We hereby grant the petition for rehearing of our January 6, 2006 opinion in this case,
see Xiao Ji Chen v. U.S. Dep’t of Justice,
Petitioner Xiao Ji Chen, a native and citizen of China, seeks review of. a September 25, 2002 order of the Board of Immigration Appeals (“BIA”) affirming the November 17, 2000 decision of Immigration Judge (“IJ”) Adam Opaciuch. In re Xiao Ji Chen, No. A 77 009 293 (B.I.A. Sept. 25, 2002), aff'g No. A 77 009 293 (Immig. Ct. N.Y. City Nov. 17, 2000) (“IJ Decision”). The IJ found petitioner’s application for asylum, which was filed more than one year after her arrival in the United States, untimely. See 8 U.S.C. § 1158(a)(2)(B). He further found that she had not established either “changed circumstances which materially affect[ed][her] eligibility for asylum” or the existence of “extraordinary circumstances” that would have excused her tardiness in filing her application. Id. § 1158(a)(2)(D). Finally, the IJ *320 denied petitioner’s application for withholding of removal based on his finding that she failed to establish that were she to return to China, it was more likely than not that she would be subject to persecution or torture. See id. § 1231(b)(3)(A); 8 C.F.R. § 1208.16(c).
In her petition for review to this Court, petitioner urges that her lateness in filing her asylum application should have been excused by the IJ because she demonstrated both “changed circumstances” materially affecting her eligibility for asylum and “extraordinary circumstances” that prevented her from timely filing her application. Specifically, she asserts that there were “changed circumstances” because, shortly before her hearing before the IJ, she gave birth in the United States to her second child, who automatically, by operation of law, is a citizen of the United States. She claims also that “extraordinary circumstances” affecting the timeliness of her asylum application existed because the Immigration and Naturalization Service (“INS”) “failed to have a procedure in place that would have permitted [her] to preserve a request for asylum when she was first detained by [the] INS within her first year of being in the United States.” 1 Pet’r’s Br. at 5. Petitioner av *321 ers, inter alia, that, in finding that she did not demonstrate changed or extraordinary-circumstances that would excuse her lateness in filing her asylum application, the IJ and the BIA violated her right to due process and “fail[ed] to apply the law.” Id. at 13, 18. Finally, petitioner alleges that the IJ’s determination that she is ineligible for withholding of removal under either the Immigration and Nationality Act of 1952 (“INA”), as amended, or the United Nations Convention Against Torture (“CAT”) 2 is not supported by substantial evidence.
For the reasons that follow, we dismiss the petition for lack of jurisdiction to the extent it contends that the IJ committed constitutional or legal error when he de- *322 dined to excuse petitioner’s lateness in filing her asylum application, because we conclude that the petition fails to raise a “constitutional claim[ ] or question! ] of law” within the meaning of section 106(a)(1)(A)(iii) of the REAL ID Act. Finally, we conclude that although the IJ’s decision denying petitioner’s application for withholding of removal contains errors, remand nevertheless would be futile because the decision is supported by substantial evidence and it is clear that the same decision would be made in the absence of the noted deficiencies. We therefore deny that portion of the petition.
BACKGROUND
In her removal hearing before the IJ, petitioner alleged past and future persecution based on her opposition to the Chinese family planning policy, testifying that she had been forced to undergo an abortion in October 1997 and that she would be sterilized were she to return to China. Petitioner stated that she had been required to sign a family planning agreement upon her marriage in November 1992, and that, as a factory worker, she had been designated as living in an “urban household,” a status that limited her to having only one child. Five months after the birth of her first child in September 1994, petitioner alleged, the Chinese government forced her to undergo the insertion of an intrauterine device (“IUD”), after which she was required to attend quarterly examinations to confirm that she was not pregnant and that the IUD remained in place. According to petitioner, the IUD fell out at some unidentified time, and she became pregnant again in June 1997. Petitioner asserts that she then missed her next two IUD check-ups scheduled for July 1997 and October 10, 1997; during this time period, petitioner went into hiding at her mother’s home in another village, despite continuing to report to work.
According to petitioner, the local birth control officials became suspicious of her and, as a result, called her mother’s home and came to petitioner’s workplace on October 19, 1997. Petitioner testified that she was then taken to a doctor, at which time her pregnancy was discovered, and she was forced to undergo an abortion. Rather than return approximately ten days later for sterilization, as she had been instructed, petitioner states that she made arrangements to flee to the United States, where she arrived on or about May 21, 1998. Petitioner gave birth in the United States to a second child in April 2000.
