Pierre Philippe Tchuinga v. Alberto R. Gonzales, Attorney General

United States Court of Appeals
For the First Circuit
No. 05-1875
PIERRE PHILIPPE TCHUINGA,
Petitioner,
v.
ALBERTO R. GONZALES, ATTORNEY GENERAL,
Respondent.
ON PETITION FOR REVIEW OF AN ORDER OF THE
BOARD OF IMMIGRATION APPEALS
Before
Boudin, Chief Judge,
Stahl, Senior Circuit Judge,
and Lipez, Circuit Judge.
Joseph M. Carreiro, Jr., Law Offices of George P. Katasarakes,
P.C., Stephanie F. Dyson, and Dyson Law P.C. on brief for
appellant.
Peter D. Keisler, Assistant Attorney General, Terri J.
Scadron, Assistant Director, and Manuel A. Palau, Special Attorney,
U.S. Dept. of Justice, on brief for appellee.
July 7, 2006

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"The status of an alien who was inspected and admitted or paroled 1
into the United States or the status of any other alien having an
approved petition . . . may be adjusted by the Attorney General, in
his discretion and under such regulations as he may prescribe, to
that of an alien lawfully admitted for permanent residence if (1)
the alien makes an application for such adjustment, (2) the alien
is eligible to receive an immigrant visa and is admissible to the
United States for permanent residence, and (3) an immigrant visa is
immediately available to him at the time his application is filed."
8 U.S.C. § 1255(a).
On March 1, 2003, the INS ceased to exist as an agency within 2
the Department of Justice. Its enforcement functions were
transferred to the Department of Homeland Security ("DHS"),
pursuant to §§ 441 and 471 of the Homeland Security Act of 2002,
Pub. L. No. 107-296, 116 Stat. 2135.
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LIPEZ, Circuit Judge. Petitioner-appellant Pierre
Philippe Tchuinga seeks review of the decision by the Board of
Immigration Appeals ("BIA") to deny his motion to reopen or remand
removal proceedings so that he may apply for adjustment of status.1
We hold that the BIA did not abuse its discretion in denying
Tchuinga's motion. Tchuinga is not eligible to adjust his status
due to his previous submission of a frivolous asylum application,
and we lack jurisdiction to review the frivolous asylum application
issue because it was not raised in the motion to reopen.
I.
Tchuinga, a citizen of Cameroon, entered the United
States on or about September 19, 1997. He was detained, and the
Immigration and Naturalization Service ("INS") charged him with 2
inadmissibility under the Immigration and Nationality Act ("INA")
§ 212(a)(6)(C)(i), 8 U.S.C. § 1182(a)(6)(C)(i), as an immigrant

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who, by fraud or willfully misrepresenting a material fact, sought
to procure a visa or other documentation, or admission to the
United States or other benefit under the INA. He was also charged
with inadmissibility under INA § 212(a)(7)(A)(i)(I), 8 U.S.C.
§ 1182(a)(7)(A)(i)(I), as an immigrant who, at the time of his
application for admission, did not possess valid unexpired entry or
travel documents.
During his initial hearing with the Immigration Judge
("IJ"), Tchuinga conceded inadmissibility under INA §
212(a)(7)(A)(i)(I) but contested the charge of inadmissibility
under INA § 212(a)(6)(C)(i). He also filed applications for
asylum, withholding of removal, and relief under the Convention
Against Torture ("CAT"). Tchuinga claimed that he had suffered
persecution in Cameroon as a member of a militant political party,
the Social Democratic Front ("SDF"). The IJ notified him of the
consequences of filing a frivolous application for asylum. An INS
official reviewed Tchuinga's application and found him to have a
credible fear of persecution and paroled him into the United States
pending his removal hearing.
On September 16, 1998, at a hearing on Tchuinga's
inadmissibility and claims for asylum, withholding of removal, and
CAT relief, Tchuinga gave an account of his life in and flight from
Cameroon. Tchuinga was a member of the SDF and was eventually
appointed to the position of "Director of Information and

