United States Court of Appeals
For the First Circuit
No. 06-1366
SUNOTO SUNOTO,
Petitioner,
v.
ALBERTO GONZALES,
Attorney General of the United States,
Respondent.
ON PETITION FOR REVIEW OF AN ORDER OF THE
BOARD OF IMMIGRATION APPEALS
Before
Lipez, Circuit Judge,
Gibson* and Stahl, Senior Circuit Judges.
William A. Hahn and Hahn & Matkov on brief for petitioner.
Hillel R. Smith, Trial Attorney, Office of Immigration
Litigation, Civil Division, United States Department of Justice,
Peter D. Keisler, Assistant Attorney General, Greg D. Mack, Senior
Litigation Counsel, on brief for respondent.
September 27, 2007
____________________
*Of the United States Court of Appeals for the Eighth Circuit,
sitting by designation.
LIPEZ, Circuit Judge. Sunoto, a native and citizen of
Indonesia, petitions for review of a decision of the Board of
Immigration Appeals ("BIA") affirming the denial of his application
for asylum, withholding of removal and voluntary departure. An
Immigration Judge ("IJ") found that Sunoto was not eligible for
relief because, inter alia, he originally submitted a fraudulent
application and failed to present credible testimony in support of
his amended application. The BIA adopted and affirmed the IJ's
decision. Sunoto challenges the IJ's decision on a host of
grounds, most of which were not raised in his appeal to the BIA.
On those omitted issues, he unquestionably failed to exhaust his
administrative remedies, see 8 U.S.C. § 1252(d)(1), leaving us
without jurisdiction to review the agency's decision on those
issues. Berrio-Barrera v. Gonzales, 460 F.3d 163, 167 (1st Cir.
2006). Two issues may be deemed preserved only if his BIA
submissions are viewed generously. Those issues are, in any event,
unavailing, and we therefore deny the petition for review.
I.
Sunoto1 lawfully entered the United States in July 1991
as a non-immigrant alien in transit and was authorized to remain in
the country until the end of August that same year. On June 3,
2002, he filed an asylum application with the former Immigration
1
Although the official record refers to petitioner as "Sunoto
Sunoto," he testified that his name is simply "Sunoto."
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and Naturalization Service claiming that he was a Christian who
feared Muslim extremists in his native Indonesia. Among other past
episodes described in the application, he claimed that his father,
a church deacon, had been shot and killed by the extremists. He
reiterated this background in an interview with an asylum officer.
More than two years later, while removal proceedings were
pending against him, Sunoto filed a new asylum application and
admitted that his earlier application was almost entirely false.
He explained at a hearing before an IJ that he had allowed an
individual with whom he lived to fabricate the facts in the first
application because Sunoto was newly arrived in the United States,
he "did not know anything," and he "did not want to argue because
[he] did not want to make that person angry." Sunoto admitted
that, in fact, he had become a Christian only after arriving in the
United States, and neither he nor any family members had
experienced mistreatment in Indonesia. However, he repeated his
fear of future persecution based on his newly adopted Christian
beliefs.
In an oral ruling, the IJ denied Sunoto's application for
asylum and withholding of removal, and also found that he was not
entitled to protection under the Convention Against Torture.2 The
IJ found Sunoto statutorily ineligible for asylum on two grounds:
2
Sunoto did not seek relief under the Convention, but the IJ
nonetheless considered his eligibility under its provisions.
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(1) his revised application was untimely because it was not filed
within one year of his arrival in the United States, see 8 U.S.C.
§ 1158(a)(2)(B), and (2) Sunoto knowingly filed a frivolous
application for asylum, and gave fraudulent and fabricated
testimony before an asylum officer, disqualifying him from
obtaining benefits under the Immigration and Naturalization Act,
see 8 U.S.C. § 1158(d)(6). The IJ alternatively concluded that
Sunoto had failed to present credible testimony in support of his
application, finding Sunoto to be "evasive, nonresponsive, furtive,
and a wholly incredible witness." In making the credibility
finding, the IJ pointed to inconsistencies in Sunoto's testimony at
the hearing, his admittedly fraudulent first application, the
subsequent false testimony he gave to the asylum officer, and his
explanation for his earlier conduct – which the IJ termed
"disingenuous at best." The negative credibility finding also
doomed Sunoto's request for withholding of removal. See Abdullah
v. Gonzales, 461 F.3d 92, 97 (1st Cir. 2006) ("An alien who fails
to satisfy the standard for asylum automatically fails to satisfy
the more stringent standard for withholding of removal.").
