Toribio-Chavez v. Holder

Filing

OPINION issued by Sandra L. Lynch, Chief Appellate Judge; Juan R. Torruella, Appellate Judge and Rogeriee Thompson, Appellate Judge. Published. [09-1760]

Case: 09-1760 Document: 00116083773 Page: 1

Date Filed: 07/08/2010

Entry ID: 5461455

United States Court of Appeals
For the First Circuit

No. 09-1760
CRISPIN TORIBIO-CHAVEZ,
Petitioner,
v.
ERIC H. HOLDER, JR., ATTORNEY GENERAL,
Respondent.
ON PETITION FOR REVIEW OF AN ORDER OF THE
BOARD OF IMMIGRATION APPEALS
Before
Lynch, Chief Judge,
Torruella and Thompson, Circuit Judges.

Melanie M. Chaput on brief for petitioner.
Tony West, Assistant Attorney General, Civil Division, U.S.
Department of Justice, Aviva L. Poczter, Senior Litigation Counsel,
and Nehal H. Kamani, Trial Attorney, Office of Immigration
Litigation, on brief for respondent.

July 8, 2010

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THOMPSON,

Circuit

Date Filed: 07/08/2010

Judge.

The

Entry ID: 5461455

petitioner,

Crispin

Toribio-Chavez ("Toribio"), is a native and citizen of Mexico.
Toribio

petitions

for

review

of

a

decision

of

the

Board

of

Immigration Appeals ("BIA"), which affirmed an immigration judge's
("IJ")

order

of

removal

and

denial

of

Toribio's

request

for

cancellation of removal.1 After careful consideration, we deny the
petition for review.
I. Background
A. Family History
While living in Mexico, Toribio married Rosina Chavez
("Chavez") in 1978 and fathered three children by her. In 1983,
Toribio left his family and entered the United States without
inspection.
Toribio settled in New Hampshire and began dating Cheryl
Kucharski ("Kucharski").

The couple later had two daughters.

Returning to Mexico in 1993 for two weeks, Toribio executed a power
of attorney in favor of a Mexican attorney for the purpose of
obtaining an annulment of his marriage to Chavez. Toribio then recrossed

the

border

without

inspection

Hampshire, where he has resided since.

and

returned

to

New

Toribio never received any

confirmation or documentation indicating his marriage to Chavez was
annulled.

He contends, however, that three or four months after

1

The IJ also denied Toribio's request for
departure; however, he has not appealed this ruling.
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voluntary

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his reentry, his

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Entry ID: 5461455

sister in Mexico informed him that the annulment

was all set.
In June 1999, Toribio married Jamie Potter ("Potter").
At the time of the wedding, the couple already had a son, and later
that year, they had a daughter.

In applying for his New Hampshire

marriage license, Toribio did not disclose his previous marriage to
Chavez.

During this same time period, Toribio reunited with his

three oldest children, who were now teenagers and living legally in
Illinois with Chavez.

In 2000, Toribio received a divorce decree

from the State of Illinois pertaining to his marriage to Chavez.
The divorce was finalized when Toribio simply signed and returned
a form.
B. Adjustment of Status Process
Based upon his marriage to Potter, an American citizen,
Toribio moved to adjust his status to lawful permanent resident.
In connection with this process, Toribio completed a variety of
forms, and in 2002 he and Potter were interviewed under oath by
Immigration Adjudications Officer Maurice Violo ("Violo").
Toribio and Potter were represented by an attorney.

Both

During the

interview Toribio did not disclose his previous marriage to Chavez
or the children they had together.

Moreover, though requested,

none of this information was included on the forms Toribio and
Potter completed.

On February 1, 2002, Toribio's application for

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adjustment of status was approved and his status was adjusted to
lawful permanent resident.
C. Removal Proceedings
On August 20, 2002, the Immigration and Naturalization
Service ("INS") instituted removal proceedings against Toribio,
charging that pursuant to the Immigration and Nationality Act
("INA") he was inadmissable at the time his status was adjusted. See
8 U.S.C. §1227(a)(1)(a).

