            United States Court of Appeals
                        For the First Circuit


No. 00-2585

                         RASAC OLUFEMI OPERE,

                              Petitioner,

                                   v.

       UNITED STATES IMMIGRATION AND NATURALIZATION SERVICE,

                              Respondent.



                   PETITION FOR REVIEW OF AN ORDER

                 OF THE BOARD OF IMMIGRATION APPEALS


                                 Before

                      Torruella, Circuit Judge,

                    Gibson,* Senior Circuit Judge,

                      and Lipez, Circuit Judge.



     Joseph F. Dugan, on brief for petitioner.
     Nelda C. Reyna, with whom Stuart E. Schiffer, Acting Assistant
Attorney General and David V. Bernal, Assistant Director, were on brief
for respondent.



                            October 2, 2001


*   Hon. John R. Gibson, of the Eighth Circuit, sitting by designation.
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          TORRUELLA, Circuit Judge. Rasac Olufemi Opere, a native and

citizen of Nigeria, was admitted to the United States on November 13,

1982 as a nonimmigrant visitor with authorization to remain in the

country until November 30, 1982. Having remained in the United States

beyond the authorized date, Opere was given an Order to Show Cause

("OSC") by the INS on April 14, 1994 and was charged as being

deportable pursuant to Immigration and Nationality Act ("INA") §

211(a)(1)(B), 8 U.S.C. § 1251(a)(1)(B) (current version at 8 U.S.C. §

1227(a)(1)(B)). In the deportation proceedings before an immigration

judge, Opere admitted all allegations contained in the OSC and conceded

deportability.     For relief from deportation, Opere applied for

suspension of deportation and sought voluntary departure and

termination of proceedings. The immigration judge denied the relief,

finding that because he had previously lied under oath to an

immigration official during a green card interview, Opere was

statutorily precluded from demonstrating good moral character as

required for a suspension of deportation. The Board of Immigration

Appeals ("Board") upheld the immigration judge's decision, and this

appeal followed.

                                FACTS

          On June 7, 1993, Opere married Alana Rose, a United States

citizen. By December of that year, they were separated and not living

together: Opere was living at 53 Pine Street and Alana was living with


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her sister. On December 27, 1993, Alana filed a Petition for Alien

Relative, commonly referred to as a "green card," for Opere based on

their marriage. Alana and Opere were interviewed under oath, together

and individually, on February 28, 1994 by Immigration Officer Higgins.

During that interview, Opere and Alana each told Higgins that they were

living together at 53 Pine Street. Alana, however, later recanted and,

on February 28, 1994, withdrew the green card petition on the basis

that she and Opere were in fact separated as of December 1993. The INS

subsequently denied the petition.

          During his deportation proceeding before the immigration

judge, Opere testified about his marriage interview with Officer

Higgins. Opere testified that at the beginning of the interview, he

was placed under oath. When asked by counsel for the government why he

had falsely testified that he and Alana were living together, Opere

stated, "I was afraid I want everything to work together, and I know if

I tell him we were not living together, I don't know what he is going

to -- I lied." Counsel for the government then asked whether he lied

because he thought Higgins would deny the green card if he knew that

Opere and his wife were not living together.        Opere answered, "Yes."

          In a decision dated July 20, 1995, the immigration judge

found Opere deportable as charged, denied his application for

suspension of deportation and his request for termination of

proceedings and voluntary departure, and ordered him deported to


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Nigeria. In evaluating the requirements under the INA for suspension

of deportation, the immigration judge found that Opere had established

seven years of continuous physical presence, but was unable to

demonstrate that he was a person of good moral character and that

deportation would result in extreme hardship to either himself or his

estranged wife. With respect to her determination regarding good moral

character in particular,1 the judge found that Opere was statutorily

precluded under INA § 101(f) (6) from receiving suspension of

deportation proceedings because he lied under oath to an immigration

officer during the time period in which he was required to demonstrate

good moral character.

