Peng Shen v. Merrick Garland

FOR PUBLICATION

UNITED STATES COURT OF APPEALS

FOR THE NINTH CIRCUIT

PENG SHEN, No. 16-71315

Petitioner, Agency No.

v. A200-275-534

MERRICK B. GARLAND, Attorney

General, OPINION

Respondent.

On Petition for Review of an Order of the

Board of Immigration Appeals

Argued and Submitted May 17, 2022

Pasadena, California

Filed July 24, 2024

Before: Eric D. Miller and Daniel P. Collins, Circuit

Judges, and Edward R. Korman,* District Judge.

Opinion by Judge Collins;

Dissent by Judge Miller

*

The Honorable Edward R. Korman, United States District Judge for the

Eastern District of New York, sitting by designation.

2 SHEN V. GARLAND

SUMMARY**

Immigration

The panel granted Peng Shen’s petition for review of the

Board of Immigration Appeals’ decision upholding the

denial of asylum and related relief on adverse credibility

grounds, and remanded.

Shen testified that a mandatory pre-marital health exam

led to the discovery that she was pregnant, which in turn led

to her forced abortion. The BIA upheld the immigration

judge’s adverse credibility determination based, in part, on

Shen’s inconsistent testimony and demeanor after counsel

for the Department of Homeland Security (“DHS”)

suggested on cross-examination that the Chinese

government had eliminated its requirement for pre-marital

health check-ups by the time Shen underwent her

examination in January 2003. After the panel inquired at oral

argument whether the record revealed exactly when the

referenced change in Chinese law had taken effect, and DHS

counsel responded that it did not, Shen’s counsel submitted

a citation to an August 19, 2003, article from the official

China Daily newspaper announcing the elimination of the

mandatory premarital health examination requirement

effective October 1 of that year. The panel requested

supplemental briefing to address whether the court could

take judicial notice of the effective date of the repeal of the

health examination requirement, and the impact on the

**

This summary constitutes no part of the opinion of the court. It has

been prepared by court staff for the convenience of the reader.

SHEN V. GARLAND 3

credibility determination if the change occurred after Shen

underwent her health checkup.

The panel concluded that it could properly make an

independent determination, as a question of foreign law, that

the relevant change in Chinese law took effect on October 1,

2003. As a result, DHS counsel’s suggestion in cross-

examination that the requirement had already been repealed

at the time of Shen’s check-up rested on a clear misstatement

of the applicable Chinese law. That error, in turn, led the IJ

to wrongly conclude that Shen became flustered after being

confronted with information showing that her statements

were false, and vitiated the agency’s given reasons for

concluding that this cross-examination supported the

adverse credibility determination.

The panel rejected the Government’s argument that Shen

had failed to exhaust the legal question of the Chinese law’s

effective date. Given DHS counsel’s misstatement of

Chinese law, the agency, as the trier of fact, could reasonably

come out either way as to the resulting effect on Shen’s

credibility. Accordingly, the panel remanded for a

reassessment of this credibility ground. Considering the

totality of the circumstances, the panel also concluded that

the BIA’s only remaining factor for upholding the adverse

credibility determination was insufficient, standing alone, to

avoid a remand.

Dissenting, Judge Miller wrote that the panel

inappropriately considered the date of the Chinese policy

change where Shen did not raise the issue in her brief to this

court, did not exhaust any arguments based on the China

Daily article before the agency, and the article was not part

of the administrative record. Additionally, in Judge Miller’s

view, as it relates to this case, the date of the policy change

4 SHEN V. GARLAND

presented a question of fact, not one of law. Moreover, the

China Daily article and other sources the majority cited

referencing the text of China’s marriage regulations did not

demonstrate that Shen was compelled to undergo a pre-

marital health exam in January 2003. Judge Miller would

uphold the credibility determination as supported by

substantial evidence.

COUNSEL

Thomas J. Tarigo (argued), Law Offices of Thomas J.

Tarigo, Los Angeles, California, for Petioner.

Raya Jarawan (argued), Ruth R. O’Sullivan, and Matthew B.

George, Trial Attorneys, Office of Immigration Litigation,

Civil Division; Derek C. Julius, Senior Litigation Counsel;

Anthony C. Payne, Assistant Director, Office of

Immigration Litigation; Brian M. Boynton and Benjami C.

Mizer, Principal Deputy Assistant Attorneys General, Civil

Division; Chad A. Readler, Acting Assistant Attorney

General, Civil Division; United States Department of

Justice, Washington, D.C.; for Respondent.

OPINION

COLLINS, Circuit Judge:

Peng Shen, a citizen of the People’s Republic of China,

applied for asylum, withholding of removal, and relief under

the Convention Against Torture. An Immigration Judge

(“IJ”) rejected her application in an order that found her not

SHEN V. GARLAND 5

to be a credible witness, based on her demeanor and

inconsistencies in her testimony. On appeal, the Board of

Immigration Appeals (“BIA”) upheld the IJ’s order, and

Shen then petitioned this court for review. Because we

conclude that the agency’s credibility determination may

have been affected by a misstatement of Chinese law that

was a centerpiece of the Government’s cross-examination of

Shen at her removal hearing, we grant Shen’s petition and

remand for further proceedings.

I

A

In July 2011, Shen arrived in the United States from

China on a nonimmigrant tourist visa that permitted her to

stay only until January 5, 2012. However, on December 8,

2011, Shen filed an application for asylum, withholding of

removal, and relief under the Convention Against Torture,

alleging that she had been subjected to a forced abortion in

China in February 2003. See 8 U.S.C. § 1101(a)(42)

(providing that, for purposes of determining eligibility for

asylum, “a person who has been forced to abort a pregnancy

. . . shall be deemed to have been persecuted on account of

political opinion”). While her application was still pending,

the Department of Homeland Security (“DHS”) initiated

removal proceedings in March 2012 by serving Shen with a

Notice to Appear asserting that she was removable for

having overstayed her visa. See 8 U.S.C. § 1227(a)(1)(B).

At an initial hearing in immigration court in May 2012, Shen

conceded removability as charged, but she stated that she

wished to pursue her application for asylum and other relief.

A merits hearing on Shen’s application was held before

an IJ in February 2015. When questioned about her claim

that she had a compulsory abortion, Shen initially stated that

6 SHEN V. GARLAND

the abortion occurred in February 2011, but she immediately

corrected herself and said that it was “2013.” When asked

what was the right year, Shen again corrected herself and

said “2003.” According to Shen, in January 2003 she went

for a premarital medical examination that Chinese law

required before she could be issued a license to marry her

then-fiancé. She testified that, during the examination, it

was discovered that she was pregnant, which was a violation

of the “Chinese family planning process.” Shen stated that

she was informed that she must obtain an abortion before she

would be issued a marriage license. She also said that her

pregnancy was reported to the leader of her local work unit

at the Chinese Youth Travel Agency in Chengdu. Shen

stated that she took no steps to obtain an abortion, but that,

on February 11, 2003, the director of the family planning

unit of her work unit and two others forcibly took her from

her workplace to the hospital, where an abortion was

involuntarily performed on her while she was physically

restrained. Shen also testified that, in April 2004, she had a

medically necessary surgery due to an ectopic pregnancy.

During cross-examination, counsel for DHS challenged

Shen’s assertion that Chinese law required her to obtain a

premarital medical examination:

DHS Counsel: Isn’t it true that in 2003 the

Chinese government did away with the

requirement that couples present themselves

for pre-marital checkups?

Shen: Pre-marital checkup; it’s part of the

responsibilities for children. What I meant is,

I thought that it’s necessary to get the

checkup of both parties whether both parties

are healthy.

SHEN V. GARLAND 7

IJ: Okay. Ma’am, you need to listen. Why

don’t you try and listen to the question.

DHS Counsel: Ma’am, isn’t it true that in

2003 the Chinese government did away with

the requirement that couples have to submit

themselves to a pre-marital check up to

obtain a marriage license?

Shen: Well, I went to get the checkup done.

I don’t know whether what you say is true.

DHS Counsel: Okay. So, why did you—you

went voluntarily?

Shen: I went there voluntarily.

DHS Counsel: So, it was not a requirement

or was it?

