Lin v. Atty Gen USA ( 2008 )

Opinions of the United
2008 Decisions States Court of Appeals
for the Third Circuit
9-11-2008
Lin v. Atty Gen USA
Precedential or Non-Precedential: Precedential
Docket No. 06-2883
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PRECEDENTIAL
UNITED STATES COURT OF APPEALS
FOR THE THIRD CIRCUIT
_____________
No. 06-2883
_____________
BIN LIN,
Petitioner
v.
ATTORNEY GENERAL OF THE UNITED STATES,
Respondent
On Petition for Review of an Order of the
Board of Immigration Appeals
(Agency No. A98-358-506)
Immigration Judge: Honorable Mirlande Tadal
Argued March 14, 2008
Before: FUENTES, CHAGARES, and VAN ANTWERPEN,
Circuit Judges.
(Filed: September 11, 2008)
Thomas V. Massucci (Argued)
401 Broadway, Suite 908
New York, NY 10013
Counsel for Petitioner
Edward J. Duffy (Argued)
Alison M. Igoe
Peter D. Keisler
Office of Immigration Litigation
Civil Division
U.S. Department of Justice
P.O. Box 878, Ben Franklin Station
Washington, D.C. 20044-0878
Counsel for Respondent
_____________
OPINION OF THE COURT
_____________
CHAGARES, Circuit Judge.
Bin Lin (Bin) petitions for review of a final order of
removal issued by the Board of Immigration Appeals (BIA). After
unlawfully entering the country and being placed in removal
proceedings, Bin applied for asylum, withholding of removal, and
protection under the Convention Against Torture (CAT). He
grounded these claims on his alleged arrests and abuse in China for
engaging in a spiritual-meditative practice called Falun Gong.
Following a hearing, an Immigration Judge (IJ) denied Bin’s
claims for two reasons: first, that Bin’s testimony in support of his
claims was not credible, and second, that even if the testimony
were credible, it failed to meet the burdens of proof necessary for
the requested forms of relief. Bin then appealed to the BIA. The
Government contends that Bin failed to contest the IJ’s credibility
determination in his appeal to the BIA, and that we are therefore
without jurisdiction to consider Bin’s petition to this Court.
We agree that Bin failed to raise the adverse credibility
finding in his appeal to the BIA. We hold, however, that because
the BIA nonetheless considered the adverse credibility
determination, the issue was sufficiently exhausted to provide us
with jurisdiction to review it. Exercising this jurisdiction, we find
that substantial evidence supports the credibility determination, and
accordingly, we will deny the petition for review.
2
I.
Bin is a 23-year-old native and citizen of the People’s
Republic of China. On October 1, 2004, Bin arrived in the United
States through Mexico. When approached by Border Patrol agents,
he stated that he entered the country to find work.1 He was
subsequently placed in removal proceedings, where he admitted the
factual allegations against him and conceded his removability.
Thereafter, Bin submitted his application for asylum, withholding
of removal, and protection under the CAT.2
At a February 24, 2005 hearing before the IJ, Bin testified
on his own behalf. He explained that he began practicing Falun
Gong 3 in 1998, when he was in the fifth grade, because he suffered
1
He later testified that his intention was to seek asylum and
that he only responded initially as he did because he was “so
tense.” Administrative Record (A.R.) 83.
2
As part of his application, Bin submitted a written affidavit
concerning his reasons for seeking political asylum. The IJ based
her credibility determination in large part on the perceived
discrepancies between Bin’s affidavit and his testimony at a
hearing before the IJ.
3
The State Department Report on China indicates that Falun
Gong is a “spiritual movement . . . that blends aspects of Taoism,
Buddhism, and the meditative techniques and physical exercises of
qigong (a traditional Chinese exercise discipline) with the
teachings of Falun Gong founder Li Hongzhi . . . . Many
practitioners became interested in Falun Gong because of its
purported health benefits.” A.R. 130. The Chinese government,
however, became concerned by its growing popularity in the 1990s
and eventually labeled it a “cult.” A.R. 130. In 1999, the Chinese
government banned Falun Gong, and “[a] harsh crackdown against
the so-called ‘evil cult’ followed.” A.R. 130. “Since January
2002, the mere belief in Falun Gong, even without any public
manifestation of its tenets, has been sufficient grounds for
practitioners to receive punishments ranging from loss of
employment to imprisonment.” A.R. 130.
3
from inflammatory diseases of the stomach and intestine and that
neither “Western trained” medical doctors nor “Chinese herbal
doctors” were able to alleviate his symptoms. A.R. 75. As a result,
Bin began to practice Falun Gong when his mother’s friend
convinced him that it would help his illnesses. No one else in his
family practiced, so Bin bought some books and a video on Falun
Gong. On direct examination, Bin testified that he practiced with
other Falun Gong practitioners at a nearby park “once or twice,”
though the IJ found that Bin contradicted himself on cross-
examination. A.R. 77.4
Bin claimed that he was arrested twice for practicing Falun
Gong, first in August 1999 and again in January 2004. He testified
that the first time, five or six police officers came to his house, took
him by force, and did not give a reason for his arrest. According
to Bin, the officers interrogated and beat him badly, but he could
not recall the substance of their questioning. Bin stated that two
days later, he was sent to a detention center in Qwan Do, China,
where he was detained for more than two months. Bin testified
that many other inmates were detained there because they also
practiced Falun Gong. He stated that he was beaten by the
authorities—hit and kicked in the leg and beaten with a club. Bin
claimed that he was eventually released, two months later, after he
signed a document stating that he would never practice Falun Gong
again.
