Vladimir Iouri and Vera Yuriy (“Petitioners”), natives of the former Soviet Union and citizens of the now independent Ukraine, petition for review from a November 27, 2002 decision of the Board of Immigration Appeals (“BIA”) summarily affirming an Immigration Judge’s (“IJ”) order finding Petitioners incredible and denying their application for asylum, withholding of return, and relief under the Convention Against Torture (“CAT”). Petitioners also seek review of a May 29, 2003 order of the BIA denying their motion to reopen immigration proceedings. The purpose of the motion to reopen was to adjust their status to that of lawful permanent residents on the basis of approved “immediate relative” petitions filed on Petitioners’ behalf by their daughter, a United States citizen. The BIA denied the motion because by the time it was filed, Petitioners had remained in the United States beyond the period granted for voluntary departure and were, therefore, statutorily barred from seeking adjustment of status.
On petition for review, Petitioners raise two issues. First, whether the BIA erred by failing to take into account their advanced age in assessing their credibility. Second, whether their voluntary departure period should be deemed stayed, tolled, or otherwise extended by their having timely filed for a petition for review and moved for a stay of deportation in their underlying asylum case.
I. Background
Petitioners — husband and wife — are natives of the former Soviet Union and citizens of the now independent Ukraine. Iouri entered the United States on or about April 4, 1993 as a non-immigrant visitor. Yuriy followed on or about August 3, 1993, also as a non-immigrant visitor. Soon after his wife’s arrival, Iouri sought asylum claiming that as a member of the Ukraine Orthodox Church, he was persecuted and has a well-founded fear of future persecution due to his religious beliefs and affiliation. 1
In his asylum application, Iouri claims that he has long been mistreated due to his religious beliefs. In particular, he asserts that under Communist rule, his family was unable to practice their religion openly, and as a child, he was punished in school for attending Easter services. His application also recounts alleged mistreatment while he served in the army. In Hungary, for example, Iouri asserts he refused to shoot protestors due to his moral and religious convictions, and as a result, he was mistreated and threatened with punishment. Iouri claims his commanding officer arrested him while he was praying. 2 Beyond that, Iouri contends he was generally mocked, threatened, and forced to serve in an “atmosphere of general hostility.”
According to Petitioners, conditions did not improve with perestroika and independence. They report receiving threatening letters and phone calls; letters they sent were opened and inspected; and the Russian Orthodox and Ukranian Catholic churches, backed by the government, did “their best to declare [Petitioner’s] religion out-of-law.”
*175 Iouri’s asylum application, however, made no mention of any specific incidents of abuse or violence against him or his wife. Indeed, Iouri mentioned specific incidents for the first time during an asylum interview and in an addendum to his application submitted to the IJ in June 1999. In the addendum, Iouri claimed that (1) he was attacked in December of 1991 and threatened with death if he did not stop attending religious services; (2) his apartment was vandalized in March of 1992; and (3) in February of 1993, his apartment was again broken into and vandalized, and he was beaten and admitted to the hospital with a ruptured kidney.
A hearing was held on July 6, 2000 at which both Petitioners testified. With regard to the 1991 incident, Iouri claimed for the first time that he was knocked unconscious, suffered injuries to his head and chest, and was hospitalized for seven days. As to the 1992 vandalism incident, he testified that graffiti with death threats was painted on the wall, and when he attempted to report the incident, police informed him the case was closed and advised him to stop practicing his religion. When Yu-riy testified, she could not remember the date of the third incident, stating that it occurred either in December of 1992 or February of 1993. She also testified that her husband was attacked on the street, not in the apartment. When brought to her attention that submitted documents indicated the attack occurred in her home, she changed her testimony and stated that a fourth incident in which her husband was beaten occurred sometime in December of 1992. Her husband, however, did not testify to that effect, and there is no mention in any of the documents of a December 1992 attack.
The IJ denied Petitioners’ application finding that Iouri’s testimony was not credible. Specifically, the IJ found his testimony to be “generally halting and vague with regards to some significant events.” As to the 1991 incident, the IJ noted that this had not been mentioned anywhere else and there were no documents corroborating that he had been hospitalized. The IJ also noted inconsistencies in the testimony between Iouri and his wife — i.e., she claimed he was attacked in 1993 on the street, not in the apartment, and she testified to a fourth incident never once mentioned by Iouri. Finally, the IJ explained that Iouri was vague in describing the tenets of his faith. 3
Although the IJ denied Petitioners’ application for asylum, he granted their request to voluntarily depart pursuant to former Immigration and Nationality Act (“INA”) § 244(e)(1), 8 U.S.C. § 1254(e) (repealed 1996). Petitioners were warned that if they failed to depart voluntarily, the order granting voluntary departure would be withdrawn and they would be ordered deported to the Ukraine. They were also warned, by written order, of the statutory consequences of failing to depart; specifically, they would be ineligible for certain immigration relief, including adjustment of status, for a term of five years. Id. §§ 1252b(e)(2) & (5). Petitioners filed a timely appeal which tolled the first thirty days of their voluntary departure period. On November 27, 2002, the BIA summarily affirmed the IJ’s decision and granted Petitioners a new period of voluntary departure lasting until December 27, 2002.