Shen: It was not.

DHS Counsel: Okay.

Shen: Nobody forced me to go.

IJ: Oh. So it was not a requirement?

Shen: No. Somebody should not be required.

Well, looking at it this way, probably not.

At that point, the IJ intervened, asking Shen whether

DHS counsel was correct in stating “that they actually did

away with that requirement,” and Shen said “Yes.” The IJ

pressed Shen on the apparent contradiction with her earlier

testimony, and Shen evidently became distraught. The IJ

told her to “[c]alm down, because this is very important,”

given that “what you’re saying now contradicts what you

said earlier.” The IJ also stated, “I’ll note for the record

8 SHEN V. GARLAND

[Shen] appears to be crying.” The hearing transcript reflects

that, when Shen was asked directly to “explain” the

discrepancy in her testimony, the next comment was the IJ’s

statement that “[Shen] has taken a deep breath and is

pausing.” When Shen still said nothing, the IJ asked, “Can

you answer this question or can you not?” Shen asked to

have the question repeated and the IJ stated, “Well, we’re

going to try it. This will be the last time. Okay, and the court

believes that you’re having difficulty because of this

contradiction, and you don’t appear to be able to answer the

question.” When pressed again to explain the inconsistency,

Shen stated:

Yes. I did contradict myself. I admit I have

misspoken. Even it’s up to now that you

finally—it has been brought to my attention

pre-marital checkup was done by a voluntary

basis, not by force. About this matter; it

happened in year 2003, and on top of that I’m

quite nervous today. I’m sorry.

The IJ did not issue a ruling at the end of the February

2015 hearing, but instead took the matter under submission.

At a further hearing in August 2015, the IJ issued a written

decision denying Shen’s application for relief. The IJ’s

denial of relief rested primarily on her conclusion that Shen

was “not a credible witness.” In finding Shen not credible,

the IJ relied on five grounds.

First, the IJ noted that Shen admitted that she had falsely

claimed that she was married when she applied for a tourist

visa to the U.S. in 2011. At the merits hearing on her

application, Shen explained that she lied about her marital

status because she had been told by the “middle agent” who

SHEN V. GARLAND 9

assisted her that she was more likely to succeed in getting a

visa if she was listed as married. The IJ acknowledged that

misrepresentations to obtain entrance to the U.S. may

sometimes support an application for relief by affirmatively

demonstrating the alien’s effort to escape persecution, but

the IJ did not believe that that was the case here. As the IJ

explained, the alleged forced abortion had occurred eight

years earlier, and Shen specifically testified that she did not

form the intent to seek asylum until after she had arrived in

the U.S.

Second, the IJ stated that Shen’s credibility was

undermined by her initial confusion about the year in which

her forced abortion occurred. The IJ concluded that,

although “misremembering dates is common and, in

isolation, trivial,” the range of years provided by Shen “were

separated by over a decade,” and Shen was unable to explain

why she provided dates with “such vast differences.”

Third, the IJ held that Shen had “testified inconsistently

regarding her pre-marital checkup.” The IJ explained her

reasoning as follows (citation omitted):

Initially, she claimed such checkups were

required to obtain a marriage license. When

confronted with contradictory information by

the Department, she began to cry. Given the

opportunity to explain her statement, she

asked for the question to be repeated. She

then took several deep breaths and a long

pause, asked for the question to be repeated

again, and then admitted that she had

contradicted herself. [Shen] then explained

that she underwent the checkup voluntarily,

and that she misremembered because it was

10 SHEN V. GARLAND

so long ago. Although individuals are wont

to misremember details from a decade ago,

[Shen’s] demeanor upon questioning was

telling. She cried when confronted with

information showing her statement was false,

took a long pause before formulating a

response, and asked for the question to be

repeated twice. The Court finds it likely that

she was stalling in order to formulate a

response, and that her demeanor thus further

undermines her credibility.

Fourth, the IJ held that Shen’s testimony was

“inconsistent with the documentary evidence.” Shen had

submitted a copy of her household register as documentary

evidence, and the register was accompanied by a Chinese-

language “notarial certificate” attesting to the authenticity of

the register and to the accuracy of the accompanying English

translation of the register. According to its accompanying

English translation, the notarial certificate was dated

“February 14, 2012” and included the notary’s statement that

the attached register was “a true copy of the Household

Register presented to me by Ms[.] Shen Peng.” At the

hearing, DHS counsel asked Shen how was “this possible

since you were here [in the U.S.] on February 14, 2012.”

Shen responded, “I’m sorry. I came here on July 6, 2011.”

DHS counsel then said, “Correct. So, how is it possible that

you presented the household register to this notary in China,”

and Shen replied, “I showed it to the notarial clerk.” Shen’s

own counsel then showed her the date and said “You see,

this is the date of issue. You were already here. How can

this be?” After Shen stated that she did not understand, the

IJ intervened and explained the issue very carefully, and

Shen said, “My father went to the notary place and got it for

SHEN V. GARLAND 11

me.” When pressed further, Shen stated, “First of all, I asked

my dad to do this notary. I asked somebody to take my I.D.

card, and bring it back to China. I got those two sets [of

documents] because it was my dad who got them for me.”

In her written ruling, the IJ stated that, because “the

certificate unambiguously states that [Shen] presented it in

China,” Shen’s “claims regarding the document undermine

its authenticity and, thus, her veracity.”

Fifth, the IJ concluded that there was an inconsistency

between Shen’s written statement in support of her asylum

application and her testimony at the hearing. In her

declaration, Shen stated that, when the “clerk of [the]

marriage registration department” told her that she “had to

have the abortion first” before she and her then-fiancé “could

register [their] marriage,” Shen “cried out in front of the

clerk, and begged not to kill [her] baby.” In her written

decision, the IJ thought that this comment was inconsistent

with Shen’s hearing testimony. Specifically, the IJ pointed

to Shen’s testimony that (1) after meeting with the marriage

registration department, she decided to ignore the instruction

to get an abortion, and (2) Shen did not expect that she would

be physically carried away to the hospital in the way that she

subsequently was.

Having found Shen not credible, the IJ further concluded

that the documentary evidence that Shen had submitted was

“insufficient to corroborate her testimony.” The IJ therefore

denied all relief.

B

Shen appealed the IJ’s order. In her brief to the BIA, she

adhered to the view that she “went to the marriage

registration office and was told that she must complete a pre-

marital checkup,” which was “routinely performed to

12 SHEN V. GARLAND

acquire a marriage license.” Shen generally challenged the

IJ’s adverse credibility finding and, with respect to the

premarital check-up, Shen specifically disputed the IJ’s

“demeanor-based” conclusion that, during the

Government’s cross-examination, Shen was “stalling in

order to formulate a response.”

The BIA upheld the IJ’s order denying relief. However,

in upholding the IJ’s credibility determination, the BIA

expressly rejected some of the grounds upon which the IJ

had relied. Specifically, the BIA held that Shen “was not

given an opportunity to explain” the inconsistency

concerning the year in which the forced abortion allegedly

occurred and was likewise “not given an opportunity to

explain the inconsistency the Immigration Judge perceived

between her testimony and declaration regarding her

response to being told by a clerk that she could not obtain a

license unless she had an abortion.” Accordingly, the BIA

concluded, these two grounds—which were the second and

fifth grounds provided by the IJ—“cannot support the

adverse credibility finding.” The BIA also declined to rely

on the IJ’s conclusion that Shen’s credibility was undercut

by the false statements in her visa application (which was the

first of the five grounds given by the IJ). The BIA did not

find that this ground was improper; instead, it held that the

parties’ dispute over this ground did not need to be resolved

because, under our (since-overruled) decisions in Rizk v.

Holder, 629 F.3d 1083 (9th Cir. 2011), and Wang v. INS, 352

F.3d 1250 (9th Cir. 2003), the IJ’s “adverse credibility

determination” must be upheld “so long as even one basis is

supported by substantial evidence.” Rizk, 629 F.3d at 1088;

but see Alam v. Garland, 11 F.4th 1133, 1137 (9th Cir. 2021)

(en banc) (holding that, “[t]o the extent that our precedents

employed th[is] single factor rule . . . we overrule those

SHEN V. GARLAND 13

cases”). The BIA’s upholding of the IJ’s adverse credibility

determination therefore rested solely on two of the five

grounds articulated by the IJ.

