We call the case of Finland versus Attorney General, Mr. Misuchi. It feels a little like we're in the very good myelin circuit. It's a little warm in here I agree. I do all of your armors make peace the court. I respectfully have the five minutes of repuddle time to be reserved. I'm clearly going to be optimistic and assume that based upon the focus of the letter brief that this court asked for, we are assuming at this point that this court does have jurisdiction to entertain the petition for review and the specific issue of credibility that the outcome of the case really really hinged upon. It's a thing assumption. I think maybe you want to explain why we have jurisdiction. First of all, maybe why it's jurisdiction. In our brief, in our response brief, we certainly argue that this is not a jurisdictional issue. It's an issue that was the issue. Our case law has previously said it's jurisdictional
. A lot of matter is some of the other cases. Yes, but why wouldn't we follow that? Well, we argued that this Supreme Court decision in 2005, which made reference to the drive by jurisdictional issues, the drive by, rather sarcastic, resolution of the jurisdictional issues by courts. I think what would be an apt description of the posture of the jurisdiction, the posture of the exhaustion issue in this case. Mr. Masuchi, I suspect that we have said that if this were a claim such as, for example, a claim for relief under the convention against torture, if that is not presented to the BIA, I suspect we would say that's jurisdictional. We can't hear. Yes. But this is a different matter because you call this an issue, not a claim. So the question is, is this issue jurisdictional just as we have said that claims are jurisdiction? I don't believe the exhaustion of the exhaustion of an issue is a jurisdiction issue. Oh, why not? Well, this Court has also said that so long as the agency has put on notice, no matter how ineligently or clumsily, of the relevance of the resolution of an issue below, as clearly the agency was put on notice in this case. They were put on notice, well, it comes to that clearly. I don't know if I would use that word, but okay
. It was waived. The agency waived, it's right to argue that this Court does not have jurisdiction to hear it. So because the issue of credibility, though not presented to the BIA, was considered by the BIA in its short opinion and decided you say that it was waived, and therefore you can present it to us. Right. And the flip side of the argument is that even though the credibility issue was not explicitly articulated below in the administrative appeal, that the appeal itself would have made absolutely no sense. And in the context of an asylum claim, it would have made absolutely no sense because I'm sure this Court knows it's not more and more of these petitions review that credibility is the, that's the heart of 99% of these asylum claims. I'm saying it was again, well, maybe not clearly addressed below. I think it was implicitly addressed or implicitly in play in the administrative appeal to the BIA. And how was it what language was used so that we can say Mr. Masuchi is right. It was implicitly in those briefs. Unfortunately, there is no language
. There was no language in the administrative appeal brief, but what that means that credibility is always an issue before the before the agency. Arguably in a case where the, in the class of cases, where claims are seeking asylum and where the only significant evidence in the case besides a written application is the testimony of the asylum applicant. Then yes, in the next class cases credibility is that's issue number one. And that wouldn't it be better to require if we're going to adopt a rule when we, whether we call it jurisdiction or not. Isn't it better to tell the person that's appealing to the BIA that they've got to lay out what their bone of contention is to the BIA. So the BIA will address it rather than just relying on some general concept of credibility. Isn't that what we would want them to do? I'm sure it is what you would want them to do your honor. And certainly when I do, when I write and administrative appeal brief to the BIA, I may, I may sure that the judge raised it in his decision against race in the brief. I guess the question, the other question, which is more maybe an inequitable rather than legal question is should have since the BIA raised it that's not act as a waivers. I was looking at more from the point of view of the sense of penalizing the non-English speaking relatively uneducated alien. Was it a council petition that was filed before this? Yes, it was. Unfortunately
