Namocha v. ICE, No. 08-6151-ag (non-precedent) (2d Cir. Dec. 10, 2009).

When the BIA adopts the decision of the IJ and supplements the IJ’s decision, this Court reviews the decision of the IJ as supplemented by the BIA. This Court reviews the agency’s factual findings, including adverse credibility findings, under the substantial evidence standard. This court reviews de novo questions of law and the application of law to undisputed fact.

In addition to the general statutory requirement that petitioners exhaust available administrative remedies, petitioners must also raise to the BIA the specific issues they later raise in this Court. While not jurisdictional, this judicially imposed exhaustion requirement is mandatory. However, this court has never held that a petitioner is limited to the “exact contours” of his or her argument to the agency. On the contrary, Title 8, section 1252(d)(1) does not prevent this Court from considering “specific, subsidiary legal arguments, or arguments by extension,” even if those arguments were not presented below.

This court finds that the petitioner’s argument that the IJ failed to make a finding that she knew the documents were altered prior to their submission, despite her testimony to the contrary, is a “subsidiary argument” to the her argument before the BIA that the IJ’s adverse credibility finding was flawed because the documents in question were found only to be altered, not fraudulent, and because the IJ failed to specify why the alterations to the documents were material to the petitioner’s credibility.

The IJ’s adverse credibility determination was not based on substantial evidence. In Corovic v. Mukasey, 519 F.3d 90 (2d Cir. 2008), this court held that the submission of fraudulent documents is insufficient to hold that an alien lacks credibility where there is no indication or finding that he knew or had reason to know that the documents were fraudulent. This court concluded that when an applicant contests that he knowingly submitted a fraudulent document, the IJ must make an explicit finding that the applicant knew the document to be fraudulent before the IJ can use the fraudulent document as the basis for an adverse credibility determination. Because the petitioner in the instant case testified that she did not know the documents were altered before she submitted them, and because the IJ failed to make any finding regarding her knowledge of the authenticity of the documents, this court remands to the BIA so that the agency may make the necessary finding. The petition for review is granted, and the case remanded for further proceedings consistent with this order.