JOSÉ A. CABRANES, Circuit Judge.
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, 434 F.3d 144 (2d Cir.2006). In the January 6 opinion, under the heading "I. Asylum," id. at 150-55, we expressed the view that "questions of law," as the term is used in section 106(a)(1)(A)(iii) of the REAL ID Act of 2005 ("REAL ID Act"), Pub.L. No. 109-13, 119 Stat. 231, 302 (codified at 8 U.S.C. § 1252(a)(2)(D)) — in part defining the scope of our jurisdiction to review removal, deportation, or exclusion orders — refers only to "a narrow category of issues regarding statutory construction." Xiao Ji Chen, 434 F.3d at 153 (internal quotation marks omitted). Upon consideration of the briefs submitted on this petition for rehearing, we conclude that the term "questions of law" is not so limited. See post at 323-32. We revise substantially our analysis in Part I of the earlier opinion as to what constitutes "questions of law" under section 106(a)(1)(A)(iii) of the REAL ID Act. We hereby vacate our prior opinion and issue this opinion in its place.
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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
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."
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 declined
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 case 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 "inherently
On September 25, 2002, the BIA summarily affirmed, without opinion, the decision of the IJ. This petition for review followed.
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, 435 F.3d 141, 144 (2d Cir.2006). In this case, we consider first whether we have jurisdiction to review the IJ's discretionary and factual determination, with respect to petitioner's asylum claim, that petitioner failed to establish either changed or extraordinary circumstances under 8 U.S.C. § 1158(a)(2)(D). We then evaluate petitioner's claim that the IJ improperly rejected her request for withholding of removal under both the INA and the CAT.
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
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, 386 F.3d 335, 339 (1st Cir.2004); Zaidi v. Ashcroft, 377 F.3d 678, 681 (7th Cir.2004); Castellano-Chacon v. INS, 341 F.3d 533, 544 (6th Cir. 2003); Tarrawally v. Ashcroft, 338 F.3d 180, 185 (3d Cir.2003); Tsevegmid v. Ashcroft, 336 F.3d 1231, 1234-35 (10th Cir. 2003); Fahim v. U.S. Att'y Gen., 278 F.3d 1216, 1217-18 (11th Cir.2002); Hakeem v. INS, 273 F.3d 812, 815 (9th Cir.2001); Ismailov v. Reno, 263 F.3d 851, 854-55 (8th Cir.2001).
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, 533 U.S. 167, 174, 121 S.Ct. 2120, 150 L.Ed.2d 251 (2001) ("[A] statute ought, upon the whole, to be so construed that, if it can be prevented, no clause, sentence, or word shall be superfluous, void, or insignificant[.]") (internal quotation marks omitted); Dunn v. Commodity Futures Trading Comm'n, 519 U.S. 465, 472, 117 S.Ct. 913, 137 L.Ed.2d 93 (1997) (recognizing the
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)(i) (depriving courts of jurisdiction to review "any judgment regarding the granting of relief under section 1182(h), 1182(i), 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., 484 U.S. 365, 372, 108 S.Ct. 626, 98 L.Ed.2d 740 (1988) ("[S]tatutory construction . . . is a holistic endeavor."), we are mindful of the fact that the title of the subsection containing the phrase "questions of law" is "JUDICIAL REVIEW OF CERTAIN LEGAL CLAIMS," REAL ID Act § 106(1)(A)(iii) (emphasis added) (codified at 8 U.S.C. § 1252(a)(2)(D)), thereby suggesting that not all legal claims are included within the phrase "questions of law." Although the title of a section does not control the meaning of the text in that section, see INS v. St. Cyr, 533 U.S. 289, 308-09, 121 S.Ct. 2271, 150 L.Ed.2d 347 (2001), the title may nevertheless be useful if it "shed[s] light on some ambiguous word or phrase." Penn. Dep't of Corr. v. Yeskey, 524 U.S. 206, 212, 118 S.Ct. 1952, 141 L.Ed.2d 215 (1998) (internal quotation marks omitted) (alteration in original). Here, the title suggests that "questions of law" does not mean all legal claims because the title of the section purports to cover only certain legal claims.
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, 451 U.S. 259, 266, 101 S.Ct. 1673, 68 L.Ed.2d 80 (1981) ("The circumstances of the enactment of particular legislation may persuade a court that Congress did not intend words of common meaning to have their literal effect."); United States v. Pabon-Cruz, 391 F.3d 86, 98 (2d Cir.2004) (noting "the need to consult . . . legislative history" when statutory language is ambiguous).
As Committee Reports are the most authoritative sources on the meaning of legislation,
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, 434 F.3d at 153 (quoting Ramadan v. Gonzales, 427 F.3d 1218, 1222 (9th Cir.2005), pet. for reh'g granted July 3, 2006). Upon reconsideration, we conclude that such questions are not limited solely to matters of "statutory construction."
