               Case: 13-12071      Date Filed: 03/02/2015      Page: 1 of 40


                                                                        [PUBLISH]



                 IN THE UNITED STATES COURT OF APPEALS

                           FOR THE ELEVENTH CIRCUIT
                             ________________________

                                    No. 13-12071
                              ________________________

                               Agency No. A096-278-321



PUTU INDRAWATI,

                                                                                Petitioner,

versus

U.S. ATTORNEY GENERAL,

                                                                               Respondent.

                              ________________________

                        Petition for Review of a Decision of the
                             Board of Immigration Appeals
                              ________________________

                                     (March 2, 2015)

Before TJOFLAT, JULIE CARNES and GILMAN, ∗ Circuit Judges.

TJOFLAT, Circuit Judge:

         ∗
         The Honorable Ronald Lee Gilman, United States Circuit Judge for the United States
Court of Appeals for the Sixth Circuit, sitting by designation.
                Case: 13-12071        Date Filed: 03/02/2015        Page: 2 of 40


       Putu Indrawati petitions for review of the Board of Immigration Appeals’

(“BIA”) order affirming the Immigration Judge’s (“IJ”) decision that she is barred

from adjustment of status because she knowingly filed a frivolous asylum

application. 1 Indrawati raises three claims. First, she argues that the IJ denied her

a sufficient opportunity to account for any discrepancies or implausible aspects of

her claim, in contravention of In re Y-L-, 24 I. & N. Dec. 151 (2007). Second, she

argues that the IJ’s reliance upon three documents—a photocopy of a ten page

addendum to her I-589 application for asylum, an Immigration and Naturalization

Service (“INS”) memorandum recounting an interview conducted with Indrawati’s

mother, and a memorandum detailing asylum fraud committed by the man who

handled Indrawati’s application—violated her right to due process. Third, she

argues that the BIA’s decision reflects a lack of reasoned consideration.


       1
          An alien who knowingly makes a “frivolous” asylum application is permanently
ineligible for all benefits under the Immigration and Nationality Act (“INA”), see 8 U.S.C.
§ 1158(d)(6), except withholding of removal, 8 C.F.R. § 1208.20. An asylum application is
frivolous “if any of its material elements is deliberately fabricated.” 8 C.F.R. § 1208.20.

        Although the BIA has (correctly) noted that, in this context, “fraudulent” might be a more
appropriate term than “frivolous.” In re Y-L-, 24 I. & N. Dec. 151, 155 n.1 (2007), important
distinctions exist between these terms. An application is “fraudulent” if “[t]here is a showing of
fraud in the alien’s application such that he or she was not eligible for asylum at the time it was
granted.” See 8 C.F.R. § 208.24(a)(1). Finding that an application is fraudulent is grounds only
to revoke asylum; that finding does not necessarily bar the applicant from receipt of other relief
under the INA. See id. A fraudulent application is also frivolous only if, after comporting with
procedural steps outlined in In re Y-L-, the IJ makes a finding that the applicant submitted the
application knowing that it contained a material falsehood.

       In other words, all frivolous applications are fraudulent, but not all fraudulent
applications are frivolous.

                                                 2
                Case: 13-12071       Date Filed: 03/02/2015        Page: 3 of 40


       We conclude that we are without jurisdiction to consider Indrawati’s

arguments regarding the sufficiency of her opportunity to account for discrepancies

and implausible aspects of her claim. We are also without jurisdiction to consider

her due process argument concerning the INS memorandum. Moving to the

merits, we find unavailing her remaining due process claims, along with her claim

that the BIA’s decision lacks reasoned consideration. Accordingly, we dismiss in

part and deny in part her petition for review.

                                                I.

                                                A.

       Putu Indrawati, an ethnically Chinese Christian, was born in Indonesia in

1974. In 1998, she entered the United States legally as a tourist. Sometime

thereafter, she enrolled in community college in Gainesville, Florida. Although

she originally intended to return permanently to Indonesia upon graduation, her

plans shifted following an incident in December 2000. At that time, Indrawati

returned to Indonesia to attend her grandmother’s funeral and to obtain an F-1

student visa so that she could continue studying in the United States. According to

Indrawati, she went shopping with a friend in a Surabaya 2 mall after acquiring her

visa. As she entered the parking lot to leave, a group of Indonesian men assaulted


       2
        Surabaya is the capital of Indonesia’s East Java province. It is the second-largest city in
Indonesia.

                                                 3
               Case: 13-12071       Date Filed: 03/02/2015      Page: 4 of 40


her and her friend. The men shouted ethnic slurs at Indrawati, and one choked her.

Indrawati screamed, and the men scattered. 3 Although Indrawati did not alert the

authorities, she immediately told her parents about the ordeal.

       This incident, combined with encouragement from Herlina Suherman—a

fellow ethnically-Chinese Christian student 4 that Indrawati described as “pretty

much the closest friend that I had in the U.S.”—convinced Indrawati to apply for

asylum. Suherman explained that her boss, Hans Gouw, could help Indrawati.

Gouw was a purportedly upstanding member of the immigrant Chinese-Indonesian

community. He led the Chinese Indonesian American Society and had helped

Suherman acquire asylum. Suherman explained that Gouw could help Indrawati

too—for a fee. Although she could read and write English and presumably could

have completed the I-589 form personally, Indrawati—like so many others

confronted by impenetrable government forms—relied on a third party’s expertise.

Suherman and Gouw were on the case.




       3
         Indrawati adopted this version of the Surabaya assault before Asylum Officer Conwell,
Immigration Judge Wilson, Immigration Judge Karden, the BIA, and this court. We assume,
arguendo, the accuracy of her rendition of the facts.
       4
         Indrawati met Suherman in Gainesville. At that time, Suherman attended the University
of Florida. She later moved to Michigan to work for Gouw. Her current whereabouts are
unknown.

                                              4
               Case: 13-12071       Date Filed: 03/02/2015      Page: 5 of 40


       According to Indrawati, her involvement in the application filing process

was minimal. She signed a blank I-5895 and truthfully answered biographical

questions Suherman posed to her over the telephone. Indrawati also provided

Suherman with her birth certificate, passport, and money to pay for Gouw’s

assistance. Suherman and Gouw would apparently use this information to file a

true and correct asylum application; all Indrawati would have to do was attend an

asylum interview. That Indrawati would not see her application prior to the

interview evidently bothered her not.

       On January 27, 2003, the INS received the application. The enclosed Form

I-589 Application for Asylum and Withholding of Removal revealed that Indrawati

sought asylum based upon her ethnicity and religion. The I-589 alleged that

Indrawati had “long been subject to persecution” by Muslim-Indonesian extremists

because she was a Chinese Christian. It also (falsely) stated that many of

Indrawati’s “Chinese and Christian friends have been persecuted, tortured and

killed in the past few years, since 1998.” The completed I-589 form did not

mention the Surabaya assault that allegedly precipitated Indrawati’s pursuit of

asylum. This was not a surprising omission given the form’s instruction to “attach




       5
         The form Indrawati signed contained warnings that the application was certified under
penalty of perjury and that “[a]pplicants determined to have knowingly made a frivolous
application for asylum will be permanently ineligible for any benefits” under the INA.