. So. Well, just a little bit on judgment into our points point. I mean, if you had raised it, the BIA would simply have said we agree or disagree with the IJ. Instead, the BIA might have looked at the issues a little bit more fortfully and carefully parsed out what the petitioner had said. And then we in turn would have a better record as to what the issue was about. Isn't that the purpose of the waiver rule so that the appellate courts have a better idea of what the issues are not just the issues, but, but the arguments respecting the issue? Absolutely. That's, I'm sure that's the rationale for the discussion. Does that make, is that a better rule than the one that you would advocate? That one you would advocate is that there was a waiver and therefore we should consider the issue. Well, I think the second rule would be better for my client, the first rule, but I think in terms of the work that this court does in trying to review what happens at the agency, it's clearly better for the for the issues to be. Well, I thought that you would say something like this is no different than when the BIA does a streamlining opinion. Well, and doesn't even address the issue, but none the last week an addressing. Well, this, this, the opinion in this particular case is borderline streamlining
. It's about two words and the sentence is what it is. Right. But it's not, it's not a streamlining opinion because it doesn't conform with the statutory requirements. Right. Yes, so I guess the, the, the, the, the, the, the, the, the, the, the, the, the, the, the, the, the, the, the, the majority of cases where, where credibility is raised and the administrative, at the administrative level, the, the board doesn't do anything more with it than it did in this case. So, and I know, I know the courts of appeal have been, but isn't that all the more reason to try to present the issues. Admittedly, the board's very busy. They, I inexplicably, I think reduce the number of people on the board a few years ago. So, isn't that all the more reason to put the burden on the alien to lay out exactly what, again, what he's, what the concerns are, what he wants them to address, what he thinks was the mistake that was made by the IJ. Okay. The, the, the, the board is burdened and, and, and I know the immigration judges are, are burdened. However, the, I, as someone that, that, that does immigration, prior to practice almost solely
. They're, they're, they're significant burdens as well in, in, in trying to do this work well. And I think in this particular case, I mean frankly, I think the attorney who did the appeal brief was sloppy and didn't really represent the client adequately. But I would also think that the board, no matter how busy it is, would be able to kind of, I mean, it obviously identified the credibility issue. I mean, it mentions it very quickly in its opinion. So it's a lot there. And I'm not really sure why the agency wouldn't be held accountable in terms of being waived. What are two more questions? I just, you know, regardless, we're going to have to deal with this issue in an opinion. And I'm not entirely clear what your position is. Regardless of what you call it, a claim or an issue, is this a jurisdictional role or is it a claim processing role? You think it's a claim processing? Yeah, I tend to say jurisdictional level. Right. Okay, that's what I figured out. Great
. I'm Mr. Asutie. We're H. Packard. Thank you. Mr. Duffy. May I please the court? My name is Edward Duffy. I represent the attorney general in the United States and this matter. Your jurisdictional or claims processing? It's a position in statutory, statutory exhaustion is jurisdictional by statute to this court. I think it says it's not a lot. You're talking about the court may review a final order of removal only if one
. The alien has exhausted all administrative remedies available to the alien as of right. Does that question rely on? That's correct, Your Honor. What's a remedy? Is that an issue or is that as Judge Frenty has said a different level or raising convention against court? Are you sure with holding? Does it mean that or does it extend all the way to issues? It's our position extends all the way to issues and I think this court's cases say extends all the way to issues. If you read the Joseph cases, a good example where it says that the alien must raise the issue to the board in order to exhaust his or her administrative remedies. But it did characterize the eligibility for naturalization as a claim. It did characterize the eligible different naturalization as a claim. And then it said that the claim was not exhaustive. The claim was not exhaustive. But also in any appeal to any administrative body or any court, you have to raise the issue in order for the administrative body or for this court to be able to determine whether or not your claim has any merit. Let me follow up on the Joseph decision because the court did say that the claim was not exhaustive, but it had been waived. Is that correct? Because the public court did address the issue, did it not? People have called the dressing issue in Joseph, Your Honor. They've called the court address the issue because it said that the alien had put the BIO notice in that case, it's my recollection on Joseph