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Propaganda" for the party. In that role, Tchuinga served as the
spokesperson for the party in his area and encouraged young people
to join the group. In April or May 1997, members of the government
party, the Cameroon Peoples' Democratic Movement, approached him
and asked him to assist in election fraud by "stuffing the ballot
boxes." Tchuinga refused and reported the request back to SDF
party officials. Approximately one month later, two men in
civilian clothing came to Tchuinga's house and handcuffed him.
They also threatened his wife with a gun, telling her to keep quiet
as they drugged Tchuinga and led him out of the house. When
Tchuinga later awoke in a small cell, he discovered that he was
being held in the same detention facility where his uncle, also an
officer with the SDF, had been tortured and killed five years
earlier. A guard told Tchuinga that the detention "will teach you
to disobey the government."
Learning that the guard was from Tchuinga's tribe,
Tchuinga persuaded him to help him escape in exchange for the money
that Tchuinga had in his pocket (approximately 10,000 Cameroon
francs). With that help, Tchuinga escaped and went back to his
house. His wife informed him that he had been missing for seven
days. He sent his wife and children to his mother-in-law's house
in another town, and fled to Nigeria. He asked his cousin to watch
his house in Cameroon. He later learned that his cousin had been
arrested, tortured, and questioned as to the whereabouts of

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Tchuinga and his family. Tchuinga returned to Cameroon twice,
first to obtain a passport from a friend there, and then to obtain
a visa to France, where his brother and three sisters lived. He
arrived in France in September 1997 and stayed with his brother.
Fearful of the close ties between Cameroon and France, Tchuinga
applied for a visa to enter the United States, but was denied. He
then stole his brother's passport and entered the United States.
After hearing the petitioner's testimony, the IJ set a
date for another hearing to give Tchuinga time to produce and
authenticate documents that would corroborate parts of his story,
particularly his membership and role with the SDF, the whereabouts
of his wife and children, and the arrest and torture of his cousin
and uncle. At that later hearing on December 23, 1998, Tchuinga
testified that he had difficulties producing the requested
documents. Upon reviewing an American consulate report that
questioned the accuracy of Tchuinga's claims and the authenticity
of his documents, the IJ expressed concern that some of the
documents that Tchuinga had submitted, including part of his SDF
membership information, were fraudulent. She gave him additional
time to authenticate those documents and produce additional support
for his story, scheduling another hearing for April 20, 1999. At
that hearing, Tchuinga again submitted documentation and attempted
to explain his difficulties in producing additional corroborating
documents.

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After considering the evidence, the IJ concluded that
Tchuinga was subject to removal under INA § 212(a)(7)(A)(i)(I) for
failing to have valid entry or travel documents at the time of his
application for admission, which he had conceded, and INA
§ 212(a)(6)(C)(i) for having sought an immigration benefit through
fraud. Specifically, the IJ found that Tchuinga held himself out
to be a citizen of France and knowingly presented a document that
was not his own (his brother's passport) in an attempt to secure
admission to the United States. The IJ found that Tchuinga's
brother was able to offer him a safe haven in France and that
Tchuinga "accordingly [has] not claimed in any way that the fraud
he perpetrated upon the U.S. consulate and attempted to perpetrate
upon the INS was occasioned by his flight from his home country or
any genuine fears that propelled him to travel to the United
States."
Turning to Tchuinga's asylum application, the IJ observed
that Tchuinga "has not obtained or satisfactorily explained his
failure to obtain documentation from his home country that could
authenticate various information that he has provided in his asylum
application." The IJ concluded that although Tchuinga had
authenticated his membership in the SDF, he has "not verif[ied]
that he was in any way harmed."
Examining the documents that Tchuinga had produced, the
IJ found that he "has knowingly provided to this Court false

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documentation in an attempt to secure asylum" and thus had
knowingly filed a frivolous application for asylum. Specifically,
the IJ found that Tchuinga had knowingly presented false documents
indicating that he was an appointed official of the SDF party so
that he could exaggerate the nature of his membership and the
extent to which he was persecuted on account of his role with the
party. The IJ issued a decision denying Tchuinga's claims and
finding that, because Tchuinga had submitted fraudulent evidence,
he was barred from applying for any other benefits under the INA as
having submitted a frivolous application. See 8 U.S.C.
§ 1158(d)(6) ("If the Attorney General determines that an alien has
knowingly made a frivolous application for asylum . . . the alien
shall be permanently ineligible for any benefits under this Act,
effective as of the date of a final determination on such
application.").
The petitioner obtained new counsel and, on May 18, 1999,
filed a timely motion to reopen his case with the IJ, alleging
ineffective assistance of counsel and arguing that he had not
knowingly provided false evidence in support of his asylum claim.
The IJ denied the motion, and Tchuinga appealed to the BIA. The
BIA issued a decision remanding the case to the IJ based on new
evidence Tchuinga submitted (an unauthenticated letter from the
leader of the SDF, confirming Tchuinga's membership in the SDF, and
some additional documents).