                                               5
                Case: 13-12071       Date Filed: 03/02/2015       Page: 6 of 40


documents evidencing . . . the specific facts on which you are relying to support

your [asylum] claim.”

       Indeed, appended to the completed form was a ten-page statement

(“Statement”) that recounted two events supporting Indrawati’s asylum claim. The

first event was an embellished version of the Surabaya assault. Whereas the actual

event involved only ethnic slurs and choking, the Statement recounted a sexual

assault. According to the Statement, Indrawati’s assailants stripped her and

knocked her unconscious, resulting in her hospitalization. The Statement’s second

event was entirely fabricated. It detailed an attack on a Christian prayer meeting at

Indrawati’s home. Twenty Muslim men allegedly broke into Indrawati’s house,

beat her father and the pastor, and threatened the entire group with further reprisal

should they continue to practice Christianity. In reality, Indrawati’s parents were

Buddhists and there was never any prayer meeting or attack at their home.

       In response to her application, the INS scheduled an asylum interview with

Indrawati. On March 20, 2003, Asylum Officer Miguel Rodez conducted the

interview. Although Rodez unquestionably possessed the Statement, the parties

dispute whether or not he relied upon or referenced its contents at the interview. 6

Neither party, however, disputes that Rodez questioned Indrawati regarding her I-
       6
         This dispute is perhaps the heart of this case’s frivolousness determination. Because
Rodez did not note that Indrawati’s testimony was inconsistent with her application (which
includes the Statement), the inference is that, if Rodez did ask questions about the Statement,
Indrawati testified consistently with the Statement’s contents, and thus testified falsely.

                                                6
             Case: 13-12071        Date Filed: 03/02/2015   Page: 7 of 40


589, made corrections to that form (along with red checkmarks), and took three

pages of handwritten notes.

      In these notes, Rodez placed a checkmark indicating that Indrawati had not

“received medical attention.” This directly conflicted with the Statement’s

assertion that Indrawati was hospitalized following the Surabaya assault. His notes

also stated that Indrawati’s worst problem occurred in 2000 at a mall and that “2

men tried to rape her.” Rodez also wrote that Indrawati’s “story conforms to I[-

]589 statement[,] see attached.”

      A week later, Rodez wrote a report recommending a grant of asylum. By

this point, Rodez’s copy of the Statement was replete with red checkmarks like

those on the I-589. His recommendation’s reliance upon the indisputably

fraudulent Statement was manifest. He referenced the two incidents detailed in the

Statement and quoted dialogue contained therein verbatim. On the basis of his

recommendation, the INS approved Indrawati’s application for asylum.

                                           B.

      Five years later, Indrawati received a Notice of Intent to Terminate Asylum

Status featuring the proclamation that the United States Citizenship and

Immigration Service (“USCIS”) had “information from a reliable source indicating

that you did not have any problems in Indonesia and that you fabricated your

asylum claim.” Unbeknownst to Indrawati, the evidence in question was a


                                            7
                Case: 13-12071       Date Filed: 03/02/2015       Page: 8 of 40


memorandum penned by the INS’s Texas Service Center (“TSCM”) detailing an

Anchorage, Alaska interview with Indrawati’s mother. Officials questioned her

mother as she was en route to visit Indrawati. According to this memorandum—

prepared months after the Anchorage interview—Indrawati’s mother allegedly told

immigration officials that she knew of nothing that would have prompted her

daughter to seek asylum. 7 Furthermore, the mother stated that Indrawati applied

for asylum on the advice of a classmate.

       Though Indrawati said she was aware of no fraud in her application, if there

was fraud, she had a guess as to its origin. Years earlier, Indrawati learned that

Herlina Suherman, her closest friend, had run into legal troubles. Although

Indrawati and Suherman “talk[ed] about pretty much anything and everything,”

Suherman had apparently kept secret her participation in an asylum fraud ring. In

2004, the Department of Justice announced an indictment charging Suherman with

asylum fraud. That indictment also charged Hans Gouw—Suherman’s boss and

the man who all parties agree handled Indrawati’s asylum application for a fee—

with the same crime.

       Indrawati also learned that, while Suherman remained a fugitive, Gouw had

subsequently pleaded guilty to charges of conspiracy to commit immigration fraud,

       7
          In her July 2009 testimony, Indrawati stated that she immediately told her parents about
the (true rendition of the) Surabaya assault. She stated the same in her September 2011
testimony.

                                                8
              Case: 13-12071    Date Filed: 03/02/2015    Page: 9 of 40


conspiracy to commit identification fraud, conspiracy to commit sex trafficking,

and money laundering. It turned out that Gouw’s Chinese Indonesian American

Society was a profitable front for massive immigration fraud. Indrawati thus

assumed that any problems with her asylum application were the result of

meddling by Suherman and Gouw.

      The USCIS’s notice directed Indrawati to appear for an interview at the

Miami Asylum Office on September 10, 2008, to determine whether her

application was fraudulent. Asylum Officer Patricia Conwell conducted the

interview. Indrawati explained that she applied for asylum on Suherman’s advice

and that her only tangible involvement in her I–589 application began and ended

with her signature. Indrawati maintained that she had never seen the Statement

and that Rodez never questioned her about anything besides the contents of the I-

589 form.

      Indrawati also explained that the Surabaya incident was the only physical

attack she had ever suffered (though she did note that “[o]ther things happened like

I had to pay triple for passport” because of her ethnicity). She also admitted that

someone had given her “a brown paper envelope before the interview and told

[her] to submit it to the officer.” Regardless, she explained that she never

investigated the envelope’s contents. To conclude the interview, Indrawati’s




                                          9
               Case: 13-12071        Date Filed: 03/02/2015        Page: 10 of 40


attorney told Officer Conwell that “[a]ny alleged fraud was not on applicant’s

part.”

         Conwell found that Indrawati had submitted a fraudulent asylum application.

Furthermore, she found that the unembellished choking incident did not rise to the

level of persecution necessary for asylum eligibility. See 8 U.S.C.

§§ 1101(a)(42)(A), 1158(b)(1)(A). The USCIS therefore terminated Indrawati’s

asylum, pursuant to 8 C.F.R. § 208.24(a)(1), 8 on October 2, 2008.

                                                 C.

         Four days later, the INS commenced removal proceedings against Indrawati,

alleging that she had “procured asylum in the United States by fraud or by willfully

misrepresenting a material fact” and charging her with violations of 8 U.S.C.

§§ 1227(a)(1)(A)–(B) and 1182(a)(6)(C)(i). Removal proceedings began on

December 10, 2008, before Immigration Judge Earle Wilson. Judge Wilson heard

evidence,9 sustained the charge of removability under 8 U.S.C. §§ 1227(a)(1)(A)–

(B), and found that Indrawati had filed a frivolous application.10 This, however,

         8
          That regulation provides, in relevant part, that “an asylum officer may terminate a grant
of asylum made under the jurisdiction of USCIS if, following an interview, the asylum officer
determines that . . . there is a showing of fraud in the alien’s application such that he or she was
not eligible for asylum at the time it was granted.”
         9
         Judge Wilson heard in-person testimony from Indrawati and telephonic testimony from
Officers Rodez and Conwell.
         10
          In his oral decision, Judge Wilson found that Indrawati testified falsely at her asylum
interview and that her application was “frivolous in that [Indrawati] submitted the application
knowing that it contained false and misleading information.”