On April 27, 1999, approximately eleven months after her arrival in the United States, petitioner was detained for approximately 5-6 hours by INS officials and was ordered to appear at a removal hearing in August 1999. Petitioner filed her written application for asylum with the immigration court on October 13, 1999, nearly fifteen months after her arrival in the United States, and a merits hearing was held before the IJ on November 17, 2000.
In a decision issued at the conclusion of petitioner’s hearing, the IJ rejected petitioner’s application for asylum on the grounds that she had failed to file her application within one year of her arrival in the United States, as required by 8 U.S.C. § 1158(a)(2)(B), and that she had failed to establish either “changed circumstances” materially affecting her eligibility for asylum or “extraordinary circumstances” excusing her untimely filing. The IJ then concluded that, even if petitioner’s asylum application was not in fact time-barred, she had failed to establish a credible ease of past or future persecution entitling her either to asylum or withholding of removal under the INA or the CAT. Citing several specific examples, the IJ stated that petitioner’s testimony was “in *323 herently improbable, internally inconsistent, inconsistent with her written application as well as some of her supporting documents,” and “contradicted by the State Department profile” of country conditions in China. IJ Decision at 9. Accordingly, the IJ concluded that petitioner had failed to satisfy her burden of proof to demonstrate eligibility for the relief requested.
On September 25, 2002, the BIA summarily affirmed, without opinion, the decision of the IJ. This petition for review followed.
DISCUSSION
Where, as here, the BIA has affirmed the IJ’s decision without an opinion,
see
8 C.F.R. § 1003.1(e)(4), we review the IJ’s decision directly as the final agency determination.
Ming Xia Chen v. BIA
I. Asylum
Title 8, Section 1158(a)(1) of the United States Code provides, in relevant part, that “[a]ny alien who is physically present in the United States or who arrives in the United States ... may apply for asylum.” That statutory provision, however, is limited by § 1158(a)(2)(B), which states that § 1158(a)(1) “shall not apply to an alien unless the alien demonstrates by clear and convincing evidence that the application [for asylum] has been filed within 1 year after the date of the alien’s arrival in the United States.” A discretionary exception to § 1158(a)(2)(B)’s one-year bar is created by § 1158(a)(2)(D), which provides that
[a]n application for asylum of an alien may be considered, notwithstanding [an alien’s failure to apply for asylum within one year of the alien’s arrival or the denial of a prior asylum application], if the alien demonstrates to the satisfaction of the Attorney General either the existence of changed circumstances which materially affect the applicant’s eligibility for asylum or extraordinary circumstances relating to the delay in filing an application within the [one-year] period[.]
8 U.S.C. § 1158(a)(2)(D) (emphases added). Finally, 8 U.S.C. § 1158(a)(3) provides that “[n]o court shall have jurisdiction to review any determination of the Attorney General under [§ 1158(a)(2)].”
Based on the foregoing, prior to the enactment of the REAL ID Act on May 11, 2005, our sister circuits uniformly recognized that the courts of appeals lack jurisdiction to review an asylum application that the Attorney General — acting through the Executive Office for Immigration Review, of which the BIA and the IJs are parts — has deemed untimely and as to which the Attorney General has found neither changed nor extraordinary circumstances excusing the untimeliness.
See, e.g., Njenga v. Ashcroft,
*324
The statutory landscape, however, changed when the REAL ID Act took effect. Among its other reforms,
3
the REAL ID Act amends section 242 of the INA to provide that “[njothing in ... any ... provision of this Act (other than this section) which limits or eliminates judicial review, shall be construed as precluding review of
constitutional claims or questions of law
raised upon a petition for review filed with an appropriate court of appeals in accordance with this section.” REAL ID Act § 106(a)(1)(A)(iii) (“Section 106”) (codified at 8 U.S.C. § 1252(a)(2)(D)) (emphasis added). Thus the REAL ID Act restored the jurisdiction of courts to review even factual and discretionary decisions of the Attorney General (and his representatives) under the INA, but only to the limited extent that the petition for review of such decisions raises a constitutional claim or a question of law.
See post
at notes 7-8. Because Section 106 applies to all appeals from removal orders “issued before, on, or after the date of the enactment,” May 11, 2005, that provision governs our jurisdiction to review petitioner’s claims.
See
REAL ID Act § 106(b);
see also Marquez-Almanzar v. INS,
The term “constitutional claims” clearly relates to claims brought pursuant to provisions of the Constitution of the United States. By contrast, “questions of law” does not have a similarly clear meaning, and the terms of the REAL ID Act provide no guidance as to the precise content of that phrase, which is subject to countless interpretations. Construed in the broadest sense possible, “questions of law” would encompass any question related to law or having any legal dimension — that is, anything pertaining to the work in which courts are engaged, including virtually all decisions in the immigration field. For the reasons that follow, we conclude that “questions of law” could not have been intended to expand our jurisdiction in such a boundless fashion.
