United States v. Samuel Acosta

United States Court of Appeals
FOR THE EIGHTH CIRCUIT
___________
No. 09-1513
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Clavenda Toby, a/k/a Beclavena *
Vemore Toby, a/k/a Joice Beclavena *
Sullivan, *
*
Petitioner, *
* Petition for review of an Order of
* the Board of Immigration Appeals.
v. *
*
Eric H. Holder, Jr., Attorney General, *
*
Respondent. *
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Submitted: December 16, 2009
Filed: August 27, 2010
___________
Before BYE, BEAM, and COLLOTON, Circuit Judges.
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BYE, Circuit Judge.
Clavenda Toby appeals a Board of Immigration Appeals (BIA) decision
affirming an immigration judge's (IJ) order of removal denying Toby adjustment of
status, waiver of inadmissibility, asylum, withholding of removal, and protection
under the Convention Against Torture. We deny the petition for review.

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I
Clavenda Toby is a native and citizen of Liberia. She was detained and charged
on November 21, 2002, with removability under 8 U.S.C. § 1227(a)(1)(A) as an alien
inadmissible at time of entry under 8 U.S.C. § 1182(a)(7)(A)(i)(I) for failure to
possess a valid entry document. She was also charged with removability under
8 U.S.C. § 1182(a)(6)(C)(i) for procuring entry through fraud or willful
misrepresentation of a material fact. Toby conceded removability and the IJ
administratively closed the removal proceedings on March 6, 2003, because Toby was
granted Temporary Protected Status (TPS). Toby petitioned to reopen the proceedings
in 2006 because a visa number was available for her under a form I-130 petition for
alien relative filed in 1993 by her sister, who is a United States citizen. Toby requested
adjustment of status and a waiver of any grounds of inadmissibility. In January of
2007, with her petition for adjustment of status still pending, Toby filed for asylum,
withholding of removal, and protection under the Convention Against Torture. In the
alternative, she requested voluntary departure.
Toby testified she entered the United States in early September of 1996, using
her sister Memie's Liberian passport and visa. She later changed her testimony and
said she used her sister Belizabeth's United States passport to enter the country. Toby
testified her father sent her Belizabeth's passport when he found out Toby had been
kidnapped at gunpoint and raped by armed men at a refugee camp in Liberia. Toby
remained in the United States illegally until she came to the attention of Immigration
and Customs Enforcement (ICE) in 2002 when she filed a fraudulent application for
TPS using a false name and her sister's alien registration number (she filed another
application for TPS using her own information, which was the basis for the
administrative closure of her removal proceedings).
The government presented documents from the Minnesota welfare office
showing Toby had also applied for and received welfare benefits using the same name

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and alien registration number she later used to file the fraudulent application for TPS.
Employment documents showed Toby had used social security numbers and various
permutations of her assumed name to obtain employment. She was married to Cyrus
Barney in Liberia but testified she assumed he was dead when he left the house one
day and never returned. She married Michael Sullivan, a United States citizen, in
1999. Toby's mother testified Toby said she married Sullivan for immigration
purposes, however, no immigration papers were ever filed as a result of the marriage.
The couple eventually divorced and Toby later reunited with Cyrus Barney, who was
alive and, as it turns out, living in the United States under TPS as well. The couple
has one son, who is a United States citizen. Toby's mother is a United States citizen
and her siblings are all citizens or legal permanent residents.
The IJ denied Toby's claims because she found Toby not to be a credible
witness. The IJ also denied each of Toby's claims on the merits and, where applicable,
as a matter of discretion. Toby appealed to the BIA, which affirmed the IJ's decision.
Toby filed a timely petition for review of that order.
II
Credibility
The criteria for use in determining credibility during removal proceedings are
set forth in 8 U.S.C. § 1229a(c)(4)(C):
Considering the totality of the circumstances, and all relevant factors, the
immigration judge may base a credibility determination on the
demeanor, candor, or responsiveness of the applicant or witness, the
inherent plausibility of the applicant's or witness's account, the
consistency between the applicant's or witness's written and oral
statements (whenever made and whether or not under oath, and
considering the circumstances under which the statements were made),
the internal consistency of each such statement, the consistency of such

