     Case: 07-60431     Document: 00511022452          Page: 1    Date Filed: 02/08/2010




            IN THE UNITED STATES COURT OF APPEALS
                     FOR THE FIFTH CIRCUIT  United States Court of Appeals
                                                     Fifth Circuit

                                                  FILED
                                                                          February 8, 2010

                                     No. 07-60431                      Charles R. Fulbruge III
                                   Summary Calendar                            Clerk



DENIS DAVIS MARINGO

                                                   Petitioner
v.

ERIC H HOLDER, JR, U.S. ATTORNEY GENERAL

                                                   Respondent




                      Petition for Review from an Order of the
                            Board of Immigration Appeals
                                 BIA No. A79 483 831




Before BENAVIDES, PRADO, and SOUTHWICK, Circuit Judges.
PER CURIAM:*
        Denis Davis Maringo (Maringo) petitions for review of an order of the
Board of Immigration Appeals (BIA) dismissing his appeal from the Immigration
Judge’s (IJ) denial of asylum, withholding of removal, and request for relief
under the Convention Against Torture (CAT).




        *
         Pursuant to 5TH CIR . R. 47.5, the court has determined that this opinion should not
be published and is not precedent except under the limited circumstances set forth in 5TH CIR .
R. 47.5.4.
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      I.    FACTUAL AND PROCEDURAL HISTORY
      Maringo is a native and citizen of Tanzania. Initially, in 2000, he entered
the United States as a nonimmigrant B-2 visa holder. Maringo has admitted
that he fraudulently obtained that visa by forging an invitation to attend a
seminar in the United States. In 2001, he successfully changed his status and
obtained a student visa.
      Shortly thereafter, Maringo filed an application for asylum, alleging past
persecution and a well-founded fear of persecution based on his political opinion
that he had expressed in several articles he had written for publications in
Tanzania. He claimed to have criticized the Tanzanian government and police
force in those articles. The former INS found that he had failed to establish his
eligibility for asylum and referred his case to an IJ. In September of 2001, the
INS served Maringo with a Notice to Appear (NTA), charging him with
removability under 8 U.S.C. § 1227(a)(1)(B), as an alien who remained in the
United States for a time longer than permitted.         The next month, an IJ
terminated the proceedings, apparently because it was discovered that Maringo
had obtained a student visa and therefore was not removable for staying longer
than allowed under his visitor visa.
      In December of 2004, the Department of Homeland Security mailed
Maringo a NTA that instituted new removal proceedings and charged him with
removability under 8 U.S.C. 1227(a)(1)(C)(i) based on his failure to comply with
the conditions of his nonimmigrant status. Additionally, an amended NTA was
mailed to Maringo on January 24, 2005, specifying how he had failed to maintain
the conditions of his student visa. Maringo failed to appear at the March 23
removal hearing and was ordered removed to Tanzania.


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      On December 15, 2005, Maringo pleaded guilty in district court to making
a false statement in an application for adjustment of status and using a visa that
had been procured by fraud in violation of 18 U.S.C. § 1546(a). The court
sentenced Maringo to time served for both offenses.
      Subsequently, in Maringo’s petition to reopen the removal proceedings
before the IJ, Maringo stated that, on March 20, 2006, a pro bono attorney
informed him how to retrieve information regarding his proceedings from a
system run by the Executive Office of Immigration Review. On March 23, he
successfully accessed the system. On March 31, Maringo filed a motion to
reopen the instant proceedings, claiming that he had never received a NTA. On
May 8, the IJ granted the motion to reopen, stating that the notices may not
have been mailed to Maringo’s correct address. On May 19, at an initial master
calendar hearing, the IJ continued the case until May 25 to afford Maringo an
opportunity to secure counsel. At the May 25 hearing, Maringo, proceeding pro
se, informed the IJ that he wanted to reapply for asylum. The IJ then continued
the removal proceeding until June 15. At the June 15 hearing, after Maringo
admitted that he did not attend Texas Southern University, the IJ found that he
had failed to comply with the conditions of his student visa and thus found him
removable by clear and convincing evidence.       Additionally, Maringo filed a
supplemental application for asylum and the IJ set a hearing on the asylum
application for July 17. The IJ also ordered Maringo to have all documents in
support of the application submitted by July 7. The IJ conducted the asylum
hearing over several days July 17, July 20, and August 30. On December 4, the
IJ denied Maringo’s application for asylum.       The IJ expressly found that
Maringo was not a credible witness.


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      Maringo appealed the IJ’s decision to the Board of Immigration Appeals.
The Board affirmed the denial of the application for asylum, withholding of
removal, and protection under the Convention Against Torture. Maringo now
petitions this Court for review of the BIA’s dismissal of his appeal.