We find ambiguity in the meaning of this term. First, “questions of law” would include all constitutional claims, which by definition raise legal questions. Yet the statute refers to two separate categories: “constitutional claims or questions of law.” Had Congress intended “questions of law” to be understood as
all
questions pertaining to law generally, it would have been redundant to include “constitutional claims” in Section 106. Because, as a matter of statutory construction, we do not assume Congress intended to include pure “surplusage” in its enactments, we are left with uncertainty as to the meaning of “questions of law.”
See Duncan v. Walker,
Second, the broadest meaning of “questions of law” would bring within our jurisdiction certain kinds of claims that the INA otherwise removes from our jurisdiction. See, e.g., 8 U.S.C. § 1252(a)(2)(B)® (depriving courts of jurisdiction to review “any judgment regarding the granting of relief under section 1182(h), 1182®, 1229b, 1229c, or 1255 of this title”) (emphasis added); id. § 1252(a)(2)(B)(ii) (depriving courts of jurisdiction to review “any other decision or action of the Attorney General ... the authority for which is specified under this subchapter to be in the discretion of the Attorney General”) (emphases added); id. § 1158(a)(3) (“No court shall have jurisdiction to review any determination of the Attorney General under [§ 1158(a)(2)].”) (emphasis added). All questions arising in the context of such claims, however, could not have been included in the meaning of Section 106, for this would suggest that Congress intended to repeal the jurisdiction-denying provisions of the INA in their entirety, rather than modify in part the reach of such provisions. Although it is clear that Congress has expressly limited the effect of the jurisdiction-denying provisions of the INA by restoring our jurisdiction to review “questions of law,” see 8 U.S.C. § 1252(A)(2)(D) (applying to “any ... provision of [the INA] (other than this section) which limits or eliminates judicial review”), nothing in the text of Section 106 suggests that Congress intended to engage effectively in a wholesale repeal of these jurisdiction-denying provisions by adopting the broadest meaning of “questions of law.” As a result, we are left with uncertainty as to the meaning of the phrase.
Third, in light of our obligation to interpret “questions of law” in the context of the REAL ID Act as a whole,
see, e.g., United Sav. Ass’n of Tex. v. Timbers of Inwood Forest Assocs.,
Accordingly, because the statutory text is ambiguous, we turn to the legislative history of the REAL ID Act in order to ascertain Congress’s intent.
See, e.g., Watt v. Alaska,
As Committee Reports are the most authoritative sources on the meaning of legis *326 lation, 4 we look to the House Conference Committee Report on the REAL ID Act. That report explains that the original draft of the statute used the phrase “pure questions of law,” but that the word “pure” was later deleted because “it is superfluous.” H.R.Rep. No. 109-72, at 175 (2005), U.S. Code Cong. & Admin. News 2005, at pp. 240, 300 (“Conference Report”). “The word ‘pure’ add[ed] no meaning” because “[t]he purpose of section 106(a)(l)(A)(iii) is to permit judicial review over those issues that were historically renewable on habe-as — constitutional and statutory-construction questions, not discretionary or factual questions.” Id. A “question of law,” the Conference Report thus concluded, “is a question regarding the construction of a statute.” Id.
In our original opinion filed January 6, 2006 in this case, we relied on the Conference Report to conclude that the term “questions of law” refers to “ ‘a narrow category of issues regarding statutory construction.’ ”
Xiao Ji Chen,
The Conference Report makes clear that Congress, in enacting the REAL ID Act, sought to avoid the constitutional concerns outlined by the Supreme Court in
St. Cyr,
which stated that as a result of the Suspension Clause,
5
“some judicial intervention in deportation cases is unquestionably required by the Constitution,”
St. Cyr,
While the Conference Report refers to “statutory construction questions,”
id.,
we do not interpret that reference to be exhaustive, but merely illustrative. We construe the intent of Congress’s restoration under the REAL ID Act rubric of “constitutional claims or questions of law” to encompass the same types of issues that
*327
courts traditionally exercised in habeas review over Executive detentions.
6
As stated in the Conference Report, “the Supreme Court recognized that ‘Congress could, without raising any constitutional questions, provide an adequate substitute through the courts of appeals.’ ”
Id.
(quoting
St. Cyr,
Traditionally, habeas review for- Executive detention had encompassed both constitutional claims and questions of law. In
St. Cyr,
the Supreme Court noted that historically, habeas review of Executive detentions was broader than habeas review over other types of detentions resulting from judicial determinations. “While ha-beas review of a court judgment was limited to the issue of the sentencing court’s jurisdictional competency, an attack on an executive order could raise
all issues
relating to the legality of detention.”
