          United States Court of Appeals
                      For the First Circuit


No. 10-1750

                     JUAN FERNANDO RESTREPO,

                           Petitioner,

                                v.

                       ERIC H. HOLDER, JR.,
              ATTORNEY GENERAL OF THE UNITED STATES,

                           Respondent.



                PETITION FOR REVIEW OF AN ORDER OF
                 THE BOARD OF IMMIGRATION APPEALS


                              Before

                    Torruella, Circuit Judge,
                   Souter,* Associate Justice,
                   and Boudin, Circuit Judge.


     Randy Olen, on brief for petitioner.
     Nancy E. Friedman, Senior Litigation Counsel, Office of
Immigration Litigation, Civil Division, Tony West, Assistant
Attorney General, Civil Division, and Richard M. Evans, Assistant
Director, on brief for respondent.



                          April 12, 2012




*
    The Hon. David H. Souter, Associate Justice (Ret.) of the
Supreme Court of the United States, sitting by designation.
             TORRUELLA,    Circuit    Judge.          Juan    Fernando     Restrepo

("Restrepo"), a native and citizen of Colombia, asks us to review

a decision of the Board of Immigration Appeals ("BIA") denying his

application for cancellation of removal under Section 240A(b) of

the Immigration and Nationality Act ("INA").                     After carefully

considering Restrepo's claims, we deny his petition for review.

                               I.    Background

             Restrepo     entered    the     United     States     on     or   about

September 24, 1988 as a visitor with permission to remain in the

country until March 23, 1989. Restrepo overstayed his visa and, in

1990, married his wife, María, a fellow Colombian national. In the

ensuing years, the couple settled in the United States and had two

children.

             According to Restrepo, by 1995, all was not well between

the couple -- Restrepo was unfaithful and María discovered his

infidelity.      Restrepo    soon    moved    out     of   the   family    home   in

Pawtucket, Rhode Island and moved in with his sister.

             In February 1996, Restrepo's father petitioned for an

immigrant visa (Form I-130) on Restrepo's behalf.                       Restrepo's

father filed his petition under section 203(a)(2)(B) of the INA,

8   U.S.C.   §   1153(a)(2)(B),      which    permits        "unmarried    sons   or

unmarried daughters" of an alien who has been lawfully admitted for

permanent residence in the United States to obtain a visa.                        The

petition was approved on September 10, 1996, despite the fact that


                                      -2-
Restrepo and María, though separated, were still married at the

time.

            Restrepo and María finalized their divorce just one month

later, in October 1996. That same month, María married Carlos Ríos

("Ríos"), a U.S. citizen.        Subsequently, Ríos filed an immigrant

visa    petition   for   María   and    she   eventually   attained   lawful

permanent resident ("LPR") status as Ríos's spouse.

            At some point in 1999, María and Restrepo ostensibly

reconciled their differences.           In 2000, the couple had a third

child, though María and Ríos were still married at the time. María

eventually divorced Ríos in September 2001 and remained with

Restrepo thereafter, remarrying him on March 14, 2004.

            Also in September 2001, Restrepo -- who still held the

immigrant visa that he obtained in September 1996 -- filed to

adjust his status to that of LPR.             The relevant paperwork, it

seems, raised bureaucratic eyebrows: on May 3, 2004, the Department

of Homeland Security denied Restrepo's request for adjustment and

revoked his immigrant visa once it determined that, since Restrepo

was still married to María in September 1996, he was ineligible for

the visa at the time his father filed an immigrant visa petition on

his behalf.    The government set Restrepo's removal proceedings in

motion on the same day.

            Restrepo     conceded      removability,   but    applied    for

cancellation of removal under INA § 240A(b) and voluntary departure


                                       -3-
under INA § 240B.    See 8 U.S.C. §§ 1229b-c.    Over the next few

years,1 Restrepo submitted evidence in support of his application

for cancellation, including letters and affidavits prepared on his

behalf.   Restrepo and María also testified at hearings held before

an immigration judge ("IJ") in July 2008 and February 2009.

           The IJ denied Restrepo's application for cancellation of

removal on February 18, 2009.   In denying Restrepo's application,

the IJ found that Restrepo had failed to show that he was a "person

of good moral character" while living in the United States, see

8 U.S.C. § 1229b(b)(1)(B), insofar as facts did not suggest that

his 1996 divorce from María "was anything other than a sham to

enable him to adjust status on the basis of the visa petition that

his father had submitted for him."    Explaining her reasoning, the

IJ noted that Restrepo had a third child with María while she was

married to Ríos and underscored her belief that María had given

"conflicting information" about her reasons for divorcing Ríos.