First, the BIA held that the IJ properly “found that [Shen]

gave inconsistent testimony regarding her pre-marital

checkup.” The BIA explained its reasoning on this score as

follows (citations omitted):

On direct examination, [Shen] testified

that pre-marital checkups are routinely

performed on both parties and that such

checkups are required in order to acquire a

marriage license. On cross-examination, the

Department of Homeland Security (“DHS”)

confronted [Shen], asking whether the

Chinese government discontinued requiring

pre-marital checkups in 2003. She then

changed her testimony and stated that pre-

marital checkups were not required and she

voluntarily went to her checkup. DHS

counsel asked why she had previously

testified that the pre-marital checkup was

required in order to get a marriage license,

and during this line of questioning, [Shen]

began crying, took deep breaths and paused,

and asked twice for the question to be

repeated. She then admitted that she had

“contradict[ed]” herself and stated she was

nervous and the checkup occurred in 2003.

The Immigration Judge found that [Shen]

was likely stalling in order to formulate a

response to DHS’s question, and concluded

that the inconsistency, along with [Shen’s]

14 SHEN V. GARLAND

demeanor when confronted with it,

undermined her credibility.

We are unpersuaded by [Shen’s]

argument that the negative demeanor finding

is unsupported by the record. The

Immigration Judge provided specific

examples of how [Shen’s] demeanor

contributed to the adverse credibility finding,

noting that [Shen] cried, took long pauses,

and asked for the question to be repeated

twice, and these findings are supported by the

record. See Kin v. Holder, 595 F.3d 1050,

1056 (9th Cir. 2009) (acknowledging that

Immigration Judge determinations regarding

demeanor are given “special deference” and

that the Immigration Judge “must still

provide specific examples of a petitioner’s

demeanor that would support this basis for an

adverse credibility determination”).

Second, the BIA held that the IJ properly relied on the

fact that the 2012 notarial certificate accompanying the copy

of Shen’s household register incorrectly stated that Shen had

presented the register to the notary, which could not have

been correct given that she has remained in the United States

since 2011. The BIA concluded that, beyond generally

defending the reliability and adequacy of her documentary

evidence, Shen “did not make any specific arguments

regarding this adverse credibility ground on appeal.”

Having upheld the adverse credibility determination on

these grounds, the BIA concluded that Shen’s documentary

evidence was insufficient to “overcome any credibility

issues and satisfy her burden of proof.” In particular, the

SHEN V. GARLAND 15

BIA held that, as it had already noted, there was “an

inconsistency in the record regarding how the notarial

certificate for the household registration was obtained in

China, which undercuts the corroborative value of this

document.”

In light of the lack of credible testimony and the lack of

documentary evidence that otherwise supported her claims,

the BIA held that Shen had failed to carry her burden of

proof with respect to her requests for asylum, statutory

withholding of removal, and relief under the Convention

Against Torture.

Shen timely petitioned for review in this court. We have

jurisdiction under § 242 of the Immigration and Nationality

Act (“INA”), 8 U.S.C. § 1252. Because the BIA’s decision

to uphold the IJ’s credibility determination rested on only

two grounds, we consider only those specific grounds in

reviewing the BIA’s decision. See Iman v. Barr, 972 F.3d

1058, 1064–65 (9th Cir. 2020).

II

We first consider the BIA’s reliance on Shen’s flustered

response to DHS counsel’s cross-examination confronting

her with the assertion that “in 2003 the Chinese government

did away with the requirement that couples present

themselves for pre-marital checkups” and suggesting that

she therefore had falsely claimed that her examination was

mandatory. As we have explained, when confronted with

DHS counsel’s suggestion that the mandatory nature of the

check-up had already been eliminated by the time of her

examination in January 2003, Shen initially said that she did

not “know whether what [DHS counsel] sa[id] is true.” But

when pressed further, Shen accepted DHS counsel’s

assertion, changed her testimony, and said that she went to

16 SHEN V. GARLAND

the check-up “voluntarily.” As the IJ noted, “when

confronted with information showing her statement was

false, [Shen] took a long pause before formulating a

response, and asked for the question to be repeated twice”

(emphasis added). Shen ultimately stated that, now that “it

ha[d] been brought to [her] attention [the] pre-marital

checkup was done by a voluntary basis, not by force,” she

recognized that she must have “misspoken,” and she

attributed that error to the fact that the events occurred so

long ago and that she was “quite nervous today.”

At oral argument in this matter, the court inquired as to

whether the record revealed exactly when the referenced

change in Chinese law had taken effect and, if it did not,

whether that constituted a question of foreign law as to

which the court could take judicial notice. The Government

responded that the record was unclear as to that point and

that the Government opposed any such judicial notice. After

argument, Shen’s counsel submitted a citation to an August

19, 2003 article from the official China Daily newspaper

announcing the elimination of the mandatory premarital

health examination requirement and stating that this change

in the law would take effect on “Oct. 1.” China simplifies

procedures for marriage, divorce, CHINA DAILY (Aug. 19,

2003).1 The Government opposed Shen’s submission of this

article, arguing that it violated the statutory limitations on

expansion of the administrative record and on consideration

of unexhausted contentions. We thereafter requested and

received supplemental briefing from the parties concerning

these points.

As we shall explain, we conclude that we may properly

make an independent determination, as a question of foreign

1

https://www.chinadaily.com.cn/en/doc/2003-08/19/content_256235.htm

SHEN V. GARLAND 17

law, that the relevant change in Chinese law took effect on

October 1, 2003. As a result, DHS counsel’s suggestion, in

cross-examination, that the change had already taken effect

by the time of Shen’s check-up in January 2003 rested on a

clear misstatement of the applicable Chinese law. And

because that improper cross-examination may have had a

substantial prejudicial effect on the agency’s assessment of

Shen’s credibility, we grant Shen’s petition and remand.

A

The Government argues that, because the INA generally

bars supplementation of the administrative record during

judicial review, we cannot consider extra-record materials

addressing the effective date of the repeal of the Chinese law

requiring premarital medical examinations. We disagree.

The judicial review provisions of the INA generally

provide that, when an alien files a petition for review from a

removal order, “the court of appeals shall decide the petition

only on the administrative record on which the order of

removal is based.” 8 U.S.C. § 1252(b)(4)(A). That means

our review is generally limited to “the record of the

pleadings, evidence adduced, and proceedings before the

agency.” 28 U.S.C. § 2347(a) (emphasis added); see also

8 U.S.C. § 1252(a)(1) (stating that, with the exception of

§ 2347(c), the judicial review provisions of Chapter 158 of

Title 28 of the U.S. Code generally apply to petitions for

review of removal orders). Moreover, the INA specifically

provides that, unlike in review of other agency matters, a

court of appeals reviewing a removal order “may not order

the taking of additional evidence [by the agency] under

section 2347(c)” of Title 28 of the U.S. Code. 8 U.S.C.

§ 1252(a)(1) (emphasis added).

18 SHEN V. GARLAND

While the INA thus places strict limits on our ability to

consider additional “evidence” that is not contained in the

agency record, it does not similarly restrict our ability to

conduct independent legal research concerning any question

of law that properly arises in our consideration of a petition

for review of a removal order. On the contrary—subject

only to enumerated exceptions that are inapplicable here—

the INA expressly preserves our authority to resolve any

“question[] of law raised upon a petition for review.”

8 U.S.C. § 1252(a)(2)(D). And, here, the issue of the

effective date of the relevant Chinese law’s repeal is a

readily resolvable question of law, not a question of fact.

“At common law, the content of foreign law relevant to

a dispute was treated as a question of fact.” See Animal Sci.

