                                                                      FILED
                                                           United States Court of Appeals
                                                                   Tenth Circuit

                                                               November 15, 2010
                     UNITED STATES COURT OF APPEALS
                                                  Elisabeth A. Shumaker
                                                                   Clerk of Court
                               FOR THE TENTH CIRCUIT


    THU THUY HUYHN;
    FONG THI BUI; TU THI BUI,

                Petitioners,
                                                        No. 10-9509
    v.                                              (Petition for Review)

    ERIC H. HOLDER, JR.,
    United States Attorney General,

                Respondent.


                               ORDER AND JUDGMENT *


Before LUCERO, EBEL, and O’BRIEN, Circuit Judges.


         Thu Thuy Huyhn, 1 a Vietnamese citizen, was charged as being subject to

removal under 8 U.S.C. § 1227(a)(1)(A), because she procured her admission into

the United States by fraud or by willfully misrepresenting a material fact under

8 U.S.C. § 1182(a)(6)(C)(i). The government alleged that Huyhn married Phuoc

*
       After examining the briefs and appellate record, this panel has determined
unanimously that oral argument would not materially assist the determination of
this appeal. See Fed. R. App. P. 34(a)(2); 10th Cir. R. 34.1(G). The case is
therefore ordered submitted without oral argument. This order and judgment is
not binding precedent, except under the doctrines of law of the case, res judicata,
and collateral estoppel. It may be cited, however, for its persuasive value
consistent with Fed. R. App. P. 32.1 and 10th Cir. R. 32.1.
1
      The two other petitioners, Fong Thi Bui and Tu Thi Bui, are Huyhn’s minor
children who entered the United States as derivatives on Huyhn’s visa.
Bui, a United States citizen, to procure an immigration visa. After two hearings

on the charge, the Immigration Judge (“IJ”) ordered Huyhn removed, concluding

that the charge had been proven by clear and convincing evidence. The Board of

Immigration Appeals (“BIA”) affirmed the IJ’s decision and dismissed the appeal.

Huyhn now seeks review of the agency’s decision. Exercising jurisdiction under

8 U.S.C. § 1252, we deny the petition for review.

                                         I

      In June 2000, Bui traveled to Vietnam to visit his country of origin and to

find a compatible spouse. His nephew, Thien Tuan Bui, who goes by the

nickname “Se,” 2 introduced him to Huyhn. At the time, Se and Huyhn were in the

process of getting divorced, but Bui testified that Se did not inform him of the

marriage. The divorce became final in August 2000.

      Bui and Huyhn spent time together in Vietnam in the summer of 2000 and

continued to correspond after Bui returned to the United States. In the summer of

2001, Bui petitioned for a visa on behalf of Huyhn. Huyhn was admitted to the

United States on a K-1 non-immigrant fiancée visa in August 2001 and married

Bui in September of the same year. In November 2002, Bui and Huyhn attended

Huyhn’s adjustment of status interview. After the interview, Huyhn was granted

conditional resident status.


2
     We refer to Thien Tuan Bui hereinafter as “Se” to avoid confusion with
Phuoc Bui.

                                        -2-
      Huyhn testified that the marriage was happy for the first six months but that

things changed in March or April of 2002 when she discovered that Bui was

involved with another woman. She further testified that she and Bui continued to

live together after that time, although they did not share a bedroom or engage in a

sexual relationship after March 2002.

      Bui testified that his marriage to Huyhn was initially harmonious, but they

never consummated the marriage because Huyhn wanted to wait until they had a

traditional wedding ceremony in Vietnam. Bui testified that “things changed”

once Huyhn obtained her “green card.” He explained that he became suspicious

when he found out that Huyhn called her ex-husband, Se, in Vietnam, that she had

made plans to return to Vietnam in December without telling him, and that she

was looking for a United States citizen to sponsor Se to enter the United States.

      In December 2002, Huyhn and Bui traveled separately to Vietnam. Bui

testified that he intentionally planned to arrive before Huyhn so that he could

investigate his suspicions. Bui visited Se’s home and found letters and

photographs that Huyhn sent Se from the United States. Bui testified that he

confronted Huyhn in Vietnam when he discovered that she was staying with Se

and that during that conversation Huyhn told him she was still Se’s wife and that

she had only been with Bui to get a green card. Bui testified that he was very

angry and that he told Huyhn he was going to return to the United States and

report her to immigration officials. He further testified that they offered to pay

                                         -3-
him money if he would refrain from reporting Huyhn. When Bui refused, Se and

Huyhn threatened him.