Most critically, the IJ expressed grave concerns about the fact

that Restrepo remarried María, by then an LPR, less than two months

before his petition for adjustment of status was denied and his


1
  Restrepo's removal proceedings were continued for a brief period
of time because in March 2005, María, who by then had been
remarried to Restrepo for about a year, filed a visa petition on
his behalf by virtue of her status as a permanent resident applying
for naturalization. However, in April 2005, the U.S. Citizenship
and Immigration Services denied María's naturalization application
when it determined that María's marriage to Ríos (which had allowed
her to obtain LPR status) was a sham.           Restrepo's removal
proceedings then resumed.

                                -4-
visa    revoked.           The    IJ    found    this   timing    "disturbing"       and

"significant" because neither the letters nor the affidavits that

various people submitted to support Restrepo's application for

cancellation of removal mentioned that he was divorced and later

remarried. The IJ also noted that one of Restrepo's daughters, who

testified     at     his    hearings,      did    not   mention    having      suffered

emotional problems as a result of the divorce.                    Additionally, the

IJ noted that although testimony suggested that Restrepo was an

avid churchgoer, his pastor was "unaware that [Restrepo] and

[María] were divorced and did not remarry for over four years after

they began living together again."

              Going further, the IJ also concluded that Restrepo and

María had provided false testimony before the immigration court to

the extent that they stood by their claims that they divorced for

legitimate reasons not related to obtaining immigration benefits.

The IJ cited the timing of the purported marital falling out and

divorce -- i.e., the fact that the couple separated just before

Restrepo's father filed a visa application on his behalf -- and

María's marriage to Ríos, a U.S. citizen, shortly thereafter as

supportive of her conclusion.                    The IJ also noted that María

remembered peculiarly little about her marriage to Ríos and could

not    show   that    she        ever   lived    with   him.      In   light    of   the

"significant disruption" that Restrepo's removal would cause on his

family, the IJ stated that she might have been willing to give him


                                            -5-
the benefit of the doubt if Restrepo had come clean as to the true

immigration status adjustment-related motives behind the couple's

divorce.     Ultimately, however, the IJ explained that she could

hardly overlook the fact that Restrepo not only engaged in a sham

divorce, but also offered false information in his adjustment

filings and in his testimony to the court.             Accordingly, the IJ

determined that, as a person lacking good moral character, Restrepo

was   statutorily   barred     from   obtaining    either   cancellation    of

removal or voluntary departure.

             Restrepo appealed and the BIA affirmed the IJ's decision

on May 24, 2010.     See In re Juan Fernando Restrepo, No. A079-738-

001 (B.I.A. May 24, 2010).       The BIA noted that it was required to

accept the IJ's factual determinations unless they were clearly

erroneous.     See 8 C.F.R. § 1003.1(d)(3)(i) (BIA "will accept the

determination of factual issues by an immigration judge . . .

unless the determination is clearly erroneous").                  The BIA then

recounted the evidence the IJ used to buttress her decision and

concluded    that   it   was   sufficient    to    affirm   her    conclusions

regarding Restrepo's lack of good moral character.

                               II.    Discussion

A. Cancellation of Removal and Our Authority to Review Restrepo's
Petition

             Under 8 U.S.C. § 1229b(b), the BIA may grant cancellation

of removal if the petitioner establishes certain requirements. See

Toribio-Chávez v. Holder, 611 F.3d 57, 64 (1st Cir. 2010).

                                       -6-
Specifically, cancellation may issue if an alien "(a) has resided

in the United States for a continuous period of ten years; (b) has

been a person of good moral character during such period; (c) has

not been convicted of certain offenses; and (d) has established

that removal would result in exceptional and unusual hardship to a

qualifying family member."           Id.    It is the second of the above-

cited eligibility factors -- requiring an alien applying for

cancellation of removal to show that he has been a "person of good

moral character" while residing in the United States for an

uninterrupted ten-year period -- that is important to Restrepo's

petition.2

             The regime that Congress has set in place narrowly

defines our authority to review a petition like Restrepo's.                  The

provision codified at 8 U.S.C. § 1252 "divests federal courts of

jurisdiction to review 'any judgment regarding the granting of

relief' relative to cancellation of removal."                González-Ruano v.

