# UnitedStates C ou rt o f App eals For th e First C ircuit

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 D i v ision, U.S. Department of Justice, Aviva L. Poczter, Senior Litigation Counsel, and Nehal H. Kamani, Trial Attorney, Office of Imm i g r ation Litigation, on brief for respondent.

July 8, 2010The IJ also denied Toribio's request for voluntary 1 departure; however, he has not appealed this ruling. -2- THOMPSON, Circuit Judge . The petitioner, Crispin Toribio-Chavez ("Tori b i o "), 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. After careful consideration, we deny the 1 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 f a m i l y 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 p u r p o s e of obtaining an annulment of his marriage to Chavez. Toribio then recrossed the border without inspection and returned to New Hampshire, where he has resided since. Toribio never received any confirmation or documentation indicating his marriage to Chavez was annulled. He contends, however, that three or four months after-3-

his reentry, his sister in Mexico informed him that the annulment was all set.

In June 1999, Toribio married Jamie P o tter ("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, Tor i b i o moved to adjust his status to lawful permanent resident. In connection with this process, T oribio completed a variety of forms , a n d i n 2 0 0 2 h e a n d P o t t e r w e r e i n t e r v i e w e d u n d e r oath by Immig r a t ion Adjudications Officer Maurice Violo ("Violo"). Both Toribio and Potter were represented by an attorney. During the interview Toribio did not disclose his previous marriage to Chavez or the children they had togeth e r . Moreover, though requested, none of this information was included on the forms Toribio and Potter completed. On February 1, 2002, Toribio's application forAt the time of these proceedings, Toribi o and Potter's 2 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 thre e c h ildren with Chavez as they were adults. O n M arch 1, 2003, the functions of the Immigration and 3 Naturalization Service were transferred to the D e p a rtment of Homeland Security. See 6 U.S.C. § 291(a); see also 6 U.S.C. § 542 (setting forth the t r a n sfer of functions in the accompanying Reorganization Plan). -4- adjustment of status was approved and his status was adjusted to lawful permanent resident. C. Removal Proceedings On August 2 0 , 2002, the Immigration and Naturalization Service ("INS") instituted removal proceedings against Toribio, charging t h a t 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 t he 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. Toribio 3 first testified on May 19, 2004. When questioned by DHS counsel asIn Toribio's brief to this c o urt, he indicates that after 4 his 2002 immigr a t i o n interview he requested documentation from Mexican authorities regarding his annulment and learned from them that his marriage to Chavez was never annulled. -5- to why h e 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 c o n ceded 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 a pplication 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 q u estion 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

a dm i t t e d 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 pa p e r s . T oribio 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 t o P o t t er was bigamous and that DHS had proved removability by clear and convincing evidence. The IJ then-6-

indi c a t e dthat she would consider Toribio's 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 h i s immigration interview with Violo and the various fo r m s h e had completed in connection with the application process. DHS counsel also queried Toribio about why he kept immig r a t i o n officials in the dark about his prior marriage and Illinois divorce, which had been finalized by the 20 0 2 i n t e rview. Toribio could give no reason for not disclosing this information.

DHS counsel t hen questioned Toribio about another INS form, designated I-485, which Violo completed dur ing Toribio's interview. On the form, Violo listed the names and dates of birth of Toribio's children from his relatio n s h i p s with Kucharski and Potter; however, his children with Chavez were not mentioned. The form also contained the n o t a t i o n "no other children." Asked to explain why he did not ide n t i f y h is 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 u n d i s p uted the interview occurred nearly twenty years after his arrival. DHS counsel further questioned Toribio a bout his marriage license with Potter, which under Tori b i o ' s name indicated "never married." Toribio conceded-7-

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 wou l d r e s u lt 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 p r a c t i c e in adjustment interviews to ask about previous marriages, V iolo was certain he had delved i n t o t h is area with Toribio. Specifically, Violo said he would have aske dToribio and Potter individually whet h e r e i t h e r h a da p r e v i o u s m a r r i a g e a n dh e w o u l dh a v e r e quired a separate verbal response from each. If either Toribio or Potter had admitted to a previous marria g e , h e 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, V i olo said he would dissuade the attorney from responding to questions on the applican t 's behalf, but would note a n yd i f f e r e n c e b e t w e e n a n a t t o r n e y ' s a n da p p l i c a n t ' s a n s w ers on the immigration forms.