According to Bin, he was arrested again in January 2004 and
accused of practicing Falun Gong. The authorities detained him
for one month and did not allow his mother to visit him. He
claimed that he was beaten once while detained, and that he
suffered bruises. He alleged that his mother was also interrogated
after his detention. He was released on January 15, 2004, and
departed China in September 2004.
4
To avoid repetition, we recount the contents of Bin’s
written affidavit and cross-examination, where applicable, in the
discussion section of the opinion and omit them here.
4
On March 3, 2005, the IJ denied Bin’s applications for
asylum, withholding of removal, and CAT protection and ordered
him removed. The IJ denied asylum for two distinct reasons. First,
even assuming Bin’s testimony was truthful, the evidence did not
support a finding of past persecution or a well-founded fear of
persecution as is required to prevail on an asylum claim. Second,
the IJ found Bin not credible due to material inconsistencies within
his testimony and between his testimony and his written affidavit.
Specifically, the IJ determined that while Bin’s affidavit stated that
the police told Bin the reason for his first arrest, he testified before
the IJ that the police gave no reason for the arrest. In addition, the
IJ determined that Bin testified inconsistently about where, and
with whom, he practiced Falun Gong after his first arrest. The IJ
also found that Bin did not meet the more exacting standard for
withholding of removal or the standard for relief under the CAT.
On March 7, 2005, Bin, through his prior counsel, filed a
notice of appeal with the BIA. The notice of appeal did not assert
which issues Bin was appealing but instead stated that he would
file a separate brief. In the separate brief, Bin listed the following
arguments:
I. THE IJ ERRED IN FINDING THAT
[BIN]’S ARRESTS AND DETENTION IN
1999 AND 2004 DID NOT CONSTITUTE
PERSECUTION WITHIN THE MEANING
OF THE IMMIGRATION AND
NATIONALITY ACT (“INA”);
RESPONDENT CLEARLY SUFFERED
PERSECUTION AT THE HANDS OF THE
CHINESE GOVERNMENT, AND THUS, IS
CLEARLY ELIGIBLE FOR ASYLUM.
II. THE IJ ERRED IN FINDING THAT
[BIN]’S TWO DETENTIONS DO NOT
RISE TO THE LEVEL OF PERSECUTION;
[B IN ] SU FFER ED SIG N IFIC AN T
DEPRIVATION OF FREEDOM AND
LIBERTY ON ACCOUNT OF HIS BEING
A FALUN GONG PRACTITIONER.
5
A. 12, 13.
On May 4, 2006, the BIA “adopt[ed] and affirm[ed] the
decision of the [IJ] to the extent the [IJ] concluded [Bin] was not
credible and did not therefore meet the burden of proof for asylum,
withholding of removal and protection under the Convention
Against Torture.” A.R. 2. The BIA did not address Bin’s two
allegations of error, having instead adopted the adverse credibility
determination.
II.
We generally have jurisdiction to review a final order of
removal under section 242(a)(1) of the Immigration and Nationality
Act (INA). See 8 U.S.C. § 1252(a)(1); Yan Lan Wu v. Ashcroft,
393 F.3d 418, 421 (3d Cir. 2005). Section 242(d)(1) of the INA,
however, limits our jurisdiction to cases where a petitioner “has
exhausted all administrative remedies available as of right . . . .”
8 U.S.C. § 1252(d)(1); see Abdulrahman v. Ashcroft, 330 F.3d
587, 594-95 (3d Cir. 2003).
Where we do have jurisdiction to entertain a petition for
review and “the BIA adopted the IJ’s opinion, we treat that opinion
as the opinion of the [BIA].” Zhang v. Gonzales, 405 F.3d 150,
155 (3d Cir. 2005). Accordingly, we review the IJ’s opinion to the
extent the BIA relied upon it. Wang v. Att’y Gen., 423 F.3d 260,
267 (3d Cir. 2005).
Review of an IJ’s decision, including an adverse credibility
determination, “is conducted under the substantial evidence
standard which requires that administrative findings of fact be
upheld ‘unless any reasonable adjudicator would be compelled to
conclude to the contrary.’” Chen v. Gonzales, 434 F.3d 212, 216
(3d Cir. 2005) (quoting 8 U.S.C. § 1252(b)(4)(B)). In other words,
adverse credibility determinations are afforded deference provided
the IJ “suppl[ies] specific, cogent reasons why the applicant is not
credible.” Chukwu v. Att’y Gen., 484 F.3d 185, 189 (3d Cir.
2007); Gao v. Ashcroft, 299 F.3d 266, 276 (3d Cir. 2002). Under
the law applicable to Bin’s petition, the inconsistencies identified
by the IJ must not be “minor” and must go to the heart of the
6
petitioner’s claim. Gabuniya v. Att’y Gen., 463 F.3d 316, 322 (3d
Cir. 2006).5
III.