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statements with other evidence of record (including the reports of the
Department of State on country conditions), and any inaccuracies or
falsehoods in such statements, without regard to whether an
inconsistency, inaccuracy, or falsehood goes to the heart of the
applicant's claim, or any other relevant factor. There is no presumption
of credibility, however, if no adverse credibility determination is
explicitly made, the applicant or witness shall have a rebuttable
presumption of credibility on appeal.
This court has held
[a]n IJ's findings of fact when affirmed by the BIA are conclusive unless
any reasonable adjudicator would be compelled to conclude to the
contrary. Credibility findings in particular are entitled to much weight
because the IJ sees the witness testify and is therefore in the best position
to determine his or her credibility. Therefore, we defer to a credibility
finding that is supported by a specific, cogent reason for disbelief.
Fofanah v. Gonzales, 447 F.3d 1037, 1040 (8th Cir. 2006) (citation and quotation
marks omitted).
The IJ determined that Toby was generally not credible because Toby used her
sister's immigration documents to enter the country illegally; documents presented by
the government showed Toby had applied for numerous forms of government and
immigration relief using combinations of her sisters' names, immigration numbers,
and other identifying information; because Toby's mother testified Toby married her
United States citizen former husband for immigration purposes; because Toby's
identification documents, some of which appeared to be forgeries, contained
conflicting information; and because Toby changed her testimony about which
immigration documents she used to enter the country illegally. Toby does not dispute
any of the evidence but argues the IJ should have taken into account her state of mind
when she did all of those things. Toby presented evidence she was suffering from
post traumatic stress disorder and her counselors testified this made it difficult for her

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to be forthcoming about the traumatic underlying circumstances of her claim for relief
and even about the details of her life. Such evidence is relevant to Toby's worthiness
for relief but does not serve to undermine the IJ's credibility determination. Even if
Toby could prevail on her argument with respect to credibility, she has failed to appeal
independent alternative grounds for each form of relief she requested.
Adjustment of Status
This court does not have jurisdiction to review an IJ's discretionary
determination to deny adjustment of status. 8 U.S.C. § 1252(a)(2)(B)(i). The
statutory provision governing judicial review of orders of removal categorizes
adjustment of status as a matter not subject to judicial review as follows:
(B) Denials of discretionary relief
Notwithstanding any other provision of law (statutory or nonstatutory),
including section 2241 of Title 28, or any other habeas corpus provision,
and sections 1361 and 1651 of such title, and except as provided in
subparagraph (D), and regardless of whether the judgment, decision, or
action is made in removal proceedings, no court shall have jurisdiction
to review --
(i) any judgment regarding the granting of relief under section ...
1255 of this title [adjustment of status]. . . .
8 U.S.C. § 1252(a)(2)(B)(i).
However, under 8 U.S.C. § 1252 (a)(2)(D) (Judicial review of certain legal
claims),
[n]othing in subparagraph (B) or (C), or in any other provision of this
chapter (other than this section) which limits or eliminates judicial
review, shall be construed as precluding review of constitutional claims

