalent of an amended notice of appeal because Marshall did not file anything more after the District Court issued its decision. We further note that Khan was decided on administrative review and that appellate Rules 3 and 4, discussed later herein, did not apply to that proceeding. See Fed. R. App. P. 20.

      . We have based our application of the Cape May Greene doctrine in part on Rule 2 of the Federal Rules of Appellate Procedure. See Lazy Oil, 166 F.3d at 587. That rule permits us to suspend the requirements of certain other rules “to ensure that justice is not denied on the basis of a mere technicality." Id. As we have recognized, however, "Rule 2 cannot be utilized to expand the jurisdiction of the Court.” Id. at 587 n.9. Giving effect to a notice of appeal filed before the District Court even announces the decision sought to be challenged arguably would do just that. See Benn v. First Jud. Dist. of Pa., 426 F.3d 233, 237 (3d Cir. 2005) ("A court may not waive the jurisdictional requirements of Rules 3 and 4, even for 'good cause shown' under Rule 2."), We need not decide that issue, however, because we would decline to assert jurisdiction under the Cape May .Greene doctrine even if we had the authority to do so.

      . Although Marshall’s notice of appeal brings nothing before us in our appellate capacity, we could construe it as a petition for a writ of mandamus seeking a ruling on his motion. See Hassine v. Zimmerman, 160 F.3d 941, 954 (3d Cir. 1998), There is no reason to do so because Marshall did not complain of any delay in ruling on his motion and, even if he did, that issue would have become moot once the District Court ruled.