Lin ZHONG, Petitioner, v. UNITED STATES DEPARTMENT OF JUSTICE, Attorney General Gonzales, Respondent.
Docket No. 02-4882
United States Court of Appeals, Second Circuit.
Decided: Aug. 8, 2006.
Amended: Jan. 17, 2007.
480 F.3d 104
Argued: May 24, 2005.
Finding no merit in either of Torres‘s objections, we affirm the sentence imposed on appellant by the district court.
Bruno Joseph Bembi, Hempstead, N.Y., for Plaintiff-Appellant (on submission).
Sara R. Robinson-Glasser, Assistant United States Attorney for the Central District of California, for Debra W. Yang, United States Attorney for the Central District of California (Leon W. Weidman, Assistant United States Attorney, on the brief), Los Angeles, Ca., for Respondent (on submission).
Before KEARSE, CALABRESI, and POOLER, Circuit Judges.
Judge KEARSE dissents in a separate opinion.
CALABRESI, Circuit Judge.
Lin‘s removal from the United States was first ordered in 1994, following an IJ‘s determination that, under the then-applicable version of the INA, Lin had failed to establish that he had been persecuted or was likely to be persecuted by the Chinese government on account of his political opinion. But in 1999, Lin, who had not yet been deported,3 sought and obtained reopening of his application in order to be considered for relief under intervening changes in law—the implementation of CAT and the passage of the Illegal Immigration Reform and Immigration Responsibility Act of 1996 (IIRIRA), which expanded the INA‘s definition of political persecution to include some coercive population control programs.4 See
I. Background
Because the IJ‘s 2001 decision rests, in part, on the record from Lin‘s 1994 hearing, we begin our review of the relevant background with an account of Lin‘s entry into the United States and his initial removal proceedings.
THE 1994 PROCEEDINGS
Lin entered the United States on or about April 17, 1993, through New Orleans, Louisiana.5 He was deemed inadmissible and was taken into custody by the Immigration and Naturalization Service (“INS“).6 He remained in custody until June 4, 1993, when he was released on bond. On July 2, 1993, Lin, through counsel, successfully moved to transfer venue of his case to New York City, and on September 17, 1993, Lin applied for political asylum.
Lin‘s form I-589 Request for Asylum asserted that he had been persecuted by Chinese authorities because of his family‘s violation of China‘s one-child population control policy. The narrative portion of the form stated that Lin had two children, born in 1985 and 1986, and that the birth of his second child was unauthorized under Chinese family planning laws. As a result, the younger child could not be registered in the family‘s household registration book until Lin paid a fine of 6,000 yuan in 1990.
His application further attested that at the end of 1991, Lin‘s wife became pregnant for a third time, and that she was forced to undergo an abortion after family planning officials were informed of the pregnancy.
A hearing on Lin‘s application took place before an IJ on December 15, 1994. Lin, represented by counsel, testified on his own behalf and recounted many of the same facts that he had included in his written application.7 In doing so, he added some further details. He described the fine of 6,000 yuan for the birth of his second son, as well as his wife‘s third pregnancy at the end of 1991 and the forcible abortion of this pregnancy. He dated this first abortion as occurring after the April 1992 discovery of his wife‘s pregnancy by the family planning cadres. At the time of this abortion, Lin received his first notification that he must submit to sterilization. In order to avoid the procedure, he went into hiding approximately six kilometers from his home. He returned home after three months, upon payment, by his parents and his wife, of a fine of 3,000 yuan. In July 1992, around the time that Lin returned from hiding, his wife was implanted with an IUD. Approximately ten days later, Lin and his wife had the device removed by a private doctor, and soon thereafter, Lin‘s wife became pregnant for a fourth time. A government IUD check led to the discovery of that pregnancy, and Lin‘s wife was forced to undergo a second abortion in December 1992. Following this second abortion, family planning officials again sought Lin for sterilization, but based on a friend‘s warning, Lin had already fled. Shortly after, Lin left China for the United States.8
Lin‘s verbal account of the events surrounding his wife‘s December 1992 abortion also described an episode not mentioned in his I-589 form. Lin testified that family planning cadres took his wife to the hospital for the procedure. Lin went with them, and while waiting for his wife to emerge from the operating room, he became distraught at the situation. He began “verbally [to] abuse the [family planning] Cadres,” calling them murderers and shouting slogans against family planning policy. Other individuals in the hospital waiting room were sympathetic and joined in. As a result of this impromptu protest, family planning officials attempted to arrest Lin, but he managed to escape.9
CHANGES IN LAW AND 2000-2001 PROCEEDINGS
Subsequent to the IJ‘s 1994 decision, two changes in the law applicable to asylum and withholding of removal claims occurred. First, in 1996, Congress amended the INA to extend the definition of a political refugee, for purposes of asylum and withholding of removal claims, to individuals subjected to forced abortions or sterilizations, or who were otherwise persecuted for opposition to coercive population control programs. See IIRIRA § 601(a)(1), Pub.L. No. 104-208, div. C, tit. III, 110 Stat. 3009, 3009-699 (amending
Second, in 1998, Congress passed legislation to implement, in the immigration context, the Convention Against Torture. See
On June 21, 1999, following these changes in the law, Lin, who had not yet been deported, moved to reopen his application for asylum and withholding of removal, seeking to be considered for relief under the IIRIRA family planning amendment and the new CAT regulations. Lin submitted a supplemental affidavit in support of his motion. That affidavit stated that if removed to China, Lin was likely to suffer torture based (1) on his past subversive activities, (2) on the Chinese government‘s demonstrated desire forcibly to sterilize him, and (3) on his violation of Chinese entry-exit laws. After Lin‘s motion to reopen was granted, Lin submitted additional documentary evidence in support of his asylum and withholding claims,
A hearing on Lin‘s reopened application was conducted on November 27, 2000, before the same IJ who had presided over Lin‘s 1994 hearing. At this second hearing, Lin testified to the following facts—some of which were either not discussed in or contradictions of Lin‘s 1994 testimony.
Lin stated that he was married with two sons, one born April 24, 1985 and the second born November 5, 1986. During Lin‘s wife‘s second pregnancy, she went into hiding at “[a] friend‘s and relative‘s,” and also at her mother‘s home, six kilometers away. Lin added that he was fined 6,000 yuan for the birth of this second son, and that the fine was paid in December 1990, thereby allowing Lin to register the child with the government.