                                                 10
               Case: 13-12071      Date Filed: 03/02/2015      Page: 11 of 40


did not end the case. Because Indrawati could still seek withholding of removal, 11

Judge Wilson adjourned the case to allow her the chance to file a second petition.

         Indrawati did just that, filing a second application for asylum and

withholding of removal. She additionally filed a petition to adjust her status based

upon her recent marriage to a United States Citizen. Before any of these

applications were resolved, Immigration Judge Stuart Karden replaced Judge

Wilson. Judge Karden then exercised his authority to rehear the frivolousness

issue.

         By the time Judge Karden was ready to rehear that issue, Indrawati had

withdrawn her second application for asylum and withholding of removal. This

left only her petition for adjustment of status. Because a frivolousness finding

would preclude adjustment of status, see 8 U.S.C. § 1158(d)(6), Judge Karden set

out to immediately make that determination. In deciding this issue, Judge Karden

heard testimony from three individuals and received documentary evidence. He

first heard from Officer Rodez. Although he could not recall the specifics of

Indrawati’s interview, Rodez testified as to his general practices in conducting

asylum interviews. Most importantly, he noted that he would generally place




         11
         A frivolousness finding does not preclude an alien from seeking withholding of
removal. 8 C.F.R. § 1208.20.

                                              11
              Case: 13-12071       Date Filed: 03/02/2015      Page: 12 of 40


checkmarks above specific facts in an application after having verified that

information with the applicant during the interview.

       Officer Conwell testified next. Conwell confirmed that Indrawati admitted

that the Statement was fraudulent. Conwell also noted that it was unusual for an

asylee to admit to fraudulent components of an asylum application. Additionally,

Conwell testified that she believed Indrawati to be truthful at her termination

interview. What Conwell meant by this was (and is) ambiguous. 12 On the one

hand, Conwell may have meant that she believed Indrawati’s claim that Indrawati

had never seen the Statement and had answered all of Rodez’s questions truthfully.



       12
         The following exchange between Judge Karden and Officer Conwell highlights this
ambiguity:

       IJ:           Now, as you know, obviously, a big part of this is who created the
                     statement? Did she know about the statement, et cetera. When
                     you said you felt she was truthful when you did the interview, now
                     obviously you don’t know what she’s thinking but at least the way
                     that you evaluated [Indrawati’s] testimony part of it was that she
                     told you that she had never seen this statement before. At the time
                     did you believe that?

       CONWELL: I think more of my thoughts of her being truthful are that she said
                this didn’t happen, this didn’t happen and that didn’t happen. So I
                don’t know that I really examined that thought so carefully.

       IJ:           All right. So when you said there was—

       CONWELL: But she seemed honest that day.

       IJ:           Okay.

       CONWELL: I mean, it’s just, you know, you interview people and you say they
                are being honest or not and you know.

                                              12
              Case: 13-12071      Date Filed: 03/02/2015     Page: 13 of 40


On the other hand, Conwell may have meant that she believed Indrawati’s

assertion that the events chronicled in the Statement never occurred.

       Finally, Indrawati testified. She stated that she remembered the interview

and that Rodez never questioned her regarding information contained within the

Statement. She testified that she had answered all of Rodez’s questions truthfully

and that she first learned about the Statement and its falsehoods when confronted

by Conwell. She also reiterated that her only involvement in filing her application

began and ended with signing a blank I-589 and relating truthful information to

Suherman, whom she entrusted to accurately complete the form.

       Judge Karden also considered documentary evidence, 13 beginning with a

color photocopy of the Statement. This copy showed the checkmarks that Rodez

allegedly placed as he interviewed Indrawati. During the hearing, Indrawati

requested access to the original Statement, claiming that she could use it to

demonstrate that the checkmarks were made after the interview. If proven, this

would have eliminated perhaps the strongest evidence for finding fraud. Indrawati,

however, did not explain how she would (or could) use the original Statement to

date Rodez’s checkmarks. After authenticating the document with Rodez, the IJ




       13
        There were additional exhibits beyond those covered here. We discuss only those
documents that figure prominently in this appeal.

                                             13
             Case: 13-12071    Date Filed: 03/02/2015    Page: 14 of 40


admitted the photocopy of the Statement without requiring the government to

produce the original.

      Judge Karden also considered the TSCM, the document that precipitated the

revocation of Indrawati’s asylum. The TSCM recounted that Indrawati’s mother

stated that she did not know why her daughter would claim asylum. He also

considered an affidavit by Indrawati’s mother disputing the TSCM’s accuracy.

Indrawati’s mother stated that she had been mistranslated and that Indrawati had

encountered serious difficulty in Indonesia on account of her race and religion.

      Finally, Judge Karden considered the Fraud Verification Memo (“FVM”).

As mentioned earlier, Hans Gouw completed and filed Indrawati’s application.

Pursuant to his guilty plea to asylum fraud (among other things), Gouw

participated in a three-day interview in 2006 in which he outlined to federal agents

the procedures he used to procure asylum for his customers. The FVM

memorialized the findings of that interview. The government introduced the FVM

ostensibly to impeach Indrawati after she testified that she had never spoken with

Gouw, attended practice sessions for her asylum interview, or consented to fraud.

      Some of the FVM’s details contradicted Indrawati’s narrative. For example,

Gouw claimed that he (or his associates) coached individual applicants so that they

could testify credibly and consistently with their fraudulent asylum applications.




                                         14
               Case: 13-12071       Date Filed: 03/02/2015      Page: 15 of 40


He also stated that his organization obtained the applicant’s consent before

submitting a fraudulent application.

       Other details irrelevant to impeachment conformed to Indrawati’s narrative,

thus bolstering the FVM’s reliability. Gouw stated that applicants who had paid “a

sufficient amount of their outstanding fee” were provided with a copy of all

documents submitted on their behalf. Indrawati had earlier testified that she paid

Gouw a fee and that she had received a brown envelope (perhaps containing her

application) prior to her interview. Gouw also stated that, where an applicant

indicated an actual account of discrimination or harm, he would embellish that

event to “dramatize” what had happened. The Statement indisputably contained a

dramatized version of the Surabaya assault.

       Still other details, however, appeared to weaken the Government’s case. For

example, although Gouw named many of the asylum applicants he helped, he did

not mention Indrawati. Finally, some details were irrelevant or of little probative

value. For example, the FVM recounted that Gouw listed false addresses for

asylum applicants to ensure that asylum interviews occurred during circuit rides. 14

       14
          Many asylum interviews occur at the asylum officer’s office. In such circumstances,
the officer will generally conduct one to two interviews per day. However, asylum officers will
also travel to conduct interviews. For example, although Officer Rodez was stationed at the
Miami Asylum Office, he also conducted interviews in Jacksonville, Puerto Rico, and St.
Thomas. These on-location interviews are called “circuit rides.” While on a circuit ride, asylum
officers generally conduct five to six interviews per day. Because an officer must conduct many
more interviews than usual while on a circuit ride, there is the possibility that circuit-ride
interviews will be less thorough than interviews conducted at his office.

                                               15
               Case: 13-12071       Date Filed: 03/02/2015       Page: 16 of 40


Although Indrawati’s interview took place on a circuit ride, no one contended that

she used a fraudulent address. Gouw also stated that he sometimes created false

identification documents for his applicants. No one, however, ever alleged that

any of Indrawati’s documentation was fraudulent.