. That the alien had failed to raise the naturalization claim, but had raised the sufficiently raised the other issue and that the board had. That issue was not explicitly briefed and argued before the BIA. Nonetheless, the BIA considered the issue in that in Joseph's. But in this case, when you have exhaustion of when you have a claim like this, a credibility, where did you add you had two different opinions coming out of the immigration judge, two different bases for denying the asylum claim. The first was on the merits, the IJ said, I file on the merits, you've not made sure your basis. The second was a particular adverse credibility finding. When the alien filed his notice of a PIO and his brief, he never mentioned either of those. The board left the Nivacuum, did say a little bit of the record and found that the record supported the immigration judge's characterization, the adverse credibility decision. The board, however, was working in a vacuum. And what the danger is here is if you allow an alien to not raise an issue, say to the asylum for credibility. Now we're out here a few years later. And the only remedy of this court were to find on the merits, which we don't believe it should, on the merits of the claim that the adverse credibility decision, the immigration judge was not supported by the evidence
. It would remand it to the board and now you have an ongoing violation where Mr. Ben Lin has been in the United States in violation of law for several years. And that will now continue on the board or the immigration judge, reconsider the issues in this case. So because Mr. Ben Lin failed to raise that issue to the BIA and if he had a merciless argument, it should have been raised there because the issues and the citations to the record that he raises in this court. This issue of citations is ready to raise in this court. We're never presented to the board. Does it matter that it was raised to a spy and today by the board? The board was looking at the immigration judge's decision. And was looking at what the immigration judge did. And the board said there is evidence in the record and the immigration judge did point to evidence in the record to support the adverse credibility decision. But if we're going to adopt an affirmative, and go ahead, I'm sorry for you. We're going to adopt an affirmative and they're not going to want to be the other issue in the case. In the case where the adverse credibility issue we had, the more it may have been more confined to build to the murder to the case. If the purpose of exhaustion is to put the impeller tribunal be the agency of the court on notice of an issue. And here the BIA was obviously on notice of the issue. Why is it in their way? You know, it's not where they are noticed, incorporated in their opinion and decided issue. It's not just the matter of whether they're on notice, particularly as we said in our opening brief. Then what is the purpose of exhaustion? The purpose of exhaustion is so the agency can make an informed decision as to the merits of the aliens in this case claims and the fences. Why isn't that notice? You have to have notice before you can make an informed decision. You're absolutely right, Your Honor. But the board hadn't noticed, what didn't have notice that the alien was contesting that he had adverse credibility finding. What the board was doing was arguing the immigration judge's decision. Let me ask you one other question. Is this basically the same as a streamlined decision? In other words, the BIA simply affirms for the reason stated by the IJ
. In the case where the adverse credibility issue we had, the more it may have been more confined to build to the murder to the case. If the purpose of exhaustion is to put the impeller tribunal be the agency of the court on notice of an issue. And here the BIA was obviously on notice of the issue. Why is it in their way? You know, it's not where they are noticed, incorporated in their opinion and decided issue. It's not just the matter of whether they're on notice, particularly as we said in our opening brief. Then what is the purpose of exhaustion? The purpose of exhaustion is so the agency can make an informed decision as to the merits of the aliens in this case claims and the fences. Why isn't that notice? You have to have notice before you can make an informed decision. You're absolutely right, Your Honor. But the board hadn't noticed, what didn't have notice that the alien was contesting that he had adverse credibility finding. What the board was doing was arguing the immigration judge's decision. Let me ask you one other question. Is this basically the same as a streamlined decision? In other words, the BIA simply affirms for the reason stated by the IJ. It doesn't have a full and complete briefing of the issue or it does but doesn't incorporate it in its opinion. Nonetheless, the Court of Appeals will address the issue. Is this the same? Certainly. It is not the same, Your Honor, because in a, first of all, a streamlined decision. If the alien didn't raise the issue, say at the same, say at a streamlined, say at this word, streamline the decision, which is a statutory, a particular statutory type of decision that does not present in this case. If the alien had raised the issues, then of course this Court would have jurisdiction. But in a streamlined decision, if the alien had not raised the issue, we would be arguing the same thing. The Court did not have jurisdiction to reveal it because the issue was not raised to the BIA. In this type of claim, first of all, the alien also had in order to correct this problem. Mr. Ben Lin had had several other options he could have pursued beside, he should have gone to the Court because that's sure-stitial, the one with Preserve's appeal. But he also could have moved to reconsider to the BIA saying that the adverse credibility decision is wrong for the following legal reasons