According to his 2000 version of events, Lin‘s wife was implanted with IUDs on three separate occasions. The first was after the 1985 birth of Lin‘s first son. Lin and his wife had that IUD removed two months later, and the second son was subsequently conceived. Another IUD was implanted after the second birth, and this device remained in place until 1991. Nevertheless, Lin‘s wife became pregnant for a third time in 1991. Because the IUD had failed, Lin sought permission for the pregnancy from the Chinese government. This request was denied, and Lin‘s wife was forced to undergo her first abortion in October 1991 (rather than, as he testified in 1994, in April 1992). Following this abortion, a third IUD was implanted. This, too, was removed by a private doctor, and Lin‘s wife became pregnant for a fourth time in October 1992. Lin testified, as he had in 1994, that this pregnancy was discovered during a routine IUD check in November 1992, and that Lin‘s wife was subsequently ordered to undergo a second abortion.11
As in 1994, Lin testified in 2000 to having been twice threatened with forcible sterilization by the family planning authorities. The first time, he stated, was after his wife‘s first abortion in October 1991. Lin again recounted that he went into hiding to avoid the procedure, and that while he was away, government authorities looking for him searched his home and destroyed some of his property. Consistent with his prior descriptions, Lin testified that he returned home following his family‘s payment of a fine of 3,000 yuan. But in contrast to his 1994 testimony that he was away for three months, this time Lin stated that he fled for approximately ten days. As in 1994, Lin testified to a second sterilization threat that occurred following his wife‘s second abortion in late 1992. Lin again described that he had learned from a friend that family planning Cadres intended to come to his home to take him for sterilization. This prompted Lin to flee his home and to leave China for the United States.
As in his first hearing, Lin testified that during his wife‘s second abortion, he engaged in anti-government conduct at the hospital. His testimony in 2000, however, outlined a less dramatic set of events than those he had described in 1994. Lin stated that while he was in the hospital waiting room he was “very emotional” and “resented the birth control policy” and said that the policy “was not good” and that the “birth control cadres were inhumane.” In response, he was pushed into the “security section” of the hospital. When his wife emerged from the surgery she was very
When the IJ asked Lin to account for the discrepancy between his two accounts of the events at the hospital surrounding his wife‘s second abortion, and in particular, the circumstances of his departure, Lin floundered, saying that he had been “nervous” in 1994, and the account given that day “was wrong.” The IJ also questioned Lin concerning the differences between his 1994 and 2000 accounts of the sequence of his wife‘s IUD insertions and abortions, and the time during which he was in hiding after the first threatened sterilization. Lin stated that he had been mistaken in his 1994 testimony, and that during the intervening time, he had spoken with his wife who had corrected him concerning the dates of her medical procedures. He also said, with respect to the period he spent in hiding, that he had made mistakes in 1994 because he was nervous and because the law firm representing him had prepared him in a way that he did not understand.
Finally, Lin testified at the 2000 hearing that he feared that if he returned to China he would be persecuted for having been smuggled out. He added that the Chinese government was cracking down on smuggling in his home province, and that his wife recently had told him, over the telephone, that a neighbor who was unsuccessful in being smuggled out of China had been arrested and beaten by Government authorities, and fined 10,000 yuan. With respect to his own story, Lin testified that his friends and family made arrangements for him to leave the country. A snakehead gave Lin papers and a valid passport, which he showed to officials at the time of his departure.
During the 2000 hearing, the IJ also discussed certain facts contained in Lin‘s wife‘s affidavit. The affidavit gave an essentially identical account of the events testified to by Lin in 2000, but with respect to her own period of hiding, Lin‘s wife stated that she had hidden “far away” at a “friend‘s place.” The IJ asked why Lin‘s wife‘s affidavit asserted that she stayed “far away” if, as Lin had testified, her mother‘s home was only six kilometers away. Lin responded that his “mother-in-law‘s home was not the only place she went, she went to different places.”
At a proceeding on January 31, 2001, the IJ delivered his oral decision denying Lin‘s application. At the start of this hearing Lin‘s counsel informed the IJ, for the first time, that Lin‘s wife had undertaken divorce proceedings. The IJ stated that this development “has no bearing on this application” and made no further inquiry into this subject, and neither Lin nor his counsel offered any further details.
The IJ‘s decision on January 31, 2001 found that Lin‘s testimony was not credible, and on that basis concluded that Lin had failed to meet his burden of proof with respect to any of his claims for relief. The IJ stated that “significant discrepancies between [Lin‘s] testimony at the hearing of November 27, 2000, and at the prior hearing before this very Court on December 15, 1994 . . . suggest strongly that [Lin was] not testifying from actual experience, but that he [was] actually fabricating testimony.” The IJ pointed to two categories of discrepancies in support of his conclusion: (a) Lin‘s changed testimony concerning the dates of his wife‘s medical procedures and his period in hiding following his wife‘s first abortion, and (b) Lin‘s differing accounts of his alleged hospital protest during his wife‘s second abortion. With respect to these inconsistencies, as well as Lin‘s explanations for them, the IJ stated:
While the Court can understand that the applicant‘s wife would be able to more
accurately recall the dates when the IUDs were inserted and/or removed and when the abortions took place. [sic] Even if the Court were to overlook these discrepancies in the applicant‘s testimony, he has not been able to explain why he fabricated the story about leading others in slogans at the hospital and then escaping from the hospital, and that the cadres were chasing him. Now clearly, this is the type of discrepancy that strongly suggests, well doesn‘t just suggest, it is direct evidence that the applicant has fabricated his story because there is absolutely no way that someone, because that person is nervous or simply makes a mistake, will casually say under oath that they were shouting slogans and the cadres were chasing him, when in fact this never happened.
The IJ also discussed, with respect to Lin‘s claim of his wife‘s forced abortions, three non-corroborative aspects of Lin‘s documentary evidence: (1) an inconsistency between Lin‘s testimony that his wife had, during her second pregnancy, gone into hiding at her mother‘s house six kilometers away, and his wife‘s statement in her affidavit that she had hidden “far away“; (2) an apparent discrepancy between Lin‘s testimony that his second son was not registered until a fine was paid in December 1990, and the household registry submitted by Lin that appeared to indicate that both sons were registered in February 1990; and (3) purported variations in dates of registration between a translated household registry and an untranslated registry submitted by Lin. The IJ also observed that, in light of a State Department country report indicating that certificates were issued only for voluntary abortions, Lin‘s testimony that he had received such certificates in 1991 and 1992 belied his claim that the procedures were coerced.12
Concerning Lin‘s future persecution and torture claims, the IJ found (a) that any threat of sterilization faced by Lin had been removed by the pendency of his divorce proceedings, (b) that Lin‘s account of having been smuggled from China was burdened by inconsistencies relating to the circumstances of his departure, and (c) that Lin‘s description of his neighbor‘s persecution for smuggling was never mentioned in Lin‘s written statement supporting his CAT claim. Finally, the IJ stated with respect to Lin‘s CAT claim that, even assuming that a threat of sterilization remained for Lin, the IJ could not “find that as a matter of law, sterilization is tantamount to an act of torture.”