In his notice of appeal to the BIA, which apparently was
filed without the assistance of counsel, Sunoto complained that
"[t]he judge was not fair enough to listen to my testimony" and
asserted that "I told everything the truth, but the judge said I
was lie." A subsequently filed "brief" consisted of a three-page
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statement describing his conversion to Christianity, the absence of
religious freedom in Indonesia, and his fear that he would be a
target of persecution if he returned there. In reference to his
first application, he explained: "I realized that my application
for asylum was fraud. The reason I changed my affidavit on the
hearing last year just because I couldn't lie to myself anymore.
I already received the truth from God. I convinced myself always
to tell the truth to everyone." Attached to his statement were
copies of news reports about religious violence in Indonesia.
The BIA adopted and affirmed the IJ's decision in
February 2006. It declined to decide whether Sunoto's second
application was timely filed, but agreed with the IJ that he was in
any event ineligible for asylum because he had filed a frivolous
application. Although the Board disagreed with the IJ's finding of
inconsistencies in Sunoto's testimony,3 it agreed that he was not
a credible witness based on the other reasons cited by the IJ and
that he therefore failed to prove his claim for withholding of
3
The testimony at issue concerned Sunoto's knowledge of the
contents of his original asylum application. The IJ stated that
Sunoto first testified that he understood the fabrications in that
application, but changed his testimony on cross-examination to say
that he was unfamiliar with the answers given on the form. The BIA
noted that petitioner's original testimony concerned the
substantive material in the application, but the cross-examination
testimony followed questioning about his understanding of written
warnings about frivolous applications. The BIA concluded that the
latter testimony about his lack of understanding was "not clearly
inconsistent with his prior testimony . . . that he knew the
substance of the application."
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removal. The BIA also endorsed the IJ's rejection of voluntary
departure. It treated Sunoto's submission of new documents as a
motion to remand, but concluded that, given the adverse credibility
finding, he could not meet his "heavy burden" to prove a likely
change in result if the proceedings were reopened. See Abdullah,
461 F.3d at 100 (referring to the "heavy burden" faced by an alien
seeking to reopen immigration proceedings).
In his petition for review to this court, Sunoto presents
six issues: (1) the IJ erred as a matter of law in ruling that his
fraudulent application permanently barred him from receiving any
immigration benefits; (2) the IJ erroneously ruled that his amended
asylum application was untimely; (3) the BIA erroneously failed to
give full effect to its finding that the IJ improperly identified
inconsistencies in his hearing testimony; (4) the IJ improperly
used an irrebuttable presumption that he was incapable of telling
the truth; (5) the IJ's "clear predisposition" to find that he was
incapable of telling the truth denied him due process of law; and
(6) the case must be remanded because the IJ did not rule on his
amended application.
As revealed by our description of Sunoto's notice of
appeal and supporting materials, none of these claims was
explicitly presented to the BIA. A petitioner who fails to present
a claim to the BIA has failed to exhaust his administrative
remedies on that issue, and we consequently lack jurisdiction to
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review the claim. Berrio-Barrera, 460 F.3d at 167; see also
Olujoke v. Gonzales, 411 F.3d 16, 23 (1st Cir. 2005).
However, among the six asserted challenges in Sunoto's
brief are two focusing on the IJ's credibility finding – the
irrebuttable presumption and due process claims – that resemble his
contentions to the BIA that the IJ was unfair in not listening to
his testimony and called him "a lie." Whether the similarity is
enough to warrant our review is doubtful. The exhaustion of
remedies doctrine extends not only to claims omitted from an appeal
to the BIA but also to claims that were "insufficiently developed
before the BIA." Silva v. Gonzales, 463 F.3d 68, 72 (1st Cir.
2006); Olujoke, 411 F.3d at 22-23.4 Nonetheless, preferring to
apply this standard generously, we briefly consider his objections
concerning the IJ's approach toward his truthfulness.
II.
When the BIA adopts and affirms an IJ's decision, we
review the IJ's decision "to the extent of the adoption, and the
BIA's decision as to [any] additional ground." Berrio-Barrera, 460
4
In Bencosme de Rodriguez v. Gonzales, 433 F.3d 163, 164
(1st Cir. 2005), we declined to review "the petitioner's claim that
improper judicial conduct by the Immigration Judge violated her due
process rights because the petitioner failed to raise this claim in
her appeal to the BIA and therefore failed to exhaust her
administrative remedies." Although some constitutional claims are
exempt from the exhaustion requirement because the BIA lacks
authority to address them, that exception does not apply to a claim
of "bias and misconduct by [the] Immigration Judge." Id. at 165
(citing Sayyah v. Farquharson, 382 F.3d 20, 27 (1st Cir. 2004)).