Prods., Inc. v. Hebei Welcome Pharm. Co., 585 U.S. 33, 41

(2018) (simplified). However, treating foreign legal

questions as factual issues “had a number of undesirable

practical consequences.” Id. at 42 (citation omitted). In

particular, the parties were put to the burden of presenting

foreign legal materials in conformity with the rules of

evidence, and appellate courts were required to apply

deferential standards in reviewing district court rulings on

foreign law. Id. (citation omitted). This approach to foreign

law was subsequently rejected with the simultaneous

adoption, in 1966, of Federal Rule of Civil Procedure 44.1

and Federal Rule of Criminal Procedure 26.1. Id. at 42 &

n.4. Under these rules, a court’s “determination” of foreign

law “must be treated as a ruling on a question of law,” and

the court “may consider any relevant material or source,

including testimony, whether or not submitted by a party or

admissible under the Federal Rules of Evidence.” FED. R.

CIV. P. 44.1; see also FED. R. CRIM. P. 26.1 (“Issues of

foreign law are questions of law, but in deciding such issues

SHEN V. GARLAND 19

a court may consider any relevant material or source—

including testimony—without regard to the Federal Rules of

Evidence.”). Moreover, under these rules, a court’s

independent research into foreign legal questions “does not

implicate the judicial notice and ex parte issues spawned by

independent factual research undertaken by a court.” De

Fontbrune v. Wofsy, 838 F.3d 992, 999 (9th Cir. 2016)

(emphasis added); see also id. at 997 (noting that the modern

approach embodied in Rule 44.1 “eschews any requirement

that the court formally take judicial notice of foreign law”).

Although these rules do not by their terms apply in

immigration proceedings or other agency matters, they

reflect a now-prevailing generalized view that issues of

foreign law should be treated as legal questions, and our

precedent has therefore extended that same approach to the

agency context, including specifically a petition for review

under the INA. Thus, in addressing the petition for review

in Pazcoguin v. Radcliffe, 292 F.3d 1209 (9th Cir. 2002), we

expressly held that “[t]he determination of foreign law is a

question of law” as to which we may “conduct[] our own

research” and “reach [our] own decisions on the basis of

independent examination of foreign legal authorities.” Id. at

1216 (citing, inter alia, FED. R. CIV. P. 44.1).

Against this backdrop, we conclude that the effective

date of the relevant change in Chinese law counts as a

question of foreign law as to which we may conduct our own

research in deciding Shen’s petition for review under the

INA. It is well settled in the context of domestic law that the

determination of the effective date of any particular

provision of law raises a legal question, and not a factual

one. See, e.g., Mayers v. INS, 175 F.3d 1289, 1302 (11th

Cir. 1999) (“The question of a statute’s effective date is

generally considered to be a pure question of law for courts

20 SHEN V. GARLAND

to decide.”); Sandoval v. Reno, 166 F.3d 225, 239–40 (3d

Cir. 1999) (“[T]he question of a statute’s effective date

appears to present ‘a pure question of statutory construction

for the courts to decide.’” (citation omitted)); Dallis v.

Martin, 929 F.2d 587, 589 (10th Cir. 1991) (holding that “the

effective date of the particular Sentencing Reform Act

section” at issue was “a question of law”). We can discern

no logical reason why a different conclusion would apply in

the context of foreign law. Accordingly, we hold that the

effective date of the repeal of the Chinese law requiring a

medical examination as a condition of a marriage license

raises a question of foreign law as to which we may

“conduct[] our own research.” Pazcoguin, 292 F.3d at 1216.

And we therefore reject, as inapposite, the Government’s

reliance on case authority holding that, in addressing a

petition for review under the INA, we may not take “judicial

notice” of factual material that is “not part of the

administrative record.” See Fisher v. INS, 79 F.3d 955, 963

(9th Cir. 1996) (en banc). That holding rests on the above-

discussed rule that the INA precludes us from “consider[ing]

evidence that is not part of the administrative record” or

“conduct[ing] factfinding in the first instance.” Id.

(emphasis added and citations omitted). As we have

explained, determining the effective date of a foreign law is

a legal question that involves neither “factfinding” nor

“judicial notice” of adjudicative facts.2

2

The dissent likewise cites no authority that supports its view that the

effective date of a foreign law raises a question of fact rather than a

question of law. See Dissent at 37–38. Instead, it relies on inapposite

cases that address, not the de jure content of foreign law (which is all

that we address here), but the de facto real-world practices of foreign

governments, sometimes in violation of the laws on their books. See,

SHEN V. GARLAND 21

Here, that legal question is readily resolved by

consulting an authoritative Chinese source. Specifically, as

Shen properly notes, the state-owned China Daily

newspaper announced the abolition of the health

examination requirement for marriage licenses in an August

19, 2003 article that expressly stated that the change would

take effect on October 1, 2003. See supra at 16. It follows

that, at Shen’s hearing, the DHS attorney plainly misstated

the content of Chinese law in his questioning of Shen.

The dissent contends that, in determining this issue of

Chinese law, we are limited to considering only “legal

authorities,” such as “cases, statutes, regulations, treatises,

scholarly articles, legislative history, treaties and other legal

materials.” See Dissent at 39 (citations omitted). But even

under the Federal Rules, a court determining a question of

foreign law may consult “any relevant material or source,

including testimony, whether or not submitted by a party or

admissible under the Federal Rules of Evidence.” See FED.

e.g., B.R. v. Garland, 26 F.4th 827, 845 (9th Cir. 2022) (addressing, not

a question of foreign law, but whether, in practice, “the Mexican

government would acquiesce in the torture of its citizens at the hands of

cartels”); Fisher, 79 F.3d at 962 (distinguishing between the “mere

existence of a law permitting the detention, arrest, or even imprisonment

of a woman who does not wear the chador in Iran” and the actual

enforcement of such a law “to inflict suffering on account of an

individual’s religious or political beliefs, race, nationality, or

membership in a particular social group”); Kamalyan v. Holder, 620 F.3d

1054, 1056–57 (9th Cir. 2010) (noting that the petitioner acknowledged

that “Jehovah’s Witnesses could now legally proselytize” in Armenia,

but that he also claimed that this law exists “only on paper” and that, in

fact, “law enforcement still arrested Jehovah’s Witnesses for

proselytizing”). No party here has suggested that, to the extent that Shen

was required to obtain a premarital medical examination in January

2003, that was the result of extra-legal governmental practices that

necessitate relevant factfinding about such unlawful practices.

22 SHEN V. GARLAND

R. CIV. P. 44.1 (emphasis added). That includes even a

foreign government’s “official statement,” submitted for

purposes of litigation, “on the meaning and interpretation of

its domestic law.” Animal Sci. Prods., 585 U.S. at 36; see

id. at 46 (noting that, precisely because such a statement is

not itself a binding legal determination, it “is ordinarily

entitled to substantial but not conclusive weight”). If, as the

Supreme Court has held, a foreign government’s description

of its law can be properly considered even when that

statement was formulated specifically for litigation

purposes, we discern no conceivable basis for concluding

that we may not consider an official and unambiguous

description of foreign law contained in a state-owned

publication.

In any event, English translations of the actual texts of

the relevant laws are readily available on Chinese

government webpages, and they confirm the China Daily

article’s statement that the premarital medical check-up

requirement was eliminated effective October 1, 2003.3 The

dissent suggests that perhaps the Chinese government

agencies that posted these English-language copies may

have done an inadequate job of translating them, perhaps

even intentionally, see Dissent at 38–40, but this utterly

3

See Regulation on Marriage Registration, art. 22 (approved July 30,

2003) (stating that the “Regulation shall be put into force as of October

1, 2003” and that the “‘Regulations on Control of Marriage Registration’

approved by the State Council on January 12, 1994 and promulgated by

the Ministry of Civil Affairs on February 1, 1994 shall be abolished

simultaneously”), available at https://mzj.sh.gov.cn/MZ_zhuzhan902_

0-2-896-897/20200519/MZ_zhuzhan902_24167.html; see also

Regulations on Control of Marriage Registration, art. 9 (approved Jan.

12, 1994) (describing the requirement “for pre-marital health check-

ups”), available at http://www.china.org.cn/living_in_china/abc/2009-

06/24/content_18007155.htm.