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,
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
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 habeas 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, 533 U.S. at 301 n. 14, 121 S.Ct. 2271 (emphasis added) (alteration and internal quotation marks omitted). This was because "[a]t its historical core, the writ of habeas corpus has served as a means of reviewing the legality of Executive detention, and it is in that context that its protections have been strongest." Id. at 301, 121 S.Ct. 2271.
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, 121 S.Ct. 2271 (emphases added), as well as challenges to "Executive interpretations of the immigration laws," id. at 307, 121 S.Ct. 2271, and determinations regarding an alien's "statutory eligibility for discretionary relief," id. at 314 n. 38, 121 S.Ct. 2271; see also id. at 307-08, 121 S.Ct. 2271. Furthermore, one of the habeas corpus cases on which St. Cyr relied — United States ex rel. Accardi v. Shaughnessy, 347 U.S. 260, 74 S.Ct. 499, 98 L.Ed. 681 (1954) — involved the application and interpretation of a regulation, not a statute.
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, 533 U.S. at 307, 121 S.Ct. 2271 (emphasis added). At the same time, the Supreme Court emphasized in both St. Cyr and Accardi that habeas jurisdiction is not without limits. In St. Cyr, the Court wrote:
Id. at 298, 121 S.Ct. 2271 (emphases added); see also id. at 307, 121 S.Ct. 2271 (noting the traditional "distinction between eligibility for discretionary relief, on the one hand, and the favorable exercise of discretion, on the other hand"). In Accardi, the Court emphasized that it was not "reviewing and reversing the manner in which discretion was exercised," stating that any such review would have required "discussing the evidence in the record supporting or undermining the alien's claim to discretionary relief." Accardi, 347 U.S. at 268, 74 S.Ct. 499. Rather, the applicant there raised a reviewable claim because he had challenged the BIA's "alleged failure to exercise its own discretion, contrary to existing valid regulations." Id. (emphasis added).
In another habeas corpus case on which St. Cyr relied, United States ex rel. Hintopoulos v. Shaughnessy, 353 U.S. 72, 77 S.Ct. 618, 1 L.Ed.2d 652 (1957), the BIA denied petitioners' request for relief under the Immigration Act of 1917 as a matter of administrative discretion, but also said "[i]t is crystal clear that Congress intended to greatly restrict the granting of suspension of deportation by the change of phraseology which was used in Section 244(a) of the Immigration and Nationality Act [of 1952] as well as the Congressional comment at the time this provision was enacted." Id. at 76, 77 S.Ct. 618 (alteration in original). The Supreme Court, upon habeas review, considered the petitioners' argument that the BIA "abused its discretion in denying their application for suspension of deportation" and "applied an improper standard when exercising its discretion" by taking into account the congressional policy underlying a "concededly inapplicable" statute. Id. at 78, 77 S.Ct. 618 (emphases added). Because the petition for review raised questions of law, i.e., abuse of discretion and an argument about the standard of law applied by the BIA in its exercise of discretion, the Supreme Court exercised jurisdiction over the petition, notwithstanding that the decision being challenged was one within the Attorney General's discretion. Having exercised jurisdiction, the Court rejected the claim because "the reasons relied on by the Hearing Office and the Board . . . were neither capricious nor arbitrary" and "we cannot say that it was improper or arbitrary for the Board to be influenced, in exercising that discretion, by its views as to congressional policy." Id. at 77-78, 77 S.Ct. 618.
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
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
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, 533 U.S. at 302, 121 S.Ct. 2271 (emphasis added), every discretionary determination under the INA can in some sense be said to reflect an "application" of a statute to the facts presented. See Mu-Xing Wang v. Ashcroft, 320 F.3d 130, 142 (2d Cir.2003).
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
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, 331 F.3d 297, 306 (2d Cir.2003). Similarly, to qualify for withholding of removal under the CAT, an applicant must demonstrate that it is more likely than not that she will be tortured if she returns to the proposed country of removal. See Mu-Xing Wang, 320 F.3d at 133-34 (citing 8 C.F.R. § 208.16(c)(2)). Evidence of past persecution creates "a rebuttable presumption . . . that there is a clear probability of a future threat should the applicant be returned." Secaida-Rosales, 331 F.3d at 306; see also 8 C.F.R. § 208.16(b)(1).
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 rebuttable 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."
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
Consistent with our "`exceedingly narrow'" scope of review, Melgar de Torres v. Reno, 191 F.3d 307, 313 (2d Cir.1999) (quoting Carranza-Hernandez v. INS, 12 F.3d 4, 7 (2d Cir.1993)), we will "look to see if the IJ has provided `specific, cogent' reasons for the adverse credibility finding and whether those reasons bear a `legitimate nexus' to the finding."
