          United States Court of Appeals
                     For the First Circuit


No. 09-2072

                       MANUEL PEÑA-BELTRE,

                           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,
                Selya and Boudin, Circuit Judges.



     Jose G. González-Hernández was on brief for petitioner.
     Tim Ramnitz, Attorney, Office of Immigration Litigation, Tony
West, Assistant Attorney General, Civil Division, and Shelley R.
Goad, Assistant Director, were on brief for respondent.



                        October 13, 2010
            LYNCH, Chief Judge.             Manuel Peña-Beltre, a native and

citizen of the Dominican Republic, petitions for review of a final

order of removal issued by the Board of Immigration Appeals (BIA).

The BIA upheld an Immigration Judge's (IJ) finding of removability

and   denial     of   Peña-Beltre's     requests      for   (1)   removal    of   the

conditions on his conditional lawful residence status and (2)

voluntary departure. Both the BIA and the IJ found Peña-Beltre had

engaged    in    marriage   fraud     in    order   to   obtain   an   immigration

benefit.    We deny his petition.

                                           I.

            Peña-Beltre entered the United States without inspection

on or about September 1, 1996.             On January 25, 2001, he married a

United States citizen, Vilma Toro-Berrios.                  Within two weeks, on

February 6, 2001, Peña-Beltre filed an application to adjust his

status to that of lawful permanent resident on the basis that he

and Toro-Berrios were married and lived together as husband and

wife.

            Under the Immigration and Nationality Act, an alien may

receive lawful permanent resident status by virtue of marriage to

a United States citizen.         8 U.S.C. § 1186a.           If the marriage is

less than two years old when the alien receives permanent resident

status,    the    grant   of   such   status     is   conditional.       8   U.S.C.

§ 1186a(1).      The alien and spouse must submit a second petition to

remove the conditions, at which point the alien's lawful permanent


                                           -2-
status may be terminated if the government finds that the marriage

was not bona fide.    8 U.S.C. § 1186a(c),(d).     If the conditions are

not removed within two-years, the alien's permanent resident status

is terminated.   8 U.S.C. § 1186a(c)(3)(C).

          On April 12, 2002, Peña-Beltre and Toro-Berrios appeared

before   an   Immigration       and     Naturalization      Service    (INS)

Adjudications Officer.       In separate sworn statements, they each

claimed that they had married for love and resided together as

husband and wife. The Officer granted Peña-Beltre lawful residence

on a conditional basis under 8 U.S.C. § 1186a.           On March 1, 2004,

Peña-Beltre and Toro-Berrios filed an I-751 joint petition to

remove the conditions on Peña-Beltre's lawful permanent residence.

Like the sworn statements, the petition claimed that Peña-Beltre

and Toro-Berrios lived together as husband and wife.

          In response to the I-751 joint petition, on November 14,

2005, Adjudication Officer Martin Garcia of the United States

Citizenship and Immigration Services (USCIS) conducted separate

interviews with Peña-Beltre and Toro-Berrios to assess the bona

fides of their marriage.1

          Garcia     first   interviewed    Toro-Berrios.      When   Garcia

confronted Toro-Berrios with inconsistencies in her testimony, she

admitted that the marriage was fraudulent.        In both oral testimony



     1
          In the interim, USCIS and Immigration and                   Customs
Enforcement had assumed the relevant duties of the INS.

                                      -3-
and a sworn statement, Toro-Berrios stated that she had never lived

with Peña-Beltre and that Peña-Beltre had offered her $2,000 to

marry him and had paid $500.       This confirmed a similar statement

Toro-Berrios made in a call to the INS on September 20, 2001, about

seven    months   before    Peña-Beltre   received   lawful   conditional

permanent resident status.2

            Garcia   then     interviewed   Peña-Beltre.       He   found

inconsistencies between Toro-Berrios' testimony and Peña-Beltre's.

They gave conflicting statements about the name of the person who

took Toro-Berrios' daughters to school, the year in which Toro-

Berrios had last been employed, and the person who gave Toro-

Berrios the necklace she was wearing. When Garcia confronted Peña-

Beltre with Toro-Berrios' admission, Peña-Beltre stated that he did

not know why she had said this and suggested it might be a product

of depression.

            At the end of the interview, Garcia referred Peña-Beltre

to Agent Juan Rivera of the Immigration and Custom Enforcement's

(ICE) fraud division.       In conducting a pat down search of Peña-

Beltre, Rivera discovered handwritten notes in his wallet.            The

notes appeared to be answers prepared in anticipation of questions

about the contents of their apartment, the patterns of their daily


     2
          In that call, Toro-Berrios informed an INS investigator
that her marriage with Peña-Beltre was fraudulent and that she did
not live with him.    She said that Peña-Beltre had promised her
$2,000 in exchange for marriage, gave her $500, but would not give
her the remainder of the money.