THE BIA APPEAL
Lin timely appealed the IJ‘s decision to the BIA. His Notice of Appeal asserted that the IJ erred in determining that Lin‘s 2000 hearing testimony was inconsistent with that presented in 1994. Lin elaborated that the IJ erred: (1) by rejecting Lin‘s explanation for his new testimony about the dates of his wife‘s IUD insertions and abortions—namely, that he had discussed the issue with his wife in the intervening years, (2) by failing to appreciate that Lin‘s 1994 testimony regarding his wife‘s experiences was given in the context of pre-IIRIRA asylum law, and (3) by concluding that Lin‘s story concerning his sloganeering and detention at the time of his wife‘s second abortion was fabricated, and that this fabrication called into question Lin‘s claim that his wife had undergone forcible abortions. Additionally, Lin con
On November 8, 2002 the BIA summarily affirmed the decision of the IJ.
ARGUMENTS RAISED BY LIN‘S PETITION FOR REVIEW
Lin‘s petition for review by us is an extensive list of challenges to the IJ‘s decision. Several of Lin‘s arguments restate or closely track the above-described points made in his appeal to the BIA. Several other IJ errors asserted in Lin‘s current petition for review, however, were not argued in Lin‘s appeal to the BIA. These include: (1) that the IJ incorrectly found Lin‘s account of his wife‘s period in hiding to be not credible; (2) that the IJ erred in relying on a household registration booklet not placed into evidence; (3) that the IJ wrongly premised a finding that Lin‘s wife‘s abortions must have been voluntary on information contained in a State Department country report; (4) that the IJ had no basis in the record for his finding that Lin‘s pending divorce removed any future threat of sterilization in China; and (5) that the IJ‘s conclusion that forcible sterilization did not amount to torture was legal error.13
Lin‘s petition also preemptively argued the jurisdiction of this court to hear issues not argued to the BIA. Had we been urged by the Respondent not to review the arguments that Lin failed to raise before the BIA, we would not consider their merits. See
II. Discussion
A. Eligibility for Asylum, Withholding of Removal, and CAT Relief
Asylum under the INA, withholding of removal under the INA, and withholding of removal under the CAT require applicants to satisfy distinct burdens of proof. A petitioner‘s burden to establish eligibility is lighter in the context of an asylum claim, but the power to grant such relief lies in the discretion of the Attorney General. See Jin Shui Qiu v. Ashcroft, 329 F.3d 140, 148 (2d Cir.2003). Withholding of removal, under either the INA or the CAT, requires a greater quantum of proof, though relief is mandatory once an applicant establishes eligibility. Id.
To establish eligibility for asylum, an applicant must demonstrate that he is a “refugee” within the meaning of the
Withholding of removal also requires an applicant to show that he or she falls within one of the categories designated for “refugee” status by the INA. But to obtain this non-discretionary form of relief, an applicant must clear the higher hurdle of showing that it is more likely than not that, were he or she to be deported, his life or freedom would be threatened on account of the characteristic rendering him or her a refugee. See
Similarly, an individual seeking withholding of removal on the basis of a claim under the CAT must establish that “it is more likely than not that he or she would be tortured if removed to the proposed country of removal.” Ramsameachire v. Ashcroft, 357 F.3d 169, 184 (2d Cir.2004) (quoting
B. Judicial Review of Final Agency Determinations
Factual findings by the BIA are “conclusive unless any reasonable adjudicator would be compelled to conclude to the contrary.”
When reviewing an IJ‘s credibility findings, we “afford particular deference in applying the substantial evidence standard.” Zhou Yun Zhang v. INS, 386 F.3d 66, 73 (2d Cir.2004) (internal quotation marks omitted). This deference is at its highest point where an IJ‘s credibility determinations are based on observation of
Questions of law, including what quantum of evidence will suffice to discharge an applicant‘s burden of proof, are reviewed de novo. Islami, 412 F.3d at 396. And, an IJ‘s use of an “inappropriately stringent standard” in assessing an applicant‘s testimony is a legal, rather than a factual, error. Id. (internal quotation marks omitted).
Our review of decisions by the BIA is governed by the recognition that “a judicial judgment cannot be made to do service for an administrative judgment.” Li Hua Lin v. U.S. Dep‘t of Justice, 453 F.3d 99, 2006 WL 1755289, at *5 (2d Cir. June 28, 2006) (quoting SEC v. Chenery Corp., 318 U.S. 80, 88, 63 S.Ct. 454, 87 L.Ed. 626 (1943)). Stemming from this foundational principle, “a denial of immigration relief stands or falls on the reasons given by the [IJ or BIA],” Li Zu Guan v. INS, 453 F.3d 129, 2006 WL 1776717 at *5 (2d Cir. June 29, 2006), because it would usurp the role of the agency for a reviewing court “[t]o assume a hypothetical basis for the IJ‘s determination, even one based in the record,” Cao He Lin v. U.S. Dep‘t of Justice, 428 F.3d 391, 400 (2d Cir.2005). Except in “rare circumstances,” then, “the proper course . . . is to remand to the agency for additional explanation or investigation.” Twum v. INS, 411 F.3d 54, 61 (2d Cir.2005) (quoting INS v. Ventura, 537 U.S. 12, 16, 123 S.Ct. 353, 154 L.Ed.2d 272 (2002) (per curiam)).
Yet agency errors do not always warrant remand, and our circuit has recently developed standards for determining whether remand of asylum or withholding claims would amount to an empty and unnecessary formality. See Li Zu Guan, 453 F.3d 129, 2006 WL 1776717 at *5-*6. We have determined that “remand to the BIA is futile a) when the IJ articulates an alternative and sufficient basis for her determination; b) when her reliance on the erroneous aspect of her reasoning is substantially tangential to her non-erroneous findings; or c) when overwhelming evidence in the record makes it clear that the same decision is inevitable on remand, or, in short, whenever the reviewing panel is confident that the agency would reach the same result upon a reconsideration cleansed of errors.” Li Hua Lin, 453 F.3d 99, 2006 WL 1755289 at *6 (relying on Cao He Lin, 428 F.3d at 395-401 and Xiao Ji Chen v. U.S. Dep‘t of Justice, 434 F.3d 144, 161-62 (2d Cir.2006)). Implementing this test within the confines of Chenery requires a careful balancing, which different panels dealing with diverse fact patterns may well strike differently. See Ming Xia Chen v. BIA, 435 F.3d 141, 145 (2d Cir. 2006) (stating, in the context of panels’ differing assessments of adverse credibility findings, that “[p]anels will have to do what judges always do in similar circumstances: apply their best judgment, guided by the statutory standard governing review and the holdings of our precedents, to the administrative decision and the record assembled to support it“).
With these delicate standards in mind, we turn to the specific issues raised by Lin‘s petition for review.