SHEN V. GARLAND 23

groundless speculation provides no basis for doubting what

multiple sources now reaffirm, which is that the relevant

change in the premarital health check-up requirement took

effect on October 1, 2003. The dissent also complains that

we should not consult a regional government website when

it has published an English translation of a national

regulation, see Dissent at 40, but neither law nor logic

supports that contention. As we have explained, even under

the federal rules, “any relevant material or source” may be

consulted in determining foreign law, see FED. R. CIV. P.

44.1, and if a regional government happens to be the one that

has posted an English translation of a national law, we

perceive no reasonable basis for closing our eyes to it.

Finally, in a flagrant and ironic violation of all the same

principles the dissent (incorrectly) invokes against the

majority, the dissent scours the details of the actual text of

the regulations in order to raise additional points about the

scope of the premarital check-up requirement that no party

has ever raised either in the agency or this court. These

include whether the requirement, which the regulations

reveal was regionally administered, was ever in effect in

Chengdu, even before October 1, 2003, and whether, even

after that date, a similar requirement might have remained

applicable under some other law.4 See Dissent at 39–41. But

4

The Government has not contended—either before the agency or in this

court—that the premarital check-up requirement that was eliminated in

2003 had never been implemented in Chengdu. Nor has the Government

ever argued that the requirement may have remained applicable under

another law, which is the theory put forward by a Chinese law professor

in a different China Daily article cited by the dissent. See Dissent at 40–

41. This law professor’s theory is the basis for the dissent’s erroneous

claim that this article “contradicts” the China Daily article cited by Shen

in this court. See Dissent at 40–41. But there is no relevant

24 SHEN V. GARLAND

the only question of Chinese law properly before us is what

was the effective date of the 2003 repeal of the premarital

check-up requirement to which DHS counsel referred at

Shen’s hearing. The answer to that question is quite clear—

it was October 1, 2003. The DHS attorney therefore clearly

misstated the content of Chinese law in cross-examining

Shen.

B

The Government alternatively argues that, even if the

question of the Chinese law’s effective date is a legal one,

we still may not consider it because Shen assertedly failed to

exhaust the point before the agency. We reject this

contention.

Section § 242(d)(1) of the INA specifies that, before

seeking judicial review, an alien must “exhaust[] all

administrative remedies available to the alien as of right.” 8

U.S.C. § 1252(d)(1). Although we had long characterized

that requirement as jurisdictional, see Barron v. Ashcroft,

358 F.3d 674, 678 (9th Cir. 2004), the Supreme Court

contradiction: the cited law professor did not deny that the new 2003

marriage regulations repealed the 1994 regulations (which contained a

premarital check-up requirement) and replaced them with new rules that

deleted that requirement. See https://www.chinadaily.com.cn/

en/doc/2003-09/04/content_261136.htm. Indeed, the China Daily

article cited by the dissent also explicitly references a statement from the

Chinese Ministry of Health that “the new regulation has turned the

mandatory pre-marital physical check-up into a voluntary action.” Id.

In any event, a law professor’s theory that the 2003 amended regulation

might not actually have been sufficient to accomplish its goal of

eliminating the premarital check-up requirement does not speak to the

specific issue raised by DHS counsel at the hearing and is not properly

before us. And even if that law professor’s theory is correct, it would

just provide a second, cumulative reason why DHS counsel misstated

Chinese law at Shen’s hearing.

SHEN V. GARLAND 25

recently held that the INA’s exhaustion requirement is a non-

jurisdictional, but mandatory, claim-processing rule, see

Santos-Zacaria v. Garland, 598 U.S. 411, 416–23 (2023).

Because the Government here has properly raised the

exhaustion requirement, we must address whether it bars us

from considering the legal question of the Chinese law’s

effective date.

In describing what administrative exhaustion requires in

the context of an appeal to the BIA, we have drawn a

distinction between the basic “issues” raised by an alien in

challenging an IJ’s decision and the specific “arguments”

that the alien raises in support of those issues. Thus, we have

stated that, in appealing to the BIA, an alien “cannot satisfy

the exhaustion requirement by making a general challenge

to the IJ’s decision, but, rather, must specify which issues

form the basis of the appeal.” Zara v. Ashcroft, 383 F.3d

927, 930 (9th Cir. 2004) (emphasis added). But we have also

emphasized that an alien “need not, however, raise the

precise argument below” that he or she now makes in a

petition for review in this court. Vizcarra-Ayala v. Mukasey,

514 F.3d 870, 873 (9th Cir. 2008). This distinction dovetails

with the familiar rule of appellate practice that an issue is

adequately preserved for further review if the basic “claim”

was raised below and that appellants “are not limited to the

precise arguments they made below.” Yee v. City of

Escondido, 503 U.S. 519, 534 (1992). Here, as in the

appellate context, there is no “clear-cut line between cases

involving only an ‘enlargement’ of questions presented

below and those involving entirely new questions.” Illinois

v. Gates, 462 U.S. 213, 220 (1983). But wherever that

precise line may be, we have little difficulty concluding that

the correct effective date of the Chinese law is a permissible

sub-argument enlarging on an issue that was properly

26 SHEN V. GARLAND

exhausted before the agency. See Bare v. Barr, 975 F.3d

952, 960 (9th Cir. 2020) (holding that, under the exhaustion

requirement, a petitioner in this court “may raise a general

argument in the administrative proceeding and then raise a

more specific legal issue on appeal”).

In Shen’s brief to the BIA, she expressly objected to the

IJ’s negative demeanor finding and the overall adverse

credibility determination. Moreover, in describing the

testimony that Shen contended the BIA should credit, Shen’s

brief reverted to her original position that she had been told

by the marriage registration office that “she must complete a

pre-marital checkup” before she could obtain a marriage

license (emphasis added). Although Shen’s brief did not

directly address why the BIA should accept that testimony

over what she later said during DHS counsel’s cross-

examination, Shen explicitly argued that the IJ had erred in

concluding that Shen’s difficulty in answering DHS

counsel’s questions detracted from her credibility. In

particular, Shen asserted that the IJ’s finding that she was

likely “‘stalling in order to formulate a response’ [was] not

supported by the record” and that the IJ had failed to

“specifically and cogently refer to the non-credible aspects

of the applicant’s demeanor.” Because the brief thus clearly

took the position that Shen should have been found credible

in her contention that the premarital check-up requirement

had been in effect when she had her check-up in January

2003, that was sufficient to “apprise” the BIA that she was

contesting DHS’s counsel’s assertion that this requirement

had already been repealed by then. See Rizo v. Lynch, 810

F.3d 688, 692 (9th Cir. 2016).

Moreover, Shen’s current arguments in this court raise

only a pure question of law that is a permissible elaboration

of issues raised before the agency. See, e.g., Bare, 975 F.3d

SHEN V. GARLAND 27

at 960–61, 963–64 (holding that, where alien concisely

argued to the BIA that the IJ had failed to consider all of the

factors required to determine whether his prior conviction

was for a particularly serious crime, the alien could properly

argue, in his petition for review in this court, that one of the

factors was not met as a matter of law); Moreno-Morante v.

Gonzales, 490 F.3d 1172, 1173 n.1 (9th Cir. 2007) (holding

that, where alien had argued to the BIA that he had a “de

facto parent-child relationship with his grandchildren,” alien

properly elaborated on this issue by arguing, in his petition

for review, that his grandchildren met the statutory definition

of “child” as a matter of law). Under these circumstances,

Shen adequately exhausted her administrative remedies

before filing her petition for review, and we may properly

consider her current—meritorious—argument that, as a

matter of Chinese law, the repeal of the premarital check-up

requirement took effect on October 1, 2003.5

5

The dissent also contends that, even if Shen preserved before the BIA

the issue of whether a premarital check-up was required in January 2003,

she failed to adequately raise the issue in her opening brief and instead

argued the point only in a supplemental submission filed after the issue

was raised at oral argument. See Dissent at 33. Even assuming arguendo

that the dissent is correct on this point, it is well settled that this “rule of

waiver is a discretionary one” and that we may proceed to consider an

otherwise forfeited issue that is “purely one of law,” particularly where

“review is necessary to prevent a miscarriage of justice or to preserve the

integrity of the judicial process.” Armstrong v. Brown, 768 F.3d 975,

981 (9th Cir. 2014) (citation omitted); see also United States v. Berger,

473 F.3d 1080, 1100 n.5 (9th Cir. 2007). Here, as we have explained,

the effective date of the repeal is purely a question of law. And given

that DHS counsel—wittingly or unwittingly—misrepresented that legal

point at Shen’s hearing, the issue is one that implicates the integrity of

these proceedings. We therefore exercise our discretion to consider it.