The Government argues that Bin did not raise the issue of
the IJ’s credibility determination to the BIA, thereby failing to
exhaust his administrative remedies, and thus depriving us of
jurisdiction under § 1252(d)(1). Bin counters that we have
jurisdiction to consider the credibility determination because he did
raise the issue before the BIA, thereby exhausting his
administrative remedies. In the alternative, Bin argues that even if
he did not raise the credibility determination, the BIA’s sua sponte
consideration of the issue provides us with jurisdiction. For the
reasons discussed below, we conclude that Bin did not raise the IJ’s
adverse credibility finding to the BIA, but because the BIA
considered the credibility issue sua sponte, we nonetheless have
jurisdiction to review it.
A.
As stated earlier, under § 1252(d)(1), “a court may review
a final order of removal only if [] the alien has exhausted all
administrative remedies available to the alien as of right . . . .” 8
U.S.C. § 1252(d)(1). The parties dispute what Congress meant by
the term “administrative remedies.” While our jurisprudence has
been less than clear as to whether the statute requires exhaustion of
administrative procedures, claims, or issues, compare Khan v. Att’y
Gen., 448 F.3d 226, 236 n.8 (3d Cir. 2006), with Zheng v.
Gonzales, 417 F.3d 379, 383 (3d Cir. 2005), we are bound by those
opinions that have interpreted issue exhaustion as a statutory
5
Bin’s claims for relief antedate the change in law brought
by the REAL ID Act of 2005. See Kaita v. Att’y Gen., 522 F.3d
288, 296 & n.6 (3d Cir. 2008) (explaining that for claims filed after
May 11, 2005, 8 U.S.C. § 1158(b)(1)(B)(ii) permits an IJ to make
“a credibility determination . . . without regard to whether an
inconsistency, inaccuracy, or falsehood goes to the heart of the
applicant’s claim”) (quotation marks omitted).
7
requirement. See, e.g., Kibinda v. Att’y Gen., 477 F.3d 113, 120
n.8 (3d Cir. 2007) (finding petitioner’s unraised issue unexhausted
and thus precluded by § 1252(d)(1)’s “statutory [exhaustion]
requirement”); Abdulrahman, 330 F.3d at 594-95 (same).6 As
6
Over the last several years, a number of our sister courts of
appeals have struggled with “the question whether the failure to
raise an issue before the BIA is a jurisdictionally-fatal failure to
exhaust an administrative remedy for purposes of 8 U.S.C. §
1252(d)(1), or simply raises the non-jurisdictional question whether
review of that issue is precluded by the doctrine of administrative
exhaustion.” Zine v. Mukasey, 517 F.3d 535, 539-40 (8th Cir.
2008) (emphasis in original) (resolving the case on narrower
grounds so as not to “enter this thicket”). For example, both the
Courts of Appeals for the First and Eighth Circuits were “very
tempt[ed]” to find that § 1252(d)(1) does not preclude a court of
appeals from considering issues that an alien did not present to the
agency. See Sousa v. I.N.S., 226 F.3d 28, 31 (1st Cir. 2000) (“If
we were writing on a clean slate, it would be very tempting to treat
[petitioner]’s forfeit of his claim as something less than a
jurisdictional objection.”); Etchu-Njang v. Gonzales, 403 F.3d 577,
582 (8th Cir. 2005). While both courts ultimately found
themselves bound by precedent to treat issue exhaustion as a
jurisdictional requirement, it is not clear that they treated issue
exhaustion as a “truly jurisdictional” requirement. See Zhong v.
U.S. Dep’t of Justice, 489 F.3d 126, 130 n.6 (2d Cir. 2007)
(Calabresi, J., concurring in the denial of rehearing en banc)
(noting that since the Etchu-Njang and Sousa courts contemplate
exceptions to the “jurisdictional” issue exhaustion requirement, the
requirement cannot be a “truly jurisdictional” one).
Moreover, these cases were decided without consideration
of a line of “powerful statements” by the Supreme Court “that
courts should be reluctant to make issues jurisdictional rather than
mandatory unless statutory language requires it . . . .” Zhong, 489
F.3d at 134 (Calabresi, J. concurring in the denial of rehearing en
banc); see, e.g., Arbaugh v. Y & H Corp., 546 U.S. 500, 510-11
(2006) (noting that “[j]urisdiction . . . is a word of many, too many,
meanings” and that the Supreme Court, “no less than other courts,
8
compared to judicially-crafted exhaustion doctrines, statutory
exhaustion requirements deprive us of jurisdiction over a given
case. Metro. Life Ins. Co. v. Price, 501 F.3d 271, 278-79 (3d Cir.
2007); see Xie v. Ashcroft, 359 F.3d 239, 245 n.8 (3d Cir. 2004).
Accordingly, a petitioner is deemed to have “exhausted all
administrative remedies,” 8 U.S.C. § 1252(d)(1), and thereby
“preserves the right of judicial review,” Adbulrahman, 330 F.3d at
594-95, if he or she raises all issues before the BIA. We do not,
however, apply this principle in a draconian fashion. See Joseph
v. Att’y Gen., 465 F.3d 123, 126 (3d Cir. 2006) (noting the Court’s
“liberal exhaustion policy”). Indeed, “so long as an immigration
petitioner makes some effort, however insufficient, to place the
Board on notice of a straightforward issue being raised on appeal,
a petitioner is deemed to have exhausted her administrative
has sometimes been profligate in its use of the term,” but
cautioning that “unrefined dispositions . . . should be accorded no
precedential effect on the question whether the federal court had
authority to adjudicate the claim in suit”) (quotation marks
omitted); Kontrick v. Ryan, 540 U.S. 443, 455 (2004) (“Clarity
would be facilitated if courts and litigants used the label
‘jurisdictional’ not for claim-processing rules, but only for
prescriptions delineating the classes of cases (subject-matter
jurisdiction) and the persons (personal jurisdiction) falling within
a court’s adjudicatory authority.”). In light of the Supreme Court’s
repeated admonitions, the Court of Appeals for the Second Circuit
recently revisited its issue exhaustion jurisprudence and held that
issue exhaustion is a mandatory, though not jurisdictional, rule.