       Ultimately, Judge Karden credited Rodez’s testimony as to the method that

Rodez used when conducting asylum interviews. Rejecting Indrawati’s argument

that Rodez must have checkmarked the Statement following their interview, Judge

Karden, like Judge Wilson before him, found that Rodez checkmarked an

application only during the asylum interview—and in response to the asylee’s

answers. Because the Statement had checkmarks, he concluded that Rodez must

have questioned Indrawati concerning the material therein and received answers

conforming to the Statement. Accordingly, Judge Karden found that Indrawati

knowingly testified falsely to material facts at her asylum interview; that is, she

knowingly filed a frivolous application for asylum. 15

       Judge Karden bolstered this conclusion by referencing Conwell’s finding

that Indrawati’s application was fraudulent, along with the FVM’s assertion that

Gouw would coach his applicants so that they could testify convincingly at their

asylum hearings. He noted that Gouw had a strong interest in prepping his

       15
          Although the Government did not rely upon this provision, we note that an applicant’s
“signature [on an asylum application] establishes a presumption that the applicant is aware of the
contents of the application.” 8 C.F.R. § 1208.3(c)(2).

                                               16
                 Case: 13-12071       Date Filed: 03/02/2015       Page: 17 of 40


customers to ensure they had smooth asylum interviews. His fraudulent asylum

enterprise would collapse—and therefore expose him to criminal prosecution—if

applicants testified inconsistently with their applications. Having found that the

Government met its burden of proof by a preponderance of the evidence that

Indrawati had knowingly submitted a frivolous asylum application, Judge Karden

ordered her removed and found her ineligible for either adjustment of status or

voluntary removal.

                                                 D.

       In her appeal to the BIA, Indrawati challenged Judge Karden’s frivolousness

finding on two grounds.16 First, she contended that the Government had not

proven by a preponderance of the evidence that Indrawati had knowingly filed a

frivolous asylum application. Indrawati’s attorney stated that “[t]he only evidence

in the entire record to show that Mrs. Indrawati was asked the questions on the ten
       16
            In her notice of appeal from the IJ’s decision, Indrawati presented her arguments as
follows:

       The decision of the Immigration Judge was contrary to the law, the facts, and the
       evidence.

       The government failed to meet its burden of showing by a preponderance of the
       evidence that the respondent had knowingly and deliberately filed a frivolous
       asylum application.

       The immigration judge committed serious errors of law in the admission of
       documentation that was highly prejudicial to the respondent and was not provided
       to respondent as required by the local rules. Furthermore, the judge would not
       permit respondent or her attorney to examine the original I-589 application and
       Supplement, which was necessary to ascertain the authenticity of the markings
       made by the asylum officer at the time of respondent’s asylum interview.

                                                 17
               Case: 13-12071       Date Filed: 03/02/2015        Page: 18 of 40


page attachment are yellow highlights, red lines, and red checkmarks made by

Officer Rodez.” As she had below, she claimed that the red checkmarks were

made a week after the interview, and that, if proven, this “would have established

that Mrs. Indrawati was truthful when she stated that Mr. Rodez never asked her

the questions on the attachment to the asylum application during her interview.”

Although couched in language concerning burdens of proof, most of Indrawati’s

arguments quibbled with the weight given to and conclusions drawn from various

pieces of evidence.17

       Second, she contended that the Government’s refusal to allow her to view

the original check-marked Statement, along with Judge Karden’s reliance upon that

document and the FVM, denied her due process. According to Indrawati, “[a]

review of the original [I-589 and Statement] would have shown that the red

checkmarks made by the asylum officer were not made at the asylum interview,”

and that her inability to review that document rendered the hearing fundamentally

unfair. To contest the FVM’s admission, she cited to cases holding that reliance

upon documents containing multiple levels of hearsay—and the FVM surely did

contain double hearsay—violates due process. Indrawati also contested the FVM’s

       17
          For example, Indrawati argued that “[t]he only indicia of knowingly fabricating
evidence is a document (not prepared by Mrs. Indrawati, not submitted by her, and not signed by
her) containing markings by an asylum examiner which, based on the totality of the evidence,
indicates that it was prepared one week after the date of the interview.” Indrawati went on to
explain that, “[i]f all the facts in the case are evaluated fairly,” the Government would not have
met its burden.

                                                18
               Case: 13-12071   Date Filed: 03/02/2015    Page: 19 of 40


reliability by noting discrepancies between how her application was filed and

Gouw’s filing modus operandi. Overall, Indrawati contended that, had neither the

check-marked Statement nor the FVM been considered, “there would have been a

different outcome because the government would not have been able to prove their

case by a preponderance of the evidence.”

                                          E.

      The BIA dismissed her appeal. It disagreed that the Government failed to

meet its burden of proving by a preponderance of the evidence that Indrawati

knowingly submitted a frivolous asylum application. It stated that the IJ’s decision

to credit Rodez’s testimony (and discredit Indrawati’s testimony) was not clearly

erroneous, and that Rodez’s testimony demonstrated that Indrawati “testified to

[Rodez] consistently with [the Statement’s] contents.” The BIA also noted that

Conwell’s termination interview with Indrawati “confirmed that nothing in Officer

Rodez’s notations from the asylum interview was true except for a choking

incident.” The BIA further stated that the FVM, which reflected that Gouw did not

file fraudulent applications without first obtaining the applicant’s consent,

supported the IJ’s finding that Indrawati had knowingly filed the fraudulent

application.

      The BIA also dismissed Indrawati’s due process arguments. It noted that

Indrawati failed to object properly to the Statement’s admission and deemed


                                          19
             Case: 13-12071     Date Filed: 03/02/2015   Page: 20 of 40


speculative her arguments that she could prove that Rodez did not make the

checkmarks during the asylum interview. Finally, it noted that the admission of

the FVM did not violate due process because she could not show prejudice. The

BIA explained that “there already existed independent evidence, based on the

admittedly false statements both in the body of the Form I-589 and in the 10-page

attached statement, that the application contained material falsehoods.” The BIA

also stated that the FVM was admitted to impeach Indrawati’s assertion that she

had no knowledge of the Statement prior to—and had not prepared for—her

asylum interview.

                                         II.

      Indrawati raises three arguments in her petition for review of the BIA’s

decision. First, she claims that the IJ’s frivolousness finding was improper because

she was denied a sufficient opportunity to account for the alleged discrepancies

raised by the color photocopy of the Statement, the TSCM, and the FVM. Second,

she claims that Judge Karden’s and the BIA’s reliance upon these documents

violated her right to due process. Finally, she argues that the BIA’s decision must

be set aside because it does not reflect reasoned consideration of the law and facts.

      “When, as here, the BIA issues its own opinion, we review only the decision

of the BIA, except to the extent the BIA expressly adopts the IJ’s decision.”