This inadmissability was based on Toribio

allegedly procuring his admission by willfully misrepresenting a
material fact, specifically by claiming that his marriage to Potter
was his first and failing to identify his children with Chavez. See
8 U.S.C. § 1182(a)(6)(C)(i).
Toribio's removal proceedings began on February 10, 2003,
and over the next three-and-a-half years ten hearings ensued.2
Different attorneys represented the Department of Homeland Security
("DHS") at these hearings, and Toribio also had counsel.3
first testified on May 19, 2004.

Toribio

When questioned by DHS counsel as

2

At the time of these proceedings, Toribio and Potter's
marriage had been annulled.
Potter had primary custody of the
couple's two minor children, and Toribio had visitation rights.
Kucharski had custody of Toribio's two minor children with her, and
he had visitation rights. Toribio provided financial support for
these four children. He did not support his three children with
Chavez as they were adults.
3

On March 1, 2003, the functions of the Immigration and
Naturalization Service were transferred to the Department of
Homeland Security. See 6 U.S.C. § 291(a); see also 6 U.S.C. § 542
(setting forth the transfer of functions in the accompanying
Reorganization Plan).
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to why he did not identify his marriage to Chavez when he applied
for a marriage license with Potter, Toribio claimed he thought his
marriage to Chavez had been annulled.

Toribio conceded he had no

evidence of this fact and never attempted to verify the annulment.4
DHS

counsel

also

questioned

Toribio

regarding

an

INS

form,

designated G-325, which Toribio signed as part of his application
for adjustment of status.

On the form, he noted "N/A" in the

section for designating former wives.

According to Toribio, he did

not list Chavez because he misunderstood the question and thought
it was asking if he had any former wives in the United States.

He

further noted that he barely spoke English.
Additionally, over Toribio's counsel's objection, the IJ
admitted into evidence a letter written by Potter, in which she
claimed she only became aware of Toribio's first marriage after her
own marriage to him, when she found his divorce papers. Toribio
countered that Potter always knew about his marriage to Chavez, the
three children from this union, and the subsequent Illinois divorce.
At a March 22, 2005 hearing, the then-presiding IJ found
that Toribio's marriage to Potter was bigamous and that DHS had
proved removability by clear and convincing evidence.

4

The IJ then

In Toribio's brief to this court, he indicates that after
his 2002 immigration interview he requested documentation from
Mexican authorities regarding his annulment and learned from them
that his marriage to Chavez was never annulled.
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indicated

that

she

would

consider

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Toribio's

Entry ID: 5461455

application

for

cancellation of removal or in the alternative, voluntary departure.
D. Cancellation of Removal Proceedings
On August 3, 2005, at the first cancellation of removal
hearing, DHS counsel questioned Toribio about

his immigration

interview with Violo and the various forms he had completed in
connection with the application process.

DHS counsel also queried

Toribio about why he kept immigration officials in the dark about
his prior marriage and Illinois divorce, which had been finalized
by the 2002 interview.

Toribio could give no reason for not

disclosing this information.
DHS counsel then questioned Toribio about another INS
form, designated I-485, which Violo completed during Toribio's
interview.

On the form, Violo listed the names and dates of birth

of Toribio's children from his relationships with Kucharski and
Potter; however, his children with Chavez were not mentioned.
form also contained the notation "no other children."

The

Asked to

explain why he did not identify his children with Chavez, Toribio
merely responded that he could not recall or understand why he had
not done so.

Toribio asserted that he barely spoke English when he

came to the United States, though it is undisputed the interview
occurred nearly twenty years after his arrival. DHS counsel further
questioned Toribio about his marriage license with Potter, which
under Toribio's name indicated "never married."

-6-

Toribio conceded

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he swore to tell the truth when he applied for the license, but
claimed that based on his mis-assumption that his fist marriage was
annulled, he believed it was as if it never existed.
At

a

September

26,

2006

hearing,

one

of

Toribio's

daughters with Kucharski, and his then-current girlfriend, testified
about his character and the hardship that would result from his
deportation. Immigration officer Violo also testified. Noting that
he conducts many interviews every week, Violo could not specifically
recall Toribio's interview; however, he testified as to his custom
and practice.

Stressing that it is his standard practice in

adjustment interviews to ask about previous marriages, Violo was
certain he had delved into this area with Toribio.

Specifically,

Violo said he would have asked Toribio and Potter individually
whether either had a previous marriage and he would have required
a separate verbal response from each.