And by resolving issues raised by the parties in their own post-argument

28 SHEN V. GARLAND

C

In light of the foregoing, we conclude that DHS counsel

clearly misstated the content of Chinese law in cross-

examining Shen and that we may take that error into account

in addressing Shen’s petition for review. That error, in turn,

led the IJ to wrongly conclude that Shen became flustered

after being “confronted with information showing her

statement” about the premarital-examination requirement of

Chinese law “was false” (emphasis added). In short, this

error vitiates the agency’s given reasons for concluding that

this cross-examination supported an adverse credibility

determination. See Singh v. Ashcroft, 393 F.3d 903, 907 (9th

Cir. 2004) (holding that, where judicially noticeable

information about the structure of a foreign government

undermined the “centerpiece” of the agency’s “adverse

credibility finding,” remand was warranted).

The Government argues that, even if this line of

questioning is now viewed, in effect, as an inadvertent set of

trick questions, we should nonetheless deny the petition on

the ground that Shen’s obvious floundering in responding to

these questions still supports an adverse credibility

determination. This argument fails, because it would

improperly uphold the agency’s decision based on a

modified rationale that the agency did not consider and that

we have no authority to adopt. See INS v. Orlando Ventura,

537 U.S. 12, 16 (2002). Moreover, there are competing

possible explanations for Shen’s flustered reaction that

submissions—which then led us to request further supplemental briefing

concerning the issues they raised—we do not violate the “principle of

party presentation.” United States v. Sineneng-Smith, 590 U.S. 371, 375

(2020). Merely asking clarifying questions at oral argument is at most a

“modest initiating role for a court” and is entirely “appropriate.” Id. at

376.

SHEN V. GARLAND 29

would not undermine her credibility: even the most honest

of persons might understandably panic on the witness stand

in thinking that she had made a provable mistake in recalling

events from 12 years earlier, and she might therefore

immediately change her testimony on the ground that her

memory simply must have been faulty. Knowing now that

DHS counsel misstated Chinese law, the agency, as the trier

of fact, could reasonably come out either way as to the

resulting effect on Shen’s credibility. Accordingly, it is

ultimately for the agency—not this court—to re-assess this

issue.

The only remaining question is whether the BIA’s

second ground for upholding the adverse credibility

determination is sufficient, by itself, to warrant our denying

the petition. As noted earlier, that second ground involved a

discrepancy between the date on the notarial certificate

accompanying the copy of Shen’s household register (which

said that the register had been “presented” by Shen to the

notary in China in February 2012) and the fact that Shen was

concededly in the United States at that time. See supra at

10–11. When pressed on the point, Shen stated that her

father had gone to the notary on her behalf, but the IJ rejected

that explanation and the BIA upheld that determination.

While, standing alone, this one factor might conceivably

support an overall adverse credibility determination, we

recently overruled our longstanding authority “requir[ing] us

to sustain an adverse credibility finding if one of the

agency’s identified grounds is supported by substantial

evidence.” Alam, 11 F.4th at 1134 (simplified) (emphasis

added). Instead, under Alam, “our review” of credibility

determinations “will always require assessing the totality of

the circumstances.” Id. at 1137. Specifically, considering

the record as a whole, we must assess whether any valid

30 SHEN V. GARLAND

“remaining factors—considered on their own—suffice to

support an adverse credibility determination” with enough

force to avoid the need for a remand. Kumar v. Garland, 18

F.4th 1148, 1156 (9th Cir. 2021). Applying these standards,

we conclude that a remand to the agency is warranted here.

In reaching this conclusion, we emphasize two

considerations. First, it seems likely that, in deciding

whether to accept Shen’s explanation for the discrepancy

concerning the household register, a trier of fact would be

affected by whether it thought Shen’s credibility had been

undermined by the very vigorous cross-examination over the

premarital check-up issue. In that sense, this second ground

cannot safely be said to be independent of the first.

Second, the household register had little direct

significance to Shen’s asylum claim. As the IJ expressly

recognized, the household register merely “establish[ed]

basic biographical information” and did not serve to

“corroborate the persecution.” This is not a circumstance,

for example, in which the assertedly incorrect date listed on

the household register could be said to support Shen’s

persecution claim by, say, confirming her presence in China

at that time. On the contrary, Shen consistently maintained

(and the Government does not dispute) that she has remained

in the United States since 2011. She thus had nothing to

gain, vis-à-vis her asylum application, from the fact that the

notary certificate bore a 2012 date. While the discrepancy

might nonetheless support a conclusion that the authenticity

of the document was suspect, we have cautioned that “one

suspect document is unlikely to constitute substantial

evidence of adverse credibility on its own.” Dong v.

Garland, 50 F.4th 1291, 1300 (9th Cir. 2022). Considering

the totality of the circumstances, we conclude that this factor

SHEN V. GARLAND 31

is insufficient, standing alone, to avoid a remand under

Alam.

Accordingly, we conclude that the matter must be

remanded to the agency so that it can reevaluate afresh its

credibility determination and conduct any further

proceedings.

PETITION GRANTED AND REMANDED.

MILLER, Circuit Judge, dissenting:

As this case comes before us, the dispositive issue is

whether Shen testified credibly before the immigration

judge. The Board of Immigration Appeals determined that

she did not, pointing to her inconsistent testimony about a

pre-marital medical exam in China. She first testified that the

exam, which took place in January 2003, was mandatory:

“You must get a pre-marital checkup before you can marry.”

Government counsel asked, “[I]sn’t it true that in 2003 the

Chinese government did away with the requirement that

couples have to submit themselves to a pre-marital check up

to obtain a marriage license?” After initially resisting the

suggestion, Shen admitted that she had gone to the medical

exam voluntarily. The immigration judge asked her to

confirm whether it was “true that [the Chinese government]

actually did away with [the] requirement,” and she again

conceded the point. She was then unable to explain the

contradiction with her earlier testimony. Her inconsistency

was a key reason that the immigration judge and the Board

made an adverse credibility finding and, accordingly, denied

relief.

32 SHEN V. GARLAND

Before this court, Shen admitted that she testified

inconsistently but argued that “the inconsistency in relation

to the requirement of a pre-marital checkup prior to one’s

registration of marriage is trivial in nature and does not

constitute substantial evidence” supporting the adverse

credibility finding. The government responded by pointing

out that because the mandatory medical exam led to the

discovery that Shen was pregnant, which in turn led to her

forced abortion, this was not merely a trivial inconsistency

but related to an important part of her claim. It was therefore

a sufficient basis for the adverse credibility finding. See

Shrestha v. Holder, 590 F.3d 1034, 1046–47 (9th Cir. 2010)

(“Although inconsistencies no longer need to go to the heart

of the petitioner’s claim, when an inconsistency is at the

heart of the claim it doubtless is of great weight.”).

That should have been the end of the matter. An adverse

credibility determination is a factual finding, and we must

accept the agency’s factual findings “unless any reasonable

adjudicator would be compelled to conclude to the

contrary.” 8 U.S.C. § 1252(b)(4)(B); see Garland v. Ming

Dai, 593 U.S. 357, 365 (2021). The arguments Shen has

presented to us do not meet that standard.

Unfortunately, the court is not content to decide “the case

shaped by the parties.” United States v. Sineneng-Smith, 590

U.S. 371, 380 (2020). Instead, at oral argument, the court

asked the parties about a factual matter that was not raised

before the Board, presented in the briefs, or reflected in the

record: the specific date in 2003 on which the Chinese

government repealed its pre-marital checkup policy. The

following day, Shen provided the court with an article from

the online version of China Daily, an English-language

Chinese newspaper, suggesting that China did not lift the

requirement of a pre-marital medical exam until October

SHEN V. GARLAND 33

2003. If true, that would mean that Shen’s initial testimony

was correct and that the government’s cross-examination,

which induced her to change her story, was based on an

incorrect premise. The court issued a post-argument order

asking the parties whether we could “take judicial notice of

the date on which China changed its policy requiring

individuals to undergo a pre-marital checkup.”