Rodriguez Morales v. U.S. Att’y Gen., 488 F.3d 884, 890 (11th Cir. 2007). We


                                         20
             Case: 13-12071     Date Filed: 03/02/2015   Page: 21 of 40


review legal determinations de novo. Ayala v. U.S. Att’y Gen., 605 F.3d 941, 948

(11th Cir. 2010). We review administrative fact findings under the highly

deferential substantial-evidence test. Id. Under this test, we will affirm the BIA’s

decision “if it is supported by reasonable, substantial, and probative evidence on

the record considered as a whole.” Tan v. U.S. Att’y Gen., 446 F.3d 1369, 1374

(11th Cir. 2006) (quotation marks omitted). We will reverse findings of fact “only

when the record compels a reversal; the mere fact that the record may support a

contrary conclusion is not enough to justify a reversal of the administrative

findings.” Id. (quotation marks omitted).

                                         III.

      Before addressing Indrawati’s arguments on the merits, we assess our

jurisdiction (or lack thereof). We review our subject matter jurisdiction de novo.

Amaya-Artunduaga v. U.S. Att’y Gen., 463 F.3d 1247, 1250 (11th Cir. 2006) (per

curiam). We lack jurisdiction to review final orders in immigration cases unless

“the alien has exhausted all administrative remedies available to the alien as of

right.” 8 U.S.C. § 1252(d)(1). A petitioner fails to exhaust her administrative

remedies with respect to a particular claim when she does not raise that claim

before the BIA. Amaya-Artunduaga, 463 F.3d at 1250.

      This is not a stringent requirement. Simply put, petitioners must have

previously argued the “core issue now on appeal” before the BIA. Montano


                                         21
             Case: 13-12071     Date Filed: 03/02/2015   Page: 22 of 40


Cisneros v. U.S. Att’y Gen., 514 F.3d 1224, 1228 n.3 (11th Cir. 2008). Unadorned,

conclusory statements do not satisfy this requirement. Though exhaustion does not

require a petitioner to “use precise legal terminology” or provide “a well[-

]developed argument to support [her] claim,” it does require that she provide

information sufficient to enable the BIA to review and correct any errors below.

Arsdi v. Holder, 659 F.3d 925, 929 (9th Cir. 2011). Unless a petitioner raises a

purely legal question, the BIA cannot review and correct errors without the

petitioner first providing her argument’s relevant factual underpinnings. What

little we do require furthers two core purposes of the exhaustion requirement:

avoiding premature interference with the administrative process and ensuring that

the agency “has had a full opportunity to consider a petitioner’s claims.” Amaya-

Artunduaga, 463 F.3d at 1250 (quoting Theodoropoulos v. INS, 358 F.3d 162, 171

(2d Cir. 2004)) (quotation marks omitted).

      The Government argues that Indrawati failed to exhaust her administrative

remedies with regard to whether she had a sufficient opportunity to account for the

discrepancies on which the frivolousness finding was based, whether the admission

of the TCSM violated her right to due process, and whether the BIA’s decision

reflects reasoned consideration. Although we agree with the Government’s first

two arguments, we cannot agree with the third.




                                         22
             Case: 13-12071      Date Filed: 03/02/2015    Page: 23 of 40


                                           A.

      Nowhere did Indrawati’s appeal to the BIA mention a lack of “sufficient

opportunity” to account for discrepancies and implausible aspects of her claim for

asylum. This, however, does not end our inquiry; administrative exhaustion

requires no specific incantation. Rather, we must look to the substance of the

appeal for facts and allegations that make manifest the petitioner’s attempt to raise

this claim before the BIA.

      The BIA first elucidated the procedural requirements for making a

frivolousness finding in In re Y-L-, 24 I. & N. Dec. 151 (2007). There, the BIA

stated that a frivolousness finding is valid only if there is “an indication that the

alien has been afforded sufficient opportunity to account for any discrepancies or

implausible aspects of [her asylum] claim.” Id. at 155. The BIA noted that, to

fulfill this requirement, “it would be a good practice” for an IJ to “bring

[frivolousness] concern[s] to the attention of the applicant prior to the conclusion

of proceedings.” Id. at 159–60. Explicit warnings, however, are unnecessary if the

deliberate fabrication “is so clear on the record that a formal request for an

explanation would be a needless exercise.” Id. at 160 n.3. That being said, if the

IJ does warn the applicant at the start of a merits hearing that he is contemplating

making a frivolousness finding, the IJ “is not required to afford additional

warnings or seek further explanation in regard to inconsistencies that have become


                                           23
               Case: 13-12071       Date Filed: 03/02/2015       Page: 24 of 40


obvious to the respondent during the course of the hearing.” In re B-Y-, 25 I. & N.

Dec. 236, 242 (2010).

       Indrawati’s brief to the BIA contained nothing resembling a claim that the IJ

blindsided her with the frivolousness finding, thus depriving her of a sufficient

opportunity to account for discrepancies in her application. 18 Accordingly, we are

without jurisdiction to consider Indrawati’s claims on this issue.

                                               B.

       Indrawati also argues that the admission and consideration of the TSCM

violated her right to due process. Although her appeal to the BIA did argue that

Judge Karden’s admission of and reliance upon the photocopied Statement and the

FVM violated her right to due process, the same cannot be said of the TSCM. Her

appeal did not mention the TSCM anywhere, and the BIA noted as much. 19 By

failing to make any arguments relating to the TSCM, we can say with certainty that

Indrawati failed to provide the BIA with an opportunity to correct any alleged

errors. Indrawati accordingly failed to exhaust her administrative remedies with

       18
         From the start of the hearings under Judge Stuart Karden, it was manifest that the court
was considering a frivolousness finding. Indeed, that was the only issue that Judge Karden
considered.
       19
          The BIA arguably was on notice that some of Indrawati’s claims with respect to the
Statement and FVM might be equally applicable to the TSCM. However, this court has stated
that the BIA’s sua sponte consideration of a claim does not result in exhaustion. Amaya-
Artunduaga, 463 F.3d at 1250–51. If the BIA’s unprompted grappling with an issue is not
enough to exhaust an administrative remedy, surely the result is identical when the BIA mentions
an issue only in passing.

                                               24
               Case: 13-12071      Date Filed: 03/02/2015      Page: 25 of 40


respect to all claims concerning the TSCM. See Amaya-Artunduaga, 463 F.3d at

1251 (noting that due process claims require exhaustion).

                                             C.

         The Government additionally argues that Indrawati failed to exhaust her

claim that the BIA’s decision reflects a lack of reasoned consideration. In a

reasoned-consideration inquiry, we look to see whether the BIA “consider[ed] the

issues raised and announce[d] [its] decision in terms sufficient to enable a

reviewing court to perceive that [it has] heard and thought and not merely reacted.”

Cole v. U.S. Att’y Gen., 712 F.3d 517, 534 (11th Cir. 2013) (quoting Carrizo v.

U.S. Att’y Gen., 652 F.3d 1326, 1332 (11th Cir. 2011)) (quotation marks omitted).

The Government’s jurisdiction argument faults Indrawati for not raising an

argument about the lack of reasoned consideration displayed by a decision not yet

in existence. This is facially nonsensical. We reject the Government’s argument,

and conclude that we possess jurisdiction to consider Indrawati’s argument on this

issue.

                                             IV.

         Indrawati argues that the BIA’s reliance on the Statement and FVM violated

her right to due process.20 Although the Federal Rules of Evidence do not apply in


         20
         The Fifth Amendment entitles petitioners in removal proceedings to due process of
law. See Tang v. U.S. Att’y Gen., 578 F.3d 1270, 1275 (11th Cir. 2009).