Holder,   662    F.3d   59,   63     (1st   Cir.    2011)   (internal   citation

omitted).     The statute thereby leaves the matter of whether an

alien   should    receive     such    relief   to    the    Attorney    General's


2
  During proceedings before the IJ, the government did not dispute
that Restrepo had resided in the United States for ten years before
being placed in removal proceedings nor did it contest Restrepo's
claim that removal would result in exceptional and extremely
unusual hardship to his family members. The IJ determined that
Restrepo had established these factors. Whether Restrepo had been
convicted of any of the various offenses that would bar him from
cancellation of removal relief does not appear to have been at
issue.

                                        -7-
discretion and precludes our review in the absence of a "colorable

constitutional claim or question of law."           Elysee v. Gonzales, 437

F.3d 221, 223 (1st Cir. 2006); see also Cruz-Camey v. Gonzales, 504

F.3d 28, 29 (1st Cir. 2007).

            Within this context, the manner in which we approach a

finding of lack of good moral character could unfold in either of

two ways, depending on whether or not the agency exercised its

discretion in reaching its determination.           See       Bernal-Vallejo v.

I.N.S.,   195   F.3d   56,   62   (1st   Cir.   1999)       (noting   good   moral

character determination "may involve either a non-discretionary

question of fact or a discretionary determination").                  Because "a

finding of lack of good moral character is required, under 8 U.S.C.

§ 1101(f), for aliens belonging to certain per se categories," id.

(emphasis added), a determination that an alien may not receive

cancellation of removal relief because he belongs to any of those

statutorily-defined      categories      presents       a     non-discretionary

determination which we would be able to review for substantial

evidence.   However, our review of a determination of lack of good

moral character that is not grounded on the per se categories found

in § 1101(f) -- that is, a discretionary finding -- would still lie

outside of our jurisdiction and would be accordingly barred from

review.   See id.




                                     -8-
B.   Determination that Restrepo Offered False Testimony

           Where, as here, the BIA adopts an IJ's decision but opts

to offer a glimpse into its considerations, we review both the

decision of the BIA and the IJ.    See Wiratama v. Mukasey, 538 F.3d

1, 3 (1st Cir. 2008).

           In this case, the IJ's character findings as to Restrepo

appear to have been twofold.        First, the IJ determined that

Restrepo lacked good moral character insofar as it was evident to

her that Restrepo had engaged in a sham divorce for the purpose of

securing immigration benefits.    Second, the IJ found that Restrepo

and his wife had provided false testimony to the court regarding

the reasons behind their divorce.       The latter reason, the IJ

explained, forced her hand and rendered her unable to give Restrepo

the benefit of the doubt as to whether he had been a person of good

moral character during the relevant period.     See 8 U.S.C. § 1101

(f)(6) (precluding a person who has "given false testimony for the

purpose of obtaining [immigration] benefits" from being found to

have "good moral character"); see also Toribio-Chávez, 611 F.3d at

64 n.6.

           The IJ's binary findings thus bring us to a natural pause

in our discussion.   Because the IJ's determination that Restrepo

underwent a sham divorce and was thus barred from being regarded as

a person of good moral character rested on discretionary grounds,

our inquiry could very well be at an end.      See Zajanckauskas v.


                                  -9-
Holder, 611 F.3d 87, 89 (1st Cir. 2010) ("'If there are two

alternative grounds for a decision and we lack jurisdiction to

review one, it would be beyond our Article III judicial power to

review the other.       Absent authority to review the discretionary

ground, any opinion . . . reviewing the nondiscretionary ground

could not affect the final order's validity and so would be

advisory    only.'"     (alterations     omitted)   (quoting     Ekasinta   v.

Gonzales, 415 F.3d 1188, 1191 (10th Cir. 2005))).

            We hesitate, however, to turn away at the threshold.

Although at first blush the IJ's alternate and discretionary basis

for her holding appears to foreclose our review of Restrepo's

petition, the IJ nevertheless noted that she could have given

Restrepo the benefit of the doubt as to his being a person of good

moral character during the requisite period but for her collateral

conclusion that Restrepo had provided false testimony to the court.

It therefore seems that the IJ ultimately predicated her decision

to deny Restrepo cancellation of removal relief on her finding that

he had offered false testimony at his immigration hearings.            Since

false testimony presents a non-discretionary ground for denial that

is within the scope of our jurisdiction, see 8 U.S.C. § 1101(f)(6),

we   proceed    to   review   the   agency's   reasoning   for   substantial

evidence.      Under this standard, "[w]e review the agency's factual

findings, including credibility determinations . . . and may

overturn those findings only if 'any reasonable adjudicator would


                                     -10-
be compelled to conclude the contrary.'" Lin v. Gonzales, 503 F.3d

4, 7 (1st Cir. 2007) (quoting 8 U.S.C. § 1252(b)(4)(B)).