See Zhong v. U.S. Dep’t of Justice, 480 F.3d 104, 107 (2d Cir.
2007); see also Korsunskiy v. Gonzales, 461 F.3d 847, 849 (7th
Cir. 2006) (noting, in light of the recent Supreme Court cases, that
“[e]xhaustion is a condition to success in court but not a limit on
the set of cases that the judiciary has been assigned to resolve”).
Thus, while there is reason to cast doubt upon the
continuing validity of our precedent holding that issue exhaustion
is a jurisdictional rule, short of a review en banc, we must dutifully
apply that precedent.
9
remedies.” Id. (quotation marks omitted); see Bhiski v. Ashcroft,
373 F.3d 363, 367-68 (3d Cir. 2004); Yan Lan Wu, 393 F.3d at 422
(explaining Bhiski and observing that “when a claim is not so
complex as to require a supporting brief, simply putting the Board
on notice through a Notice of Appeal is sufficient”).
For example, in Abdulrahman v. Ashcroft, petitioner
Abdulrahman argued to the BIA “that the IJ erred in her credibility
determination and that her findings were not substantially
supported by the evidence.” 330 F.3d at 594. Before this Court,
Adbulrahman then asserted that “the IJ erroneously applied the
more stringent ‘more likely than not’ standard, applicable to
withholding of removal, to his asylum claim that he suffered past
persecution.” Id. We found Abdulrahman’s attempt to argue that
he had raised the burden of proof issue before the BIA to be “in
vain.” Id. at 595. Neither his notice of appeal nor his written brief
“viewed expansively . . . even suggest[ed] the issue.” Id. We
observed that Abdulrahman’s assertion before the BIA that the IJ
“erred as a matter of law and discretion,” was a “generalized claim
[that] did not alert the Board to the issue he [sought] to raise for the
first time here.” Id. (quotation marks omitted); see Joseph, 465
F.3d at 126 (finding an issue not exhausted where “petitioner did
nothing to alert the BIA that he wished to appeal the IJ’s
determination that he was not prima facie eligible for
naturalization”). As Abdulrahman had failed to put the Board on
notice of the issue that he then raised before this Court, we
appropriately declined to interfere with the agency’s
decisionmaking process by ruling on a contention the BIA had not
addressed. Abdulrahman, 330 F.3d at 594-95.
In Yan Lan Wu v. Ashcroft, petitioner Yan argued in her
Notice of Appeal to the BIA that “the Immigration Judge ignored
the fact that [her] father was jailed and tortured by the Chinese
government as an underground Christian in China, and erred in
finding that [she] doesn’t have a fear of [the] Chinese government
but the local people.” 393 F.3d at 422 (quotation marks omitted).
Additionally, in her supporting brief Yan claimed that she had
“presented sufficient evidence to the effect that she has face[d] past
persecution and will face future persecution on account of her
Christian faith,” “that police raided [her] home, and that her home
10
was under surveillance.” Id. (quotation marks omitted). Before
our Court, Yan argued that the IJ improperly relied on a
preliminary statement she had made at the airport and that the IJ’s
decision was not supported by substantial evidence. The
Government contended that Yan failed to exhaust her
administrative remedies, asserting that Yan “intimates that the
Immigration Judge’s reliance on the [airport] statement was
misplaced but that this argument was never raised before the
Immigration Judge or on appeal to the Board . . . .” Id. We
nevertheless found that Yan did “contend in her Notice of Appeal
that the Immigration Judge’s conclusion [was] not supported by
substantial evidence within the record,” and thus the BIA “was put
on notice that there was a claim of error hovering around the
Immigration Judge’s findings and, consequently, her exclusive
reliance on the airport interview, during its review de novo.” Id;
see also Bhiski, 373 F.3d at 367-69 (explaining that petitioner’s
ineffective assistance of counsel argument was exhausted despite
his failure to aver, in the Notice of Appeal, that he suffered
prejudice, and despite his failure to file a supporting brief).
In the present case, Bin’s current counsel seemed to concede
at oral argument that Bin’s previous counsel had failed to use any
language in his Notice of Appeal or brief to the BIA such that the
BIA would suspect a claimed error even “hovering around” the IJ’s
credibility determination. See Yan Lan Wu, 393 F.3d at 422.
Bin’s Notice of Appeal pressed no arguments whatsoever, but
instead merely mentioned that a separate written brief would be
submitted. The brief, in turn, referred only to whether Bin’s arrests
and detention “rise to the level of persecution” or “constitute
persecution within the meaning of the [INA] . . . .” A.R. 12, 13.