                                              25
                Case: 13-12071      Date Filed: 03/02/2015       Page: 26 of 40


immigration proceedings, Gares v. U.S. Att’y Gen., 611 F.3d 1337, 1347 (11th Cir.

2010), due process considerations limit the evidence that may be considered. See,

e.g., Banat v. Holder, 557 F.3d 886, 891 (8th Cir. 2009). To establish a due

process violation, petitioners must demonstrate “that they were deprived of liberty

without due process of law, and that the asserted errors caused them substantial

prejudice.” Lonyem v. U.S. Att’y Gen., 352 F.3d 1338, 1341–42 (11th Cir. 2003)

(per curiam). The BIA deprives a petitioner of liberty without due process of law

when it considers evidence that is not probative and whose admission is not

fundamentally fair. Tashnizi v. INS, 585 F.2d 781, 782-83 (5th Cir. 1978).21 When

considering the fairness of admitting hearsay, we look to the challenged evidence’s

reliability and trustworthiness. See, e.g., Anim v. Mukasey, 535 F.3d 243, 256 (4th

Cir. 2008). To establish substantial prejudice, petitioners “must demonstrate that,

in the absence of the alleged violations, the outcome of the proceeding would have

been different.” Lapaix v. U.S. Att’y Gen., 605 F.3d 1138, 1143 (11th Cir. 2010)

(per curiam).

                                               A.

       Indrawati contests Judge Karden’s admission of and reliance upon a

photocopy of the check-marked Statement without first permitting her to examine

       21
         In Bonner v. City of Prichard, 661 F.2d 1206, 1209 (11th Cir. 1981) (en banc), this
court adopted as binding precedent all decisions of the former Fifth Circuit handed down prior to
October 1, 1981.

                                               26
               Case: 13-12071   Date Filed: 03/02/2015   Page: 27 of 40


the original. Indrawati does not dispute the photocopy’s accuracy. Rather, she

maintains that, if she had been given access to the original document, she could

have established that Rodez annotated the Statement after his interview with

Indrawati. Her claim necessarily assumes that there is a material difference

between the photocopy and original; if there were not, the photocopy would be

sufficient. The BIA dismissed this due process argument as “speculative,” stating

that “there is no plausible contention that the authenticated photocopy differed

from the original.”

      We agree with the BIA that Indrawati’s argument is speculative. At no point

has Indrawati advanced any explanation as to what she might actually do with the

original Statement that would reveal when Rodez placed the checkmarks. For

example, if there is a test one can perform on ink to determine when a particular

mark was inscribed on paper—a test that obviously could only be performed on the

original—Indrawati did not bring that test to the attention of the BIA (or this

court). We are left to ponder what, if any, differences might exist between the

photocopy and the original (and how one would detect such differences) that could

establish when Rodez made the checkmarks. Furthermore, Indrawati cites no

authority requiring the government to produce original documents during removal

proceedings.




                                          27
               Case: 13-12071        Date Filed: 03/02/2015       Page: 28 of 40


       It is indisputable that the check-marked Statement, when evaluated in

combination with Rodez’s testimony as to his practices as an asylum officer, is

probative as to what questions he asked Indrawati. Because Indrawati offers no

explanation as to how the original statement differs materially from the photocopy,

we cannot say that reliance upon the photocopy without providing Indrawati an

opportunity to examine the original was fundamentally unfair. 22 Accordingly, we

decline to grant her petition on this basis.

                                                B.

       Indrawati also argues that admission of the FVM was fundamentally unfair

both because the document contained multiple levels of hearsay and because she

had no opportunity to cross-examine its author. However, even if we were to

assume that the admission of the FVM was a due process violation, 23 Indrawati


       22
          Indeed, it is likely that the photocopy would be admissible even if the Federal Rules of
Evidence controlled. Although “[a]n original writing, recording, or photograph is required in
order to prove its content,” Fed. R. Evid. 1002, “a duplicate is admissible to the same extent as
the original unless a genuine question is raised about the original’s authenticity or the
circumstances make it unfair to admit the duplicate,” Fed. R. Evid. 1003. Indrawati has not
raised a genuine issue regarding the original’s authenticity, and, as noted, the circumstances are
such that it was fair to admit the photocopy.
       23
           We pause to note that—within the immigration context—this circuit has not yet
recognized anything resembling a right to confrontation rooted in the Due Process Clause. Other
circuits, however, have recognized such a right. For example, in Cinapian v. Holder, 567 F.3d
1067 (9th Cir. 2009), the Government first disclosed the existence of adverse documentary
evidence during Cinapian’s immigration hearing—as opposed to disclosing the existence of that
evidence beforehand—and made no effort to make the document’s author available for cross-
examination. 567 F.3d at 1071–72. The Ninth Circuit held that “the combination of the
government’s failure to disclose the DHS forensic reports in advance of the hearing or to make
the reports’ author available for cross-examination and the IJ’s subsequent consideration of the
                                                28
                 Case: 13-12071         Date Filed: 03/02/2015     Page: 29 of 40


cannot demonstrate the requisite substantial prejudice. See Lapaix, 605 F.3d at

1143. The IJ credited Rodez’s testimony that he would not have placed

checkmarks on the document unless he asked questions pertaining to the check-

marked material. He simultaneously found Indrawati’s testimony to the contrary

incredible. It necessarily flows from this finding that Indrawati, at the very least,

gave false answers at her asylum interview consistent with the information that

formed the basis for Rodez’s recommendation to grant Indrawati asylum. 24 This



reports under these circumstances” denied the petitioner a fair hearing, resulting in a violation of
due process. Id. at 1075.

        Explicitly referencing “the right to confront evidence and cross-examine witnesses in
immigration cases,” the Ninth Circuit then held that the government “may not use an affidavit
from an absent witness unless [it] first establishes, that, despite reasonable efforts, it was unable
to secure the presence of the witness at the hearing.” Id. at 1074 (quotation marks omitted). The
Ninth Circuit is not alone in crafting such a rule. See, e.g., Ocasio v. Ashcroft, 375 F.3d 105, 107
(1st Cir. 2004); Olabanji v. INS, 973 F.2d 1232, 1234 (5th Cir. 1992); see also Dallo v. INS, 765
F.2d 581, 586 (6th Cir. 1985) (distinguishing a case that did apply this rule without commenting
upon the rule’s vitality in the Sixth Circuit).

        Additionally, the Seventh Circuit has hinted that it might accept a version of this rule sans
the “reasonable efforts” exception. Pouhova v. Holder, 726 F.3d 1007, 1015 (7th Cir. 2013). In
that case, the government asked the Seventh Circuit to hold that unreliable hearsay statements
may be admitted so long as the government “has made reasonable but unsuccessful efforts to
locate the witness.” Id. The court, however, rejected this invitation. It noted that it need not
resolve the issue either way because “the government failed to make such reasonable efforts.”
Id. Finally, it added that “[w]e do not see why making an unsuccessful effort to locate a witness
renders the unreliable hearsay evidence any more reliable or its use any fairer than without such
effort.” Id.