                                    -4-
living, and the members of Toro-Berrios' family.             When Rivera

confronted Peña-Beltre with the notes, Peña-Beltre admitted that he

had not been living with Toro-Berrios for the past two years.

            Peña-Beltre told Rivera that they had planned what to say

during the interview and gave a sworn statement that he married

Toro-Berrios to obtain an immigration benefit.         Peña-Beltre denied

that he and Toro-Berrios had an agreement whereby he would provide

financial benefits to her in exchange for marriage.         He admitted,

however, that an individual named Aladino Días arranged for him to

meet and marry Toro-Berrios in order to receive an immigration

benefit.    According to Peña-Beltre, the couple had lived together

for two years before separating.

            At the conclusion of the interview, Rivera served Peña-

Beltre with a Notice to Appear, which charged him with removability

under 8 U.S.C. § 1227(a)(1)(A) as an alien who sought to procure

immigration status by fraud or willful representation under 8

U.S.C. § 1182(a)(6)(C)(i).    Shortly thereafter, USCIS denied Peña-

Beltre's and Toro-Berrios' joint petition to remove the conditions

on his resident status.    On April 18, 2006, Peña-Beltre was served

with   an   additional   charge   of    removability    under   8   U.S.C.

§ 1227(a)(1)(D)(i), as his permanent resident status had been

terminated.

            On April 11, 2006, Peña-Beltre filed a second I-751

petition.     This petition requested a discretionary waiver of the


                                  -5-
joint petition requirements under 8 U.S.C. § 1186a(c)(4)(B). Peña-

Beltre claimed he was eligible for waiver because his marriage to

Toro-Berrios had been in good faith but ended in divorce.          With the

petition, Peña-Beltre submitted an affidavit from Toro-Berrios.

The affidavit stated that their marriage was for love and that

their divorce resulted from a deterioration of the relationship.

On February 28, 2007, USCIS denied this petition.

          Before the IJ, Peña-Beltre conceded removability but

denied having committed marriage fraud.     He did not testify on his

own behalf.   Instead, he presented testimony from three neighbors,

whose accounts of when they encountered Toro-Berrios near Peña-

Beltre's apartment did not align.          The government introduced

testimony from immigration personnel, including Garcia and Rivera.

When asked about a videotape of his interviews of November 14,

2005, Garcia testified that it must have been misplaced.                The

government    also   presented   Toro-Berrios   as   a   witness   in   the

expectation that she would repeat her prior admissions of marriage

fraud.

          On the stand, however, Toro-Berrios did not make a

similar admission. Initially she testified that she did not recall

her November 14, 2005, interview with Garcia.        When the government

presented Toro-Berrios' sworn statement from that interview, she

claimed that the statement was false and that Garcia had pressured

her into making it. Toro-Berrios admitted that she had never lived


                                   -6-
with Peña-Beltre, but claimed that they had married for love.    She

claimed that they lived separately because her public housing

development was safer for her children and did not permit illegal

aliens to live in the apartments.    According to Toro-Berrios, she

spent some weekends at Peña-Beltre's apartment.

          On further questioning, Toro-Berrios admitted that she

had been living with another man, Felix Garcia-Torres, the father

of one of her children.    She first testified that Garcia-Torres

moved into her apartment in approximately September, 2005.      When

the government asked her if she had been living with Garcia-Torres

during the November 14, 2005, interview, Toro-Berrios recanted her

earlier testimony and stated that Garcia-Torres did not move in

with her until after her divorce from Peña-Beltre.    In response to

questioning about the state of her relationship with Peña-Beltre at

the time of the interview on November 14, 2005, Toro-Berrios

invoked the Fifth Amendment and refused to testify further.

          After she testified, the government introduced testimony

about a conference call the previous day in which Toro-Berrios

allegedly admitted to the government's lawyer and an ICE agent that

the marriage was fraudulent.

          The IJ denied relief, finding that Peña-Beltre and Toro-

Berrios "pretended to have a marital relationship."    The IJ found

Toro-Berrios not credible given the inconsistency of her statements

before both the court and immigration officials.     The IJ found it


                               -7-
relevant that Peña-Beltre did not testify and found the testimony

of his witnesses highly questionable given the tensions between

their accounts.    Instead, the IJ credited the testimony of the

immigration   officials   who   conducted    the   November   14,   2005,

interviews.   Peña-Beltre's marriage fraud, the IJ held, rendered

him ineligible for his waiver petition and cast sufficient doubt

upon his moral character to foreclose voluntary departure.