St. Cyr,
As part of its historical review of the scope of habeas jurisdiction, the Supreme Court did not expressly limit its analysis to issues of “statutory construction,” but instead stated that such review traditionally had “encompassed detentions based on
errors of law,
including the erroneous
application or interpretation
of statutes,”
id.
at 302,
With respect to determinations committed to the discretion of the Attorney General, the Supreme Court found that “[h]abeas courts also regularly answered
questions of law
that arose in the context of discretionary relief.”
St. Cyr,
[St. Cyr] does not dispute any of the facts that establish his deportability or the conclusion that he is deportable. Nor does he contend that he would have any right to have an unfavorable exercise of the Attorney General’s discretion reviewed in a judicial forum. Rather, he contests the Attorney General’s conclusion that, as a matter of statutory interpretation, he is not eligible for discretionary relief.
Id.
at 298,
In another habeas corpus case on which
St. Cyr
relied,
United States ex rel. Hintopoulos v. Shaughnessy,
In deciding this case, we need not determine the precise outer limits of the term “questions of law” under the REAL ID Act, nor need we define the full extent of “those issues that were historically reviewable on habeas,” H.R.Rep. No. 109-72, at 175, U.S. Code Cong. & Admin. News
*329
2005, at p. 300, or what the Suspension Clause itself requires on direct, non-habe-as review of a removal order,
see St. Cyr,
Petitioner here argues that the IJ erred in either his fact-finding or in his exercise of discretion in rejecting petitioner’s contention that changed or extraordinary circumstances excused the untimeliness of her petition for asylum. In her effort to establish such changed or extraordinary circumstances, petitioner argued changed circumstances because the government of China had recently cracked down on political dissidents and extraordinary circumstances because petitioner made an oral request to file for asylum when she was detained by the INS. The IJ rejected these contentions, finding that “nothing had changed” in China’s family planning policies that would have affected her eligibility for asylum, and that she had “ample opportunity” to file her asylum application within one year as required, notwithstanding her “very brief’ detention in April 1999. Petitioner’s challenge to the IJ’s rulings are just the kind of quarrels with fact-finding determinations and with exercises of discretion that courts continue to have no jurisdiction to review, notwithstanding the REAL ID Act’s restoration of jurisdiction over constitutional claims and questions of law.
In an effort to come within the restored jurisdiction for constitutional claims and questions of law, petitioner asserts that the IJ “fail[ed] to apply the law,” and argues that a claim of failure to apply the law raises a question of law, if not also a constitutional claim of violation of due process. A petitioner cannot overcome the lack of jurisdiction to review by invocation of such rhetoric.
To determine whether the petition for review in fact raises a constitutional claim or question of law, we examine the precise arguments of the petition. The conclusory assertion that the IJ and the BIA “fail[ed] to apply the law” presents neither a constitutional claim nor a question of law within the meaning of the REAL ID Act. Indeed, were we to exercise jurisdiction based on a petitioner’s talismanic statement that an IJ “fail[ed] to apply the law,” without more, a petitioner would have no need to raise a specific “constitutional claim[] or question[ ] of law” to obtain the court’s jurisdiction. Although, as we have pointed out, a “question of law” may be found in some instances in petitions to review an IJ’s discretionary denial of relief, a petitioner’s
*331
mere resort to the terms conventionally used in describing constitutional claims and questions of law will not overcome Congress’s decision to deny jurisdiction over claims which in reality consist of nothing more than quarrels over the correctness of fact-finding and of discretionary decisions.
See Higuit v. Gonzales,
Moreover, we emphasize that our jurisdiction in this case is not restored by the REAL ID Act on the ground that the IJ’s decision involved the allegedly erroneous “application” of a statute — here, 8 U.S.C. § 1158(a)(2)(B) and (D). While the term “questions of law” undeniably can encompass claims of “erroneous
application
or interpretation of statutes,”
St. Cyr,
II. Withholding of Removal
In addition to seeking review of the BIA’s refusal to consider her untimely asylum application on the merits, petitioner challenges the IJ’s denial — affirmed by the BIA — of her application for withholding of removal. As the IJ recognized, eligibility for withholding of removal is not subject to 8 U.S.C. § 1158(a)(2)(B)’s one-year bar and, accordingly, must be considered by the BIA regardless of the timeliness of the initial asylum request. Compare 8 U.S.C. § 1158(b)(1)(A) (“[T]he Attorney General may grant asylum to an alien who has applied for asylum----”) (emphasis added), with 8 U.S.C. § 1231(b)(3)(A) (“[T] he Attorney General may not remove an alien to a country if the Attorney General decides that the alien’s life or freedom would *333 be threatened in that country because of the alien’s race, religion, nationality, membership in a particular social group, or political opinion.”) (emphasis added).