          As noted above, a person found to have provided false

testimony "during the period for which good moral character is to

be established," 8 U.S.C. § 1101(f)(6), is per se deemed to lack

good moral character.   For our present purposes, false testimony

"is limited to oral statements made under oath" and, specifically,

"only to those misrepresentations made with the subjective intent

of obtaining immigration benefits."   Kungys v. United States, 485

U.S. 759, 780 (1988).    Misrepresentations made to satisfy other

motives -- e.g., embarrassment, fear, or a desire for privacy -- do

not qualify as false testimony under the statute.   See id.

          Restrepo does not fare well on the merits.   Substantial

evidence in the record supports the IJ's determination -- and the

BIA's reasoned affirmance of the IJ's finding -- that Restrepo,

while under oath, provided false testimony at his immigration

hearings regarding the motives underlying his divorce from María in

1996. Here, the IJ and the BIA both considered several facts that,

taken together, they determined significantly undermined Restrepo's

credibility.   The IJ, in particular, expressed her skepticism that

none of the authors of the several letters Restrepo submitted in

support of his application -- some of whom had known Restrepo for

at least 25 years -- alluded to the fact that Restrepo and María

had been divorced or separated.   Further, the IJ and the BIA both


                               -11-
noted that once divorced, María married Ríos, a U.S. citizen,

almost immediately thereafter and subsequently obtained LPR status

as Ríos's spouse. The BIA's decision also recounted other evidence

upon which the IJ relied, such as the fact that Restrepo and María

conceived a child while she was married to Ríos; that Restrepo

remarried María in March 2004 just a few months before Restrepo was

placed   in    removal    proceedings;      and   that,    once   remarried    to

Restrepo, María almost immediately filed an alien relative petition

on his behalf.        It was reasonable for both the IJ and the BIA to

conclude that this evidence supported a conclusion that Restrepo

offered false testimony inasmuch as he insisted at his hearings

before the IJ that he divorced María for legitimate reasons

unrelated to securing immigration benefits. We accordingly find no

reason to affect the IJ's credibility determination or corollary

finding that Restrepo is statutorily precluded from obtaining

cancellation of removal relief.             See Toribio-Chávez, 611 F.3d at

64-65    (upholding      denial   of     cancellation     of   removal   due   to

§ 1101(f)(6) per se lack of good moral character finding based, in

part,    on    IJ's   finding     that    petitioner's     testimony     was   not

credible); Becerril v. Holder, No. 07-71290, 2010 WL 236152, at *1

(9th Cir. Jan. 21, 2010) (same).

C.   Adverse Credibility Determination

              In his briefing to this Court, Restrepo heavily relies on

In re A-S-, 21 I. & N. Dec. 1106 (B.I.A. 1998), which he claims


                                         -12-
should have guided the analysis the BIA followed when it assessed

the IJ's credibility findings.   Under In re A-S-, discrepancies or

omissions going to the heart of a petitioner's claim may support an

adverse credibility finding, but only where a three-prong test is

also satisfied.   The BIA thus accords deference to an IJ's adverse

credibility determination if:

          (1) the discrepancies and omissions described
          by the Immigration Judge [are] actually []
          present in the record;
          (2) the discrepancies and omissions [] provide
          specific and cogent reasons to conclude that
          the alien provided incredible testimony; and
          (3)   a   convincing   explanation   for   the
          discrepancies or omissions [are] not []
          supplied by the alien.

Hoxha v. Gonzales, 446 F.3d 210, 214 (1st Cir. 2006).

          The government parries Restrepo's claim that the BIA

should have worked within the In re A-S- framework by noting that

the BIA's decision in that case and our application of the cited

factors in Hoxha v. Gonzales, 446 F.3d 210 (1st Cir. 2006), were

circumscribed to the asylum context. In particular, the government

appears to contend that these cases are solely apposite to asylum

claims examined under the rubric in place before the enactment of

the REAL ID Act, which became effective on May 11, 2005.       See

Kartasheva v. Holder, 582 F.3d 96, 104 n.7 (1st Cir. 2009) (noting

that in cases predating REAL ID Act an "IJ's adverse credibility

finding 'cannot rest on trivia but must be based on discrepancies

that involved the heart of the asylum claim.'" (quoting Hem v.


