         08-6151-ag
         Namocha v. ICE
                                                                                        BIA
                                                                                    Chew, IJ
                                                                                A097-849-385
                           UNITED STATES COURT OF APPEALS
                               FOR THE SECOND CIRCUIT

                                    SUMMARY ORDER
     RULINGS BY SUMMARY ORDER DO NOT HAVE PRECEDENTIAL EFFECT.     CITATION TO SUMMARY ORDERS
     FILED AFTER JANUARY 1, 2007, IS PERMITTED AND IS GOVERNED BY THIS COURT’S LOCAL RULE 32.1
     AND FEDERAL RULE OF APPELLATE PROCEDURE 32.1.     IN A BRIEF OR OTHER PAPER IN WHICH A
     LITIGANT CITES A SUMMARY ORDER, IN EACH PARAGRAPH IN WHICH A CITATION APPEARS, AT LEAST
     ONE CITATION MUST EITHER BE TO THE FEDERAL APPENDIX OR BE ACCOMPANIED BY THE NOTATION:
     “(SUMMARY ORDER).” A PARTY CITING A SUMMARY ORDER MUST SERVE A COPY OF THAT SUMMARY ORDER
     TOGETHER WITH THE PAPER IN WHICH THE SUMMARY ORDER IS CITED ON ANY PARTY NOT REPRESENTED
     BY COUNSEL UNLESS THE SUMMARY ORDER IS AVAILABLE IN AN ELECTRONIC DATABASE WHICH IS
     PUBLICLY ACCESSIBLE WITHOUT PAYMENT OF FEE (SUCH AS THE DATABASE AVAILABLE AT
     HTTP://WWW.CA2.USCOURTS.GOV/). IF NO COPY IS SERVED BY REASON OF THE AVAILABILITY OF THE
     ORDER ON SUCH A DATABASE, THE CITATION MUST INCLUDE REFERENCE TO THAT DATABASE AND THE
     DOCKET NUMBER OF THE CASE IN WHICH THE ORDER WAS ENTERED.


 1            At a stated term of the United States Court of                  Appeals
 2       for the Second Circuit, held at the Daniel Patrick                  Moynihan
 3       United States Courthouse, 500 Pearl Street, in the                  City of
 4       New York, on the 10 th day of December, two thousand                nine.
 5
 6       PRESENT:
 7                DENNIS JACOBS,
 8                        Chief Judge,
 9                ROGER J. MINER,
10                DEBRA ANN LIVINGSTON,
11                        Circuit Judges.
12       _______________________________________
13
14       TSERING TITHAR NAMOCHA,
15                Petitioner,
16
17                        v.                                    08-6151-ag
18                                                              NAC
19       IMMIGRATION AND CUSTOMS ENFORCEMENT,
20       UNITED STATES DEPARTMENT OF HOMELAND
21       SECURITY,
22                 Respondent.
23       ______________________________________
24
25       FOR PETITIONER:                H. Raymond Fasano, Madeo & Fasano,
26                                      New York, New York.
 1   FOR RESPONDENT:         Tony West, Assistant Attorney
 2                           General, Civil Division; Anthony C.
 3                           Paine, Senior Litigation Counsel,
 4                           Office of Immigration Litigation;
 5                           Lance L. Jolley, Trial Attorney,
 6                           Office of Immigration Litigation,
 7                           Civil Division, United States
 8                           Department of Justice, Washington,
 9                           D.C.
10
11       UPON DUE CONSIDERATION of this petition for review of a

12   Board of Immigration Appeals (“BIA”) decision, it is hereby

13   ORDERED, ADJUDGED, AND DECREED that the petition for review

14   is GRANTED.

15       Petitioner Tsering Tithar Namocha, an alleged native of

16   Tibet and citizen of the People’s Republic of China, seeks

17   review of a November 20, 2008 order of the BIA affirming the

18   October 18, 2006 decision of Immigration Judge (“IJ”) George

19   T. Chew denying her application for asylum, withholding of

20   removal, and relief under the Convention Against Torture

21   (“CAT”).   In re Tsering Tithar Namocha, No. A097-849-385

22   (B.I.A. Nov. 20, 2008), aff’g No. A097-849-385 (Immig. Ct.

23   N.Y. City Oct. 18, 2006).   We assume the parties’

24   familiarity with the underlying facts and procedural history

25   of this case.

26       When the BIA adopts the decision of the IJ and

27   supplements the IJ’s decision, this Court reviews the

28   decision of the IJ as supplemented by the BIA.   See Yan Chen


                                   2
1    v. Gonzales, 417 F.3d 268, 271 (2d Cir. 2005).     This Court

2    reviews the agency’s factual findings, including adverse

3    credibility findings, under the substantial evidence

4    standard.   8 U.S.C. § 1252(b)(4)(B); see also Corovic v.