C. Our “Jurisdiction” to Consider Issues Not Raised Below
Our jurisdiction to hear the full scope of arguments presented in Lin‘s petition for
The judicial review provision of the INA states that we may review a final order of removal only if “the alien has exhausted all administrative remedies available to the alien as of right.”
The question we face in the instant case is whether the exhaustion of “administrative remedies available to the alien as of right” further requires, as a matter of statutory jurisdiction, that an immigration petitioner raise before the
In some recent cases, our court has spoken in a manner that seemed to conflate
We now find ourselves obliged to face squarely the nature of our issue exhaustion requirement. In undertaking this inquiry, we are mindful of the Supreme Court‘s recent admonition that inferior courts must use great caution in distinguishing mandatory from jurisdictional rules. See Eberhart v. United States, 546 U.S. 12, 126 S.Ct. 403, 405, 163 L.Ed.2d 14 (2005) (per curiam) (“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
The use of “jurisdictional” language in cases like Foster, none of which expressly considered the question of whether the Attorney General might waive an argument as to issue exhaustion, cannot, without more, be held to govern cases in which the government has failed to raise an exhaustion argument. Today we hold (a) that
Our conclusion in this regard rests primarily on the language of
In the absence of an express statutory issue-exhaustion requirement, the Supreme Court, interpreting the Social Security Act, has said that it is “not necessarily” the case that “an issue-exhaustion requirement is ‘an important corollary’ of any requirement of exhaustion of remedies.” Sims, 530 U.S. at 107; see also id. at 112 (holding that “a judicially created issue-exhaustion requirement is inappropriate” in the context of Social Security proceedings). Moreover, the High Court has also suggested that the same distinction applied to exhaustion requirements for federal habeas review. The Court stated that “[a] habeas petitioner who has defaulted his federal claims in state court meets the technical requirements for exhaustion; there are no state remedies any longer ‘available’ to him.” Coleman v. Thompson, 501 U.S. 722, 732, 111 S.Ct. 2546, 115 L.Ed.2d 640 (1991) (emphasis added). Significantly, the exhaustion requirement in the current version of
We are persuaded, both on the language of
That conclusion does not mean, however, that petitioners seeking review of their removal orders are ordinarily excused from issue exhaustion. Quite the contrary. Usually, the requirement of
It follows that, when an applicant for asylum or withholding of removal has failed to exhaust an issue before the BIA, and that issue is, therefore, not addressed in a reasoned BIA decision, we are, by virtue of the “final order” requirement of
But such is not the case when, as here, the BIA order is not the agency determination we review. When the BIA invokes its summary affirmance authority pursuant to its streamlining regulations, the decision of the IJ constitutes the “final agency determination,” see
For this reason, the First Circuit recently opted to exercise review—over the Attorney General‘s objection—of issues that an asylum petitioner had not fully developed before the BIA. See Singh v. Gonzales, 413 F.3d 156, 160 n. 3 (1st Cir.2005) (rejecting the Attorney General‘s claim that an alien‘s objections to an IJ‘s rejection of his withholding of removal and CAT claims were unexhausted where the claims had been only “perfunctorily” raised in a BIA appellate brief, and reasoning that
That said, the fact that courts of appeals are not statutorily-precluded from reviewing issues not raised to the BIA does not mean that they must or, usually, will consider such arguments. Judicially-imposed doctrines of issue exhaustion, which courts invoke even in the absence of statutory exhaustion requirements as “an analogy to the rule that appellate courts will not consider arguments not raised before trial courts,” Sims, 530 U.S. at 108-09, will usually mean that issues not raised to the BIA will not be examined by the reviewing court. Consistent with the strong prudential rationale for requiring all issues raised on appeal to have been presented below, our circuit applies an issue exhaustion doctrine to petitions for review from the BIA. See, e.g., Foster, 376 F.3d at 78 (“To preserve a claim, we require [p]etitioner to raise issues to the BIA in order to preserve them for judicial review.” (internal quotation marks and emphasis omitted)); Gill, 420 F.3d at 86 (reading our past precedents as barring “the consideration of bases for relief that were not raised below, and of general issues that were not raised below” although “we have never held that a petitioner is limited to the exact contours of his argument below“).
In contrast to statutory exhaustion, however, judicial exhaustion permits courts, “in their discretion,” to “waive administrative exhaustion under certain circumstances.” Bastek v. Fed. Crop Ins. Co., 145 F.3d 90, 94 (2d Cir.1998); see also id. at 94 n. 4 (setting forth criteria used by courts in deciding whether to waive the judicial administrative exhaustion requirement); see also Beharry v. Ashcroft, 329 F.3d 51, 56-58 (2d Cir.2003) (discussing the distinction between statutory and judicially-imposed exhaustion requirements).
In the present action, we deem the Attorney General‘s silence on the petitioner‘s issue exhaustion problem to constitute a waiver.22 And waiver by a party is, of course, among the reasons courts may excuse non-jurisdictional exhaustion requirements.23 See Johnson v. Testman, 380 F.3d 691, 695 (2d Cir.2004) (holding—in the context of a mandatory, but non-jurisdictional exhaustion rule—that the failure to exhaust available administrative remedies is an affirmative defense that is waiveable); see also Granberry v. Greer, 481 U.S. 129, 132-33, 107 S.Ct. 1671, 95 L.Ed.2d 119 (1987) (holding that a state may, even inadvertently, waive the pre-AEDPA federal habeas exhaustion requirement), cited in Day v. McDonough, 547 U.S. 198, 126 S.Ct. 1675, 1682, 164 L.Ed.2d 376 (2006); Mathews v. Eldridge, 424 U.S. 319, 330, 96 S.Ct. 893, 47 L.Ed.2d 18 (1976) (“[T]he Secretary [of Health, Education, and Welfare] may waive the exhaustion requirement if he satisfies himself, at any stage of the administrative process, that no further review is warranted either because the internal needs of the agency are fulfilled or because the relief
Significantly, we have reached an analogous holding in the context of the exhaustion requirement of the
We likewise hold here that even though
In the instant case, we are confident that the purposes of our issue exhaustion
We conclude that neither a statutory mandate nor our prudential exhaustion doctrine requires that, where the government has waived issue exhaustion problems, we must exclude from our consideration those issues omitted from an appeal to the BIA.25 And, in light of the government‘s silence on the matter of exhaustion, we invoke our discretion to excuse issue exhaustion in this case. Moreover, as further developed below, issues not raised to the BIA are essential to our view of the merits of Lin‘s appeal. While Lin argued to the BIA three important errors in the IJ‘s reasoning, his appellate brief to the agency left unchallenged a number of other bases for the IJ‘s adverse credibility determination. In such a case, where the IJ, in his adverse credibility finding, relies on multiple grounds, some of which are weak or erroneous, we must “review the totality of the IJ‘s decision,” Borovikova v. U.S. Dep‘t of Justice, 435 F.3d 151, 161 (2d Cir.2006), and determine whether the IJ has articulated “an alternative and sufficient basis for her factual finding” that would render remand futile, Li Hua Lin, 453 F.3d 99, 2006 WL 1755289 at *6. In the present case, as again discussed below, Lin‘s petition for review to us successfully challenges several bases for the IJ‘s conclusions in addition to those Lin raised before the BIA. These challenges, which were not made to the BIA, when added to the errors articulated in Lin‘s BIA appeal, mean that we cannot be confident that “the agency would reach the same result upon a reconsideration cleansed of errors.” Id.
