## United States Court of Appeals FOR THE EIGHTH CIRCUIT

___________ No. 09-1513

___________ 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. *

___________ Submitted: December 16, 2009 Filed: August 27, 2010

___________ Before BYE, BEAM, and COLLOTON, Circuit Judges.

___________ BYE, Circuit Judge.

Clavenda Toby appeals a Board of Immigration Appeals (BIA) decision affirming an immigration judge's (IJ) orde r 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.-2- I

Clavenda Toby is a native a nd citizen of Liberia. Sh e 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 wa s 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 pro ceedings 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, w ho is a United States citizen. Toby requested adjustment of status and a waiver of a ny grounds of inadmissibility. In January of 2007, with her petition for adjustment of st atus 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 Stat es 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 rape d by armed men at a refug ee camp in Liberia. Toby remained in the United States illegally until she came to the attention of Immigration and Customs Enforcement (ICE) in 2002 whenshe filed a fraudulent application for TPS using a false name and her sister's a lien registration number (she filed another application for TPS using her own info rmation, 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 recei ved welfare benefits using the same name-3- and alien registration number sh e later used to file the fraudulent application for TPS. Employment documents showed Toby had usedsocial security numbers and various permutations of her assumed name to obtai n employment. She was married to Cyrus Barney in Liberia but testified she assume d he was dead when he left the house one day and never returned. She married Mi chael Sullivan, a United States citizen, in 1999. Toby's mother testif ied Toby said she married Sullivan for immigration purposes, however, no immigration papers wereever filed as a re sult 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 Un ited 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 citizen s or legal permanent residents.

The IJ denied Toby's claims because she found Toby not to be a credible witness. The IJ also deniedeach of Toby's claims on the me rits 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 cr edibility during removal proceedings are set forth in 8 U.S.C. § 1229a(c)(4)(C):

Considering the totality of the circumst ances, 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 app licant's or witness's account, the consistency between the applican t'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 suchstatement, the consistency of such-4- statements with other evidence of r ecord (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 rele vant factor. There is no presumption of credibility, however, if no a dverse 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 affi rmed by the BIA are conclusive unless any reasonable adjudicator would be compelled to conclude to the contrary. Credibility findings in pa rticular are entitled to much weight because the IJ sees the witness testif y 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 fo r 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 sh e was suffering from post traumatic stress disorder and her counsel ors testified this made it difficult for her-5- to be forthcoming about the traumatic underl ying 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 credib ility, she has failed to appeal independent alternative grounds for each form of relief she requested.

Adjustment of Status

This court does not have jurisdicti on to review an IJ's discretionary determination to deny adjustment of st atus. 8 U.S.C. § 1252(a)(2)(B)(i). The statutory provision governing judicial revi ew of orders of removal categorizes adjustment of status as a matter not s ubject 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 re gardless of whether the judgment, decision, or action is made in removal proceedi ngs, no court shall have jurisdiction to review -- (i) any judgment regarding the gr anting 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 precl uding review of constitutional claims-6- 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 jurisdicti on 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 madea false claim to c itizenship when she used her sister's United States passport to enter the country. Toby claims it was not proper to deny her re lief on this ground because she en tered the United States before September 30, 1996, when the false clai m to citizenship provision was added to section 1182(a)(6)(C). The IJ found Toby ha d 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 en tered the country around Labor Day of 1996. Since the IJ made no finding as to the sister's credibility, sh e 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 determinat ion is explicitly made, the applicant or witness shall have a rebuttable pres umption 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 e quities 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 juri sdictional bar to revi ew of discretionary-7- decisions by arguing the IJ applied an in correct 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 fi nder 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 discreti onary analysis. The IJ considered Toby's flagrant immigration violations; her unlaw ful entry into the United States involving the use of her sister's passport; her precon ceived intent to enter and remain in the United States permanently; and her false st atements to the immigration court, the Department of Homeland Security, the po lice, 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. A lthough 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 di scretionary 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), th e 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 pr oceedings, no court shall have jurisdiction-8- to review - (i) any judgment regarding th e granting of relief under section ... 1182(i)"). Toby again argues we have jurisdiction becau se 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 th at 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 jurisd iction 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 deni ed 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 fe deral 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 becau se 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 sh e did not make a showing of exceptional circumstances because she presented th e 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 tr aumatic rape she suffered. In Manani v. Filip , this court determined it had no jurisd iction to review analien's petition for-9- 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 th is 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 persecu tion 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 tes tified 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 b ecause they believed them to be affiliated with the government (Toby worked in govern ment offices before she fled her home to escape armed conflict in the area) but sh e also testified she thought the women were chosen at random and she was chosen b ecause 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 addr ess the IJ's findings on the merits of her case on appeal and has waivedthis argument. We must therefore deny the petition with respect to the question of asylum.

Withholding of removal

To establish eligibility for withholdi ng of removal under 8 U.S.C. § 1231(b)(3), an alien must establish it is "more likely th an not" the alien's life or freedom would be threatened in the country designated for rem oval (the IJ in this case designated Liberia as Toby's country of removal) on account of one of the fivegrounds enumerated in the act. The IJ denied withholding of rem oval based on Toby's lack of credibility. However, she also denied Toby's clai m on the merits, finding Toby had failed to-10- establish she was more likely than not to be persecuted, citing changed country conditions in Liberia, and finding Toby had failed to es tablish her past persecution was related to her race, relig ion, 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 determinedher 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. See8 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 faile d to appeal alternative grounds for denying her requests for asylum, withholding of rem oval, 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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