*176 Petitioners filed their petitions for review with this court on December 26, 2002 and December 27, 2002. Along with the petitions for review, Petitioners also requested that we grant them a stay of deportation. They did not, however, specifically request a stay of their voluntary departure period or seek an extension of the departure period from the Immigration and Naturalization Service’s (“INS”) District Director. Nor did they depart. Instead, they filed a motion before the BIA to reopen proceedings in order to apply for adjustment of status on the basis of approved “immediate relative” petitions filed on their behalf by their daughter, now a United States citizen. The BIA denied their motion because they had overstayed their departure period and were, therefore, statutorily barred from applying for adjustment of status. This appeal followed.
II. Discussion
A. Asylum, Application
Because the BIA summarily affirmed the IJ’s decision to deny Petitioner’s application for asylum, we review the IJ’s decision directly.
Twum v. INS,
When it comes to credibility determinations, we afford “particular deference” to the IJ in applying the substantial evidence test.
Zhou Yun Zhang v. INS,
Here, the IJ clearly set forth specific and cogent reasons for his adverse credibility finding, stating:
Again, for all the reasons: the internal discrepancies, the external inconsistencies with information on documents and the addendum to the 1-589 request for asylum, the general vagueness of the testimony, the lack of key details and specifics with regard to the most critical portions of the claim, and the significant discrepancies between the testimony of the two respondents; for all these reasons, I find that the testimony does not rise to the level of believability and consistency in detail to provide us with a plausible and coherent account of the basis for the fear, and for that reason a negative credibility finding is made for each respondent.
Tr. 14-15.
These findings are supported by substantial evidence. As noted above, there were significant discrepancies between Iouri’s initial asylum application, the addendum, and his testimony. For example, the addendum did not note his hospitalization following the first incident and no
*177
where in the initial asylum application did he mention any of these incidents. More telling are the discrepancies between the testimony of the two Petitioners. Not only did Yuriy testify that the February 1993 incident occurred while her husband was on the street, whereas he testified that it occurred in the couple’s home, a fact his spouse would be unlikely to mistake, but she also testified to a fourth incident occurring in December of 1992 which is mentioned nowhere in her husband’s testimony, the supporting asylum application, or
even
the addendum. These inconsistencies are sufficient to support the IJ’s adverse credibility finding.
See Gao v. U.S. Atty. Gen.,
Nevertheless, Petitioners argue that the IJ and BIA should have considered the passage of time and their advanced age in assessing their credibility. As the government correctly points out and as Petitioners acknowledge, however, this particular argument was not raised before the BIA and Petitioners therefore failed to exhaust their administrative remedies. Accordingly, this argument has been waived.
See Foster v. INS,
B. Voluntary Departure
As noted, Petitioners were granted— both by the IJ and the BIA — discretionary relief of voluntary departure in lieu of deportation pursuant to former INA § 244(e)(1).
6
“If adhered to, voluntary departure produces a win-win situation.”
Bocova v. Gonzales,
Following the BIA’s decision to affirm the IJ, Petitioners were required to depart the United States by December 27, 2002. They did not. Instead, on January 23, 2003, they moved before the BIA to have their proceedings reopened in order to adjust their status based on “immediate relative” petitions filed on Petitioners’ behalf by their daughter and approved by the INS on November 25, 2002. Because they had overstayed their time for voluntary departure, however, the BIA denied the motion. See 8 U.S.C. § 1252b(e)(2)(A) (repealed 1996) (aliens who fail to depart within the period for voluntary departure, “other than because of exceptional circumstances, shall not be eligible for [adjustment or change of status under section 245] for a period of 5 years after the scheduled date of departure.... ”).
The BIA’s conclusions of law are reviewed
de novo
but where the BIA has applied the correct law, we review its decision to deny reopening for abuse of discretion.
Guan v. BIA,
i. When does Petitioners’ time to depart voluntarily begin to run?