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or questions or law raised upon a petition for review filed with an
appropriate court of appeals in accordance with this section.
While this court has no jurisdiction to review the discretionary denial of
adjustment of status, it retains jurisdiction over properly raised questions of law and
constitutional questions. See Hashmi v. Mukasey, 533 F.3d 700, 703 (8th Cir. 2008)
("We lack jurisdiction to review discretionary denials of adjustment of status, but we
do review 'the predicate legal question' of whether the IJ properly applied the law to
the facts in determining the alien's eligibility for adjustment.")
The IJ found Toby ineligible for adjustment under 8 U.S.C. § 1182(a)(6)(C)(ii)
because she was inadmissible for having made a false claim to citizenship when she
used her sister's United States passport to enter the country. Toby claims it was not
proper to deny her relief on this ground because she entered the United States before
September 30, 1996, when the false claim to citizenship provision was added to
section 1182(a)(6)(C). The IJ found Toby had failed conclusively to establish she
entered before that provision took effect. This finding is not supported by the record.
Even if the IJ properly determined Toby was not a credible witness, the government
charging documents allege entry on or about September 1, 1996, and her sister
testified Toby had entered the country around Labor Day of 1996. Since the IJ made
no finding as to the sister's credibility, she enjoys a presumption of credibility on
appeal. See 8 U.S.C. § 1229a(c)(4)(C) ("There is no presumption of credibility,
however, if no adverse credibility determination is explicitly made, the applicant or
witness shall have a rebuttable presumption of credibility on appeal.").
It is, however, immaterial whether Toby was statutorily ineligible for
adjustment of status, because the IJ separately denied adjustment as a matter of
discretion based on a balancing of the equities of Toby's case and because she was
inadmissible for having made a false claim to citizenship. As noted above, we lack
jurisdiction to review an IJ's discretionary denial of an application for adjustment of
status. Toby attempts to avoid the jurisdictional bar to review of discretionary

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decisions by arguing the IJ applied an incorrect legal standard in exercising its
discretion.
Adjustment of status requires a balancing of favorable and adverse factors. See
Patel v. INS, 738 F.2d 239, 242 (7th Cir. 1984). Toby does not argue the IJ used
improper factors but "a reasonable fact finder would have found [Toby] credible and
therefore, eligible for adjustment of status." However, the IJ did not weigh Toby's
general credibility as part of the discretionary analysis. The IJ considered Toby's
flagrant immigration violations; her unlawful entry into the United States involving
the use of her sister's passport; her preconceived intent to enter and remain in the
United States permanently; and her false statements to the immigration court, the
Department of Homeland Security, the police, employers, and welfare authorities.
The IJ weighed those factors, none of which Toby disputes, against her
well-established ties to the United States and found the equities did not warrant a
favorable exercise of discretion. Although couched as a question of law, Toby's
argument would require this court to examine the IJ's weighing of those factors. In
Hailemichael v. Gonzales, 454 F.3d 878, 886 (8th Cir. 2006), we found we lack
jurisdiction to review an IJ's weighing of discretionary factors. Accordingly, we lack
jurisdiction to review this dispositive ground for denial of Toby's petition for
adjustment of status.
Waiver
Pursuant to 8 U.S.C. § 1182(i)(1), the attorney general may waive the
application of inadmissability under 8 U.S.C. § 1182(a)(6)(C)(i) and may adjust the
status of a recipient of such waiver. However, 8 U.S.C. § 1182(i)(2)provides, "[n]o
court shall have jurisdiction to review a decision or action of the Attorney General
regarding a waiver under paragraph (1)." The bar to review of such decisions on
waiver is reinforced in 8 U.S.C. § 1252(a)(2)(B) ("regardless of whether the judgment,
decision, or action is made in removal proceedings, no court shall have jurisdiction

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to review - (i) any judgment regarding the granting of relief under section ... 1182(i)").
Toby again argues we have jurisdiction because the IJ committed an error of law but
she fails to point out any specific error of law and states "the IJ selectively cited to the
evidence that most supported her conclusion that there was a lack of extreme hardship
to support granting [waiver]." As stated above, pursuant to Hailemichael, 454 F.3d
at 886, we do not have jurisdiction to review an IJ's weighing of appropriate factors
where the relief requested is discretionary. We must therefore deny the petition with
respect to Toby's request for adjustment of status.
Asylum
The IJ found Toby not to be a credible witness and denied her asylum claim on
that basis. However, the IJ also denied Toby's claim to asylum because she was
outside the one year time limit for asylum under 8 U.S.C. § 1158(a)(2)(B). "Congress
has generally precluded the federal courts from exercising jurisdiction to review a
determination of the Attorney General that an application for asylum was untimely.
See 8 U.S.C. § 1158(a)(3)." Manani v. Filip, 552 F.3d 894, 899 (8th Cir. 2009).
Under 8 U.S.C. § 1252 (a)(2)(D), we retain, as always, jurisdiction to review claims
of law or constitutional claims. However, Toby does not make any cogent legal
argument on appeal that the IJ committed an error of law or violated her constitutional
rights with respect to this decision. The IJ did not link this decision to its general
credibility finding but instead found Toby was subject to the one year bar and was not
eligible for the exception to that bar because she had failed to show extraordinary
circumstances relating to the delay in filing under 8 U.S.C. § 1158(b)(2)(d).
Toby contends the IJ erred in finding she did not make a showing of exceptional
circumstances because she presented the testimony of counselors that she was
suffering from post traumatic stress disorder, which she argues interfered with her
ability to timely seek asylum based on the traumatic rape she suffered. In Manani v.
Filip, this court determined it had no jurisdiction to review an alien's petition for