To qualify for withholding of removal under the INA, an applicant must establish that there is a “clear probability” that if she were removed, her life or freedom would be threatened on account of political opinion or the other protected grounds listed in 8 U.S.C. § 1231(b)(3)(A).
See, e.g., Secaida-Rosales v. INS,
In the instant case, petitioner argues that she is entitled to withholding of removal under both the INA and the CAT because her alleged subjection to a forced abortion in China would create a rebutta-ble presumption that it is more likely than not that she will be sterilized, or otherwise persecuted, if she returns to China. She contends that forcible sterilization is particularly likely since, in contravention of China’s family-planning policy, she has had more children since arriving in the United States.
The BIA has recognized that “[c]oerced sterilization [should be] viewed as a permanent and continuing act of persecution.” In re Y-T-L-, 23 I. & N. Dec. 601, 607 (B.I.A.2003); see also 8 U.S.C. § 1101(a)(42) (treating coercive family planning as persecution on the basis of political opinion). Consequently, if petitioner had demonstrated to the IJ that there was a clear probability that she would be sterilized if she returned to China, she would be entitled to withholding of removal under the INA. Such relief was denied, however, because the IJ found that petitioner had not met her burden of proof, given that her testimony was “inherently improbable, internally inconsistent, [and] inconsistent with her written application as well as some of her supporting documents.” 12 IJ Decision at 9.
Because asylum and withholding of removal determinations require intensive factual inquiries that appellate courts are ill-suited to conduct, the INA tightly circumscribes our review of factual findings, including adverse credibility determinations, by an IJ.
See 8
U.S.C. § 1252(b)(4)(B) (providing that on appeal “the administrative findings of fact are
conclusive
unless any reasonable adjudicator would be
compelled
to conclude to the contrary”) (emphases added). Under this strict standard of review, “we defer to the factual findings of the BIA and the IJ if
*334
they are supported by substantial evidence,”
13
see Zhou Yun Zhang v. INS,
Consistent with our “ ‘exceedingly narrow" ” scope of review,
Melgar de Torres v. Reno,
Of course, the fact that an IJ “has relied primarily on credibility grounds in dismissing an asylum application cannot insulate the decision from review.”
Ramsameachire v. Ashcroft,
Although we customarily afford “ ‘particular deference to the credibility
*336
determinations of the IJ,’ ”
Wu Biao Chen v. INS,
There is nothing extraordinary in petitioner’s claim that she continued working in the early months of her second pregnancy.
16
Nor would it require a great leap of faith to credit petitioner’s contention that officials might attempt to sterilize her after forcing her to undergo an abortion. Finally, we do not believe that detention combined with threatened deprivation of economic livelihood is “nothing.” We do not, consequently, rely on the IJ’s findings to the extent that he erroneously misehar-acterized petitioner’s testimony or determined that petitioner was not credible due to perceived implausibilities or inconsistencies that were based solely on the IJ’s “bald speculation.”
See Zhou Yun Zhang,
Notwithstanding the foregoing, it is not enough for petitioner to point to some deficiencies in the IJ’s factual analysis because, here, the IJ’s denial of petitioner’s claim for withholding of removal was supported by substantial evidence and we are confident that the same decision would be made in the absence of the noted deficiencies. The IJ found petitioner’s testimony inconsistent with her medical records,
17
*337
her written asylum application,
18
other documents she submitted in support of her application,
19
and the State Department profile for her region.
20
These findings of
*338
fact by the IJ qualify as “specific, cogent” reasons that bear a “legitimate nexus” to the IJ’s adverse credibility finding,
Secaida-Rosales,
We note that recently, in
Cao He Lin v. U.S. Dep’t of Justice,
In
Cao He Lin,
the panel rejected every ground for the IJ’s adverse credibility finding, as well as the IJ’s determination that the petitioner had failed to satisfy his burden of proof.
See Cao He Lin,
It suffices for us to hold in this case that (1) substantial evidence in the record relied on by the IJ, considered in
*339
the aggregate, supports the IJ’s finding that petitioner lacked credibility, and (2) disregarding those aspects of the IJ’s reasoning that are tainted by error, we can state with confidence that the same decision would be made were the petition remanded. Indeed, we do not believe that the erroneous aspects of the IJ’s decision in this case were entirely “tangential” to his decision; nor are we persuaded that “overwhelming evidence” supports the IJ’s adverse credibility finding.
Cf. Cao He Lin,
Applying this well-established standard of substantial evidence to the facts of this case, we deny the petition for review of the IJ’s denial of withholding of removal because, although the underlying analysis of the IJ contains errors, the IJ’s ultimate ruling — namely, that petitioner failed to provide a credible account of persecution and thus failed to satisfy her burden of proof — is supported by substantial evidence and it is clear that the same decision would be made on remand.