Citing the Ninth Circuit’s decision in
Contreras-Aragon v. INS,
Petitioners here, however, are subject to the transitional rule of IIRIRA because deportation proceedings against them commenced prior to April 1, 1997, and a final deportation order was entered after October 30, 1996. Pub.L. No. 104-208, § 309(c)(4), 110 Stat. 3009, 3009-546, 3009- *179 625. Two changes made applicable by the transitional rules are relevant here. First, automatic stays are no longer granted; an alien must petition the court for a stay of deportation. Id. § 309(c)(4)(F). Second, petitions for review must be filed within 30 days of the final order of deportation. Id. § 309(c)(4)(C).
These changes have so undercut the rationale of
Contreras-Aragon
that Petitioners reliance on that decision is misplaced. Indeed, these very same changes prompted the Ninth Circuit several years later in
Zazueta-Carrillo v. Ashcroft,
ii. Whether the period for voluntary departure may he stayed, tolled, or otherwise extended
In
Thapa,
in. Whether Petitioners must have expressly requested a stay of the voluntary departure order
In
Thapa,
and most cases where other courts have held the period for voluntary departure may be stayed, the petitioner expressly moved for a stay of voluntary departure.
See Id.
at *3;
see, e.g.,
*180
Nwakanma,
When an alien is ordered deported, a warrant by the INS District Director is issued authorizing the officer to take the alien into custody and deport him or her. Gordon, Mailman & Yale-Loehr,
Immigration Law and Procedure
§ 72.08[l][a] (rev. ed.2005). When this Court grants a stay of deportation, we are preventing the forced removal of an alien from the country. Such stays are particularly important in cases governed by IIRIRA’s transitional rules because removal of an alien strips this Court of jurisdiction to hear their petition for review.
See Elian,
Voluntary departure, in contrast, is a privilege granted an alien in lieu of deportation.
See Ballenilla-Gonzalez v. INS,
In contrast to a stay of deportation, which stops the physical removal of an alien from the country, a stay of voluntary departure stops the clock on the period within which an alien is required to depart and, if granted, effectively extends the time during which an alien is allowed to leave voluntarily. An alien “ ‘does not
lose
something when offered the additional opportunity to depart voluntarily. On the contrary, he retains precisely the same right to judicial review he would otherwise have had; it is only that his alternative to continued litigation has been made more
*181
attractive.’”
Harchenko v. INS,
The relief sought by a stay of deportation, therefore, is different from that sought by a stay of voluntary departure.
8
Whereas a stay of deportation is aimed at preserving the court’s jurisdiction, a stay of the voluntary departure period is a way for the alien to extend the benefits of the privilege of voluntary departure beyond the date the alien was initially afforded. In addition, the equities involved in the two types of stays may also differ.
See Rife,
iv. Whether Petitioners are entitled to nunc pro tunc relief
Petitioners would have us now adjudicate their request for a stay of voluntary departure
nunc pro tunc.
10
Nunc pro
*182
tunc,
Latin for “now for then,” refers to a court’s inherent power to enter an order having retroactive effect.
Black’s Law Dictionary
1100 (8th ed.2004). “When a matter is adjudicated
nunc pro tunc,
it is as if it were done as of the time that it should have been done.”
Edwards v. INS,
While we are sympathetic to the position Petitioners find themselves in, this is simply not a case in which
nunc pro tunc
relief is warranted. As of November 25, 2002, Petitioners’ immediate relative petitions were approved. Two days later, the BIA issued its decision in the underlying asylum case, affirming the IJ’s order. The BIA, however, granted Petitioners an additional 30 days within which to depart. Petitioners then had several options. First, they could have filed a motion to reopen to adjust their status sooner. Indeed, the record discloses that Petitioners did not move to reopen until January 2003, well after their period for voluntary departure had expired. Second, they could have sought an extension of their period for voluntary departure from the INS District Director. Finally, they could have moved in this Court for a stay of voluntary departure. By exercising any of these options, Petitioners might have preserved their privilege to depart voluntarily. In other words, this is not a case in which error on the part of the court or the INS put Petitioners in a worse position. An order,
nunc pro tunc,
granting a stay of voluntary departure is therefore inappropriate.
Cf. Edwards,
Finally, we note one other factor that distinguishes
Desta
and
Bife
from this case. In each of those cases, our sister circuits were concerned that their prior case law had given petitioners reason to believe that they need not file a motion for a stay of voluntary departure.
Desta,
This Court has never held that aliens who file a petition for review are automatically entitled to a stay of voluntary departure. To the contrary, in
Ballenilla-Gonzalez,
we highlighted the fact that the petitioner there had not filed for a petition of review within the thirty days fixed by the period for voluntary departure nor had she requested a stay of the voluntary departure period pending appeal.