If either Toribio or Potter

had admitted to a previous marriage, he would have demanded proof
of divorce or annulment. Violo also typically asked whether a prior
marriage produced children.

Additionally, if an applicant was

represented by counsel, Violo said he would dissuade the attorney
from responding to questions on the applicant's behalf, but would
note any difference between an attorney's and applicant's answers
on the immigration forms.
At the final hearing on December 27, 2006, Toribio again
testified, but his assertions varied significantly from his previous

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testimony.
to

the

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Entry ID: 5461455

In particular, he testified and proffered an affidavit

following

effect.

Focusing

on

his

2002

immigration

interview, Toribio now alleged that Potter was a very controlling
woman who told him prior to the interview that he "should keep [his]
mouth shut" and she "would handle the appointment."
claimed

that

Potter

answered

all

of

the

Toribio also

interview

questions

concerning previous spouses and children, and he had not interrupted
her

out

of

fear.

Further,

Toribio

believed

the

questioning

pertaining to his children referred to children born in the United
States.

He also claimed his attorney may have answered some of the

questions.

Turning to his marriage license, Toribio testified he

did not understand English very well and thought he only had to
identify previous marriages in the United States.

Finally, he

asserted that Potter answered all the questions on the marriage
license application. At the close of the hearing, the IJ reaffirmed
Toribio's removal and denied his request for cancellation of removal
and voluntary departure.
Toribio timely appealed to the BIA, which dismissed his
appeal and affirmed the IJ's decision. The BIA found no clear error
in the IJ's factual findings, including that Toribio had knowingly
misrepresented his marital status and given false testimony.

The

BIA also found no error in the IJ's denial of cancellation of
removal based on this false testimony.

It further held that the IJ

did not commit error in admitting Potter's letter and assigning it

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limited weight, and if there was error, it was harmless.

Toribio's

petition to this court followed.
II. Standard of Review
"We review the BIA's legal conclusions de novo, with
appropriate

deference

underlying

statute

principles."

to
in

the

agency's

accordance

interpretation

with

of

administrative

the
law

Walker v. Holder, 589 F.3d 12, 18 (1st Cir. 2009).

This includes a de novo review of due process claims.

See Santana

v. Holder, 566 F.3d 237, 240 (1st Cir. 2009). Further, "[w]e review
the agency's factual findings, including credibility determinations,
under the substantial evidence standard, and may overturn those
findings only if 'any reasonable adjudicator would be compelled to
conclude to the contrary.'"

Lin v. Gonzales, 503 F.3d 4, 7 (1st

Cir. 2007) (quoting 8 U.S.C. § 1252(b)(4)(B)).

In the instant

matter, the BIA adopted and affirmed the IJ's ruling, while also
discussing some of the bases for the IJ's opinion.
review both the IJ's and BIA's opinions.

Therefore we

Zheng v. Gonzales, 475

F.3d 30, 33 (1st Cir. 2007).
III. Discussion
A. Removal
The IJ's and BIA's removal rulings turned on a finding
that Toribio had procured admission by willfully misrepresenting a
material fact -- had he not falsely described his marriage to Potter
as his first, he would not have been granted lawful resident status.
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See 8 U.S.C. §1227(a)(1)(a); see also 8 U.S.C. § 1182(a)(6)(C)(i).
Arguing that at the time of his adjustment interview he believed
that his marriage to Chavez had been annulled, Toribio contends he
did not willfully mislead immigration officials either in his
application or during the interview.

He also insists that his

failure to list his children with Chavez was not material.5

Upon

careful review of the record, we find substantial evidence to
support the IJ's and BIA's decision that Toribio is removable.
To

begin

determinations.

with,

the

IJ

made

certain

credibility

She found Toribio's often contradictory testimony

explaining why he failed to disclose his marriage not credible. She
called his ultimate explanation that he did not give false testimony
because Potter answered the pertinent questions "feeble."

We treat

the IJ's credibility determination "with great respect, and we will
not overturn [it] unless we are compelled to do so."

5

Wiratama v.