Petitioner’s claims that the IJ erred in other respects — (1) by failing to articulate specific reasons for denying her CAT claim beyond his adverse credibility finding, (2) by making insufficient findings with respect to the corroborating documents she submitted in support of her application while improperly faulting her for not producing others, and (3) by relying on the State Department profile — are similarly without merit.
First, as we explained in
Ramsameachire v. Ashcroft,
*341
Second, in rejecting an applicant’s claim, the IJ should “consider all the evidence in the record that has probative value.”
Cao He Lin,
Third, the IJ’s reliance on the State Department country report for the Fujian province of China was not in error. As we recognized in
Zamora v. INS,
Because we find that there is substantial evidence supporting the IJ’s adverse credibility determination and it is clear that the same decision would be made on remand, and because petitioner has not shown that it is more likely than not that she would be persecuted or tortured were she returned to China, we uphold the IJ’s determination, affirmed by the BIA, that petitioner has failed to make the requisite showings to qualify for withholding of removal under either the INA or the CAT.
CONCLUSION
For the reasons stated above, we Dismiss the petition for review of the denial of asylum for lack of jurisdiction. We Deny the remainder of the petition because we conclude that the IJ’s decision DENring petitioner’s application for withholding of removal is supported by substantial evidence and it is clear that the same decision would be made were we to remand.
Notes
Apart from our analysis in Part I and notes 1 and 21 below, the remainder of this opinion— in particular, the analysis set forth under the heading “II. Withholding of Removal,’’
see post
at 22-37 — is not materially changed from our opinion of January 6, 2006. Accordingly, any decisions of our Court that have applied the analysis set forth in Part II of our prior opinion in this case,
see Xiao Ji Chen,
. On April 27, 1999, approximately eleven months after her arrival in the United States, petitioner was detained for approximately 5-6 hours by INS officials and was ordered to appear at a removal hearing in August 1999. In support of her petition to this Court, petitioner argues that while the hearing was pending, "she was no longer able to submit an asylum application to an asylum office” because 8 C.F.R. § 208.2(b) confers "exclusive jurisdiction over asylum applications filed by an alien who has been served a ... Form 1-862, Notice to Appear” to the immigration court and that "under the operating procedures adopted by the immigration courts, [she] was barred from mailing an asylum application to the immigration court before the date of hearing.” Pet'r's Br. at 20-21 (internal quotation marks omitted). However, before the IJ and the BIA, petitioner maintained that she had
orally
indicated her intent to apply for asylum when she was detained by INS officers, but she never claimed that she was
barred
— either by regulation or the agency’s operating procedures,
see id.
— from submitting an asylum application before her removal hearing. Because the latter argument was not raised below before either the IJ or the BIA, that issue has not been exhausted and is deemed to have been forfeited. Accordingly, we will not consider it.
See Foster v. INS,
Petitioner also argues in her petition for review that she established "changed circumstances” excusing the untimeliness of her asylum application because "at the time of her individual hearing [before the IJ in November 2000], [petitioner] had recently given birth to her first U.S., citizen child” in April 2000. Pet’r's Br. at 5. Petitioner’s counsel, however, made no such argument before the IJ, instead maintaining that petitioner had demonstrated changed "personal” circumstances because "she was detained” by the INS on April 27, 1999 and "was trying to change the venue to New York” and "ma[d]e a[n] oral statement to the INS” indicating her intent to apply for asylum. Hr’g Tr., Nov. 17, 2000, at 81; see also IJ Decision at 3 (rejecting petitioner's additional argument in her memorandum of law that "the government of China has recently cracked down on political dissidents”). Moreover, in her May 7, 2002 supplemental brief to the BIA; petitioner referred to the then-impending birth of her second U.S. citizen child not as evidence of changed circumstances excusing an untimely asylum application — nor could she have, inasmuch as the pregnancy occurred after petitioner already had filed her asylum application on October 13, 1999 — but rather, as further evidence establishing her alleged "well-founded fear of *321 persecution.” Accordingly, because petitioner failed to raise any argument before the IJ or the BIA that the birth of additional children in the United States excused the untimeliness of her application, that argument has not been exhausted and will not be considered by this Court.
We note, moreover, that our recent decision in
Lin Zhong v. U.S. Dep’t of Justice,
By contrast, in this case, although the Government has failed to invoke "issue exhaustion” in its brief on appeal, it is also clear that petitioner failed to raise the arguments described above before
either the
IJ or the BIA, thus denying this Court the benefit of a full factual record and any legal or discretionary determinations that could have been made by the agency that is charged in the first instance with making such determinations under the INA.