Thus, unlike in Yan Lan Wu, Bin’s Notice of Appeal and his brief
did absolutely nothing to alert the BIA that he was challenging the
IJ’s credibility determination. Indeed, this case is the precise
inverse of Abdulrahman: whereas the petitioner there challenged
the IJ’s factual findings before the BIA but not the applicable legal
standard, here, Bin challenged the legal standard before the BIA,
but not the IJ’s factual findings (namely, the credibility
determination). See 330 F.3d at 594. As in Abdulrahman, we
reject Bin’s argument that he raised the relevant issue in this case.
11
Perhaps recognizing Bin’s failure explicitly to raise the
credibility issue to the BIA, Bin’s counsel makes an alternative
contention: since an asylum applicant without evidence
corroborating his claims of past persecution must testify credibly
in order to meet his burden of proof, Bin’s appeal to the BIA only
makes sense if he is appealing the IJ’s adverse credibility
determination. Pet’r Reply Br. at 4-5 (citing Lukwago v. Ashcroft,
329 F.3d 157, 177 (3d Cir. 2003)). Put another way, since Bin
cannot prevail on his legal claims without also successfully
challenging the IJ’s adverse credibility determination, the latter
issue is implicit in his appeal to the BIA. Bin is asking us, in
effect, to create a bright-line rule: any time an IJ has made an
adverse credibility determination and there is no corroborating
evidence, that issue is necessarily before the BIA on appeal.
We find no authority to support this position. We have said
that as long as the petitioner “made some effort to exhaust, albeit
insufficient,” we will exercise jurisdiction over the petitioner’s
claims. Bhiski, 373 F.3d at 367. Bin has, however, made no such
effort. Out of respect for the administrative process, we will not
require the BIA to guess which issues have been presented and
which have not. Likewise, we will not punish the BIA by
interfering in the administrative process with regard to issues that
the BIA did not address. Considering the documents supplied by
Bin, we have no reason to believe that he put the BIA on notice
that he was challenging the IJ’s adverse credibility determination.
Cf. Yan Lan Wu, 393 F.3d at 422 (exercising jurisdiction over
petitioner’s claims where “we [were] confident that [petitioner]’s
Notice of Appeal and brief in support of [petitioner’s] application
made the Board aware of what issues were being appealed”).
Accordingly, Bin failed to raise the adverse credibility issue to the
BIA.
B.
Having determined that Bin failed to raise the issue of the
IJ’s credibility determination, we must now address Bin’s
contention that we nonetheless have jurisdiction because the BIA,
sua sponte, considered this issue and adopted and affirmed the IJ’s
decision on this basis. There is certainly a degree of confusion in
12
this area. See Zine v. Mukasey, 517 F.3d 535, 540 (8th Cir. 2008)
(recognizing the “disagreement among our sister circuits on the []
question whether a claim or issue not presented to the BIA, but
considered by the BIA sua sponte, is jurisdictionally barred for
failure to exhaust administrative remedies”).7 We note, however,
that of the approximately seven courts of appeals to address
whether the BIA’s decision to consider an issue provides the court
with jurisdiction over the petition for review, only one per curiam
opinion by the Court of Appeals for the Eleventh Circuit would
find a court without jurisdiction in a case such as this one.
Compare Amaya-Artunduaga v. Att’y Gen., 463 F.3d 1247, 1250
(11th Cir. 2006) (per curiam) (holding that the court lacked
“jurisdiction over a claim when an alien, without excuse or
exception, fail[ed] to exhaust that claim,” even though “the BIA
nonetheless consider[ed] the underlying issue sua sponte”),
with Sidabutar v. Gonzales, 503 F.3d 1116, 1119-20 (10th Cir.
2007) (holding that the BIA’s sua sponte consideration of
petitioners’ claims served as an agency determination that the
issues were sufficiently exhausted to confer the court with
jurisdiction under § 1252); Zine, 517 F.3d at 540 (accepting “the
agency’s determination that the persecution issue was adequately
exhausted as to both [asylum and withholding of removal] claims
and therefore reach[ing] the merits of the withholding” claim
despite the petitioner’s failure to raise it explicitly on appeal to the
BIA); Pasha v. Gonzales, 433 F.3d 530, 532-33 (7th Cir. 2005)
(explaining that where the BIA could have summarily dismissed an
appeal for failure to raise an issue with specificity, but instead
7
To add to the confusion, courts have taken related, but
slightly different approaches to contentions such as Bin’s. Some
courts begin by addressing, as we have in Part A, whether the
petitioner in fact raised the relevant claim or issue, thereby
exhausting his or her administrative remedies. See, e.g., Sidabutar
v. Gonzales, 503 F.3d 1116, 1119 (10th Cir. 2007). Other courts
skip this first step and focus simply on the fact that the BIA
addressed the issue, sua sponte or not. See, e.g., Zine, 517 F.3d at
540. Regardless, as we discuss above, the result is the same: the
BIA’s consideration of an issue is sufficient to provide us with
jurisdiction over that issue.
13
affirmed on the merits, the exhaustion requirement was waived);
Adebe v. Gonzales, 432 F.3d 1037, 1041 (9th Cir. 2005) (en banc)
(same); Hassan v. Gonzales, 403 F.3d 429, 433 (6th Cir. 2005)
(same); Johnson v. Ashcroft, 378 F.3d 164, 170 (2d Cir. 2004)
(same); see also Singh v. Gonzales, 413 F.3d 156, 160 n.3 (1st Cir.