5    Mukasey, 519 F.3d 90, 95 (2d Cir. 2008).   We review de novo

6    questions of law and the application of law to undisputed

7    fact.   Bah v. Mukasey, 529 F.3d 99, 110 (2d Cir. 2008).

8        In addition to the general statutory requirement that

9    petitioners exhaust available administrative remedies,

10   8 U.S.C. § 1252(d)(1), petitioners must also raise to the

11   BIA the specific issues they later raise in this Court.        See

12   Foster v. INS, 376 F.3d 75, 78 (2d Cir. 2004).     While not

13   jurisdictional, this judicially imposed exhaustion

14   requirement is mandatory.   Lin Zhong v. U.S. Dep’t of

15   Justice, 480 F.3d 104, 119-20 (2d Cir. 2007).     However, we

16   have never held that a petitioner is limited to the “exact

17   contours” of his or her argument to the agency.     Gill v.

18   INS, 420 F.3d 82, 86 (2d Cir. 2005).   On the contrary, Title

19   8, section 1252(d)(1) does not prevent the Court from

20   considering “specific, subsidiary legal arguments, or

21   arguments by extension,” even if those arguments were not

22   presented below.   Id.; see also Restrepo v. McElroy, 369


                                   3
1    F.3d 627, 633 n.10 (2d Cir. 2004); Drax v. Reno, 338 F.3d

2    98, 112 n.19 (2d Cir. 2003).

3          Namocha argued before the BIA that the IJ’s adverse

4    credibility finding was flawed because the documents in

5    question were found only to be altered, not fraudulent, and

6    because the IJ failed to specify why the alterations to the

7    documents were material to Namocha’s credibility. 1   We find

8    Namocha’s argument that the IJ failed to make a finding that

9    she knew the documents were altered prior to their

10   submission, despite her testimony to the contrary, is a

11   “subsidiary argument” to the one she raised before the BIA.

12   See Lin Zhong, 480 F.3d at 119-120; Steevenez v. Gonzales,

13   476 F.3d 114, 117-18 (2d Cir. 2007).

14         The IJ’s adverse credibility determination was not

15   based on substantial evidence.     See Corovic, 519 F.3d at 97-

16   98.   In Corovic, we held that the submission of fraudulent

17   documents is “insufficient to hold that [an alien] lacks



             1
             In addition, Namocha testified at her merits
       hearing that she did not know the identity documents were
       altered when she submitted them. When asked during
       cross-examination by the government whether she knew
       about the alterations to the documents, Namocha
       testified, “Before this time I did not know there was any
       change or alteration” and that, “I can’t see anything any
       changes or anything right now even.”

                                    4
1    credibility where there is no indication or finding that he

2    knew or had reason to know that the documents [were]

3    fraudulent.”     Id. at 97 (second alteration in original).     We

4    concluded that “when an applicant contests that he knowingly

5    submitted a fraudulent document, the IJ must make an

6    explicit finding that the applicant knew the document to be

7    fraudulent before the IJ can use the fraudulent document as

8    the basis for an adverse credibility determination.”     Id. at

9    97-98 (emphasis added).     Because Namocha testified that she

10   did not know the documents were altered before she submitted

11   them, and because the IJ failed to make any finding

12   regarding her knowledge of the authenticity of the

13   documents, we remand to the BIA so that the agency may make

14   the necessary finding.     See id.; see also Mufied v. Mukasey,

15   508 F.3d 88, 91-92 (2d Cir. 2007) (discussing the “ordinary

16   remand rule”).     We reject the Government’s argument that

17   remand would be futile because Namocha was ordered removed

18   to Nepal and India in the alternative.     Because the agency

19   never considered this argument, and our review is limited to

20   the reasoning of the agency, remand is appropriate.     See INS

21   v. Ventura, 537 U.S. 12, 16-17 (2002) (per curiam); Manzur

22   v. U.S. Dep’t of Homeland Sec., 494 F.3d 281, 289 (2d Cir.


                                     5
1    2007).

2        For the foregoing reasons, the petition for review is

3    GRANTED, and the case REMANDED for further proceedings

4    consistent with this order.    As we have completed our

5    review, any pending motion for a stay of removal in this

6    petition is DISMISSED as moot. Any pending request for oral

7    argument in this petition is DENIED in accordance with

8    Federal Rule of Appellate Procedure 34(a)(2) and Second

9    Circuit Local Rule 34(b).

10                                 FOR THE COURT:
11                                 Catherine O’Hagan Wolfe, Clerk
12
13
14                                 By:___________________________




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