Additionally, Toribio asserts that one of the issues in this
case is whether the initial IJ who first found Toribio removable
committed an error of law and due process violation when she
referenced the existence of a 204(c) bar in her oral decision.
This reference appears to relate to § 204(c) of the INA, which
pertains in part to marriage fraud. (Codified at 8 U.S.C. §
1154(c)). After identifying this issue, however, Toribio neglected
to address it again in his brief, setting forth no argument as to
why it was an error and violation.
Consequently we will not
address it. See Seale v. I.N.S, 323 F.3d 150, 152 n.1 (1st Cir.
2003) ("A party who fails to a raise a particular claim or defense
on appeal normally waives the right for it to be considered."); see
also Ryan v. Royal Ins. Co., 916 F.2d 731, 734 (1st Cir. 1990)
("[I]ssues adverted to on appeal in a perfunctory manner,
unaccompanied by some developed argumentation, are deemed to have
been abandoned.").
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Mukasey, 538 F.3d 1, 4 (1st Cir. 2008) (internal quotation omitted).
In examining the adverse credibility determination we must assess
whether it has significant support in the administrative record and
whether the IJ set forth specific and cogent reasons as to why
inconsistencies rendered Toribio's testimony not credible. See id.
Here the documentary evidence, the testimony of Violo, and the
inconsistent testimony of Toribio provided more than ample support
for the IJ's credibility determination.

Further, the IJ set forth

these inconsistencies at length in her oral decision.

Therefore we

will not disturb the IJ's adverse credibility determination.
We also find Toribio's claim that he did not willfully
make

any

misrepresentations

constitutes

a

"willful"

1182(a)(6)(C)(i),
"element

of

other

willfulness

unpersuasive.

Discussing

misrepresentation
courts
is

of

appeals

satisfied

by

under
have
a

8

what

U.S.C.

§

held

that

the

finding

that

the

misrepresentation was deliberate and voluntary." Mwongera v. I.N.S,
187 F.3d 323, 330 (3d Cir. 1999)(internal quotation omitted); see
also Parlak v. Holder, 578 F.3d 457, 463-64 (6th Cir. 2009).

An

intent to deceive is not necessary; rather, knowledge of the falsity
is sufficient.

See Forbes v. I.N.S., 48 F.3d 439, 442 (9th Cir.

1995); see also Mwongera, 187 F.3d at 330; Parlak, 578 F.3d at 463.
Applying

this

standard

we

see

establishing the willfulness element here.

substantial

evidence

It is undisputed that

at the time of the application process and interview, Toribio was

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aware that he had married Chavez, had three children with her, and
had no proof that the marriage had been annulled.

Indeed, by the

time of his interview he knew his marriage to Chavez had ended in
a divorce adjudicated in the United States.

Toribio was asked to

identify all previous marriages and children, and he knowingly and
voluntarily did not do so.
We also disagree with Toribio's argument that his failure
to identify all of his children was not material.

In Kungys v.

United States, the Supreme Court interpreted another immigration
statute,

which

like

§

1182(a)(6)(c)(i),

results

in

negative

consequences on the basis of material misrepresentations.

See

Kungys v. United States, 485 U.S. 759, 767 (1988) (interpreting 8
U.S.C. § 1451(a)). The Court held that in assessing materiality the
test is whether the misrepresentation "had a natural tendency to
influence" the INS's decisions. Id. at 772. Other courts of appeals
have applied this definition to § 1182(a)(6)(c)(i), and we shall do
the same.

See Parlak, 578 F.3d at 465; see also Mwongera, 187 F.3d

at 330.
There is sufficient evidence to conclude that Toribio's
omission of his children had a natural tendency to influence Violo's
adjustment of status decision.

Had Toribio disclosed the identity

of his oldest children, Violo would have undoubtedly asked about
Toribio's
married.

relationship
Notably

on

to
the

their
I-485

-12-

mother
form,

and

whether

Violo

wrote

they

were

the

word

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"girlfriend" next to the names of Toribio's two daughters with
Kucharski.

It is clear that the relationship of Toribio to the

mothers of his children mattered to Violo.

Had Toribio identified

his oldest three children and admitted his marriage to their mother,
then Violo, according to his testimony, would have required Toribio
to produce proof of the marriage's dissolution. A power of attorney
relating to his attempted annulment would not have been sufficient.
Had Toribio produced the 2000 Illinois divorce decree, it would have
disclosed that his marriage to Chavez ended after his marriage to
Potter, thus invalidating the latter as bigamous and making Toribio
ineligible for status adjustment based on his marriage to Potter.
Further Toribio's misrepresentation regarding his children was
undoubtedly material, as it had the natural tendency to influence
Violo's decision not to probe further.