At the final hearing on December 27, 2006, Toribio again testified, but his assertions varied significantly from his previous-8-

testimony. In particular, he testified and proffered an affidavit to the f o l l o w i ng 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 " w o u l dhandle the appointment." Toribio also claimed that P o t t er answered all of the interview questions concerning previous spouses and children, and he had not interrupted her out of fear. Further, T oribio 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 que s tions. Turning to his marriage license, Toribio testified he did no t u nderstand English very well and thought he only had to identify previous marriages i n the United States. Finally, he asserted that Potter answered all the questions on the m a r r i age 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

m i s r e p r e s e n t e dh i s m a r i t a l s t a t u s a n dg i v e n f a l s e t e s t i m o n y . The BIA a lso 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-9-

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 c o n clusions de novo, with appropriate deference to the agency's interpreta t i o n of the underlying statute in accordanc e with administrative law principles." Walker v. Holder, 589 F.3d 12, 1 8 ( 1 s t C ir. 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,

un d e r t h e s u b s t a n t i a l e v i d e n c e s t a n d a r d , a n d m a y o v e r t u r n 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 ) ( q u o t ing 8 U.S.C. § 1252(b)(4)(B)). In the instant matter, the BIA adopted and a f f i r m e dthe IJ's ruling, while also discussing some of the bases for the IJ's opinion. T h e r e f o r e we review both t h e I J ' s and BIA's opinions. Zheng v. Gonzales , 475 F.3d 30, 33 (1st Cir. 2007). III. Discussion A. Removal The IJ's a n d B IA'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.Additionally, Toribio asserts that one of the issues in this 5 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) o f 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. Co n s equently we will not address it. See Seale v. I.N . S , 3 2 3 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."). -10- 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 interv i e wh e believed that his marriage to Chavez had been annulled, Toribio contends he d i d n o t w i l l f u l l y m i s l e a d i mm i g r a t i o n o f f i c i a l s e i t h e r in his application or during the interview. He also insists t h a t h is failure to list his children with Chav e z w a s not material. Upon 5 careful review of the reco r d , w e find substantial evidence to support the IJ's and BIA's decision that Toribio is removable.

To begin wi th, the IJ made certain credibility determinations. 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 [ i t] unless we are compelled to do so." Wiratama v.-11-

Mukasey, 538 F.3d 1, 4 (1st Cir. 2008) (internal quotation omitted). In examining the adverse cr e d i b i lity determination we must assess whether it has significant support in the administrative record and whether the IJ set forth s p e c i f i c and cogent reasons as to why inconsistencies rendered Toribio's testimony not credible. See id. Here the documentar yevidence, 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 det e rmination.

We also find Toribio's claim that h e d i d n o t w illfully

m a ke any misrepresentations unpersuasive. Discussing what constitutes a "willful" misrepresentation u nder 8 U.S.C. § 1182( a )(6)(C)(i), other courts of appeals have held that the "elem e n t o f willfulness is satisfied by a finding that the misrepresentation was deliberate and voluntary." Mwongera v. I.N.S, 187 F.3d 323, 330 (3d Cir. 1999)(internal quotation o mitted); see also Parlak v. Ho l der, 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 C i r. 1995); see also Mwongera, 187 F.3d at 330; Parlak, 578 F.3d at 463.