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See 8 U.S.C. § 1255(a) (requiring that an applicant for 3
adjustment of status have "an immigrant visa . . . immediately
available to him at the time his application is filed.").
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During the course of these proceedings, Tchuinga married
an American citizen, who filed an I-130 visa application for him,
a necessary prelude to an application for adjustment of status.3
By the time of the remanded asylum hearing with the IJ, the I-130
application had been approved. Tchuinga informed the IJ of the
approved visa application. The IJ stated that, in light of her
previous determination that Tchuinga was subject to a permanent bar
from benefits for knowingly filing a frivolous asylum application,
she would not consider an application for adjustment of status. At
a subsequent hearing on Tchuinga's asylum claim, the IJ also
provided another reason for not considering his application for
adjustment of status, noting that a regulation stated that "[a]n
arriving alien who is in removal proceedings" is ineligible to
apply for adjustment of status, 8 C.F.R. § 245.1(c)(8).
Tchuinga's counsel elected not to submit the adjustment application
to the IJ, and instead sought a determination from the Bureau of
Citizenship & Immigration Services regarding whether it would
accept the application.
On June 16, 2003, during the remanded hearing on his
asylum application, Tchuinga attempted to supplement his evidence
with additional documents, which had not been authenticated. The
IJ gave Tchuinga time to authenticate the documents and explain why

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he had previously submitted fraudulent documents. At the
subsequent hearing on October 29, 2003, Tchuinga offered testimony
regarding his status in the SDF and his efforts to obtain
authenticated documents to support his claims.
The IJ issued her oral decision at the close of that
hearing. She noted that, despite several continuances, Tchuinga
had failed to submit certain authenticated documents to the court
and had failed to explain adequately his prior submission of
fraudulent documents. She again concluded that Tchuinga had
knowingly provided false documentation regarding his position at
SDF as part of his asylum application. She noted certain
discrepancies in his testimony and the fact that some of the new
documents he had submitted indicated that he was a rank and file
member of the SDF, not an appointed leader as he claimed. While
the IJ expressed some "misgivings in this particular case" because
the IJ did "believe that the respondent was a member of the SDF in
Cameroon," the IJ concluded that he lacked credibility regarding
"if he was harmed[,] on what account he was harmed, and to what
extent he was harmed" in light of his "otherwise incredible and
implausible explanations for presenting all of this fabricated
documentation to the Court." Based on these findings, the IJ
reinstated her April 20, 1999 decision, denying his claims and
finding that, because Tchuinga had submitted fraudulent evidence as
part of his application for asylum, he was barred from applying for

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In Succar, we held that 8 C.F.R § 245.1(c)(8) (a regulation 4
purporting to make "arriving aliens" ineligible to apply for
adjustment of status) was invalid as inconsistent with the relevant
statute, 8 U.S.C. § 1255. See Succar, 394 F.3d at 36. This is the
same regulation at issue in Tchuinga's case.
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any other benefits under the INA for having submitted a frivolous
asylum application.
The petitioner appealed the decision to the BIA, but the
BIA denied the appeal, finding the IJ's credibility assessment not
clearly erroneous and noting the inconsistencies in the documents
he presented. The BIA issued its decision on February 14, 2005.
Tchuinga did not file a petition for review of this decision.
Instead, on February 24, 2005, he filed a motion to reopen with the
BIA to apply for adjustment of status, based on our recent decision
in Succar v. Ashcroft, 394 F.3d 8 (1st Cir. 2005) (holding that
arriving aliens are eligible to adjust their status in proceedings
before an IJ). Tchuinga did not raise the frivolous asylum 4
application issue in his February 24, 2005 motion to reopen. On
May 17, 2005, the BIA issued a decision declining to reopen the
petitioner's case, concluding that the petitioner was barred from
adjusting his status due to the frivolous asylum application bar,
notwithstanding Succar. On June 9, 2005, Tchuinga filed a petition
for review with this Court.
II.
We have explained the appropriate standard and scope of
review of the BIA's denial of a motion to reopen:

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A motion to reopen must "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."
Courts recognize two independent, but non-
exclusive grounds on which the BIA may deny a
motion to reopen: (1) failure to establish a
prima facie case, and (2) failure to introduce
previously unavailable, material evidence.
Even if [a petitioner] meets these
requirements, the BIA may still use its
discretion to deny relief. We can only
overturn the BIA's decision for an abuse of
discretion.
Zhang v. INS, 348 F.3d 289, 292 (1st Cir. 2003) (internal citations
omitted). Tchuinga argues that the BIA abused its discretion in
denying his motion to reopen because (1) as a result of the Succar
decision, he is eligible to adjust his status notwithstanding the
fact that he is an "arriving alien" and (2) the BIA "erred as a
matter of law in affirming the Immigration Judge's finding that the
petitioner was subject to the frivolous asylum bar based on the
petitioner's inability to authenticate and/or produce certain
documents."
The government argues that we lack jurisdiction to review
the BIA's affirmance of the IJ's application of the frivolous
asylum application bar. Because the frivolous asylum application
bar applies, the government argues, Tchuinga is not eligible for
adjustment of status notwithstanding the Succar decision, and thus
the BIA did not abuse its discretion in denying his motion to
reopen.

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We agree that we lack jurisdiction to review the BIA's
February 14, 2005 affirmance of the IJ's application of the
frivolous asylum application bar. Because of this conclusion, we
also agree that the BIA did not abuse its discretion by denying
Tchuinga's motion to reopen notwithstanding our decision in Succar.
A. Jurisdiction to Review the Frivolous Asylum
Application Bar
A petition for review must be filed within 30 days of the
date of the final order of removal. 8 U.S.C. § 1252(b)(1). A
motion to reopen will not toll the 30-day period for seeking
judicial review. See Zhang, 348 F.3d at 292 (citing Stone v. INS,
514 U.S. 386, 395-406 (1995)). Tchuinga did not file a petition
for review appealing the February 14, 2005 decision. Instead, he
filed a motion to reopen, which the BIA denied in its May 17, 2005
decision. It is this latter decision, denying his motion to
reopen, that Tchuinga now appeals. Thus, his appeal is timely only
as an appeal of the BIA's denial of the motion to reopen.
Although Tchuinga concedes this point, he argues that the
BIA's denial of the motion to reopen "re-affirmed its prior
finding" regarding the frivolous application bar. Thus, he argues,
we have jurisdiction to review the frivolous asylum application bar
issue here. This argument is unpersuasive. Tchuinga filed the
motion to reopen his case solely on the basis of our decision in
Succar. He did not address the frivolous asylum application bar in
his motion to reopen. In its May 17, 2005 decision denying the

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motion, the BIA did not revisit the IJ's reasoning as to the
applicability of the frivolous application bar. Instead, it stated
that "the respondent has failed to establish prima facie
eligibility for adjustment of status . . . inasmuch as the
respondent is permanently ineligible for any benefit under the
[INA], due to his prior submission of a frivolous asylum
application."
Our review is thus limited to determining whether the BIA
abused its discretion by denying Tchuinga's motion to reopen on the
grounds that Tchuinga is ineligible for adjustment of status
notwithstanding Succar. See Nascimento v. INS, 274 F.3d 26, 27-28
(1st Cir. 2001) (limiting review to issues addressed in motion to
reopen). We do not have jurisdiction to revisit the BIA's
affirmance of the IJ's decision to apply the frivolous asylum
application bar.
B. Denial of the Motion to Reopen
The BIA denied Tchuinga's motion to reopen because he
failed to establish a prima facie case for adjustment of status.
See Zhang, 348 F.3d at 292 (explaining that the BIA may deny a
motion to reopen based on the petitioner's failure to establish a
prima facie case for relief). We see no abuse of discretion in
this determination. Our decision in Succar removed one impediment
to Tchuinga's application for adjustment of status. However, the
frivolous asylum application bar still remains. At the time

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Tchuinga applied for adjustment of status, he was barred from such
relief under the frivolous asylum application bar. See 8 U.S.C.
§ 1158(d)(6). He therefore has failed to establish a prima facie
case for adjustment of status in his motion to reopen.
III.
Because Tchuinga failed to file a timely petition for
review of the BIA's affirmance of the IJ's application of the
frivolous asylum application bar, we lack jurisdiction to review
Tchuinga's challenge to the frivolous asylum application bar in
this petition. Thus, notwithstanding our decision in Succar,
Tchuinga is ineligible for adjustment of status due to the
frivolous asylum application bar. We therefore hold that the BIA
did not abuse its discretion in denying his motion to reopen his
case to apply for adjustment of status. We deny Tchuinga's
petition for review.
So ordered.

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