Moreover, assuming arguendo

the immateriality of Toribio's misrepresentation regarding his
children, there is no question that his misrepresentation regarding
previous spouses is material.

Notably, Toribio makes no argument

to the contrary.
Ultimately,

given

the

marriage

license

and

multiple

immigration forms that inaccurately reflected Toribio's marital
history and children, along with his false testimony under oath that
his marriage to Potter was his first, we find substantial evidence
to support the IJ's and BIA's finding that Toribio is removable.

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B. Cancellation of Removal
The Attorney General may cancel removal of an alien if
the alien: (a) has resided in the United States for a continuous
period of ten years; (b) has been a person of good moral character
during such period; (c) has not been convicted of certain offenses;
and (d) has established that removal would result in exceptional and
unusual hardship to a qualifying family member.
1229b(b)(1).

See 8 U.S.C. §

The IJ held, and the BIA affirmed, that Toribio's

request for cancellation of removal should be pretermitted and
further denied on the merits for failure to satisfy this standard.
We agree.
Focusing on the good moral character prong, the IJ found,
and the BIA affirmed, that Toribio was not a person of good moral
character based upon his presentation of false testimony under
oath.6

Pursuant to 8 U.S.C. § 1101 a person is statutorily

precluded from being regarded as a person of good moral character
if he or she has "given false testimony for the purpose of obtaining
any [immigration] benefits."

8 U.S.C. § 1101(f)(6).

6

As an alternate basis for her holding, the IJ found that
inconsistencies
in
Toribio's
annulment
petition
and
his
misrepresentation of his marital status to obtain immigration
benefits supported a finding that he was not a person of good moral
character. To the extent Toribio argues that the IJ's alternate
finding that she would not exercise her discretion to grant
cancellation was error, we lack jurisdiction to review his claims.
See Elysee v. Gozales, 437 F.3d 221, 223 (1st Cir. 2006).
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As a threshold matter we will address this court's
jurisdiction to review this issue.

Generally no court has the

jurisdiction to review a judgment regarding cancellation of removal.
See 8 U.S.C. § 1252(a)(2)(B)(i). The exception to this rule is that
an appropriate court of appeals may review constitutional claims or
questions of law. See 8 U.S.C. § 1252(a)(2)(D). Toribio's specific
challenge to the IJ's and BIA's determination that he was per se
ineligible for cancellation of removal, because he had given false
testimony under 8 U.S.C. § 1106(f)(6), raises a question of law.
Toribio argues that the BIA committed legal error by classifying his
statements as "false testimony," see Bernal-Vallejo v. I.N.S., 195
F.3d 56, 62-63 (1st Cir. 1999), and more particularly raises the
questions of whether statements by his counsel are "his" statements
and whether his "intent" in making a statement disqualified it from
being false testimony.
issues of law.

Thus we have jurisdiction to review these

Cf. Elysee, 437 F.3d at 223-24.

We now turn to the merits.

The Supreme Court has held

that false testimony under 8 U.S.C. § 1101(f)(6) is limited to "oral
statements made under oath" and "misrepresentations made with the
subjective intent of obtaining immigration benefits."
U.S. at 780.

Kungys, 485

Toribio contends he made no oral statements at his

interview and even if he did, such statements were neither false nor
intended to mislead immigration officials.
supported by the record.
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This contention is not

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First, there is substantial evidence that Toribio gave
oral testimony at his adjustment interview, and it is undisputed
that he was under oath.

Though Toribio claims Potter responded to

Violo's specific questions about his previous marriage, the IJ found
this assertion not credible -- and

we

will not disturb that

credibility finding. Further, Toribio's equivocal indication in his
affidavit that his attorney "may" have answered the questions is not
compelling and not supported by the evidence.

Even assuming that

Toribio's attorney answered the questions regarding marital history,
the

attorney

was

participating

in

the

interview

pursuant

to

Toribio's authority, and therefore Toribio would be bound by his
responses.