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F.3d at 167; see also Chen v. Ashcroft, 376 F.3d 215, 222 (3d Cir.
2004) ("[W]hen the BIA both adopts the findings of the IJ and
discusses some of the bases for the IJ's decision, we have
authority to review the decisions of both the IJ and the BIA.").
In conducting our review, we use the deferential substantial
evidence standard for factual findings and credibility
determinations. Silva, 463 F.3d at 72. That approach requires us
to "uphold the BIA's decision 'unless any reasonable adjudicator
would be compelled to conclude to the contrary.'" Id. (quoting 8
U.S.C. § 1252(b)(4)(B)).
At bottom, Sunoto's due process and irrebuttable
presumption claims are both assertions that the IJ unfairly relied
on the fraudulent application in making the adverse credibility
finding, and lacked a sufficient basis in the record for that
finding. The BIA determined that the IJ erred with respect to one
rationale – that Sunoto had testified inconsistently about his
knowledge of the contents of his fraudulent application – but held
that the finding was sufficiently supported by other factors: "the
respondent's fraudulent filing and testimony before the asylum
office, his demeanor, [and] his implausible explanation for why he
pursued a fraudulent claim . . . ."
Sunoto does not challenge the relevance and validity of
these other reasons; indeed, it cannot be debated that his earlier
fabrications carry some weight. However, he claims that the IJ
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began the credibility assessment with an unfair emphasis on his
past conduct and then unfairly bolstered the inference of
untruthfulness by relying heavily on the inconsistency that the BIA
rejected. Sunoto cites several comments made by the IJ, including
that "[t]his respondent is incapable of telling the truth," and
that "this Court cannot find anything that comes out of the
respondent's mouth or anything that he submits to this Court in
writing to be credible." Sunoto argues that the predisposition
reflected in this "strong language" is "particularly objectionable
because it is based on a view of Sunoto's testimony that the BIA
has found unwarranted." He further asserts that these statements
suggest a predisposition that diminishes the force of the other
factors cited by the IJ and prevented him from having a fair
hearing.5
While the IJ's credibility determination undoubtedly was
influenced to some extent by his erroneous finding of an
inconsistency, he cited – as noted above – multiple other reasons
5
Sunoto also attempted to buttress his due process claim by
pointing to the immigration judge's statement that he (the judge)
was "uncertain of the respondent's identity." Sunoto notes that no
questions ever were raised concerning his identity, and the IJ's
comment was therefore further indication of an unfair
predisposition toward petitioner. We can agree that the IJ's
reference to identity was unnecessary and without basis, but, in
context, it is more reasonably understood as a general comment on
Sunoto's credibility – based on the other factors noted above –
than a challenge to Sunoto's identity. There is no indication that
identity played a consequential role in the IJ's decision or any
role in the BIA's assessment of the IJ's ruling.
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for his conclusion and observed that "[a]ll of these actions go to
the heart of the matter before this Court today, that is, is the
respondent a credible witness." For example, in rejecting Sunoto's
explanation that he filed the fraudulent application because he
feared confronting his friend, the IJ observed that if he were
"afraid to contradict his roommate and change his asylum
application because he thought he would be kicked out of his house,
[he] certainly would have refused to go under oath and perjure
himself in such grave and great detail before the United States
asylum officer." The IJ thus found that Sunoto was "a full,
willing participant in this fraud on the United States."
We therefore are persuaded that the IJ did not, as Sunoto
suggests, pre-judge his credibility. Rather, the judge deemed his
new story unbelievable and, among other reasons, factored in his
assessment of demeanor. Moreover, the BIA reviewed the record with
care, discounting the IJ's subsidiary finding of inconsistency.6
On this record, we cannot say that the IJ's credibility finding was
unfairly derived or that the nature of the proceedings compelled
the BIA to reject the IJ's credibility determination.7
The petition for review is denied.
6
The BIA also pointed out a legal error in the IJ's
decision, noting that submission of a frivolous application
forecloses asylum but does not – as the IJ stated – also preclude
withholding of removal. See 8 C.F.R. § 1208.20.
7
While we do not reach Sunoto's other claims, we note that
the credibility finding renders them moot.
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