      When Bui returned to the United States in February 2003, he reported

Huyhn’s fraud to the Department of Homeland Security (“DHS”). Bui filed for an

annulment of his marriage on February 18, 2003, and submitted a “Petition for

Declaration of Invalidity” to the Denver District Court, alleging that his marriage

should be declared invalid based on Huyhn’s fraud.

      DHS requested that Bui provide some evidence of the alleged fraud. Bui

submitted a recorded telephone conversation involving himself, Huyhn, and Se, as

well as a written statement. The transcript of the tape shows that Bui asked

Huyhn, “[y]ou and I are we husband and wife?” Huyhn responded, “[n]ot in

reality, but on paper we are.” Se states to Bui, “[y]ou and I are uncle and

nephew. But treat us just as you are doing it to anyone else. You helped my wife

to enter the country. It’s 50% successful already. Now you just tell me the

price.” Bui later asks Huyhn if she is happy with the $15,000 amount Se agreed

to pay him to continue the fraudulent marriage and Huyhn responds, “[Se] is my

husband. If he is happy, then I’ll be happy.”

      DHS Immigration and Customs Enforcement Agent Cory Voorhis testified

before the IJ about his investigation into Bui’s allegations, including his

interviews with Bui and Huyhn. Voorhis stated that Huyhn told him that her

marriage had effectively ended in March 2002, although she admitted she did not

                                         -4-
tell this to the immigration official at her adjustment of status interview in

November 2002. Voorhis also asked Huyhn if Se had agreed to pay Bui $15,000

to continue their marriage. Huyhn initially denied that there had been a payment,

but began crying and admitted to the payment when Voorhis told her that he had a

tape of the February 2003 telephone conversation.

      The IJ ordered Huyhn removed from the United States. On Huyhn’s

appeal, the BIA remanded to the IJ to prepare a separate oral or written decision

for review. On remand, the IJ read his February 23, 2006, decision into the

record as a separate oral decision. The IJ found by clear and convincing evidence

that Huyhn “procured her admission or her documentation or benefit to come to

the United States by fraud by entering into a sham marriage with Mr. [Bui]” and

that Huyhn was therefore removable as charged.

      On Huyhn’s second appeal, the BIA issued a single-member opinion

affirming the IJ’s decision and dismissing the appeal. The BIA stated that “[i]n

particular, we find no clear error in the [IJ’s] extensive findings of fact, including

his credibility findings,” and that “in light of the [IJ’s] findings of fact, we find

no error in his determination that the respondents are removable as charged.”

                                           II

      “A BIA order dismissing an appeal constitutes a final order of removal

which we review pursuant to 8 U.S.C. § 1252(a)(1) and (b)(2). We may consult

the oral decision of an IJ to the extent the BIA’s order incorporates its reasoning.”

                                           -5-
Witjaksono v. Holder, 573 F.3d 968, 973 (10th Cir. 2009) (citation omitted). “We

review the BIA’s factual findings for substantial evidence.” Id. at 977. Under

this standard, “factual findings are conclusive unless any reasonable adjudicator

would be compelled to conclude to the contrary.” Id. (quotation omitted). We

review de novo questions of law and constitutional challenges. See Ferry v.

Gonzales, 457 F.3d 1117, 1126 (10th Cir. 2006).

                                         A

      The IJ indicated that Huyhn’s credibility, and the credibility of most of the

other witnesses, was lacking. He concluded that the only credible witnesses were

Voorhis and Huyhn’s daughter. Huyhn complains that the IJ’s adverse credibility

determination was not supported by the record and that the IJ “ma[de] no

assertions of inconsistency, problematic demeanor determinations or any other

basis for finding lack of credibility.” Huyhn has not accurately characterized the

IJ’s decision.

