United States Court of Appeals

For the First Circuit

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 Division, U.S.

Department of Justice, Aviva L. Poczter, Senior Litigation Counsel,

and Nehal H. Kamani, Trial Attorney, Office of Immigration

Litigation, on brief for respondent.

July 8, 2010
 The 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 ("Toribio"), 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 family 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 purpose 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 Potter ("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,

Toribio moved to adjust his status to lawful permanent resident.

In connection with this process, Toribio completed a variety of

forms, and in 2002 he and Potter were interviewed under oath by

Immigration 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 together. Moreover, though requested,

none of this information was included on the forms Toribio and

Potter completed. On February 1, 2002, Toribio's application for
 At the time of these proceedings, Toribio 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 three children with

Chavez as they were adults. 

 On March 1, 2003, the functions of the Immigration and 3

Naturalization Service were transferred to the Department of

Homeland Security. See 6 U.S.C. § 291(a); see also 6 U.S.C. § 542

(setting forth the transfer 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 20, 2002, the Immigration and Naturalization

Service ("INS") instituted removal proceedings against Toribio,

charging that 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 the 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 as
 In Toribio's brief to this court, he indicates that after 4

his 2002 immigration 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 he 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 conceded 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 application

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 question 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

admitted 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 papers. Toribio

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 to Potter was bigamous and that DHS had

proved removability by clear and convincing evidence. The IJ then
-6-

indicated that 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 his immigration

interview with Violo and the various forms he had completed in

connection with the application process. DHS counsel also queried

Toribio about why he kept immigration officials in the dark about

his prior marriage and Illinois divorce, which had been finalized

by the 2002 interview. Toribio could give no reason for not

disclosing this information.

DHS counsel then questioned Toribio about another INS

form, designated I-485, which Violo completed during Toribio's

interview. On the form, Violo listed the names and dates of birth

of Toribio's children from his relationships with Kucharski and

Potter; however, his children with Chavez were not mentioned. The

form also contained the notation "no other children." Asked to

explain why he did not identify his 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 undisputed the interview

occurred nearly twenty years after his arrival. DHS counsel further

questioned Toribio about his marriage license with Potter, which

under Toribio'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 would result 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 practice in

adjustment interviews to ask about previous marriages, Violo was

certain he had delved into this area with Toribio. Specifically,

Violo said he would have asked Toribio and Potter individually

whether either had a previous marriage and he would have required

a separate verbal response from each. If either Toribio or Potter

had admitted to a previous marriage, he 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, Violo said he would dissuade the attorney

from responding to questions on the applicant's behalf, but would

note any difference between an attorney's and applicant's answers

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 following 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 "would handle the appointment." Toribio also

claimed that Potter answered all of the interview questions

concerning previous spouses and children, and he had not interrupted

her out of fear. Further, Toribio 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

questions. Turning to his marriage license, Toribio testified he

did not understand English very well and thought he only had to

identify previous marriages in the United States. Finally, he

asserted that Potter answered all the questions on the marriage

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

misrepresented his marital status and given false testimony. The

BIA also 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 conclusions de novo, with

appropriate deference to the agency's interpretation of the

underlying statute in accordance with administrative law

principles." Walker v. Holder, 589 F.3d 12, 18 (1st Cir. 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,

under the substantial evidence standard, and may overturn 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) (quoting 8 U.S.C. § 1252(b)(4)(B)). In the instant

matter, the BIA adopted and affirmed the IJ's ruling, while also

discussing some of the bases for the IJ's opinion. Therefore we

review both the IJ's and BIA's opinions. Zheng v. Gonzales, 475

F.3d 30, 33 (1st Cir. 2007). 

III. Discussion

A. Removal

The IJ's and BIA'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) of 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. Consequently we will not

address it. See Seale v. I.N.S, 323 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 interview he believed

that his marriage to Chavez had been annulled, Toribio contends he

did not willfully mislead immigration officials either in his

application or during the interview. He also insists that his

failure to list his children with Chavez was not material. Upon 5

careful review of the record, we find substantial evidence to

support the IJ's and BIA's decision that Toribio is removable. 

To begin with, 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 [it] 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 credibility determination we must assess

whether it has significant support in the administrative record and

whether the IJ set forth specific and cogent reasons as to why

inconsistencies rendered Toribio's testimony not credible. See id.

Here the documentary evidence, 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 determination. 

We also find Toribio's claim that he did not willfully

make any misrepresentations unpersuasive. Discussing what

constitutes a "willful" misrepresentation under 8 U.S.C. §

1182(a)(6)(C)(i), other courts of appeals have held that the

"element of 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 omitted); see

also Parlak v. Holder, 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 Cir.

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, Toribio was
-12-

aware that he had married Chavez, had three children with her, and

had no proof that the marriage had been annulled. Indeed, by the

time of his interview he knew his marriage to Chavez had ended in

a divorce 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 was not material. In Kungys v.

United States, the Supreme Court interpreted another immigration

statute, which like § 1182(a)(6)(c)(i), results in negative

consequences on the basis of material misrepresentations. See

Kungys v. United States, 485 U.S. 759, 767 (1988) (interpreting 8

U.S.C. § 1451(a)). The Court held that in assessing materiality the

test is whether the misrepresentation "had a natural tendency 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 undoubtedly asked about

Toribio's relationship to their mother and whether they were

married. Notably on the I-485 form, Violo wrote the word
-13-

"girlfriend" next to the names of Toribio's two daughters with

Kucharski. 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 Chavez ended after his marriage to

Potter, thus invalidating the latter as bigamous and making Toribio

ineligible for status adjustment based on his marriage to Potter.