We do not normally consider “issues which are not

specifically and distinctly argued and raised in a party’s

opening brief,” and this one was not. Arpin v. Santa Clara

Valley Transp. Agency, 261 F.3d 912, 919 (9th Cir. 2001).

After all, “[t]he premise of our adversarial system is that

appellate courts do not sit as self-directed boards of legal

inquiry and research, but essentially as arbiters of legal

questions presented and argued by the parties before them.”

Carducci v. Regan, 714 F.2d 171, 177 (D.C. Cir. 1983)

(Scalia, J.); accord Greenlaw v. United States, 554 U.S. 237,

243 (2008) (explaining “the principle of party presentation,”

under which “we rely on the parties to frame the issues for

decision and assign to courts the role of neutral arbiter of

matters the parties present”). In invoking the date of the

Chinese policy change even though Shen did not raise it in

her brief, the court disregards that important rule of restraint.

But even setting aside that procedural irregularity, it is

improper for us to rely on the China Daily article for two

distinct reasons.

First, Shen did not exhaust any arguments based on the

China Daily article before the immigration judge or the

Board. Congress has provided that “[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). That statute “permits us to consider

only those issues that the petitioner properly raised before

34 SHEN V. GARLAND

the agency.” Vasquez-Rodriguez v. Garland, 7 F.4th 888,

894 (9th Cir. 2021), overruled on other grounds by Santos-

Zacaria v. Garland, 598 U.S. 411 (2023); see also United

States v. L. A. Tucker Truck Lines, Inc., 344 U.S. 33, 37

(1952) (“Simple fairness to those who are engaged in the

tasks of administration, and to litigants, requires as a general

rule that courts should not topple over administrative

decisions unless the administrative body not only has erred

but has erred against objection made at the time appropriate

under its practice.”). Although the exhaustion requirement

does not limit our jurisdiction, it is a mandatory rule that

must be enforced when properly invoked, as it has been here.

Santos-Zacaria, 598 U.S. at 416.

To be sure, the distinction between an “issue” (which

must be exhausted) and a specific “argument” raised in

support of the issue (which need not) can sometimes be

difficult to identify. In drawing that line, we have looked to

the purpose of the exhaustion requirement, which “is to give

an administrative agency the opportunity to resolve a

controversy or correct its own errors before judicial

intervention.” Zara v. Ashcroft, 383 F.3d 927, 931 (9th Cir.

2004), abrogated in part on other grounds by Santos-

Zacaria, 598 U.S. at 411. What matters, then, is whether the

agency could reasonably be expected to have addressed the

issue. And an issue is exhausted when a petitioner raises it

sufficiently “to put the BIA on notice that he [is] challenging

the IJ’s . . . determination, and the agency had an

opportunity to pass on this issue.” Zhang v. Ashcroft, 388

F.3d 713, 721 (9th Cir. 2004) (per curiam); accord Figueroa

v. Mukasey, 543 F.3d 487, 492 (9th Cir. 2008) (“[W]e do not

employ the exhaustion doctrine in a formalistic manner, but

rather inquire into whether the issue was before the BIA such

that it had the opportunity to correct its error.”).

SHEN V. GARLAND 35

That principle makes this an easy case: Nothing Shen

said before the Board would have alerted it to the change in

the Chinese pre-marital checkup policy at issue in today’s

decision. In her brief to the Board, Shen mentioned the pre-

marital checkup only twice. In the statement of facts, she

summarized her testimony, including the testimony that she

“went to the marriage registration office and was told that

she must complete a pre-marital checkup.” Then, in the

argument section, she addressed the immigration judge’s

negative demeanor finding, stating: “In regard to the IJ’s

demeanor finding, the IJ found that [Shen] was likely

‘stalling’ in order to formulate a response regarding

questioning as to her pre-marital checkup.” She argued that

“the IJ’s presumption that it was ‘likely that [she] was

stalling in order to formulate a response’ is not supported by

the record” and suggested that the immigration judge had

failed to “specifically and cogently refer to the non-credible

aspects of [her] demeanor.”

Crucially, Shen never argued that the immigration judge

was wrong to think that she had testified falsely about

whether the medical exam was mandatory, nor did she argue

that the government’s questioning was misleading. Her

general attack on the adverse credibility finding is not

enough to preserve that issue. As we recently explained in

Gonzalez-Castillo v. Garland, “[t]his is not a case in which

the petitioner described the substance of the argument in

[her] brief without using the correct legalese, which would

suffice for purposes of exhaustion.” 47 F.4th 971, 980 (9th

Cir. 2022). “Pointing to ‘the entirety’ of the testimony”—

which is essentially what Shen did in attacking the

immigration judge’s demeanor finding—“does not . . . put

the BIA on notice as to the specific issues so that the BIA

has an opportunity to pass on those issues.” Id. at 981

36 SHEN V. GARLAND

(internal quotation marks and citation omitted). Nothing in

Shen’s brief would have alerted the Board that it should

begin to peruse Chinese newspapers. Because the issue has

not been exhausted, we may not consider it.

Second, the China Daily article is not part of the

administrative record. Congress has directed that “the court

of appeals shall decide the petition only on the

administrative record on which the order of removal is

based.” 8 U.S.C. § 1252(b)(4)(A). That statute codifies the

bedrock administrative-law principle that judicial review of

agency action is based on the record that was before the

agency. See Citizens to Pres. Overton Park, Inc. v. Volpe,

401 U.S. 402, 420 (1971). It requires “that petitioners

present all outside documents, reports, or information during

the course of the administrative proceedings and not offer

them for the first time before this court.” Lising v. INS, 124

F.3d 996, 998 (9th Cir. 1997).

Shen argues that “the date [on] which the Chinese

government changed its pre-marital checkup policy is a

judicially noticeable adjudicative fact,” but that is incorrect.

(capitalization omitted). We may take judicial notice of “out-

of-record evidence only where (1) the Board considers the

evidence; or (2) the Board abuses its discretion by failing to

consider such evidence upon the motion of an applicant.”

Fisher v. INS, 79 F.3d 955, 964 (9th Cir. 1996) (en banc).

Neither scenario is presented here, and the court does not

suggest otherwise.

Instead, the court says that the date of China’s policy

change is a question of foreign law, and because “[t]he

determination of foreign law is a question of law,” we need

not confine ourselves to the administrative record in

answering it. Pazcoguin v. Radcliffe, 292 F.3d 1209, 1216

SHEN V. GARLAND 37

(9th Cir. 2002), as amended, 308 F.3d 934 (9th Cir. 2002).

Here the court goes one step beyond invoking an argument

that Shen did not present; it contradicts the argument she did

present, which, as noted, was that the date of the policy

change was a “judicially noticeable adjudicative fact.”

(capitalization omitted; emphasis added). Shen’s

characterization was correct. As it relates to this case, the

date of the policy change presents a question of fact, not law.

China’s policy changes are relevant, if at all, only to the

extent that they help us evaluate Shen’s credibility by

answering the question, “When Shen got married in

Chengdu in January 2003, was she compelled to undergo a

medical exam?” Fundamentally, that is a question about the

circumstances that Shen confronted in China, and answering

it requires assessing not only China’s official policy in

January 2003 but also the real-world practices of the Chinese

government at that time. See Bringas-Rodriguez v. Sessions,

850 F.3d 1051, 1072 (9th Cir. 2017) (en banc) (“[I]t is well

recognized that a country’s laws are not always reflective of

actual country conditions.”). To put it in the terms

commonly used in immigration law, it is a question of

country conditions. And we have unequivocally held that

country conditions present a factual question, which is why

we refuse to consider even the State Department’s official

human rights reports in cases where they have not been made

part of the record. See, e.g., Fisher, 79 F.3d at 964; Marcu v.

INS, 147 F.3d 1078, 1082 (9th Cir. 1998).