D. The Merits of Lin‘s Appeal
Having found jurisdiction to consider in full the petition for review before
We address each of these arguments in turn, and find merit in several of Lin‘s contentions.
1. Inconsistencies regarding Lin‘s “protest” at the hospital
As he argued to the BIA, Lin first contends that the IJ exaggerated the difference between the 1994 and 2000 accounts of Lin‘s alleged protest at the hospital, and, as a result, erroneously relied upon those inconsistencies in doubting Lin‘s credibility concerning his wife‘s abortions. Although we are largely unpersuaded by Lin‘s efforts to minimize his shifting accounts of the hospital protest, we are nonetheless concerned by the IJ‘s holding that Lin‘s lack of credibility as to that event impugned Lin‘s account of his wife‘s forced abortions.
As a factual matter, the record supports the IJ‘s determination that the 1994 and 2000 versions of Lin‘s conduct at the hospital during his wife‘s second abortion were inconsistent.27 As set forth above, Lin‘s
Yet the identification of testimonial inconsistencies does not end our inquiry. As frequently has been held, while an IJ‘s application of the maxim falsus in uno, falsus in omnibus may at times be appropriate, an applicant‘s testimonial discrepancies—and, at times, even outright lies—must be weighed in light of their significance to the total context of his or her claim of persecution. See Secaida-Rosales, 331 F.3d at 308; Diallo v. INS, 232 F.3d 279, 288 (2d Cir.2000); In re O-D-, 21 I. & N. Dec. 1079, 1081-83 (BIA 1998); see also Yongo v. INS, 355 F.3d 27, 33 (1st Cir. 2004) (“Obviously there are some lies that, because of their circumstances and limited relationship to the main issue, do relatively little to discredit other statements.“). Testimonial inconsistencies are not sufficient as the sole basis for an adverse credibility finding where the inconsistencies “do not concern the basis for the claim of asylum or withholding, but rather matters collateral or ancillary to the claim.” Secaida-Rosales, 331 F.3d at 308 (emphasis added); see also Borovikova, 435 F.3d 151, 167 (2d Cir.2006).
This principle inherently includes a dimension of proportionality, i.e., that the agency has properly assessed the scale of the inconsistency in the context of the balance of the alien‘s testimony. In Alvarado-Carillo v. INS, 251 F.3d 44 (2d Cir.2001), we used the example that “one might easily and quickly characterize a person shopping for groceries as ‘forgetful’ if, after being instructed to buy four specific grocery items, he or she failed to purchase one and got the wrong brand of another; on the other hand, the evaluation of a person making the same errors after an instruction to purchase twenty specific items would almost certainly not be the same.” Id. at 51. In other words, the significance of an inconsistency can be overstated or understated if viewed in isolation, and overstatement is especially likely where the inconsistency bears little on the applicant‘s claim.
The legal significance of Lin‘s inconsistency regarding the hospital protest, therefore, depends on the basis of Lin‘s claim for asylum. When the agency reopened Lin‘s claim in 2000 in view of the amended definition of “refugee” under the INA, Lin‘s wife‘s forced abortions acquired new significance. As stated by the IJ himself, the “key issue” for Lin‘s reopened application was whether Lin was the spouse of a person who had been compelled to abort a pregnancy, within the meaning of In re C-Y-Z-, 21 I. & N. Dec. 915 (BIA 1997), and the IJ made his adverse credibility finding regarding the hospital protest in the context of that claim. Forcible abortions of his wife‘s pregnancies, then, were the heart of Lin‘s claim in 2000, and the IJ‘s adverse credibility inferences regarding the incident at the hospital must be understood in that context. Thus situated, we find that the change in testimony regarding the scale of Lin‘s objection to government policy to have been a relatively minor discrepancy at the periphery of Lin‘s claim for relief. See Diallo, 232 F.3d at 288; Secaida-Rosales, 331 F.3d at 308.
2. Inconsistencies regarding the chronology of Lin‘s wife‘s medical procedures
The IJ did, however, provide other grounds for his adverse credibility finding. The IJ correctly noted that Lin‘s testimony in 2000 concerning his wife‘s abortions and IUD insertions had changed from 1994 in certain particulars. First, Lin‘s later testimony added several details, and in one instance corrected a date, regarding the insertion and removal of IUDs between his wife‘s pregnancies. Second, Lin gave a different date for his wife‘s first abortion. Lin acknowledged these variances, stating at the 2000 hearing that in 1994 he had been incorrect concerning the dates of certain events, and that in the interim, he had spoken to his wife, who had a better memory of the chronology, because they related to events that had affected her most directly. Lin now argues, as he did to the BIA, that the IJ erred in assessing these omissions and inconsistencies.
The legal significance of the omissions in Lin‘s 1994 testimony must be gauged in the light of what he was claiming at that hearing as against his claims in 2000. As discussed, at Lin‘s first hearing, the details concerning his wife‘s medical procedures were significantly less relevant to Lin‘s asylum claim in 1994, as Lin was not then claiming asylum based on the persecution of his spouse. See Secaida-Rosales, 331 F.3d at 308; see also Mece v. Gonzales, 415 F.3d 562, 575-76 (6th Cir.2005) (“If presented discrepancies cannot be viewed as attempts by the applicant to enhance his claim of persecution, they have no bearing on credibility.“). The addition of further detail, and even improved accuracy, regarding the specific chronology of Lin‘s wife‘s abortions was a purpose of the reopened asylum hearing in 2000, and thus Lin cannot be penalized for adding new testimonial evidence with respect to those events.
