Lin v. Atty Gen USA

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Precedential or Non-Precedential: Precedential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.R. 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