See Theodoropoulos v. INS,
. United Nations Convention Against Torture and Other Cruel, Inhuman or Degrading Treatment or Punishment, Dec. 10, 1984, S. Treaty Doc. No. 100-20 (1988), 1465 U.N.T.S. 85; see also 8 C.F.R. § 1208.16(c) (regulations implementing the CAT).
. As recognized by the Third Circuit in
Bonhometre v. Gonzales,
.
See generally Thornburg v. Gingles,
. Article I, Section 9, Clause 2 of the Constitution provides that "[t]he Privilege of the Writ of Habeas Corpus shall not be suspended, unless when in Cases of Rebellion or Invasion the public Safety may require it.”
. The reference in the Conference Report to "those issues that were historically reviewable on habeas,” H.R.Rep. No. 109-72, at 175, U.S. Code Cong. & Admin. News 2005, at p. 300, relates to the origins of the REAL ID Act. In
INS v. St. Cyr,
. We note that in cases where a reviewing court exercises jurisdiction pursuant to Section 106 of the REAL ID Act, the court is permitted to review only the “constitutional claims or questions of law raised upon [the] petition for review,” 8 U.S.C. § 1252(a)(2)(D).
See
H.R.Rep. No. 109-72, at 175, U.S. Code Cong. & Admin. News 2005, at p. 300 ("When a court is presented with a mixed question of law and fact, the court should analyze it to the extent there are legal elements,
but should not review any factual elements.")
(emphasis added). Except in cases where the IJ’s factual findings are themselves based on constitutional or legal error — thus raising "constitutional claims or questions of law” — where a reviewing court exercises jurisdiction pursuant to Section 106, it does not review the factual findings made by the IJ.
See Joaquin-Porras v. Gonzales,
. In so holding, we emphasize the particular role played by Section 106 of the REAL ID Act — namely, to
restore
some of the jurisdiction that is otherwise
denied
by another provision of the INA.
See
8 U.S.C. § 1252(a)(2)(D) ("Nothing in subparagraph (B) or (C), or in any other provision of this chapter (other than this section)
which limits or eliminates judicial review,
shall be construed as precluding review of constitutional claims or questions of law raised upon a petition for
review
....”) (emphasis added). By contrast, where no jurisdiction-denying provision of the INA is implicated, a reviewing court need not resort to the jurisdictional terms of Section 106, but is instead presumed to have the authority to consider
"all
questions of law and fact, including interpretation and application of constitutional and statutory provisions" in reviewing a final order of removal.
See
8 U.S.C. § 1252(b)(9) (emphasis added);
Sanusi v. Gonzales,
. We recognize that petitioner raised two additional issues in her petition for review to this Court. As discussed in note 1, ante, these arguments were not raised below before either the IJ or the BIA. The issues are therefore unexhausted and we do not consider them.
. Prior to the REAL ID Act, we held that the scope of habeas review "extends to claims of erroneous
application
or interpretation of statutes,”
see Mu-Xing Wang,
.We emphasize, however, that our analysis above does not foreclose the possibility of a case in which the "application” of a statute actually presents a "question of law” within the meaning of the REAL ID Act. Although we need not specify here any precise dividing line between the "application or interpretation” of a statute, on the one hand, and the "exercise of discretion,” on the other, we note that the Fourth Circuit’s analysis in
Jean v. Gonzales,
At the same time, however, the Fourth Circuit declined to review the BIA's discretionary denial of a waiver of inadmissibility under 8 U.S.C. § 1182(h), noting that the petitioner "argue[d] only that the immigration judge drew the wrong
factual
conclusions from the evidence and then determined these conclusions outweighed any factors supporting a favorable exercise of
discretion.” Id.
at 480 (emphases added). Because the petitioner had in that respect failed to present a "question of law” under the REAL ID Act, the Court lacked jurisdiction to review the claim.
See id.; see also Wallace v. Gonzales,
. The IJ conducted his adverse credibility analysis as part of his denial of petitioner’s asylum application on the merits, which in turn was premised on the IJ's assumption, made in the alternative, that petitioner's asylum claim was not in fact barred by the one-year rule of 8 U.S.C. § 1158(a)(2)(B).