        We need not ponder the sagacity of taking this approach because Indrawati cannot
establish the requisite substantial prejudice.
       24
            The IJ noted this in his oral decision, stating:

       [T]he Court finds that [Rodez’s] testimony as to making the checkmarks during
       the interview with his notes is credible and believable. Therefore, the Court finds
                                                    29
              Case: 13-12071       Date Filed: 03/02/2015       Page: 30 of 40


evidence alone could have satisfied the Government’s burden to prove by a

preponderance of the evidence that Indrawati submitted a frivolous asylum

application. The BIA held that the IJ’s decision to credit Rodez’s testimony (and

discredit Indrawati’s testimony) was not clearly erroneous. Even if we believed

that the IJ and the BIA were incorrect, we cannot say that the “record compels a

reversal.” Tan, 446 F.3d at 1374 (quotation marks omitted). Accordingly, even if

reliance upon the FVM violated Indrawati’s right to due process, Indrawati cannot

demonstrate substantial prejudice given the finding that Rodez was credible and

that he made the checkmarks during the interview.

      Indeed, the cases Indrawati cites for support serve only to highlight her

claim’s deficiencies. In one line of cases, the hearsay whose admission violated

due process constituted the only evidence supporting removal. See Hassan v.

Holder, 604 F.3d 915, 927 (6th Cir. 2010); Alexandrov v. Gonzalez, 442 F.3d 395,

407 (6th Cir. 2006). In another line of cases, the hearsay, though not the only

evidence supporting removal, was dispositive. See Banat, 557 F.3d at 893 (finding


      that these specific items were asked and that [Indrawati] gave fabricated
      answers . . . .

      The BIA alluded to the same:

      [T]he [IJ] credited the testimony of Asylum Officer Rodez that he interviewed the
      respondent based on this statement, and placed checkmarks on the document to
      verify that she testified consistently with its contents.

      (citations omitted).

                                              30
             Case: 13-12071     Date Filed: 03/02/2015    Page: 31 of 40


that the IJ’s credibility determination relied primarily upon a letter containing

multiple levels of hearsay); Anim, 535 F.3d at 258 (finding a due process violation

where the IJ’s determination that the petitioner submitted fraudulent documents

could be sustained only after relying on a letter comprised of multiple levels of

hearsay); Ezeagwuna v. Ashcroft, 325 F.3d 396, 408 (3d Cir. 2003) (finding a due

process violation where the BIA based its credibility finding “almost entirely

upon” a document containing multiple levels of hearsay). In these cases,

substantial prejudice was manifest. Indrawati’s case is clearly distinguishable.

Accordingly, we conclude that Indrawati’s due process claim relating to the FVM

does not justify granting her petition. See Cole v. Att’y Gen., 712 F.3d 517, 535

(11th Cir. 2013).

                                          V.

      Indrawati’s diverse arguments clothed in “reasoned consideration” garb fare

no better than her arguments based on due process. Occasionally, this court has

granted petitions for review, vacated agency decisions, and remanded for further

proceedings when the agency’s decision was so lacking in reasoned consideration

and explanation that meaningful review was impossible. See, e.g., Mezvrishvili v.

U.S. Att’y Gen., 467 F.3d 1292, 1297 (11th Cir. 2006) (per curiam). When

assessing whether a decision displays reasoned consideration, we look only to

ensure that the IJ and the BIA considered the issues raised and announced their


                                          31
             Case: 13-12071     Date Filed: 03/02/2015   Page: 32 of 40


decisions in terms sufficient to enable review. Cole v. U.S. Att’y Gen., 712 F.3d

517, 534 (11th Cir. 2013).

      Although it is true that the IJ and the BIA must consider all the evidence

submitted, “it is well established that the IJ and the BIA need not address

specifically each claim the petitioner made or each piece of evidence the petitioner

presented.” Id. (quotation marks omitted). Accordingly, a decision that omits the

discussion of certain pieces of evidence can nonetheless display reasoned

consideration. Furthermore, our reasoned-consideration examination “does not

amount to a review for whether sufficient evidence supports the decision of the

[BIA].” Perez-Guerrero v. U.S. Att’y Gen., 717 F.3d 1224, 1232 (11th Cir. 2013).

That is to say, when we remand for lack of reasoned consideration, it is not

because we have reviewed the BIA’s decision and disagreed with its legal

conclusions and factual findings. See Mezvrishvili, 467 F.3d at 1297. Rather, we

have determined that, given the facts and claims in the specific case before the IJ

and the BIA, the agency decision is so fundamentally incomplete that a review of

legal and factual determinations would be quixotic. See id. Our inquiry concerns

process, not substance; we look to see that the agency “heard and thought and not

merely reacted.” Cole, 712 F.3d at 534 (quotation marks omitted).

      For example, in Tan v. United States Attorney General, 446 F.3d 1369 (11th

Cir. 2006), Liana Tan, a native of Indonesia and an ethnically Chinese Christian,


                                         32
             Case: 13-12071     Date Filed: 03/02/2015    Page: 33 of 40


applied for withholding of removal based in part upon a well-founded fear of

future persecution predicated upon her race. 446 F.3d at 1370–71. The IJ rejected

her application, and the BIA affirmed that decision without opinion. Id. at 1373.

Tan had supported her claim with Country Reports and newspaper articles attesting

to widespread violence against Chinese people and Christians. Id. at 1375. Her

application for withholding of removal also noted that her family’s business had

recently been looted and damaged during a riot. Id. at 1376. Nonetheless, the IJ

failed to mention the reports and articles when cataloguing the evidence in Tan’s

case and also misstated the facts, declaring that Tan’s family continued to live in

Indonesia without problems. Id. at 1375–76. The IJ supported his decision to

reject her application for withholding of removal based upon a well-founded fear

of future persecution because “a great deal of [Indonesia’s Christian population of

20 million] are ethnic Chinese,” and that “[t]herefore, based on the evidence that I

have, I don’t believe she would be singled out simply because she is Christian and

of ethnic Chinese origin.” Id. at 1373.

      We held that this constituted a lack of reasoned consideration. However, we

did not do so simply because the IJ failed to discuss all of the evidence. See id. at

1375. Rather, we held that the IJ’s decision was defective because his statements

were so patently unsupported (and contradicted) by the record, that “they

undermine[d] the conclusion that [he] considered all the evidence.” Id. at 1376.


                                          33
             Case: 13-12071     Date Filed: 03/02/2015    Page: 34 of 40


Tan had raised evidence supporting her claim for withholding of removal, and the

IJ’s decision gave us the impression not that he considered and assigned little

weight to her evidence, but rather that the evidence did not enter his calculus

whatsoever. Reading the application left us with the firm conviction that the IJ had

“merely reacted” to Tan’s application. See Cole, 712 F.3d at 534. Having

abdicated his role as principled arbiter, the IJ’s “decision” was nothing of the sort,

rendering nonsensical any attempt to seriously review its legal and factual

determinations.

                                          A.