Further Toribio's misrepresentation regarding his children was

undoubtedly material, as it had the natural tendency to influence

Violo's decision not to probe further. Moreover, assuming arguendo

the immateriality of Toribio's misrepresentation regarding his

children, there is no question that his misrepresentation regarding

previous spouses is material. Notably, Toribio makes 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 found that 6

inconsistencies in Toribio's annulment petition and his

misrepresentation of his marital status 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 General may cancel removal of an alien if

the alien: (a) has resided in 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 qualifying family member. See 8 U.S.C. §

1229b(b)(1). The IJ held, and the BIA affirmed, that Toribio's

request for cancellation of removal should be pretermitted 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 good 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 good moral 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 court's

jurisdiction to review this issue. Generally 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 determination that he was per se

ineligible for cancellation of removal, because he had given false

testimony under 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, 62-63 (1st 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 testimony. Thus we have jurisdiction to review these

issues of law. Cf. Elysee, 437 F.3d at 223-24. 

We now turn to the merits. The Supreme Court has held

that false testimony under 8 U.S.C. § 1101(f)(6) is limited to "oral

statements 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-

First, there is substantial evidence that Toribio gave

oral testimony at his adjustment interview, and it is undisputed

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 we will not disturb that

credibility finding. Further, Toribio's equivocal indication in his

affidavit that his attorney "may" have answered the questions is not

compelling and not supported by the evidence. Even assuming that

Toribio's attorney answered the questions regarding marital history,

the attorney was participating in the interview pursuant to

Toribio's authority, and therefore Toribio would be bound by his

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 he did not have the

subjective intent to obtain an immigration benefit. His basis for

this argument is unclear, and in making this contention he simply

reiterates that Potter answered all pertinent questions and he

believed his marriage was annulled. We are unconvinced. The IJ

found Toribio's assertion not credible and this finding was

supported by sufficient and probative documentary and testimonial

evidence. Therefore, we uphold the IJ's and BIA's denial of

cancellation of removal. 
-17-

C. Due Process

Toribio argues that his Fifth Amendment right to due

process was violated by two procedural errors. We note at the

outset that a mere 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 of fundamental fairness, and the claimant

must show prejudice. 

The first argument that Toribio makes is that the IJ

erred in admitting the letter written by Potter into evidence.

Before the IJ, Toribio's counsel objected to the letter's

introduction as Potter was not available 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 her decision, the IJ noted that the

letter spoke for itself, 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 limited weight and

even assuming the letter's admission was erroneous, such error was

harmless since the document was not key to the IJ's holding.

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 evidence an affidavit authored by an individual who did not

testify at trial. Id. at 107. The IJ admitted the affidavit, which
-18-

was offered by INS, after INS counsel attempted to subpoena the

individual and produced testimony to authenticate the affidavit. Id.

On appeal, the petitioner argued that the INS did not use adequate

measures to compel the author of the affidavit to appear at trial

and therefore the proceedings 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 went on,

however, to deny the petition because the petitioner failed to raise

her objection at her deportation proceeding. Id. Based on

petitioner'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 Evidence do not 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 immigration
 In the end the IJ did not find the photograph persuasive 7

because in her letter Potter never denied knowledge of Toribio'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 that occurred would be harmless."

Hossain v. Ashcroft, 381 F.3d 29, 32 (1st Cir. 2004). In this case,

the IJ's reliance on the letter was not fundamentally unfair, nor

did it prejudice Toribio. The IJ did not primarily rely on the

letter and afforded it limited weight. As set forth at length in

her decision, the IJ was compelled not by the letter but by the

documentary evidence, 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

introduced into evidence depicting Potter with his three oldest

children. See Banat v. Holder, 557 F.3d 886, 893 (8th Cir. 7

2009)("[W]here a hearsay document is admitted but not primarily

relied upon and the petitioner receives the opportunity to rebut the

document's conclusions through his witnesses, the fundamental

fairness of the proceedings has not 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 that
 The IJ who made the final 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.

See 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 second argument made by Toribio is that crossexamining him at three different hearings violated his due process

rights. As noted previously, Toribio first testified on May 19,

2004 at his removal proceedings. Next he testified on August 3,

2005 at the hearing for cancellation of removal. The IJ who

rendered the final decision did not preside over either of these

hearings and when assigned this matter, suggested that the case

proceed de novo. However, attorneys for both sides opted to rely 8

on the transcripts of the earlier hearings. Nonetheless at the

final hearing on December 27, 2006, DHS counsel suggested that the

IJ, who had never observed 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 assess his

demeanor and credibility. In support of his appeal, Toribio claims

that expecting him to respond consistently to questioning that took

place years apart held him to an impossible standard. We hold 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, Inc., 426 F.3d

455, 458-459 (1st Cir. 2005). Specifically, "as a general rule[,]

courts should not topple over administrative decisions unless the

administrative body not only has erred but has 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 counsel 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 hearings. With respect to the final

hearing, the IJ in her discretion determined that she needed to hear

Toribio testify and assess his credibility first hand. "An

immigration judge, like other judicial officers, possesses broad

(though not uncabined) discretion over the conduct of trial

proceedings." Sharari v. Gonzales, 407 F.3d 467, 476 (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 best position to

weigh competing interests in deciding whether to admit 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 questioned 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.