           The BIA affirmed. It held that there was "no evidence in

the record" to support Peña-Beltre's claim that he married Toro-

Berrios in good faith. The BIA credited the statements Peña-Beltre

and Toro-Berrios signed at the interview of November 14, 2005,

admitting fraud. It deemed it significant that Peña-Beltre refused

to testify and that Toro-Berrios invoked the Fifth Amendment when

questioned about her earlier statements.

                                  II.

           In his petition for review, Peña-Beltre makes three

claims.   First, he contests the IJ's finding, affirmed by the BIA,

that he committed marriage fraud.       Second, he claims that his due

process rights were violated both when the IJ drew an adverse

inference from Toro-Berrios' invocation of the Fifth Amendment and

when the IJ did not require that the government produce a missing

videotape of the November 14, 2005, interview.        Third, he claims

that he was improperly denied voluntary departure.




                                  -8-
              This court reviews the BIA's decision as well as any

portions of the IJ's opinion adopted by the BIA.                    Bonilla v.

Mukasey, 539 F.3d 72, 76 (1st Cir. 2008).                 We review the BIA's

conclusions of law de novo and its findings of fact under the

deferential     substantial   evidence     standard.        Toribio-Chavez     v.

Holder, 611 F.3d 57, 62 (1st Cir. 2010).                  We may reverse the

agency's factual findings only if the petitioner shows that any

reasonable fact finder would have concluded to the contrary.                  Syed

v. Ashcroft, 389 F.3d 248, 251 (1st Cir. 2004).

              An alien spouse may remove the conditional basis of his

lawful permanent status in one of two ways.              First, the alien and

his spouse may file a joint petition stating that the marriage is

bona fide and has not been judicially annulled or terminated for

reasons other than the death of a spouse.              8 U.S.C. § 1186a(c)(1).

After filing, the couple may be required to appear for a personal

interview     concerning   the   facts   of   their     petition.    8   U.S.C.

§ 1186a(c)(1)(B). In removal proceedings, the government bears the

burden   of    showing   marriage   fraud     by   a    preponderance    of    the

evidence.     8 U.S.C. § 1186a(c)(3)(D).

              Second, the alien may request a discretionary waiver of

the joint filing requirement if he shows that at least one of three

conditions obtains.        8 U.S.C. § 1186a(c)(4).           The condition at

issue here allows waiver if the marriage was entered into in good

faith, the marriage was terminated for reasons other than death,


                                     -9-
and the alien was not at fault for failing to meet the joint

petition and interview requirements.    8 U.S.C. § 1186a(c)(4)(B).

The alien bears the burden of showing that he qualifies for a

discretionary waiver under this provision.

           For Peña-Beltre, both paths to lawful resident status

require a showing that his marriage to Toro-Berrios was bona fide.

Any difference as to burdens is not material to this case.    Here,

the evidence of marriage fraud is so overwhelming that it hardly

needs detailing.    The government has more than met its burden of

proof.   We rest on the BIA's and IJ's conclusions, which are amply

supported by the evidence we have described.

           Peña-Beltre's purported due process claims fail.      He

brings both claims for the first time in this court.   Because Peña-

Beltre could have but did not raise these claims before the BIA, we

lack jurisdiction over them. Bollanos v. Gonzales, 461 F.3d 82, 87

(1st Cir. 2006).3

           Peña-Beltre's request for voluntary departure also fails

for lack of jurisdiction. Peña-Beltre claims that the BIA erred in


     3
          These claims are not even colorable. The IJ did not err
in drawing an adverse inference from Toro-Berrios' choice to invoke
the Fifth Amendment. Adverse inferences may be drawn from silence
in removal hearings. INS v. Lopez-Mendoza, 468 U.S. 1032, 1043-44
(1984).   Nor did the IJ err in not requiring the government to
produce the missing videotape.    In deportation proceedings, due
process requires that an alien not be prevented from reasonably
presenting his case. Orehhova v. Gonzales, 417 F.3d 48, 52 (1st
Cir. 2005).    Here, Peña-Beltre had ample opportunity to cross-
examine the government's witnesses, provide his own testimony, and
introduce other testimony to challenge the government's claims.

                                -10-
affirming the IJ's finding that he was ineligible for voluntary

departure    because   he    was   not,   as   required   by   8   U.S.C.

§ 1229c(b)(1)(B), a person of "good moral character" for the

preceding five years.       Peña-Beltre claims that he did not commit

marriage fraud, and that the IJ therefore abused her discretion in

denying his request.        This court has no jurisdiction to review

denials of voluntary departure.       8 U.S.C. § 1229c(f); Hussain v.

Holder, 576 F.3d 54, 58-59 (1st Cir. 2009).

            The petition is denied.

            So ordered.




                                   -11-