Applying this standard we see substantial evidence establishing the willfulness element here. It is undisputed that at the time of the application process and interview, T o r i b i o was-12-

aware that he had married Chavez, had three children with her, and had no proof that the marri a ge had been annulled. Indeed, by the time of his interview he knew his marriage to C havez had ended in

a d i vorce 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 w as not material. In Kungys v. United States, the Supreme Court interpreted another immigration statute, which like § 1182(a)(6)(c)(i), re s u l t s in negative consequences on the basis of materi a l misrepresentations. See Kungys v. United State s , 4 8 5 U.S. 759, 767 (1988) (interpreting 8 U.S.C. § 1451(a)). The Court held that in assessing materiality the te s t i s w h e t h e r t h e m i s r e p r e s e n t a t i o n " h a d a n a t u r a l t e n dency 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 u n d o u b t edly asked about Toribio's r e lationship to their mother and whether they were married. N o t a b l y on the I-485 form, Violo wrote the word-13-

"gi r lfriend" next to the names of Toribio's two daughters with Kucharsk i . 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 C h a v e z ended after his marriage to Potter, thus invalidating the latter as bigamous and making Toribio ine l igible for status adjustment based on his marriage to Potter. F u rther Toribio's misrepresentation regarding his children was undoubtedly material, as it had the natur a l tendency to influence Violo's decision not to probe further. Moreover, assuming arguendo the immateriality of To r ibio's misrepresentation regarding his children, there is no question that his misrepresentation regarding previous spouses is material. Notably, Toribio make s 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.As an alternate basis for her holding, the IJ fo und that 6 inconsistencies in Toribio's annulment petition and his misrepresentation of his marital stat u s 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). -14- B. Cancellation of Removal The Attorney G e n e r al may cancel removal of an alien if the alien: (a) has re s i d e d i n 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 q u alifying family member. See 8 U.S.C. § 1229b(b)(1). The IJ held, and the BIA affirme d , t h a t Toribio's request for cancellation of removal should be pretermit t ed 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 g ood moral character based upon his presentation of false testimony under oath. Pursuant to 8 U.S.C. § 1101 a person is statutorily

6 precluded from being regarded as a person of go o d m o r a l character if he or she has "given false testimony for the purpose of obtaining any [immigration] benefits." 8 U.S.C. § 1101(f)(6).-15- As a threshold matter we will address this c o u rt's jurisdiction to review this iss u e . G e nerally 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 d e t e r m i n ation that he was per se ineligible for cancellation of removal, because he had given false testimony u n d e r 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, 62-6 3 ( 1 s t 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 te s t i m o n y . Thus we have jurisdiction to review these issues of law. Cf. Elysee, 437 F.3d at 223-24.

We now tur n t o the merits. The Supreme Court has held that false testimony under 8 U.S.C. § 1101(f)(6) is limited to "oral

s t a t e m ents made under oath" and "misrepresentations made with the subjective intent of obtaining immigration benefits." Kungys, 485 U.S. at 780. 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. This contention is not supported by the record.-16- F i r s t, there is substantial evidence that Toribio gave oral testimony at his adjustment interview, and i t i s u n disputed 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 w e w i l l not disturb that credibility finding. Further, Toribio's equivocal indication in his affidavit that his attorney "may" have answered the questions is not compelling a n d n o t supported by the evidence. Even assuming that Toribio's attorney answered the questions regarding marital history, the attorney was participating in the inte r v i e wpursuant to Toribio's authority, and therefore Toribio would be bou n db yh is 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 h e d id not have the subjective intent to obtain an immigration benefit. His basis for this argument is unclear, and in making this co n t e n t i o n he simply reiterates that Potter answered all pertinent questi o ns and he believed his marriage was annulled. W e a r e u n c onvinced. The IJ found Toribio's as s e r t i on not credible and this finding was supported by sufficient and probative documentary and test i m onial

e v i d e n c e . T h e r e f o r e , w e u p h o l d t h e I J ' s a n d B I A ' s denial of cancellation of removal.-17- C. Due Process Toribio argues t h a t his Fifth Amendment right to due process was v i o l a t e d by two procedural errors. We note at the outset that a m e r e 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 o f f u n d amental fairness, and the claimant must show prejudice.