See KPS & Associates, Inc. v. Designs By FMC, Inc., 318

F.3d 1, 16 (1st Cir. 2003)("[I]n this circuit we have consistently
turned a deaf ear to the plea that the sins of the attorney should
not be visited upon the client.")(internal quotation omitted).
Finally,

Toribio

argues

that

he

did

not

subjective intent to obtain an immigration benefit.

have

the

His basis for

this argument is unclear, and in making this contention he simply
reiterates that Potter answered all pertinent questions and he
believed his marriage was annulled.
found

Toribio's

assertion

not

We are unconvinced.

credible

and

this

The IJ

finding

was

supported by sufficient and probative documentary and testimonial
evidence.

Therefore, we uphold the IJ's and BIA's denial of

cancellation of removal.
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C. Due Process
Toribio argues that his Fifth Amendment right to due
process was violated by two procedural errors.

We note at the

outset that a mere claim of procedural error alone does not state
a due process claim.

As we state below, the claim must rise to the

level of being a claim of fundamental fairness, and the claimant
must show prejudice.
The first argument that Toribio makes is that the IJ
erred in admitting the letter written by Potter into evidence.
Before

the

IJ,

Toribio's

counsel

objected

to

introduction as Potter was not available to testify.

the

letter's

DHS counsel

indicated he would attempt to make Potter available, but although
he contacted and attempted to subpoena her, Potter's testimony was
never procured.

In rendering her decision, the IJ noted that the

letter spoke for itself, though it was undermined somewhat by
Potter's unavailability.

On appeal, the BIA found no error in the

IJ's admission of the letter since she gave it limited weight and
even assuming the letter's admission was erroneous, such error was
harmless since the document was not key to the IJ's holding.
Finding no fundamental unfairness, we see no procedural issue here.
In support of his argument, Toribio relies on Ocasio v.
Ashcroft, 375 F.3d 105 (1st Cir. 2004).

In Ocasio, the IJ admitted

into evidence an affidavit authored by an individual who did not
testify at trial. Id. at 107.

The IJ admitted the affidavit, which
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was offered by INS, after INS counsel attempted to subpoena the
individual and produced testimony to authenticate the affidavit. Id.
On appeal, the

petitioner argued that the INS did not use adequate

measures to compel the author of the affidavit to appear at trial
and therefore the proceedings were fundamentally unfair. Id.

The

court held that one of the outer limits of due process is that the
INS may not use the affidavit of an absent witness unless it first
establishes that despite reasonable efforts it was unable to secure
the witness's presence at the hearing.

Id.

The court went on,

however, to deny the petition because the petitioner failed to raise
her objection at her

deportation proceeding.

Id.

Based on

petitioner's failure to properly raise the argument, the court
determined it need not reach the "fundamental fairness of the IJ's
reliance on [the] affidavit."

Id. at 108.

We need not decide whether Ocasio is applicable here, or
whether DHS counsel established on the record what reasonable steps
were taken to secure Potter as a witness, because we conclude that
the IJ's admission of, and limited reliance on, the letter was not
fundamentally unfair, nor did it cause prejudice.

In doing so, we

note that the "Federal Rules of Evidence do not apply in [DHS]
proceedings ... but the less rigid constraints of due process impose
outer limits based upon considerations of fairness and reliability."
Yongo v. I.N.S., 355 F.3d 27, 30 (1st Cir. 2004) (internal quotation
omitted).

This court has held in the context of an immigration

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Case: 09-1760 Document: 00116083773 Page: 19

Date Filed: 07/08/2010

Entry ID: 5461455

appeal that a "due process claim cannot succeed without prejudice;
without prejudice, any error that occurred would be harmless."
Hossain v. Ashcroft, 381 F.3d 29, 32 (1st Cir. 2004). In this case,
the IJ's reliance on the letter was not fundamentally unfair, nor
did it prejudice Toribio.

The IJ did not primarily rely on the

letter and afforded it limited weight.

As set forth at length in

her decision, the IJ was compelled not by the letter but by the
documentary evidence, Violo's testimony, and Toribio's lack of
credibility.
Furthermore, Toribio was afforded the opportunity to
rebut the letter through his own testimony and a photograph that he
introduced into evidence depicting Potter with his three oldest
children.7

See Banat v. Holder, 557 F.3d 886, 893 (8th Cir.