2005) (explaining that even claims not exhausted before the BIA
may be addressed by a court of appeals where the BIA summarily
affirmed the IJ’s entire opinion, thus rendering the IJ’s decision the
final agency determination for purpose of appellate review);
Arreguin-Moreno v. Mukasey, 511 F.3d 1229, 1232 (9th Cir. 2008)
(explaining that court was not deprived of jurisdiction despite
petitioner’s failure to raise the issue before the BIA where all
issues presented to the IJ were deemed to have been presented to
the BIA); cf. Wilson v. Pena, 79 F.3d 154, 165 (D.C. Cir. 1996)
(explaining, in the Title VII context, that “[w]here the agency has
taken final action based on an evaluation of the merits, it cannot
later contend that the complainant failed to exhaust his remedies”).
We agree with the logic of the majority of our fellow courts of
appeals on this issue and find that we have jurisdiction to address
the IJ’s adverse credibility determination because the BIA
considered the issue sua sponte.
For example, in Sidabutar v. Gonzales, petitioners’ appeal
to the BIA challenged the IJ’s determinations regarding asylum, but
did not contest the IJ’s finding that petitioners were ineligible for
withholding of removal or protection under the CAT. 503 F.3d at
1119. While the Court of Appeals for the Tenth Circuit ordinarily
would have found that petitioners’ failure to pursue the latter two
grounds for relief constituted a failure to exhaust their
administrative remedies, the BIA sua sponte addressed and ruled
on both grounds. Id. The court observed:
[W]hile § 1252(d)(1) requires that an alien exhaust
“all administrative remedies,” the BIA has the
authority to determine its agency’s administrative
procedures. If the BIA deems an issue sufficiently
presented to consider it on the merits, such action by
the BIA exhausts the issue as far as the agency is
concerned and that is all § 1252(d)(1) requires to
14
confer our jurisdiction.8 Where the BIA determines
an issue administratively-ripe to warrant its appellate
review, we will not second-guess that determination.
Indeed, it is a touchstone of administrative law that
“the formulation of procedures [is] basically to be
left within the discretion of the agencies to which
Congress had confided the responsibility for
substantive judgments.” . . . Under 8 C.F.R. §
1003.3(b) (“specificity requirement”), an alien taking
an appeal of an IJ decision “must specifically
identify the findings of fact, the conclusions of law,
or both, that are being challenged.” Nothing in the
agency’s regulations preclude the BIA from waiving
this requirement. Indeed, the BIA has discretionary
authority to dismiss (and conversely, accept) appeals
lacking in specificity. . . . Where the BIA has issued
a decision considering the merits of an issue, even
sua sponte, [the interests behind the exhaustion rule]
have been fulfilled.
Id. at 1120-21 (emphasis in original) (citations omitted).
We are persuaded by the Court of Appeals for the Tenth
Circuit’s reasoning in Sidabutar. To begin with, the BIA’s own
regulations provide that the BIA “may summarily dismiss any
appeal or portion of any appeal . . . [that] fails to specify the
reasons for the appeal . . . .” 8 C.F.R. § 1003.1(d)(2)(i) (emphasis
added); see also 8 C.F.R. § 1003.3(b); Form EOIR-26. This
permissive language suggests that it is within the agency’s
discretion to determine when to dismiss summarily an appeal for
lack of specificity and when the BIA is sufficiently apprised of the
applicable issues to entertain the appeal. See Esponda v. Att’y
Gen., 453 F.3d 1319, 1321 (11th Cir. 2006); Cf. Bhiski, 373 F.3d
8
The court clarified that “[a]lthough we do not find that DHS has
waived the exhaustion requirement in this case (rather it waived the
requirement that an issue be ‘specifically’ raised in the notice of appeal),
we find the authority supporting the waiver doctrine persuasive in this
context.” Id. at 1121 n.5. Similarly, we find that the agency has waived
its specificity requirement in this case .
15
at 368 (explaining that the permissive term “may” in Notice of
Appeal Form EOIR-26 suggests “that the agency believes that a
brief is not necessary in all cases”). Given the BIA’s substantial
experience dealing with appeals from an IJ’s adverse credibility
determination, this discretion is well-placed. Cf. Jasch v. Potter,
302 F.3d 1092, 1095 (9th Cir. 2002) (explaining in the Title VII
context that “[w]hen an agency proceeds to reach the merits of the
case rather than dismiss the claim . . . , it has determined that
sufficient information exists for such adjudication. After all, the
agency itself is in a strong position to evaluate whether the
complainant has sufficiently complied with [the agency’s]
requests.”).
As Congress has empowered agencies to carry out their
delegated functions, the administrative system contemplates that
“agencies ‘should be free to fashion their own rules of procedure
and to pursue methods of inquiry capable of permitting them to
discharge their multitudinous duties.’” Sidabutar, 503 F.3d at 1120
(quoting FCC v. Pottsville Broad. Co., 309 U.S. 134, 143 (1940)).
Given this delegation to a coordinate branch, “our role is not to
substitute our own preference for the optimal administrative
procedure for the agency’s determination of its internal rules . . . .
Ignoring the BIA’s determination of these issues would amount to
a judicial determination that the Board acted ultra vires in
following its own rules.” Sidabutar, 503 F.3d at 1120; see McKart
v. United States, 395 U.S. 185, 194 (1969). It is well-established
that agencies may waive compliance with their “procedural rules
adopted for the orderly transaction of [agency] business . . . .”