The first argument that Toribio makes is that the IJ

e r r e di n a dm i t t i n gt h e l e t t e r w r i t t e n b yP o t t e r i n t o e v i d e n ce. Before t h e I J, Toribio's counsel objected to the letter's introduction as Potter was not av a i l a b l e to testify. 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 h e r decision, the IJ noted that the letter spoke fo r i t s e l f, 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 li m i t e d weight and even assuming the letter's admission was erroneous, such error was harmle s s s i n c e t h e d o c u m e n t w a s n o t k e yt o t h e I J ' s h o l d ing. 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 e v i d e n c e a n a f f i d a v i t a u t h o r e d b y a n i n d i v i d u a l w h o d i dnot testify at trial. Id. at 107. The IJ admitted the affidavit, which-18-

was offered by INS, after INS counsel attempte d t o s u bpoena the individual and produced testimony to authenticate the affidavit. Id. On appeal, the petitioner argued that the INS did not use adequate

m e a s ures to compel the author of the affidavit to appear at trial and therefore the p r oceedings 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 we n t on, however, to deny the petition because the petitioner failed to raise her objection at her d e p o r t ation proceeding. Id. Based on p e titioner'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 Evidenc e d o n o t 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 imm i g rationIn the end the IJ did not find the photograph persuasive 7 because in her letter Potter never denied knowledge o f T o ribio's oldest children, just knowledge of his marriage to their mother. -19- appeal that a "due process claim cannot succeed without prejudice; without prejudice, any error th a t occurred would be harmless." Hossain v. Ashcroft, 381 F.3d 29, 32 (1st Cir. 2004). In this case, t h e I J ' s reliance on the letter was not fundamentally unfair, nor did it prejudice Tor i bio. The IJ did not primarily rely on the letter and afforded it limited weight. As set forth at length in her dec i sion, the IJ was compelled not by the letter but by the documentary e vidence, 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 introd u c e d into evidence depicting Potter with his three oldest children. See Banat v. Holder , 5 5 7 F . 3 d 886, 893 (8th Cir.

7 2009)("[W]here a hearsay document is admitted but not pr i m a r i ly relied upon and the petitioner receives the opportunity to rebut the d ocument's conclusions through his witnesses, the fundamental fairness of the proceedings has n o t been impinged.")(internal quotation omitted). 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 thatThe IJ who made t h e f inal decision only presided over the 8 final two hearings, which took place on September 26, 2006 and December 27, 2006. -20- the hearsay nature of a document affects weight, not admissibility. S e e 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 s e c o n da r g u m e n t m a d e b yT o r i b i o i s t h a t c r o s sexamining him at three different hearings violated his due process rights. As noted previously, T o r i b i o first testified on May 19, 2004 at his removal proceedings. Next he testified o n A u g u s t 3, 2005 at the hea r i n g f o r cancellation of removal. The IJ who rendered the final decision did n o t p r e s ide over either of these hearings and when assigned this matter, sugg e s t e d that the case proceed de novo. However, attorneys for both sides opted to rely 8 on the transcripts of the earli e r h e a r ings. Nonetheless at the final hearing on December 27, 2006, DHS counsel suggested that the IJ, who had never obser v ed 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 asses s his demeanor and credibility. In support of his appeal, Toribio claims that expecting him to respond consistently to questioning that took p l a c e y e a r s a p a r t h e l dh i mt o a n i mp o s s i b l e s t a n d a r d . W e h o ld a differing view and therefore dispose of this argument handily.-21- Toribio's counsel never objected to 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, I n c . , 4 2 6 F.3d 455, 458-459 (1st Cir. 2005). Specifically, "as a general rule[,] courts should not topple over administrative decisions un l e s s the administrative body not only has erred bu t h a s 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 co u n s e l 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 hear i n g s . With respect to the final hearing, the IJ in her discretion determined that she needed to hear Tor i bio testify and assess his credibility first hand. "An immigration judge, like other judicial officers, possesses broad (though not uncabi n e d ) discretion over the conduct of trial proceedings." Sharari v. Gonzales, 407 F.3d 4 6 7 , 4 7 6 (1st Cir. 2005) (internal quotation omitted). As the trial judge, the IJ was in the best position to determine whether additional testimony was-22-

needed. See, e.g., United States v. Thomas, 377 F.3d 232, 241 (3d Cir. 2004) (noting that a trial judge is in the b e st position to weigh competing interests in deciding whether t o a dmit 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 ques t i o ned 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.