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, 357 F.3d 169, 178 (2d Cir.2004). If the testimony provided is otherwise "generally consistent, rational, and believable," the presence of some inconsistent testimony need not necessarily be fatal to a petitioner's claims if the disparities are "relatively minor and isolated and do not concern material facts." See Diallo v. INS, 232 F.3d 279, 288 (2d Cir.2000) (citation omitted). Likewise, an IJ's credibility determination will not satisfy the substantial evidence standard when it is based entirely on flawed reasoning, bald speculation, or conjecture. See Secaida-Rosales, 331 F.3d at 307, 312. Moreover, where an IJ's decision "omit[s] potentially significant facts" so fundamental to the claim that "we are unable adequately to consider whether substantial evidence support[ed] the BIA's determination," we may remand for further consideration. See Tian-Yong Chen v. INS, 359 F.3d 121, 127 (2d Cir.2004).
Although we customarily afford "`particular deference to the credibility
There is nothing extraordinary in petitioner's claim that she continued working in the early months of her second pregnancy.
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,
We note that recently, in Cao He Lin v. U.S. Dep't of Justice, 428 F.3d 391 (2d Cir.2005), another panel of our Court identified three circumstances in which a petition challenging a rejection of an asylum claim could be denied despite errors committed by the IJ. These are (1) where the IJ explicitly relies on a valid alternative ground for denying relief that is not tainted by error, (2) where the error is so "tangential" to the ultimate ruling that there is no realistic possibility of a different result on remand, or (3) where the untainted evidence in support the IJ's conclusion is so "overwhelming" that there is no realistic possibility of a different result on remand. See id. at 395, 401-02. These circumstances present non-exclusive variations of the general principle of futility — an error does not require a remand if the remand would be pointless because it is clear that the agency would adhere to its prior decision in the absence of error. See, e.g., NLRB v. Wyman-Gordon Co., 394 U.S. 759, 766 n. 6, 89 S.Ct. 1426, 22 L.Ed.2d 709 (1969) (emphasizing that SEC v. Chenery Corp., 318 U.S. 80, 63 S.Ct. 454, 87 L.Ed. 626 (1943), "does not require that we convert judicial review of agency action into a ping-pong game" and that remand is not required where it "would be an idle and useless formality"); NLRB v. Am. Geri-Care, Inc., 697 F.2d 56, 64 (2d Cir. 1982) ("[R]eversal and remand are [not] required each and every time an administrative agency assigns a wrong reason for its action; rather, [remand is required] only where there is a significant chance that but for the error, the agency might have reached a different result.").
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, 428 F.3d at 404 (concluding that "the IJ's principal reasons for generally discounting [petitioner's] credibility are seriously flawed" and that "[i]n reviewing [certain] subsidiary findings" regarding both credibility and sufficiency of the evidence, "we find that each one is flawed"). Accordingly, the Court remanded because it could not state with confidence that the IJ would make the same decision in the absence of such systemic error. See id. at 406. The panel thus held that a remand was appropriate under such circumstances; by also identifying potential circumstances where a remand would not have been required, the panel was of course offering dicta. See Carroll v. Lessee of Carroll, 57 U.S. (16 How.) 275, 286-87, 14 L.Ed. 936 (1853) (Curtis, J.) ("[I]f [a point of law] might have been decided either way without affecting any right brought into question, then, according to the principles of the common law, an opinion on such a question is not a decision."); see also United States v. Garcia, 413 F.3d 201, 232 n. 2 (2d Cir.2005) (Calabresi, J., concurring) ("[Dicta] is not and cannot be binding. Holdings — what is necessary to a decision — are binding. Dicta — no matter how strong or how characterized-are not."). Accordingly, Cao He Lin did not provide a binding, comprehensive test for determining all the circumstances where IJ errors need not require a remand.
It suffices for us to hold in this case that (1) substantial evidence in the record relied on by the IJ, considered in
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, 357 F.3d 169 (2d Cir.2004), because a "CAT claim lacks a subjective element, focuses broadly on torture without regard for the reasons for that treatment, and requires a showing with respect to future, rather than past, treatment," id. at 185 (citing 8 C.F.R. § 208.16(c)(3), (4)), it "must always be considered independently of the resolution of the alien's claims under the INA." Id. The fact that a CAT claim does not turn on the applicant's subjective state of mind and that it must be considered separately from the applicant's INA claim, however, does not shift the burden of proof. Under the applicable regulations, it is still the applicant seeking CAT relief who is required to establish that it is more likely than not that she would be tortured if removed to the proposed country of removal. See 8 C.F.R. § 208.16(c)(2). Accordingly, where, as here, the applicant relies largely on testimonial evidence to establish her CAT claim, and does not independently establish a probability of torture apart from her stated fear, an adverse credibility finding regarding that testimonial evidence may provide a sufficient basis for denial of CAT relief.