Colo. Envtl. Coal. v. Wenker, 353 F.3d 1221, 1228 (10th Cir.
2004) (quoting Am. Farm Lines v. Black Ball Freight, 397 U.S.
532, 538-39 (1970)); see Weinberger v. Salfi, 422 U.S. 749, 766-67
(1975). As the BIA waived compliance with its specificity
requirement by choosing to address Bin’s petition on the merits, we
may not now reject the petition for review based on that
requirement. See Angelus Milling Co. v. Comm’r of Internal
Revenue, 325 U.S. 293, 297 (1945) (“If the Commissioner chooses
not to stand on his own formal or detailed requirements, it would
be making an empty abstraction, and not a practical safeguard, of
a regulation to allow the Commissioner to invoke technical
objections after he has investigated the merits of a claim and taken
16
action upon it”); Abdelqadar v. Gonzales, 413 F.3d 668, 670-71
(7th Cir. 2005) (“The agency’s assertion . . . that failure to preserve
an issue deprives us of subject-matter jurisdiction, so that we must
ignore the agency’s own forfeiture, lacks any visible means of
support.”); Nat’l Labor Relations Bd. v. Monsanto Chem. Co., 205
F.2d 763, 764 (8th Cir. 1953).
Holding that the BIA waived its specificity requirement
does not run counter to the purposes underlying the exhaustion
doctrine. The Supreme Court has explained that “[e]xhaustion is
generally required as a matter of preventing premature interference
with agency processes, . . . [giving the agency] an opportunity to
correct its own errors, to afford the parties and the courts the
benefit of its experience and expertise, and to compile a record
which is adequate for judicial review.” Salfi, 422 U.S. at 765.
While these are important concerns, “[w]here the BIA has issued
a decision considering the merits of an issue, even sua sponte, these
interests have been fulfilled.” Sidabutar, 503 F.3d at 1121. The
BIA has already had an opportunity to apply its experience and
expertise without judicial interference. So too, the fact that the
BIA has addressed the issue independently from the IJ ensures that
the record is adequate for our review. Indeed, the Sidabutar court
expressly limited the application of this rule to cases in which the
BIA “issues a full explanatory opinion or a discernible substantive
discussion on the merits over matters not presented by the alien,”
distinguishing cases where “the BIA summarily affirms the IJ
decision in toto without further analysis of the issue.” Id. at 1122
(citing 8 C.F.R. § 1003.1(e)(4)).
While we need not specify the precise limitations of this rule
here, we note that the BIA did issue a “discernible substantive
discussion on the merits” in this case. See id. Rather than issuing
a one-member streamlined opinion under 8 C.F.R. § 1003.1(e)(4),
the BIA considered Bin’s case as a three-member panel. It cited to
Matter of Burbano, 20 I. & N. Dec. 872, 874 (BIA 1994),
indicating that it had conducted an independent review of the
record and had exercised its own discretion in determining its
agreement with the reasoning and result of the IJ. See Paripovic v.
Gonzales, 418 F.3d 240, 243 n.4 (3d Cir. 2005); Arreguin-Moreno,
511 F.3d at 1232. In exercising its independent discretion, the BIA
17
made clear that it agreed only with the IJ’s adverse credibility
determination, and not necessarily with the IJ’s conclusions
regarding the relevant standards for relief. Accordingly, exercising
jurisdiction over Bin’s petition for review would not prematurely
interfere with the agency processes. The agency here had sufficient
opportunity to correct its own errors and apply its expertise to the
matter at hand. See Sagermark v. I.N.S., 767 F.2d 645, 648 (9th
Cir. 1985) (“Whether or not the decision on the merits was
technically before the BIA, the BIA addressed it thoroughly enough
to convince us that the relevant policy concerns underlying the
exhaustion requirement . . . have been satisfied here.”).
While we would usually hold that a petitioner’s failure to
present an issue to the BIA constituted a failure to exhaust, thus
depriving us of jurisdiction to consider it, here the BIA sua sponte
addressed and ruled on the unraised issue. In so doing the BIA
waived, as it was entitled to do, its specificity requirement under 8
C.F.R. § 1003.3(b). Because the BIA waived its specificity
requirement and addressed the IJ’s credibility determination on the
merits, thereby exhausting the issue, we have jurisdiction to
consider the petition for review. See Sidabutar, 503 F.3d at 1120.
IV.
We now address the merits of Bin’s appeal. Bin seeks a
new credibility determination, claiming, among other things, that
the IJ incorrectly identified two purported discrepancies between
Bin’s testimony and his written affidavit. We disagree with Bin’s
arguments and hold that substantial evidence supports the IJ’s
credibility determination.
The first inconsistency noted by the IJ was a discrepancy
between Bin’s written affidavit and his testimony before the IJ
concerning the reasons given for his arrest in 1999. In his
affidavit, Bin stated that “[a]t the beginning of August in 1999[]
five or six police officers suddenly showed up at my home. They
said that I practiced Falun Gong and believed the evil religion.
They told me that I was under arrest. I could not resist. As a
result, I was taken to the police station.” A.R. 339 (emphasis
added). On direct examination, however, Bin stated—and then
18
repeated—that he was given no reason for the arrest, either at his
house or at the police precinct. When given an opportunity to
explain the contradiction, Bin merely replied that “[w]ell, I forgot
sometime even what I had written in my statement.” A.R. 90. He
added: “I don’t have a good memory in my mind and sometimes
I would miss a few sentences that I have written in my statement.”