. It doesn't have a full and complete briefing of the issue or it does but doesn't incorporate it in its opinion. Nonetheless, the Court of Appeals will address the issue. Is this the same? Certainly. It is not the same, Your Honor, because in a, first of all, a streamlined decision. If the alien didn't raise the issue, say at the same, say at a streamlined, say at this word, streamline the decision, which is a statutory, a particular statutory type of decision that does not present in this case. If the alien had raised the issues, then of course this Court would have jurisdiction. But in a streamlined decision, if the alien had not raised the issue, we would be arguing the same thing. The Court did not have jurisdiction to reveal it because the issue was not raised to the BIA. In this type of claim, first of all, the alien also had in order to correct this problem. Mr. Ben Lin had had several other options he could have pursued beside, he should have gone to the Court because that's sure-stitial, the one with Preserve's appeal. But he also could have moved to reconsider to the BIA saying that the adverse credibility decision is wrong for the following legal reasons. And he had 30 days to do that the same he had the finalist petition for review. He also could have moved to reopen at some point. Let me ask you. What would you, what would, in your best case scenario, what would our judgment look like? I understand dismissal for lack of jurisdiction. Is there anything left to deny in your view? What does the judgment look like? Is jurisdiction as to the credibility issue? But the dispositively entire case? It's our position that first, if the Court finds that Ben Lin has not satisfied his exhaustion requirement of the statute, that the Court lacks jurisdiction to reveal that issue. Therefore, in the case of the petitioner, you would be dismissed based on that. Now, if the Court decides it's going to get to the issue and then decide the case in the Court would uphold the decision of the BIA in that matter and then deny the petition for review. So our position would be that would be a dismissal of the petition for a meaningless post-mortem. No, we can of course uphold the decision of the BIA, but you're suggesting that we can get into the decision itself and analyze the basis for its ruling. Can't we? In other words, the ruling concerning credibility? Well, I'm saying that if you decide on the jurisdictional issue, you cannot do that. But I agree with you. But let's say it's not jurisdiction
. And he had 30 days to do that the same he had the finalist petition for review. He also could have moved to reopen at some point. Let me ask you. What would you, what would, in your best case scenario, what would our judgment look like? I understand dismissal for lack of jurisdiction. Is there anything left to deny in your view? What does the judgment look like? Is jurisdiction as to the credibility issue? But the dispositively entire case? It's our position that first, if the Court finds that Ben Lin has not satisfied his exhaustion requirement of the statute, that the Court lacks jurisdiction to reveal that issue. Therefore, in the case of the petitioner, you would be dismissed based on that. Now, if the Court decides it's going to get to the issue and then decide the case in the Court would uphold the decision of the BIA in that matter and then deny the petition for review. So our position would be that would be a dismissal of the petition for a meaningless post-mortem. No, we can of course uphold the decision of the BIA, but you're suggesting that we can get into the decision itself and analyze the basis for its ruling. Can't we? In other words, the ruling concerning credibility? Well, I'm saying that if you decide on the jurisdictional issue, you cannot do that. But I agree with you. But let's say it's not jurisdiction. If it's not jurisdiction on the Court finds that there was a way, say the Court finds that it's describing the never-hark that it's a rule and that the government has queued that rule, then the Court would be obligated to look at the BIA's decision and look at the record. The problem would be, as Court looks at that, as a court, that will now have the benefit of an analysis presented by the petitioner in this case that the BIA did not have. And could we, could we affirm that there were two grounds for finding lack of credibility as I recall. Well, one was whether the police told him why the other one was whether he was practicing in secret. Suppose we found one of those defective, one of those grounds, the police giving him the reason for the arrest. Could we still affirm on just one of those grounds? I mean, we wouldn't really know, though, whether that one alone would have been enough for the IJ to reach the same result. That's exactly what I was going to say, or what I would like to be able to say, well, I'm one is enough. But we have an opinion by the immigration judge, it was upheld by the BIA. That is the opinion that the Court's reviewing below. Therefore, the Court may only decide, if it's signs that there's a, what the Court couldn't do is decide that while the immigration judge made an error, that it would be futile to remand it because the same result would happen below. That would just be analyzing the credibility issue and affirming for the reason stated by the IJ. On the merits