As for Lin‘s correction of the date of his wife‘s first abortion and the date of the IUD insertion in 1992, his explanation is factually plausible—particularly in light of Lin‘s wife‘s corroborating affidavit, about which the IJ‘s decision expressed no doubts. This does not mean that the IJ had to believe the explanation, but, crucially, the IJ appears to have accepted it. The IJ stated: “[T]he Court can understand that the applicant‘s wife would be able to more accurately recall the dates when the IUDs were inserted and/or removed and when the abortions took place.” Yet despite this acknowledgment, the IJ
We find that corrected dates as to one abortion and one IUD implantation are relatively minor inconsistencies in the context of an eight-year chronology involving four pregnancies, two births, two abortions, three IUDs, and two threats of sterilization. See Alvarado-Carillo, 251 F.3d at 51. Nevertheless, these discrepancies were not unimportant, in light of their proximity to the core of Lin‘s claim. See Secaida-Rosales, 331 F.3d at 308. If Lin had rested his case at this point, as he did before the BIA, he would have left unchallenged several other grounds for the IJ‘s adverse credibility finding—inconsistent testimony regarding his wife‘s hiding, conflict between testimony and the household registries, and background evidence indicating that his wife‘s abortions were voluntary. Under those circumstances, we would have been confident that the agency would have reached the same holding in the absence of errors. See Li Hua Lin, 453 F.3d at 99, 2006 WL 1755289 at *6. But given our holding above with respect to exhaustion, we must consider the implications of the additional arguments raised in Lin‘s petition for review to us, and evaluate the possible futility of a remand in the light of the full sum of IJ errors. We therefore turn to the new arguments raised in Lin‘s petition for review.
3. Lin‘s account of his wife‘s period of hiding
The IJ‘s decision relied on the fact that Lin had testified at his reopened hearing that his wife had hidden six kilometers away with her mother, and that this testimony was inconsistent with Lin‘s wife‘s written statement that she had gone “far away” to hide with a friend. An examination of the transcript of the 2000 hearing, however, reveals that the IJ‘s description of Lin‘s testimony was inaccurate. Lin actually stated that his wife had hidden both with friends and with her mother. When the IJ subsequently asked Lin to explain the apparent discrepancy between his wife‘s characterization of her hiding place as “far away” and his statement that his mother-in-law lived six kilometers away, Lin stated again, in conformity with his initial testimony, that his wife had hidden in multiple locations. On this record, we find the IJ‘s characterization of Lin‘s and his wife‘s stories on this matter as inconsistent to be unsupported by the record. See Chung Sai Zheng v. Gonzales, 440 F.3d 76, 80 (2d Cir.2006).
4. The household registries
The IJ also erred, at least in part, in finding discrepancies between Lin‘s testimony and the household registries submitted as corroborating evidence. The IJ observed that the registries appeared to show that Lin‘s second son, born in 1986, whom Lin stated was registered only after the payment of a 6,000 yuan fine in December 1990, had in fact been registered with the other members of the family on February 15, 1990. That this date is inconsistent with Lin‘s testimony (1) that the fine was paid in December 1990, and (2) that his second son was not registered until after the payment, is clear. But the existence of both sons, and the violation of the one-child policy that the second birth constituted, is corroborated by Lin‘s testimony in 1994 and by Lin‘s wife‘s affidavit, which the IJ appeared, in large measure, to credit. Furthermore, there is no inconsistency as to the fine required to register that son, nor as to his registration some four years after his birth. As a result, this discrepancy appears to be the sort of “collateral” detail that the IJ can consider, but that should not, in itself, undercut Lin‘s central claims concerning his wife‘s abor-
More troubling to the validity of the IJ‘s ultimate conclusions are the IJ‘s comments regarding a “second” household registry, which was not admitted into evidence and which, with the exception of dates written in Arabic numerals, was written entirely in Chinese. The IJ stated in his decision that, although he could not read this second registry, he was able to determine from the dates that it was inconsistent with the translated document that was admitted into evidence. The first problem with this finding is the IJ‘s reliance on non-record evidence, which the BIA has prohibited. See In re S-M-J-, 21 I. & N. Dec. 722, 728 (BIA 1997) (stating, in the context of a country report not included in the record, that “any evidence relied upon by the Immigration Judge must be included in the record so that the Board can meaningfully review any challenge to the Immigration Judge‘s decision on appeal“). But, even were we to ignore the failure to put the registry in the record, it is patently improper to draw conclusions from a document written in a foreign language in the absence of a certified translation. See Augustin v. Sava, 735 F.2d 32, 37 (2d Cir.1984);
Such conclusions cannot be treated as reliable. This lack of reliability is borne out by our own examination of the Arabic numerals legible on the untranslated household registry. To us, this document reveals no apparent discrepancies that might warrant the IJ‘s findings. The IJ‘s conclusion concerning this second registry is, therefore, not supported by the evidence. Moreover, we cannot avoid the concern that the IJ‘s apparent problems with this untranslated registry might have affected, inappropriately, the weight he placed on the earlier-described discrepancy regarding the registration of Lin‘s second son.
5. The voluntariness of Lin‘s wife‘s abortions
Most important, because central to the viability of Lin‘s claims in 2000, we conclude that the IJ‘s determination that Lin‘s wife‘s abortions must have been voluntary, rather than forced, was not supported by substantial evidence. In drawing this inference, the IJ relied on the contents of a State Department country report indicating that the issuance of abortion certificates (which Lin testified he had received but had lost) occurred only in cases of voluntary abortions. In so stating, the IJ gave no indication of the year of the country report to which he was referring. Accordingly, we must assume that he was referring to the 1999 State Department report, which was the only one included in the administrative record. But we have found no discussion of abortion certificates in this report.
Moreover, even if such evidence were in that report, we would think that where the claim is one of past persecution, it is unreasonable to draw inferences regarding the circumstances of abortions performed in 1990 and 1991 based upon a report prepared nearly a decade later. And this is so quite apart from our frequently-stated caution that State Department reports cannot be presumed to “present[] the most accurate picture of human rights in the country at issue,” and that such reports “do not automatically discredit contrary evidence presented by [an asylum]
It follows that the IJ did not have before him reliable evidence upon which to base his conclusion that Lin‘s wife‘s abortions were voluntary, rather than forced as she attested in an affidavit which the IJ found, on the whole, to be credible.