      The IJ summarized the testimony from the hearing, as well as other

evidence, and pointed out several inconsistencies with Huyhn’s testimony. For

example, the IJ recounted that Huyhn’s daughter testified Bui was upset when he

found out Huyhn had been corresponding with her ex-husband in Vietnam. The IJ

noted that Huyhn denied that she had done so, but the IJ found that there had in

fact been correspondence between Huyhn and her ex-husband, and this finding

was based on letters that were submitted into evidence. The IJ also found that

                                        -6-
Huyhn lied about the $15,000 payment from her ex-husband to Bui. Further, the

IJ found that Huyhn lied about a $250 payment to a woman Huyhn wanted to

marry her ex-husband so that he could enter the United States; a canceled check

and other correspondence in the record supported the IJ’s finding. We conclude

that the IJ provided a sufficient basis for his credibility determination, and that

the BIA properly affirmed the IJ’s decision.

                                           B

      Huyhn also argues that the agency’s decisions violate the Administrative

Procedure Act (“APA”) and her due process rights because they are conclusory.

We disagree. An agency is not required to provide a lengthy explanation of its

decision as long as it explains its action “with such clarity as to be

understandable.” SEC v. Chenery Corp., 332 U.S. 194, 196 (1947).

      Both the IJ and the BIA decisions satisfy this standard. The IJ provided

sufficient factual findings to support his decision that Huyhn fraudulently entered

into a marriage with Bui for the purpose of gaining admission into the United

States. The BIA’s decision provides adequate reasoning. It finds no clear error

in the IJ’s factual findings, and relies on those factual findings to conclude that

the IJ properly found Huyhn removable as charged. Huyhn has accordingly failed

to establish a violation of the APA.

      Huyhn’s APA-related due process claim likewise fails because she has not

demonstrated that the agency decisions are fundamentally unfair. See Alzainati v.

                                          -7-
Holder, 568 F.3d 844, 851 (10th Cir. 2009) (“[A]n alien in removal proceedings is

entitled only to the Fifth Amendment guarantee of fundamental fairness.”

(quotation omitted)).

                                         C

      Huyhn raises several additional due process arguments that are unrelated to

the APA. First, she complains that the record exhibits were not “provided” or

“offered” to her in preparation for her appeal before the BIA. But Huyhn fails to

explain what steps, if any, she took to obtain the exhibits. BIA Practice Manual

Rule 1.5 allows a party to obtain any portion of the record. Because Huyhn does

not allege, much less demonstrate, that the BIA refused a proper request to obtain

exhibits, she has not demonstrated error by the agency.

      Next Huyhn argues that her case must be remanded because the government

failed to produce an adequate transcript of her two hearings.

      As in other contexts, the government’s failure to produce an adequate
      transcript does not necessarily rise to the level of a due process
      violation mandating reversal or remand. Rather, to demonstrate a
      denial of due process and obtain relief, an alien must show that the
      deficient transcript prejudiced [her] ability to perfect an appeal. That
      is, an alien must show that the gaps in the transcript relate to matters
      material to [her] case and that they materially affect [her] ability to
      obtain meaningful review.

Witjaksono, 573 F.3d at 974-75 (citations, quotations, and alterations omitted).

Huyhn claims there are 109 “indiscernible” notations in the record, but she does

not articulate how these gaps in the transcript were material or materially affected


                                        -8-
her ability to obtain meaningful appellate review. Similarly, Huyhn asserts that

the IJ did not adequately identify and mark the exhibits in the administrative

record, but she again fails to explain how this alleged deficiency prejudiced her

case. Accordingly, there is no cause for remand based on these contentions. See

id. at 975.

                                         D

       Finally, Huyhn asserts that this case should be remanded to the IJ to

determine whether the credibility of Voorhis, the DHS agent who investigated her

case, should be reexamined in light of his actions subsequent to this case. Citing

to extra-record evidence, Huyhn contends that Voorhis was terminated from his

employment at DHS “amid a flurry of accusations involving his character.” But

we may not consider this argument because Huyhn did not raise it before the BIA.

See Torres de la Cruz v. Maurer, 483 F.3d 1013, 1017 (10th Cir. 2007) (“[W]e

have jurisdiction only over those claims that were presented to the BIA and were

properly appealed to this court . . . .”). Although Huyhn asserts that she could not

have raised this issue in her appeal to the BIA because Voorhis’ termination was

not administratively final until May 2010, she nevertheless must raise this issue

with the agency before obtaining review in this court. Cf. 8 C.F.R. § 1003.2(c)(1)

(governing a motion to reopen based on new facts).




                                         -9-
                                III

For the foregoing reasons, we DENY the petition for review.


                                           Entered for the Court



                                           Carlos F. Lucero
                                           Circuit Judge




                               -10-
