Sunoto v. Gonzales

• Decision Date: 27 September 2007
• Docket Number: No. 06-1366.,06-1366.
• Parties: Sunoto SUNOTO, Petitioner, v. Alberto GONZALES, Attorney General of the United States, Respondent.
• Court: U.S. Court of Appeals — First Circuit

504 F.3d 56

Sunoto SUNOTO, Petitioner, v. Alberto GONZALES, Attorney General of the United States, Respondent.

No. 06-1366.

United States Court of Appeals, First Circuit.

Submitted February 5, 2007.

Decided September 27, 2007.

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.

Before LIPEZ, Circuit Judge, GIBSON^* and STAHL, Senior Circuit Judges.

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 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: (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 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 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 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...