See
IJ Decision at 4 ("However[J if the Court did make an[] error in finding [petitioner] statutorily ineligible for asylum[,] the Court will proceed with the decision on the basis that [petitioner] is eligible and would find that because she has not been credible today, the Court would deny her application.”). Because "an applicant who fails to establish [her] eligibility for asylum necessarily fails to establish eligibility for withholding” of removal,
Zhou Yun Zhang v. INS,
. The "substantial evidence” standard has its origins in the Administrative Procedure Act, which provides that "[t]he reviewing court shall ... hold unlawful and set aside agency action, findings, and conclusions found to be ... unsupported by substantial evidence in a case ... reviewed on the record of an agency hearing provided by statute.... ” 5 U.S.C. § 706(2)(E). That principle of "substantial evidence” was reflected in the former 8 U.S.C. § 1105a(a)(4), which the Supreme Court interpreted in
INS v. Elias-Zacarias,
. By requiring in
Secaida-Rosales v. INS,
. We emphasize that the standard for remand outlined in
Tian-Yong Chen
is permissive — namely, a reviewing court "may,” but is not required to, remand “where the agency’s determination is based on an inaccurate perception of the record, omitting potentially significant facts.”
See Tian-Yong Chen,
. Relatedly, the IJ rejected as "incredibly implausible” petitioner's claim that she had gone into "hiding” at her mother's home upon the discovery of her second pregnancy, reasoning that "[t]he purpose óf going into ... hiding is to avoid the officials,” and yet petitioner's workplace was "the very first place” those officials would have searched for petitioner "other than her home.” See IJ Decision-at 10. We do not find the IJ’s reasoning impermissibly speculative on its own terms; nor does the mere characterization of petitioner’s claim as "implausible” itself render the IJ's finding erroneous. See
Diallo,
. Specifically, the IJ found inconsistent petitioner’s testimony that she had been forced to terminate her second pregnancy after approximately sixteen weeks on October 20, 1997, when instead petitioner's medical records indicated that she had undergone an abortion in July 1993 after eight weeks' gestation. In so finding, the IJ both acknowledged and rejected the explanation provided by petitioner's counsel for this inconsistency — namely, that another "perceive[d]” inconsistency in the medical records rendered them unreliable. The IJ instead emphasized that petitioner's medical records exhibited independent reliability because they correctly provided the
*337
date on which petitioner's first child was bom. Although petitioner’s counsel invites this court to reevaluate the independent reliability of petitioner's medical records, that is simply not our role. A petitioner "must do more than offer a 'plausible' explanation for [her] inconsistent statements to secure relief,”
Zhou Yun Zhang,
Petitioner’s other claim on appeal — namely, that the IJ erred in failing to reject expressly petitioner’s own explanation for the testimonial inconsistency with her medical records— is similarly without merit. When confronted with this inconsistency, petitioner suggested that the hospital staff had “made a mistake” and indicated that she had told her doctor that she "gave birth to one [child] and the other one was aborted” — an explanation that was insufficient, inasmuch as it did not adequately address
when
but only
whether
petitioner had previously undergone an abortion, forced or otherwise.
Cf. Wu Biao Chen,
. Specifically, petitioner's affidavit submitted in connection with her asylum application indicated that her second pregnancy had been discovered during a required quarterly IUD check-up in October 1997, whereas petitioner testified before the IJ that her second pregnancy had instead been discovered when local birth control officials came to her place of work
after
she had missed both the July and October 1997 IUD check-ups. Because the circumstances under which petitioner's second pregnancy was discovered and terminated were material to her claim of past and future persecution, the IJ did not err in relying on this inconsistency.
See Xu Duan Dong,
. The IJ noted in particular that there were inconsistencies between petitioner’s testimony and the documentary evidence in the record regarding her age at the time her IUD was inserted, the date on which the IUD insertion occurred, and when petitioner was instructed to report for sterilization after her abortion. Although the IJ acknowledged that these inconsistencies were "minor,” the IJ did not err in stressing the cumulative impact of such inconsistencies in making his adverse credibility determination. See IJ Decision at 11 ("Although this is a minor inconsistency[,] there are plenty of minor inconsistencies that do add up and end up to undermine[] [petitioner’s] credibility.”); see also In re A-S-, 21 I. & N. Dec. 1106, 1112 (B.I.A. Feb. 19, 1998) ("[A] credibility determination apprehends the overall evaluation of testimony in light of its rationality or internal consistency and the manner in which it hangs together with other evidence.”) (emphasis added) (internal quotation marks omitted).
. See post at 341-42.
. Although
Cao He Lin
and our prior decision in this case assessed whether we could be confident that
the IJ
would reach the same result on remand absent error,
see Xiao Ji Chen,
. Of course, in reviewing an IJ’s decision we “ordinarily will not affirm based on evidence that may appear in the record but that was not relied on in the IJ’s decision because we cannot know how the IJ would have viewed evidence she did not analyze.”
Cao He Lin,
. Our holding here does not conflict with the statement in
Ramsameachire
purporting to “hold that the INS may not deny an alien's CAT claim solely on the basis of its determination that the applicant’s testimony is not credible.”
Ramsameachire,