6. The future threat of sterilization
Finally, we turn to the two grounds stated by the IJ for rejecting Lin‘s contention that he faced sterilization if removed to China: (1) that Lin‘s divorce removed the threat of any such procedure, and (2) that, in connection with Lin‘s claim for CAT relief, sterilization is not tantamount to torture. As to the first, we note that the transcript of the January 31, 2001 hearing indicates that the IJ became aware of Lin‘s divorce proceedings only minutes before his oral decision was rendered, and that, upon receiving this information from Lin‘s attorney, the IJ made no further inquiry into the matter. We think it evident that an inquiry would need to be conducted in order to assess reliably, at the least, (a) whether the divorce proceedings had, in fact, been concluded, and (b) whether China‘s family planning officials sought to sterilize Lin in order (i) to prevent further childbearing specifically from this—now, perhaps terminated—marriage, (ii) to preclude any future procreation by an individual who already had two sons, or, finally, (iii) to punish Lin for his prior violations of the one-child policy. On the current record, the IJ‘s assessment of the impact of Lin‘s divorce on his sterilization claim cannot be said to be supported by substantial evidence.28
Regarding the IJ‘s determination that a threat of torture could not be made out by a proved claim of forced sterilization, our capacity to review this legal conclusion is compromised by the IJ‘s silence as to the analytical basis for it. See Shi Liang Lin v. U.S. Dep‘t of Justice, 416 F.3d 184, 191 (2d Cir.2005). In any event, we need not decide the question of whether involuntary sterilization pursuant to China‘s population control policy meets the definition of torture adopted by the CAT. Because the IJ‘s legal conclusion that threatened sterilization does not warrant CAT relief was unsupported by any reasoning whatsoever, see, e.g., Yu Sheng Zhang, 362 F.3d at 158-59 (discussing the need for “sufficient reasoning” in a summarily affirmed IJ opinion so as to permit judicial review), we must vacate the IJ‘s determination on this issue and remand it to the BIA. It is for that agency to decide, in the first instance, whether and how the merits of the question should be considered.29
* * * * * *
Thus, with respect to Lin‘s claims (a) for asylum and withholding of removal on the basis of his wife‘s alleged forcible abortions and his asserted threatened sterilization,
There are, to be sure, valid grounds on the basis of which the Executive Office of Immigration Review (the body encompassing the BIA and the immigration courts) might conclude that the purported forcible abortions and especially the threat of sterilization did not occur. For instance, one inconsistency in Lin‘s testimony regarding the chronology of his alleged past persecution in China is not explained by his wife‘s superior memory of the dates of IUD insertions and abortions. As described early in this opinion, and as noted by the IJ, Lin testified in 1994 that, following his wife‘s first abortion and in order to avoid government-ordered sterilization, he had fled into hiding for a period of three months. In 2000, however, Lin testified that he was in hiding for only approximately ten days. While this discrepancy has no obvious relationship to the issue of whether Lin‘s wife underwent forced abortions, it does bear directly on the credibility of Lin‘s alleged attempts to avoid sterilization.
But the IJ did not make this or any other finding of dubiety with respect to Lin‘s sterilization claim. The IJ‘s entire discussion of the discrepancies between Lin‘s 1994 and 2000 testimony referred only to the issue of Lin‘s wife‘s forced abortions. And, the IJ made no mention of any additional credibility problems tied to Lin‘s claimed fear of future sterilization. Cf. Secaida-Rosales, 331 F.3d at 305 (“[O]ur review [is] confined to the reasoning of the IJ, and we will not search the record independently for a basis to affirm the BIA.“). As we said in Jin Shui Qiu, 329 F.3d at 149, “[r]ules of law . . . require the BIA to elucidate the basis for its factual conclusions. . . . BIA errors of law are not excused by the fact that a hypothetical adjudicator, applying the law correctly, might also have denied the petition for asylum, nor can factual findings supporting such a denial be assumed on the basis of record evidence not relied on by the BIA.” Accordingly, we cannot supplement the underlying agency decision with our own conclusions.
That said, the inconsistencies discussed in the IJ‘s decision did address Lin‘s general credibility in ways that cannot be ignored. As such, they might also affect his claim that his wife was subjected to two forcible abortions, and this is so despite the high level of overall testimonial consistency regarding these events. And, were Lin‘s testimony the only basis for this claim, we might find that despite the IJ‘s errors, a remand to the BIA on this claim would be futile. See Li Hua Lin, 453 F.3d 99, 2006 WL 1755289 at * 6. But the forced abortions claim is also based in significant part on Lin‘s wife‘s affidavit, which—once the IJ‘s errors are excised—cannot be discounted. As a result, we do not “have confidence that the agency would reach the same result upon a reconsideration cleansed of errors.”30 Id. Nor is it the case that the IJ offered an “alternative and sufficient basis,” separate from his errors, on which his conclusions as to
Viewing the case as a whole, we cannot say that the IJ made findings that are supported by sufficient evidence to rule out Lin‘s claim of fear of sterilization based on past threats of such sterilization. Nor can we say that the claim that Lin‘s wife was subjected to forcible abortions has been rejected on the basis of error-free record evidence. And we are not confident that a remand of these claims to the BIA—on the standards stated in Cao He Lin, Xiao Ji Chen, Li Hua Lin, and Li Zu Guan—would be futile.
We therefore must vacate the decision and remand to the BIA for further proceedings.
III. Conclusion
For the foregoing reasons, Lin‘s petition for review is GRANTED. The decision of the BIA IS VACATED, and Lin‘s abortion- and sterilization-related claims for asylum, withholding, and CAT relief are REMANDED to the BIA for further proceedings not inconsistent with this opinion. For the reasons stated in note 20, supra, the BIA‘s affirmance of the IJ‘s rejection of Lin‘s arguments arising from Lin‘s alleged illegal departure from China is AFFIRMED.
KEARSE, Circuit Judge, dissenting.
I respectfully dissent. I would deny the petition for review because the only issues presented here that were exhausted through presentation to the Board of Immigration Appeals (“BIA” or the “Board“), as required by
The majority, in vacating the BIA decision and ordering a remand, concedes that the issues raised in the petition for review that were presented to the BIA do not warrant relief. See, e.g., Majority Opinion ante at 118 (“Several issues raised in [Lin‘s] petition . . . were not included in Lin‘s brief on appeal to the BIA, and . . . they alter the proper disposition of Lin‘s petition for review.“); id. at 125 (“[The] issues not raised to the BIA are essential to our view of the merits of Lin‘s appeal.“).
But the majority holds that this Court has jurisdiction to review issues that were not raised in a petitioner‘s appeal to the BIA. See, e.g., Majority Opinion ante at 121-22 (“[I]n the context of
Section 1252(d)(1), enacted as part of the
I disagree with the majority‘s apparent view that Foster was somehow eroded by Abimbola v. Ashcroft, 378 F.3d 173, 180 (2d Cir.2004), a view reflected in the majority‘s statement that “in Abimbola [,] . . . decided shortly after Foster and by the same panel, we expressly treated as an open question the jurisdictional effect of a lack of issue exhaustion in a situation in which the government had seemingly waived objection.” Majority Opinion ante at 119 n. 19 (emphasis added). This description by the majority assumes lack of exhaustion; however, the uncertainty as to our jurisdiction in Abimbola arose precisely because there was a question as to whether exhaustion was lacking. The petitioner in Abimbola had in fact presented the pertinent issue to the BIA. The problem was that he had not raised the issue before the Immigration Judge (“IJ“) and that the BIA had not addressed it. We noted that those circumstances “present[ed] an open question as to whether we have jurisdiction over this claim since Abimbola may not have properly exhausted his administrative remedies as required by
Nor do I read Abimbola as stating that the government had waived or could waive the issue-exhaustion requirement. Although noting that the government “ha[d] not offered a jurisdictional objection based on an exhaustion argument for this claim,” we clearly considered the possible absence of exhaustion to present a “jurisdictional issue.” 378 F.3d at 180. We stated that “it would be unwise” to decide the “particularly difficult and complex” “jurisdictional issue” presented by the possibility that a petitioner‘s raising an issue before the BIA without having raised it to the IJ, where the BIA‘s ruling does not address the issue, may not constitute the required exhaustion, “without the benefit of argument from both sides.” Id. Since the jurisdictional constraint is not constitutional but statutory, allowing the “exercise [of] hypothetical jurisdiction,” and since we found it “clear that Abimbola‘s claim . . . [wa]s meritless, we assume[d] jurisdiction to decide the issue but t[ook] no position as to whether Abimbola met the exhaustion requirement in
In sum, I view the above passages of the Abimbola opinion as clearly indicating—consistently with the principles enunciated shortly theretofore by the same panel in Foster—that if it were established that Abimbola did not properly exhaust his administrative remedies on the pertinent issue as required by
Most importantly, I disagree with the position taken by the majority that
Nor does exhaustion of all available remedies mean simply obtaining a final order. In considering the
While the modifier “available” requires the possibility of some relief for the action complained of . . . , the word “exhausted” has a decidedly procedural emphasis. It makes sense only in referring to the procedural means, not the particular relief ordered. It would, for example, be very strange usage to say that a prisoner must “exhaust” an administrative order reassigning an abusive guard before a prisoner could go to court and ask for something else . . . . It makes no sense to demand that someone exhaust “such administrative [redress]” as is available; one “exhausts” processes, not forms of relief . . . .