2009)("[W]here a hearsay document is admitted but not primarily
relied upon and the petitioner receives the opportunity to rebut the
document's

conclusions

through

his

fairness of the proceedings has
quotation omitted).

witnesses,

not

the

fundamental

been impinged.")(internal

Additionally, it is generally accepted, as the

BIA held, that nothing in the due process clause precludes the use
of hearsay evidence in administrative proceedings.

See Pulisir v.

Mukasey, 524 F.3d 302, 311 (1st Cir. 2008); see also Duad v. United
States, 556 F.3d 592, 596 (7th Cir. 2009). The BIA itself says that

7

In the end the IJ did not find the photograph persuasive
because in her letter Potter never denied knowledge of Toribio's
oldest children, just knowledge of his marriage to their mother.
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Case: 09-1760 Document: 00116083773 Page: 20

Date Filed: 07/08/2010

Entry ID: 5461455

the hearsay nature of a document affects weight, not admissibility.
See

Matter

of

Kwan,

14

I.

&

N.

Dec.

175,

177

(BIA

1972).

Consequently, Toribio's due process claim with respect to the letter
cannot succeed.
The second argument made by Toribio is that crossexamining him at three different hearings violated his due process
rights.

As noted previously, Toribio first testified on May 19,

2004 at his removal proceedings.

Next he testified on August 3,

2005 at the hearing for cancellation of removal.

The IJ who

rendered the final decision did not preside over either of these
hearings and when assigned this matter, suggested that the case
proceed de novo.8

However, attorneys for both sides opted to rely

on the transcripts of the earlier hearings.

Nonetheless at the

final hearing on December 27, 2006, DHS counsel suggested that the
IJ, who had never observed Toribio testify, might benefit from
hearing some limited questioning of him.

The IJ agreed and allowed

Toribio to testify a third and final time in order to assess his
demeanor and credibility.

In support of his appeal, Toribio claims

that expecting him to respond consistently to questioning that took
place years apart held him to an impossible standard.

We hold a

differing view and therefore dispose of this argument handily.

8

The IJ who made the final decision only presided over the
final two hearings, which took place on September 26, 2006 and
December 27, 2006.
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Case: 09-1760 Document: 00116083773 Page: 21

Toribio's

counsel

never

Date Filed: 07/08/2010

objected

to

Entry ID: 5461455

Toribio

being

questioned at any of the three hearings, and indeed questioned him
herself at each one.

This court has applied a "general exhaustion

requirement" or "raise-or-waive rule" when reviewing administrative
actions.

See N.L.R.B. v. Saint-Gobain Abrasives, Inc., 426 F.3d

455, 458-459 (1st Cir. 2005).

Specifically, "as a general rule[,]

courts should not topple over administrative decisions unless the
administrative body not only has erred but has erred against
objection made at the [appropriate] time."

Id. (internal quotation

omitted). As Toribio's counsel failed to object to the questioning,
this argument has been waived.
Moreover, even if counsel had objected, we do not find
that Toribio being questioned at multiple hearings violated his due
process rights.

The first two hearings at which he testified were

for the distinct purposes of deciding removability and cancellation
of removal respectively.

Therefore it was entirely proper to have

Toribio testify at both hearings.

With respect to the final

hearing, the IJ in her discretion determined that she needed to hear
Toribio

testify

and

assess

his

credibility

first

hand.

"An

immigration judge, like other judicial officers, possesses broad
(though

not

proceedings."

uncabined)

discretion

over

the

conduct

of

trial

Sharari v. Gonzales, 407 F.3d 467, 476 (1st Cir.

2005) (internal quotation omitted).

As the trial judge, the IJ was

in the best position to determine whether additional testimony was
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Case: 09-1760 Document: 00116083773 Page: 22

needed.

Date Filed: 07/08/2010

Entry ID: 5461455

See, e.g., United States v. Thomas, 377 F.3d 232, 241 (3d

Cir. 2004) (noting that a trial judge is in the best position to
weigh competing interests in deciding whether to admit evidence).
Simply because Toribio changed his testimony at this final hearing,
calling his credibility into question, does not necessarily create
a due process violation.
The fact that Toribio was questioned at three hearings
does not offend the notions of fairness and reliability in violation
of his due process rights.

See Yongo, 355 F.3d at 30.

As such,

Toribio has failed to establish any due process violation.
IV. Conclusion
For the reasons set forth above, Toribio's petition for
review is DENIED.

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