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, 534 F.2d 1055 (2d Cir.1976) (Friendly, J.), a report from the State Department is "usually the best available source of information" on country conditions. Id. at 1062 ("The obvious source of information on general conditions in the foreign country is the Department of State which has diplomatic and consular representatives throughout the world."); see also Melgar
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.
For the reasons stated above, we
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 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, 461 F.3d 101 (2d Cir.2006), does not alter our result here. In Lin Zhong, we held that where the Attorney General has "waived" a petitioner's "failure to exhaust specific issues," we may "in our discretion . . . choose to review . . . arguments not previously made to the BIA." Id. at 116 (emphasis added). In so holding, however, we emphasized that the unexhausted issues were "essential to our review of the merits of [the] appeal" and that "the purposes of our issue exhaustion requirements ha[d] been served" because "[t]he IJ, to whom all the matters before us were raised, was the source of the decision that we review,  the full agency record is available to us,  no additional factfinding is necessary, and  the government is not concerned that the adversary proceedings below were incomplete." Id. at 120-21 (emphasis added).
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, 358 F.3d 162, 171 (2d Cir.2004) ("[O]ne of the purposes served by the exhaustion requirement contained in § 1252(d) is to ensure that the [Executive Office for Immigration Review], as the agency responsible for construing and applying the immigration laws and implementing regulations, has had a full opportunity to consider a petitioner's claims before they are submitted for review by a federal court."). Were we to consider such arguments raised for the first time in a petition for review — or even to remand to the agency for further consideration of these newly raised arguments — we would encourage parties to withhold relevant, and potentially dispositive, arguments in order to obtain review in the first instance before the Court of Appeals or to secure a delay-inducing remand well after administrative proceedings have been completed. Because nothing in Lin Zhong requires such a result, we decline to consider the unexhausted issues and arguments presented here. See McKart v. United States, 395 U.S. 185, 195, 89 S.Ct. 1657, 23 L.Ed.2d 194 (1969) (noting that "frequent and deliberate flouting of administrative processes could weaken the effectiveness of an agency by encouraging people to ignore its procedures"); United States v. L.A. Tucker Truck Lines, Inc., 344 U.S. 33, 37, 73 S.Ct. 67, 97 L.Ed. 54 (1952) ("[C]ourts should not topple over administrative decisions unless the administrative body not only has erred but has erred against objection made at the time appropriate under its practice."); cf. INS v. Doherty, 502 U.S. 314, 323, 112 S.Ct. 719, 116 L.Ed.2d 823 (1992) ("Motions for reopening of immigration proceedings are disfavored for the same reasons as are petitions for rehearing and motions for a new trial on the basis of newly discovered evidence. This is especially true in a deportation proceeding, where, as a general matter, every delay works to the advantage of the deportable alien who wishes merely to remain in the United States.").
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, 463 F.3d 135, 138, 140 (2d Cir.2006) (reviewing whether the BIA may permissibly consider, as a matter of law, a petitioner's New York State Youthful Offender Adjudication when evaluating an adjustment of status application, but dismissing petitioner's challenge to the BIA's conclusion that his criminal history rendered him unworthy of discretionary relief, concluding that petitioner's challenge was "an `abuse of discretion' claim disguised as a question of law"); Bugayong, 442 F.3d at 72 (dismissing petitioner's "argument that the IJ erred in evaluating his hearing testimony" because it was "at bottom, a challenge to the IJ's exercise of his discretion").
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, 344 F.3d at 275 (rejecting petitioner's "ex post justifications" for discrepancies, including petitioner's suggestion that immigration officer had made "a mistake" in drafting airport interview statement). Although we have stated that an IJ is required to "take . . . into account . . . significant factual assertions" offered by a petitioner, see Cao He Lin, 428 F.3d at 403 (emphasis added), we have never required, and we do not require here, that an IJ expressly parse or refute on the record each and every one of a petitioner's purported explanations for testimonial inconsistencies or evidentiary gaps. See Morales v. INS, 208 F.3d 323, 328 (1 st Cir.2000) ("Where, as here, the [BIA] has given reasoned consideration to the petition, and made adequate findings, we will not require that it address specifically each claim the petitioner made or each piece of evidence the petitioner presented.") (internal quotation marks omitted); see also 8 C.F.R. § 1240.11(c)(4) (requiring only that "[a]n adverse decision shall state why asylum or withholding of removal was denied"). Indeed, we presume that an IJ has taken into account all of the evidence before him, unless the record compellingly suggests otherwise. Accordingly, the IJ need not engage in "robotic incantations" to make clear that he has considered and rejected a petitioner's proffered explanation. Cf. Brown, 98 F.3d at 694 (rejecting a requirement that district judges engage in "robotic incantations" in the context of sentencing).