Id. at 738-39, 121 S.Ct. 1819 (brackets in original) (emphases added). Thus, I view
The view that
Further,
I have seen nothing in the legislative history to indicate that in enacting IIRI-
it is “appropriate to assume that our elected representatives, like other citizens, know the law,” Cannon v. Univ. of Chicago, 441 U.S. 677, 696-97, 99 S.Ct. 1946, 60 L.Ed.2d 560 (1979), and to recognize that “longstanding acceptance by the courts [of a judicial interpretation], coupled with Congress’ failure to reject that interpretation, argues significantly in favor of accept[ing] it.” Gustafson v. Alloyd Co., Inc., 513 U.S. 561, 602, 115 S.Ct. 1061, 131 L.Ed.2d 1 (1995) (internal quotation omitted) (alteration in original); see also Sutherland Statutory Construction § 22:33, at 399 (6th ed. 2002) (“[T]he legislature is presumed to know the prior construction of the original act, and if words or provisions in the act or section amended that had been previously construed are repeated in the amendment, it is held that the legislature adopted the prior construction of the word or provision.“). Whatever the merits of the textual interpretation of
§ 1105a(c) by the courts prior to the IIRIRA, there is a strong inference that in reenacting the same exhaustion language, Congress intended to continue a statutory requirement that an alien exhaust not only remedies, but also issues, before he may obtain judicial review.
403 F.3d at 582 (emphasis added).
Finally, to the extent that the majority suggests that its ruling that the
The party taking the appeal must identify the reasons for the appeal in the Notice of Appeal . . . or in any attachments thereto, in order to avoid summary dismissal . . . . The statement must specifically identify the findings of fact, the conclusions of law, or both, that are being challenged. If a question of law is presented, supporting authority must be cited. If the dispute is over the findings of fact, the specific facts contested must be identified.
In sum, the majority holds that “the language” of ”
Finally, as to the explanations given by the majority in its initial, “clarify[ing],” footnote, Majority Opinion ante at 107 n. 1, which follows its statement that the “[jurisdictional] question is determinative of the . . . case before us,” id. at 107, I have several observations. I question whether this Court actually has the power to remedy even a manifest injustice when we lack jurisdiction. Further, statements as to what our Court must do in circumstances differing from those here are purely dicta. And it strikes me as odd for the majority to state that it “expects that virtually no case will be decided differently from the way it would be were the [exhaustion] requirement deemed jurisdictional,” id. at 108 n. 1, considering that the instant matter is precisely such a case.
For all of the foregoing reasons, I dissent.
D.D., a minor, by and through his Parent and Next Friend, V.D.; A.C., a minor, by and through his Parent and Next Friend, V.S.; B.T., a minor, by and through his Parent and Next Friend, D.N., individually and on behalf of all others similarly situated, Plaintiffs-Appellants,
v.
NEW YORK CITY BOARD OF EDUCATION; New York City Department of Education; Joel Klein; Angelo Gimondo, Dr., Superintendent, Community School District 30; Nelly Real-Korb, Chairperson, Committee on Preschool Special Education District 30; Richard P. Mills, Commissioner of the New York State Education Department; City of New York; Joe Blaize, Chairperson, CPSE District 29; Michael A. Johnson, Superintendent, Community School District 29; Beth Marino, Chairperson, CPSE District 25 and Michelle Fratti, Superintendent, Community School District 25, Defendants-Appellees.
Docket No. 04-2542-CV.
United States Court of Appeals, Second Circuit.
Argued: Sept. 8, 2004.
Decided: Oct. 12, 2006.
On Petition For Rehearing: Decided Feb. 8, 2007.
Filed Feb. 6, 2007.
Notes
Some examples may be helpful:
(a) If the government points out to the appeals court that an issue relied on before that court by a petitioner was not properly raised below, the court must decline to consider that issue, except in those extraordinary situations in which we have held that such issues can be considered even when exhaustion is a jurisdictional matter. See, e.g., Marrero Pichardo v. Ashcroft, 374 F.3d 46, 52-53 (2d Cir.2004) (holding that while exhaustion of administrative remedies is a “statutory exhaustion requirement,” and hence a failure to appeal was jurisdictional, “in light of the unusual facts of [the case sub judice], an exception is necessary to prevent manifest injustice“).
(b) Even if the government does not point out a failure to exhaust an issue before the agency, such a failure to exhaust is sufficient ground for the reviewing court to refuse to consider that issue. In other words, no appeals court is required to accept a government waiver of issue exhaustion.
(c) Moreover, even a court that would be inclined to accept a government waiver of issue exhaustion may not do so in the absence of a fully-developed record that would allow review of the unexhausted issues by this court and the BIA without further findings—once again, with the exception of those cases in which such review has been permitted when the exhaustion has been treated as jurisdictional. See Marrero Pichardo, 374 F.3d at 52-53.
For purposes of determinations under this chapter, a person who has been forced to abort a pregnancy or to undergo involuntary sterilization, or who has been persecuted for failure or refusal to undergo such a procedure or for other resistance to a coercive population control program, shall be deemed to have been persecuted on account of political opinion, and a person who has a well founded fear that he or she will be forced to undergo such a procedure or subject to persecution for such failure, refusal, or resistance shall be deemed to have a well founded fear of persecution on account of political opinion.
To the extent that the dissent relies on these cases, we note that we have never undertaken a similarly detailed analysis of