To be sure, one can conceptualize any requirement

imposed by a foreign government as “law” in the sense of a

general command issued by a sovereign and backed by a

sanction. See John Austin, The Province of Jurisprudence

Determined 5–19 (1832); but see H.L.A. Hart, The Concept

of Law 18–78 (2d ed. 1961). Thus, one might consider the

38 SHEN V. GARLAND

existence or nonexistence of such a requirement—like the

requirement to undergo a pre-marital medical exam—to be

a question of law. But on that theory, a question like “Does

the Iranian government discriminate against women in

employment?” becomes a question of Iranian law. But see

Fisher, 79 F.3d at 964 (declining to consider extra-record

evidence in answering that question). Likewise, “Does the

Mexican government acquiesce in torture by drug cartels?”

would be a question of Mexican law. But see B.R. v.

Garland, 26 F.4th 827, 845 (9th Cir. 2022) (treating the

question as factual and reviewing the Board’s answer for

substantial evidence). And “Does the Armenian government

impose a ban on proselytizing by Jehovah’s Witnesses?”

would be a question of Armenian law. But see Kamalyan v.

Holder, 620 F.3d 1054, 1056–57 (9th Cir. 2010) (same).

Until today, we have not taken that approach, nor has any

other court. Those are bread-and-butter factual

determinations about country conditions that the Board

routinely makes—and that we routinely review for

substantial evidence—based on the agency record, not our

own “legal” research.

Even if one fully embraces the Austinian theory of law

as command, and even if one indulges the dubious

assumption that such a theory of law is relevant in assessing

the distinction between questions of law and questions of

fact in our review of Board decisions, there remains another

problem: The court’s “legal” research does not demonstrate

that Shen was compelled to undergo a pre-marital medical

exam in January 2003.

The court focuses on an article in the “state-owned”

China Daily, which the court describes as “an authoritative

Chinese source.” A casual reader of today’s decision might

be forgiven for thinking that China Daily is essentially the

SHEN V. GARLAND 39

Federal Register with Chinese characteristics. It is not. It is

a general-interest English-language periodical, not an

official source of Chinese statutes, regulations, or judicial

decisions, which are written in Mandarin. When we are

called upon to ascertain foreign law, we do so “on the basis

of independent examination of foreign legal authorities.”

Pazcouguin, 292 F.3d at 1216 (emphasis added) (quoting

Access Telecom, Inc. v. MCI Telecomms. Corp., 197 F.3d

694, 713 (5th Cir. 1999)); see de Fontbrune v. Wofsy, 838

F.3d 992, 999 (9th Cir. 2016) (explaining that “courts look

to cases, statutes, regulations, treatises, scholarly articles,

legislative history, treaties and other legal materials” to

ascertain foreign law). China Daily is not a foreign legal

authority; at best, it merely describes Chinese law. And

descriptions of legal rules in newspapers are not always

entirely accurate—not even in the People’s Republic of

China.

According to the court, the description in the China

Daily article is buttressed by the “actual texts” of China’s

1994 marriage-registration regulation, which set out a pre-

marital exam policy, and the 2003 marriage regulation,

which allegedly repealed the policy. As a threshold matter,

it is unclear whether the two citations that the court provides

indeed contain the texts of the 1994 regulation and its 2003

amendment. First, the court cites another state-run news

website that has seemingly reprinted and translated the 1994

regulation from the original Mandarin. We are ill-equipped

to evaluate the accuracy of the translation, but setting that

aside, the State Department cautions that Chinese state-

owned media outlets are not reliable sources of information.

See U.S. Department of State, Global Engagement Center,

How the People’s Republic of China Seeks to Reshape the

Global Information Environment 10 (2023) (describing

40 SHEN V. GARLAND

Chinese state-owned media as part of “a worldwide

investment strategy to . . . maximize the distribution of false

or biased pro-[People’s Republic of China] content to global

audiences”). Second, the court cites the Shanghai Civil

Affairs Bureau website, which offers a reprinted and

translated version of the 2003 regulation. Shanghai is more

than 1000 miles from Chengdu, so this is somewhat akin to

citing a Florida government website to establish the content

of federal regulations applicable to someone in Vermont.

In any event, even if the cited websites indeed contain

the texts of the relevant regulations, the regulations do not

establish that a pre-marital checkup requirement existed in

Chengdu before 2003 or that such a policy was abolished at

some point in 2003. In fact, the plain text of the cited 1994

regulation suggests that pre-marital exams were not a

national requirement but rather a regional practice. See

Regulations on Control of Marriage Registration,

China.org.cn, http://www.china.org.cn/living_in_china/abc/

2009-06/24/content_18007155.htm (last visited July 12,

2024) (“In places practising pre-marital health check-ups,

parties applying for marriage registration must go to the

designated medical care institution for pre-marital health

check-ups . . . . Areas to be decided to practise pre-marital

health check-ups shall be proposed by . . . [the] people’s

governments in provinces, autonomous regions and

municipalities.” (emphasis added)).

As for the cited 2003 regulation, it does not reference

pre-marital medical exams at all, and a China Daily article

from 2003—published less than three weeks after the article

the court cites—states that “[t]he so-called cancellation of

the check-ups is a kind of misunderstanding of the newly

enacted regulation on marriage registration” because “[t]he

regulation does not stipulate whether . . . couples should

SHEN V. GARLAND 41

undergo physical check-ups before marriage registration”

and “the absence of a clear stipulation in the regulation does

not mean the check-ups will be cancelled.” Couples

encouraged to get check-ups, China Daily (Sept. 4, 2003),

https://www.chinadaily.com.cn/en/doc/2003-09/04/

content_261136.htm. That contradicts the China Daily

article on which the court principally relies, which asserted

that “[t]he new regulation says that people may take a health

examination before marriage, but will not be forced to do

so.” China simplifies procedures for marriage, divorce,

China Daily (Aug. 19, 2003), https://www.chinadaily.

com.cn/en/doc/2003-08/19/content_256235.htm. The court

derides the later article as reflecting merely “a law

professor’s theory,” suggesting that in just a few weeks,

China Daily somehow went from being an “authoritative

Chinese source” to a forum for dubious academic

speculation. Be that as it may, I have no way of knowing

which article is correct, but at least one of them must be

wrong. And neither these articles nor the other materials

unearthed by the court resolve the question of whether

Chengdu required pre-marital medical exams as a matter of

either law or custom in January 2003 such that Shen was

forced to undergo such an exam.

The court responds to these observations by complaining

that it is improper for me to read “the actual text of the

regulations” and to raise points “that no party has ever raised

either in the agency or this court.” The objection is baffling.

Of course no party presented arguments based on the text of

the regulations or articles in China Daily, which is why, as I

have already explained, we should not consider any of those

extra-record materials in the first place. But the court has

chosen to assess Shen’s credibility before the immigration

judge—the only issue the parties did present to us—by

42 SHEN V. GARLAND

turning to Google and reviewing various Chinese websites

that purportedly describe the relevant regulations. It is fair to

respond by pointing out that the regulations do not support

the court’s theory.

To be clear, I do not question that the materials cited by

the court could be relevant evidence of country conditions.

(Their persuasive weight is a different question.) But to be

considered as such, they should have been presented to the

agency and made part of the administrative record so that the

Board could have evaluated them alongside other evidence.

Because they were not, it is improper for the court to

consider them.

* * *

My criticism of the court’s decision should not be

mistaken for an endorsement of the government’s conduct in

this case. If the court is correct about conditions in Chengdu

in 2003, then it appears that the government tricked Shen

into believing that she had been caught in a lie, when in fact

she was telling the truth. There is no evidence that this

trickery was deliberate, rather than a product of the

government’s carelessness, but it is nevertheless greatly to

the discredit of government counsel. And it is therefore

understandable that the court wishes to find some way to

spare Shen from removal.

Understandable, perhaps, but not legally defensible. We

are not an ombudsman for the Department of Homeland

Security, nor are we charged with a general superintendence

of the Attorney General’s removal decisions. Rather, our

role is limited to performing the traditional functions of a

reviewing court: We consider the contentions properly

presented to us by a petitioner and exhausted before the

agency, and we evaluate those contentions based on the

SHEN V. GARLAND 43

record compiled by the agency. Because we are not

authorized to do more, I would deny the petition for review.