           Opere appealed the immigration judge's decision to the Board

on July 24, 1995. In his appeal, Opere argued that he did not provide

false testimony within the meaning of § 101(f)(6) because he

effectively "recanted" the untruthful testimony when his wife admitted

that they were not residing together and because the testimony itself

was not material. The Board rejected both of these arguments on the

grounds that it was Opere's wife, not Opere, that had recanted that

false testimony and that § 101(f)(6) does not impose a materiality

requirement. The Board considered Opere's admission that he lied to

the immigration officer because he was afraid that his green card would

be denied and found that Opere "plainly had the subjective belief that

1   The decision on this ground is the only issue presented on appeal.

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his false statement would assist him in obtaining immigration

benefits." The Board thus concluded that Opere was statutorily barred

by § 101(f)(6) from establishing that he was a person of good moral

character and dismissed his appeal for a suspension of deportation.2

                             DISCUSSION

           The law in this case is straightforward. The granting of an

application for suspension of deportation under the INA requires a

finding of statutory eligibility as well as an exercise of agency

discretion. Bernal-Vallejo v. INS, 195 F.3d 56, 60-61 (1st Cir. 1999).

An alien is statutorily eligible for deportation if he: (1) has been

physically present in the United States for a continuous period of not

less than seven years immediately preceding the application for

suspension; (2) is a person of "good moral character"; and (3) is "a

person whose deportation would, in the opinion of the Attorney general,

result in extreme hardship to the alien or to her spouse, parent, or

child, who is a citizen of the United States or an alien lawfully

admitted for permanent residence."      INA § 244(a)(1), 8 U.S.C. §

1254(a)(1) (repealed 1996).3 Section 101(f) of the Act, in turn,

identifies eight categories of conduct that render an individual per se

lacking in good moral character. Because a decision to deny suspension



2   The Board sustained Opere's appeal for voluntary departure.
3 Though repealed, this provision still applies to this case. See
Bernal-Vallejo, 195 F.3d at 60 n.1.

                                 -6-
of deportation on these grounds is a non-discretionary question of

fact, we review it for "substantial evidence." Under this standard,

the Board's determination "must be upheld if 'supported by reasonable,

substantial and probative evidence on the record considered as a

whole.'" Mendes v. INS, 197 F.3d 6, 13 (1st Cir. 1999) (citing INS v.

Elías-Zacarías, 502 U.S. 478, 481 (1992)).

          Here, the immigration judge found Opere statutorily

ineligible for suspension of deportation based on § 101(f)(6). This

category provides that:

          No person shall be regarded as, or found to be,
          a person of good moral character who, during the
          period for which good moral character is to be
          established, is, or was . . . one who has given
          false testimony for the purpose of obtaining any
          immigration benefits.

INA § 101(f)(6), 8 U.S.C. 1101(f)(6). "Testimony," for purposes of §

101(f)(6), includes any statement made under oath. Kungys v. United

States, 485 U.S. 759, 781 (1988).      If an individual makes such

statements with the "subjective intent of obtaining immigration

benefits," he or she is statutorily precluded from establishing good

moral character under this provision.      Id.

          Opere does not contest that his marriage interview took place

within the relevant time period, namely, seven years. In his testimony

before the immigration judge, moreover, Opere testified that he was

placed under oath at the beginning of that interview, that he lied



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about his living arrangements, and that he did so out of fear that if

he told the truth, he would be denied a green card. Opere argues, as

he did below, that the government failed to establish that his false

testimony was material. However, as the Board correctly concluded, §

101(f)(6) imposes no materiality requirement. Id. at 779-80. Rather,

the provision "denominates a person to be of bad moral character on

account of having told even the most immaterial of lies with the

subjective intent of obtaining immigration or naturalization benefits."

Id. Accordingly, we believe there is sufficient evidence in the record

to uphold the Board's determination that Opere was statutorily

ineligible from establishing good moral character for a suspension of

deportation.

          Opere raises two additional arguments on appeal. First,

Opere states that the government offered no evidence establishing that

he was actually under oath when he lied. He also claims that he lied

because he was surprised by Officer Higgins' confrontation, not because

he believed that it would enhance his chances of securing a green card.

In addition to contradicting his own testimony before the immigration

judge, these arguments were never raised before the Board. They are

consequently waived for failure to exhaust administrative remedies.

See Bernal-Vallejo, 195 F.3d at 64.

          The decision of the Board is affirmed.




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