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review where the alien argued her "mental and physical health prevented her from
seeking asylum" because such arguments "amount to a quarrel with the BIA's
discretionary factual determination." 552 F.3d at 900 (quoting Purwantono v.
Gonzales, 498 F.3d 822, 824 (8th Cir. 2007)). This case is indistinguishable from
Manani and we lack jurisdiction to review this basis for the denial of Toby's asylum
claim.
The IJ also denied Toby's asylum claim on the merits, finding she had not
proven her rape was a result of persecution on account of a protected ground (race,
religion, nationality, membership in a particular social group, or political opinion)
under 8 U.S.C. § 1158(b)(B)(i). Toby testified armed men kidnapped her and four
other women from a room of twenty women at a refugee camp in Liberia. She
testified the men said they took the women because they believed them to be affiliated
with the government (Toby worked in government offices before she fled her home
to escape armed conflict in the area) but she also testified she thought the women were
chosen at random and she was chosen because she was well-dressed and the men
thought she had money. The IJ separately found Toby had failed to show she was in
danger of persecution if returned to her country and cited changed country conditions
in support of that finding. Toby did not address the IJ's findings on the merits of her
case on appeal and has waived this argument. We must therefore deny the petition
with respect to the question of asylum.
Withholding of removal
To establish eligibility for withholding of removal under 8 U.S.C. § 1231(b)(3),
an alien must establish it is "more likely than not" the alien's life or freedom would be
threatened in the country designated for removal (the IJ in this case designated Liberia
as Toby's country of removal) on account of one of the five grounds enumerated in the
act. The IJ denied withholding of removal based on Toby's lack of credibility.
However, she also denied Toby's claim on the merits, finding Toby had failed to

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establish she was more likely than not to be persecuted, citing changed country
conditions in Liberia, and finding Toby had failed to establish her past persecution
was related to her race, religion, nationality, membership in a particular social group,
or political opinion. Toby has failed to appeal these alternative, independent grounds
for denial of withholding not related to her credibility and we accordingly deny the
petition for review on this issue.
Protection under the Convention Against Torture (CAT)
Toby claims the IJ improperly determined her story was not credible. However,
the IJ also denied Toby's request for CAT relief on the merits because, even if her
story were true, she failed to establish that her persecutors were in any way related to
or sanctioned by the Liberian government. See 8 C.F.R. § 1208(a)(1)(7). The IJ also
found Toby had failed to show she was more likely than not to be tortured upon return
to Liberia and cited changed conditions in the country as a result of recent elections.
See 8 C.F.R. § 1208.16(c)(3). Toby has not appealed this independent basis for the
denial of CAT relief and we must deny the petition with respect to this issue as well.
III
There was sufficient evidence to support the BIA's determination that Toby was
not credible. In addition, Toby has failed to appeal alternative grounds for denying
her requests for asylum, withholding of removal, and protection under CAT. We lack
jurisdiction to review the district court's discretionary denials of Toby's petition for
adjustment of status and waiver of inadmissibility.
Accordingly, we deny the petition for review.
______________________________

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