A.R. 90.
Bin’s testimony simply cannot be reconciled with his
affidavit. While Bin’s affidavit stated that the arresting officers
said that Bin practiced Falun Gong, Bin testified quite clearly that
he was not given a reason for his arrest and that he was simply
taken to the police precinct by force. Given Bin’s differing
positions concerning the circumstances of his arrest, there was
reason for the IJ to doubt Bin’s credibility.
Bin’s attempt to explain the contradiction only exacerbated
these doubts. In stating that he “forgot sometime even what [he]
had written in [his] statement,” Bin seemed to be testifying not
from his independent recollection of his purported arrest, but from
his recollection of what he had written in the affidavit he prepared
specifically to apply for asylum. In this regard, the inconsistency
between Bin’s testimony and affidavit created the perception that
Bin manufactured a story to tell to the IJ.
This discrepancy goes to the heart of Bin’s asylum
application. See Gao v. Ashcroft, 299 F.3d 266, 272 (3d Cir.
2002). Courts have recognized that “attempts by the applicant to
enhance his claims of persecution” go to the heart of a petitioner’s
claim for relief. Sarr v. Gonzales, 485 F.3d 354, 360 (6th Cir.
2007); Damaize-Job v. I.N.S., 787 F.2d 1332, 1337 (9th Cir. 1986);
see also id. (differentiating such bolstering attempts from “minor
discrepancies in dates that are attributable to the applicant’s
language problems or typographical errors”). In this case, the IJ
was not convinced that Bin was arrested at all, let alone for one of
the statutorily-protected grounds necessary to be eligible for
asylum and withholding of removal. Thus, a discrepancy
concerning the very reason for Bin’s arrest, that on the one hand
would give rise to an asylum claim, or on the other hand would not,
19
goes to the heart of Bin’s claim for relief.9
The second inconsistency relates to the manner in which Bin
purportedly practiced Falun Gong after being released from
detention in 1999 and before his subsequent arrest in 2004. Bin
stated in his affidavit that, on occasion, he invited other Falun
Gong practitioners to his parents’ home to practice Falun Gong
together. Before the IJ, however, Bin made clear that after 1999 he
only practiced in his parents’ house by himself. When asked about
the discrepancy, Bin explained that “[w]ell, I did write [that I
invited other practitioners to my parents’ house] in my statement so
I presume[d] that you knew about it,” and further, that he did not
understand the questions asked of him. A.R. 88-89.
This inconsistency also goes to the heart of Bin’s claim. Bin
claims that he was arrested for practicing Falun Gong. If he was
arrested for another reason, or not arrested at all, this would be fatal
to his asylum claim. Thus, the location where Bin practiced Falun
Gong is relevant in that it bears on how likely it was that the
Chinese authorities knew of his Falun Gong activities. If he truly
practiced secretly and alone in his home, as he told the IJ, it is hard
to believe that the authorities could have found out about his
practice of Falun Gong and persecuted him for that reason. Bin’s
inconsistent testimony on this central issue is thus material to Bin’s
claim for relief.
9
We note that this inconsistency comes amidst Bin’s
otherwise unpersuasive and perhaps evasive testimony: while Bin
claims to have been interrogated at the police precinct, he was
unable to recall what kind of questions the Chinese authorities
asked of him; while Bin stated that his mother was interrogated by
police, Bin did not know anything that was asked of her or when
the interrogation took place; while he stated that the Chinese
authorities prepared a document admonishing him not to practice
Falun Gong again, Bin was unable to remember any of its contents;
while he was brought by his family to see a doctor, he did not have
any medical proof concerning his stomach condition; and while Bin
stated that he came to the United States to apply for asylum, when
approached by Border Patrol agents he stated that he came for
economic reasons.
20
This discrepancy is buttressed by the IJ’s finding as to Bin’s
demeanor. When asked how it could be that, since he practiced
secretly, the authorities came to learn he was practicing Falun
Gong in 2004, Bin “stuttered and was unable to provide a rational
explanation . . . .” A.R. 50. We have noted that “[a]n immigration
judge alone is in a position to observe an alien’s tone and
demeanor” and is “uniquely qualified to decide whether an alien’s
testimony has about it the ring of truth.” Abdulrahman, 330 F.3d
at 597; see Dia v. Ashcroft, 353 F.3d 228, 249-50 (3d Cir. 2003)
(en banc).
Given the inconsistencies relied on by the IJ and Bin’s
unpersuasive demeanor, we apply our deferential standard of
review and hold that a reasonable adjudicator would not be
compelled to conclude that Bin was credible. See Abdulrahman,
330 F.3d at 599; see also Tarrawally v. Ashcroft, 338 F.3d 180, 187
(3d Cir. 2003) (noting that “although some minor discrepancies”
between petitioner’s affidavit and testimony “might be
understandable,” petitioner’s “irreconcilable contradictory
assertions” supported the IJ’s adverse credibility determination).
The IJ provided “specific[,] cogent reasons” for making the adverse
credibility determination, Dia, 353 F.3d at 249-50, and thus, we
hold that the determination was supported by substantial evidence.
V.
For the foregoing reasons, we will deny the petition for
review.
21