      Indrawati’s various arguments do not undermine our conclusion that the

BIA’s decision reflects reasoned consideration. To begin, Indrawati’s arguments

concerning discrepancies in Officer Rodez’s statement, equivocation in his

testimony, and the quality of his note-taking are misguided. Indrawati argues that

the IJ and the BIA failed to consider that Rodez’s notes indicate that Indrawati

never sought medical attention, despite the fact that the Statement clearly recounts

that she was hospitalized following the Surabaya assault. However, Indrawati

never elicited these inconsistencies during the hearing with the IJ and did not bring

them to the BIA’s attention. We have said that the BIA need consider only the

issues raised. Cole, 712 F.3d at 534. Because Indrawati raises this issue for the

first time in her petition to this court, the IJ and the BIA had no reason to consider


                                          34
             Case: 13-12071     Date Filed: 03/02/2015    Page: 35 of 40


that argument. Their failure to divine and discuss any possible arguments

Indrawati might make at a future point does not reflect a lack of reasoned

consideration. The same is true of her argument that reliance upon notes that

purportedly do not meet BIA requirements reflects a lack of reasoned

consideration. Because Indrawati never made these arguments before the BIA, it is

reasonable that the BIA explicitly considered neither.

                                          B.

      Indrawati also quarrels with the BIA’s use of Officer Conwell’s testimony to

support its decision. Indrawati argues that Conwell’s testimony actually bolsters

her innocence. The theory goes that, because Conwell stated that she thought

Indrawati was honest during her termination interview, and because Indrawati told

Conwell that Indrawati had never seen her own application and answered all of

Rodez’s statements truthfully, Conwell must have believed Indrawati’s account of

the interview. According to Indrawati, if Conwell believed Indrawati’s narrative, it

is more likely that Indrawati testified truthfully to Rodez; Indrawati is therefore

innocent. That the BIA did not reach this conclusion—indeed, that it reached the

opposite conclusion—should convince us that the BIA’s decision reflects a lack of

reasoned consideration.

      We disagree. True, the BIA did not discuss Conwell’s belief that Indrawati

was truthful. However, we think this omission proper given that Conwell’s


                                          35
               Case: 13-12071       Date Filed: 03/02/2015      Page: 36 of 40


perceptions are irrelevant to the frivolousness determination. At its core, that

determination hinges upon whether Rodez asked Indrawati about the Statement

during her asylum interview. Conwell’s opinion as to Indrawati’s veracity tells us

nothing about the asylum interview. It shows only that, without regard to whether

what she was saying was true, Indrawati was a persuasive interviewee.25 If

anything, the BIA’s omission here was merciful. Conwell’s opinion supports the

Government’s theory that Indrawati was capable of testifying falsely without

detection.

       Furthermore, Conwell’s testimony was not so critical to this case that the

BIA’s failure to wrestle with its implications undermines our confidence that the

BIA performed its duty and rendered a reasoned decision. Conwell’s testimony

demonstrated only that Indrawati had previously admitted that her application was

fraudulent. The evidence merely corroborated an undisputed fact. If an agency

need not discuss every piece of evidence to immunize its decision from a

reasonable-consideration inquiry, surely its failure to exhaustively discuss evidence

of little probative value does not merit remand.




       25
          Another theory for considering Conwell’s opinion would be that it was reputation
evidence of Indrawati’s character for truthfulness. However, Conwell’s solitary interaction with
Indrawati was woefully inadequate as a foundation for such testimony. Cf. Fed. R. Evid. 602.
Furthermore, it patently was not reputation evidence, but instead referred to a specific
interaction.

                                               36
              Case: 13-12071     Date Filed: 03/02/2015   Page: 37 of 40


                                           C.

      Indrawati also argues that the BIA’s decision reflected a lack of reasoned

consideration because the BIA improperly speculated that Rodez “would only rely

on material he covered with an asylum applicant during an interview in drafting his

assessment whether to grant asylum.” Indrawati considers this speculation because

Rodez’s report refers to Indrawati’s hospitalization. Although the check-marked

Statement refers to Indrawati’s hospitalization, Rodez’s handwritten notes reflect

that Indrawati was not hospitalized. Neither party disputes that Rodez took these

handwritten notes during the interview. Because those notes reflect that Indrawati

was not hospitalized, the theory apparently goes, it necessarily means that

Indrawati never testified to the contrary. And if the report states that Indrawati was

hospitalized, it must mean that Rodez relied upon material not covered during the

interview: the Statement.

      Central to this chain of reasoning is an assumption that Rodez did not

annotate the Statement with checkmarks during the interview. Of course, the IJ

made a finding of fact to the contrary, and the BIA found no error in that finding.

Indrawati’s argument that the BIA’s decision reflects a lack of reasoned

consideration because the decision includes speculation is simply incoherent unless

we are to first reverse the IJ’s factual findings.




                                           37
             Case: 13-12071     Date Filed: 03/02/2015   Page: 38 of 40


      Perhaps this is why Indrawati supports her “reasoned consideration”

argument with citations to two cases where we reversed findings of fact

unsupported by substantial evidence. See Xiu Ying Wu v. U.S. Att’y Gen., 712 F.3d

486, 494 (11th Cir. 2013); Tang v. U.S. Att’y Gen., 578 F.3d 1270, 1278 (11th Cir.

2009). To reiterate, we review administrative findings of fact under the

substantial-evidence test, and will reverse such findings “only when the record

compels a reversal; the mere fact that the record may support a contrary conclusion

is not enough to justify a reversal of the administrative findings.” See Seck v. U.S.

Att’y Gen., 663 F.3d 1356, 1364 (11th Cir. 2011) (quotation marks omitted). In

both Xiu Ying Wu and Tang, the IJ made an adverse credibility determination based

upon speculation, rather than evidence. Xiu Ying Wu, 712 F.3d at 494 (noting that

“[n]either the BIA nor the IJ cited to any record evidence to support their

conclusion that Wu’s story was implausible”); Tang, 578 F.3d at 1278 (noting that

the IJ “based his adverse credibility determination on his personal perceptions

about the reasonableness of Tang’s mother’s actions,” and that no evidence

supported his determination).

      Cases discussing our review of administrative findings of fact under the

substantial-evidence test are inapplicable to the question of whether the BIA’s

decision exhibits reasoned consideration. To the extent that her reasoned

consideration argument actually is a challenge to administrative fact-finding, we


                                         38
             Case: 13-12071        Date Filed: 03/02/2015   Page: 39 of 40


agree with the BIA that the IJ did not err when deciding to credit Rodez’s

testimony. Although Rodez’s contradictory notes may raise an eyebrow, when

viewed in combination with all the other evidence, this inconsistency does not

compel us to reverse the factual findings. Accordingly, we decline to grant

Indrawati’s petition based upon this argument.

                                            D.

      Finally, Indrawati argues that the BIA’s “reliance on documentary evidence

lacking basic indicia of reliability reflects a lack of reasoned consideration.”

Indrawati cites no cases to support this legal theory. Moreover, this conclusory

argument is simply a repackaged version of her argument that reliance upon these

documents violated her right to due process. As we noted above, admission and

reliance upon these documents was proper (or uncontested, in the case of the

TSCM). Reliance upon properly admitted evidence is precisely what we would

hope the BIA does when rendering decisions. Indeed, it is when the BIA

disregards properly admitted evidence that its decisions reflect a lack of reasoned

consideration. See Tan, 446 F.3d at 1375–76. Accordingly, we find this argument

meritless.

                                           VI.

      For the foregoing reasons, we DISMISS in part and DENY in part

Indrawati’s petition for review.


                                            39
      Case: 13-12071   Date Filed: 03/02/2015   Page: 40 of 40


DISMISSED, in part; DENIED, in part.




                                40