Although we decide that the stay of deportation should not be read so as to encompass a stay of voluntary departure, Petitioners may not be without a remedy. Under pre-IIRIRA regulatory authority, the INS District Director (now the appropriate Field Office Director, U.S. Immigration Customs Enforcement, Department of Homeland Security) may grant a nunc pro tunc extension of voluntary departure. See 8 C.F.R. § 1240.57 (“Authority to reinstate or extend the time within which to depart voluntarily specified initially by an immigration judge or the Board is within the sole jurisdiction of the district director.”); see also 6 Gordon, Mailman & Yale-Loehr, Immigration Law and Procedure § 74.02[4][f] (rev. ed. 2005) (“Even after the expiration of the time for voluntary departure fixed by the immigration judge or the Board, a nunc pro tunc extension of the voluntary departure time may be granted by the district director if the [alien] presents a valid travel document and a confirmed reservation. In such cases the district director may cancel the warrant of deportation and may place in the [alien’s] file an explanatory memorandum and a copy of the letter authorizing the extension of voluntary departure time.”).
Petitioners are both in their mid-to-late 60’s and have been in the United States for more than a decade, without event. Their only child is a United States citizen, and the “immediate relative” petitions she submitted on her parents’ behalf have already been approved. Furthermore, it appears that any delay on Petitioners’ part may be attributable to counsel’s failure to recommend that they seek to extend their voluntary departure period before overstaying that period, an omission that thereby made them ineligible for adjustment of their status based on approved “immediate relative” petitions. In this case, the INS District Director might well consider exercising his or her discretion to grant an extension so that Petitioners may adjust their status to lawful permanent residents. The law does not, however, support this Court granting the relief sought in the pending petitions.
The petitions for review are Denied.
Notes
. Yuriy is claimed as a dependent.
. After leaving the army, Iouri claims he studied to be a merchant mariner but was unable to get a job because he refused to fight in Hungary. He states that he eventually found a job in a toy factory where he met his wife. He alleges that the KGB warned his managers about his and his wife's "political unreliability.”
. In this regard, the IJ noted that Petitioners submitted a letter in support of their asylum application from a rector at a Russian Orthodox Church that Petitioners attend in the United States which, according to other materials is, in fact, the church that caused them problems in the Ukraine.
.Even if we did consider Petitioners' argument, it is without merit. Neither the passage of time nor Petitioners’ advanced age adequately explains the inconsistencies here. With the passage of time and age, one expects memory to fade. Details such as dates may be forgotten or inaccurately recalled, but here Iouri totally failed to mention in his initial asylum application — an application filed shortly after his arrival in the United States— several grave incidents which go to the heart of his claim. It was more than five years later that he mentioned them, first in the addendum and then while testifying before the IJ. Similarly, his wife testified to an incident never before mentioned. The severity of these incidents, coupled with the fact that they were not mentioned until sometime later, suggests this is more than a case of mere forgetfulness due to either age or passage of time. Accordingly, the IJ cannot be faulted for failing to excuse the inconsistencies or improved recollections on these grounds.
. Petitioners have not sought review of their CAT claim.
. Section 244(e)(1) provides that “the Attorney General may, in his discretion, permit any alien under deportation proceedings ... to depart voluntarily from the United States at his own expense in lieu of deportation if such alien shall establish ... that he is, and has been, a person of good moral character for at least five years immediately preceding his application for voluntary departure....” 8 U.S.C. § 1254(e)(1).
. In
Elian v. Ashcroft,
. In
Thapa,
we agreed with the observation in
Rife,
. This is also consistent with Federal Rule of Appellate Procedure 18 pursuant to which stays pending review of an agency decision are issued. In pertinent part, Rule 18 provides that a motion for a stay must include "the reasons for granting the relief requested and the facts relied on.” Fed. R.App. P. 18(a)(2)(B)(i). Here, Petitioners styled their motion as a "stay of deportation” and, in support, noted that because stays are no longer automatically issued they are “subject to being physically deported from the United States at any time” and that a “denial of a Stay of Deportation will allow the INS to act to deport them and render [the] Petition for Review moot.” It is clear, then, that the reasons offered by Petitioners for granting their stay were aimed at deportation rather than their period for voluntary departure.
.Although Petitioners’ request for
nunc pro tunc
relief distinguishes this case from
Thapa,
because the petitioner moved for a stay of the voluntary departure period before the period expired,
see Thapa,