                                 -13-
Mukasey, 514 F.3d 67, 69 (1st Cir. 2008) (internal quotations

omitted)); see also Dehonzai v. Holder, 650 F.3d 1, 10 n.11 (1st

Cir. 2011) ("Following passage of the REAL ID Act, an adverse

credibility determination may be based on an inconsistency in the

applicant's   testimony   'without     regard   to   whether   [the]

inconsistency, inaccuracy, or falsehood goes to the heart of the

applicant's claim.'" (quoting 8 U.S.C. 1158(b)(1)(B)(iii))).

          We are not convinced that these cases can be so easily

distinguished from the one before us and note that the BIA has

cited the In re A-S- three-pronged framework for assessing an IJ's

credibility determinations in deciding an appeal involving a denial

of an alien's application for cancellation of removal at least once

in the past. See In re: Bruno Alfredo Dellepiane, No. A26-608-123,

2007 WL 2463970 (B.I.A. Aug. 1, 2007) (unpublished decision).

However, even if the In re A-S- framework were applicable in this

context, it would not help Restrepo.    Under the In re A-S- three-

pronged assessment, for the BIA to accept the IJ's credibility

determination, it would have had to conclude that (1) Restrepo's

and María's testimony conflicted with other evidence in the record;

(2) the discrepancies were reason enough to conclude that Restrepo

and María were not credible; and (3) Restrepo failed to provide a

convincing reason for the discrepancies.   While the BIA's decision

here did not expressly cite In re A-S-, its reasoning clearly

satisfied all three elements.


                                -14-
           First, as explained above, the IJ noted that not one of

the letters or affidavits submitted by others in support of

Restrepo's application mentioned his divorce from María.           Thus,

even assuming that Restrepo's and María's testimony before the IJ

was internally consistent, the IJ concluded that this testimony

conflicted with other evidence on record and the BIA explicitly

alluded to the IJ's finding on this issue.         As we have explained

supra, the IJ's determination on this issue was supported by

substantial evidence.

           Second, although he does not do so directly, it would be

a nonstarter for Restrepo to argue that the discrepancies the IJ

cited do not "provide specific and cogent reasons" to support an

adverse credibility finding.       In re A-S-, 21 I. & N. Dec. at 1109.

The discrepancies and gaps between testimony and record evidence on

which the IJ and the BIA focused went to the crucial issue of

whether Restrepo could satisfy the eligibility requirements to

receive cancellation of removal relief.            As we have already

explained, substantial evidence supports a finding that these

discrepancies and gaps were significant enough to be indicative of

a lack of credibility.       Cf. Juárez-López v. Gonzales, 235 Fed.

Appx. 361, 367 (7th Cir. 2007) ("Adverse credibility determinations

should   not   be   based   upon   easily   explained   discrepancies   or

perceived discrepancies.").




                                    -15-
            Finally, Restrepo's claim that the IJ did not properly

consider his proffered explanations as to any discrepancies or

omissions is similarly unavailing. While Restrepo underscores that

his and María's testimony addressed, at least in part, the premises

upon which the IJ based her adverse credibility determination --

e.g., by noting that the couple's third child was conceived while

María was separated (even if not yet divorced) from Ríos -- it was

certainly   reasonable   for    the    IJ    and   the    BIA   to   find    these

explanations inadequate.       Most importantly, we note that the IJ,

commensurate with her misgivings about Restrepo's marital history,

once continued proceedings to allow Restrepo to submit his divorce

records to the immigration court along with a letter from his

church outlining his family history.                 According to the IJ's

decision, Restrepo failed to comply with the immigration court's

request and did not attempt showing that the requested evidence was

unavailable.    Cf. Muñoz-Monsalve v. Mukasey, 551 F.3d 1, 8 (1st

Cir. 2008) (in asylum case, noting "utter lack of corroboration,

easily obtainable were the petitioner's tale true, supports []

adverse credibility determination" (footnote omitted)).                     In its

decision, the BIA referenced Restrepo's failure to proffer the

materials the IJ requested, correctly adding that under INA §

240(c)(4)(B),    if   the      trier    of    fact       requests    additional

corroborative evidence, such evidence "must be provided" unless it




                                      -16-
cannot be reasonably obtained.        See 8 U.S.C. § 1229a(c)(4)(B)

(emphasis added).

                            III.   Conclusion

             For the foregoing reasons, Restrepo's petition for review

is denied.

             Denied.




                                   -17-