      II.   ANALYSIS
            A. Removal Order
      Maringo contends that the doctrine of res judicata barred the charges that
resulted in the removal order. He contends that the INS had the opportunity to
charge him with the instant violation in the previous removal proceedings that
were terminated in his favor. More specifically, he argues that, during the 2001
removal proceedings, the INS could have charged him with failure to comply
with his student visa but waited until 2006 to bring the instant charge.
      The doctrine of res judicata can be applied in an adjudicatory removal
proceeding. Medina v. INS, 993 F.2d 499, 503 (5th Cir. 1993) (holding that res
judicata barred the deportation proceedings because the INS previously had
conceded the petitioner’s citizenship). However, this Court has refused to find
res judicata applicable in a case analogous to the one at bar. In Peters v.
Ashcroft, Peters argued that the BIA was collaterally estopped from finding him
removable because it had previously determined that he had not been convicted
of an aggravated felony under 8 U.S.C. § 1227(a)(2)(A)(iii). 383 F.3d 302, 306 n.2
(5th Cir. 2004). We rejected this argument because the pending proceeding
against Peters was “based on a wholly separate provision—8 U.S.C. §
1227(a)(2)(B)(i)—relating to prior drug-related offenses.”     Id.   We therefore
concluded that “the BIA’s prior decision ha[d] no res judicata effect on the


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current removal proceeding.” Id. Likewise, in the instant case, the current basis
for Maringo’s removal—failure to comply with the student visa requirements
pursuant to 8 U.S.C. § 1227(a)(1)(C)(i)—is a separate provision from the charge
in the first proceeding that he was an alien remaining in the United States for
a time longer than permitted in violation of 8 U.S.C. § 1227(a)(1)(B). Under
these circumstances, res judicata does not apply to preclude Maringo’s removal.
      Maringo also argues that he was improperly charged with removability
under 8 U.S.C. § 1227 because he had gained entrance to the United States by
fraudulently obtaining a visitor visa. Instead, he asserts that he should have
been charged under the provision that renders aliens inadmissible due to his
never having been properly admitted. This argument overlooks the fact that he
lawfully changed his status when he obtained his student visa. Thus, he has not
shown that it was improper to charge him with removability under § 1227.
      Maringo next contends that his due process rights were violated because
the IJ did not allow him 10 days to attempt to secure the services of an attorney.
Title 8 U.S.C. § 1229(b)(1) provides that:
      In order that an alien be permitted the opportunity to secure
      counsel before the first hearing date in proceedings under section
      1229a of this title, the hearing date shall not be scheduled earlier
      than 10 days after the service of the notice to appear, unless the
      alien requests in writing an earlier hearing date.

      As previously set forth, Maringo was ordered removed in absentia.
Nonetheless, on May 8, he successfully reopened the removal proceedings
because the NTA apparently had been sent to an incorrect address. On May 19,
the IJ held an initial calendar hearing and continued the case until May 25.
Maringo claims that the IJ should not have set the hearing on May 25, only six


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days after the initial calendar hearing on May 19.        As previously set forth, §
1229(b)(1) directs that “the hearing date shall not be scheduled earlier than 10
days after the service of the notice to appear.” Maringo has admitted that he
became aware of the removal order on March 23. Also, he admitted that he had
been in contact with a pro bono attorney. Further, although the removal hearing
commenced six days after the calendar hearing, it was continued until June 15,
and Maringo did not obtain counsel during this time period. Under these
circumstances, Maringo has not shown that he was deprived of the opportunity
to obtain counsel in violation of his due process rights. Cf. Prichard-Ciriza v.
I.N.S., 978 F.2d 218, 222 (5th Cir. 1992) (requiring an alien to demonstrate
prejudice that implicates the fundamental fairness of the proceeding to obtain
relief based upon a lack of representation).
            B.      Asylum
      Finally, Maringo challenges the denial of his application for asylum. We
review an IJ’s factual findings for substantial evidence and will not reverse
unless the evidence compels a contrary finding. See Chun v. INS, 40 F.3d 76, 78
(5th Cir. 1994). “We cannot substitute our judgment for that of the BIA or IJ
with respect to the credibility of the witnesses or ultimate factual findings based
on credibility determinations.” Id. (citation omitted).
      With respect to Maringo’s credibility, the IJ stated that “[a]s [Maringo]
himself acknowledged during his hearing on the merits, his past history of
immigration fraud combined with a medical diagnosis of suffering from paranoid
delusions and auditory hallucinations make it difficult for this Court to accept
his testimony as true.” The IJ noted that Maringo “has successfully perpetrated
frauds both upon the U.S. consulate that approved his B-2 visa application and


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his law school” in Tanzania. The IJ also deemed implausible certain details of
Maringo’s story of being detained by government agents. The IJ also found that
Maringo’s story of government persecution was not corroborated by the 2005
Department of State Country Report on Tanzania. Accordingly, the IJ concluded
that Maringo was not a credible witness and denied his application for asylum.
Our review convinces us that the IJ’s finding that Maringo was not a credible
witness is supported by substantial evidence. The evidence certainly does not
compel the opposite finding, i.e. that Maringo was a credible witness.                    We
therefore affirm the BIA’s denial of asylum.1
       For the above reasons, the decision of the BIA is AFFIRMED. We GRANT
Maringo’s motion for leave to file a supplemental reply brief out of time. We
DENY any remaining outstanding motions.




       1
        Assuming arguendo that Maringo has adequately raised a CAT claim before us, the
BIA’s decision is supported by substantial evidence, and the record does not compel a contrary
conclusion.

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