. If it's not jurisdiction on the Court finds that there was a way, say the Court finds that it's describing the never-hark that it's a rule and that the government has queued that rule, then the Court would be obligated to look at the BIA's decision and look at the record. The problem would be, as Court looks at that, as a court, that will now have the benefit of an analysis presented by the petitioner in this case that the BIA did not have. And could we, could we affirm that there were two grounds for finding lack of credibility as I recall. Well, one was whether the police told him why the other one was whether he was practicing in secret. Suppose we found one of those defective, one of those grounds, the police giving him the reason for the arrest. Could we still affirm on just one of those grounds? I mean, we wouldn't really know, though, whether that one alone would have been enough for the IJ to reach the same result. That's exactly what I was going to say, or what I would like to be able to say, well, I'm one is enough. But we have an opinion by the immigration judge, it was upheld by the BIA. That is the opinion that the Court's reviewing below. Therefore, the Court may only decide, if it's signs that there's a, what the Court couldn't do is decide that while the immigration judge made an error, that it would be futile to remand it because the same result would happen below. That would just be analyzing the credibility issue and affirming for the reason stated by the IJ. On the merits. On the merits, yes, you're right. And that would be the likely result in that case. As a question is, how do we get there if we were to make that decision? And we have to grapple with the issue of whether this is actually an issue or a claim and whether it's such or a sexual or a no. Correcture. And I believe that the Court's bound by its precedent that the aliens must exhaust the issues below in order to present the claim to this Court. However, if the Court decided otherwise, we believe that the BIA's decision, because it was not informed by Binlin's contention, Binlin's arguments in this case, that it doesn't act as a waiver. Even though the Board decided because the Board was in effect handicapped by our, and if the Court were found to find that Mr. Binlin's arguments were not always before this Court, there are arguments not presented to the BIA. And the BIA had no way of knowing beyond its examination of the record what there's advocacy involves, advocacy involved in every Court. And that's why the Court's required exhaustion. That's why the statute requires exhaustion of administrative remedies. So the agency is making decisions that are informed by both sides by both parties
. On the merits, yes, you're right. And that would be the likely result in that case. As a question is, how do we get there if we were to make that decision? And we have to grapple with the issue of whether this is actually an issue or a claim and whether it's such or a sexual or a no. Correcture. And I believe that the Court's bound by its precedent that the aliens must exhaust the issues below in order to present the claim to this Court. However, if the Court decided otherwise, we believe that the BIA's decision, because it was not informed by Binlin's contention, Binlin's arguments in this case, that it doesn't act as a waiver. Even though the Board decided because the Board was in effect handicapped by our, and if the Court were found to find that Mr. Binlin's arguments were not always before this Court, there are arguments not presented to the BIA. And the BIA had no way of knowing beyond its examination of the record what there's advocacy involves, advocacy involved in every Court. And that's why the Court's required exhaustion. That's why the statute requires exhaustion of administrative remedies. So the agency is making decisions that are informed by both sides by both parties. So if we read this stated in our brief and we find we requested the Court rule that it has no jurisdiction because the United Nations officers and administrative issues. But if the Court reaches the issues of credibility, in this case we believe the record supports the BIA's and the immigration judges decision that Mr. Binlin did not testify credibly in that proceeding. I think I got your view, but let me ask this again, is credibility an issue or is it a claim? Credibility is an issue, Your Honor. There's no doubt. Good. Thank you, Mr. Visujan. I'm sorry, Mr. Duffy. Mr. Visujan
. So if we read this stated in our brief and we find we requested the Court rule that it has no jurisdiction because the United Nations officers and administrative issues. But if the Court reaches the issues of credibility, in this case we believe the record supports the BIA's and the immigration judges decision that Mr. Binlin did not testify credibly in that proceeding. I think I got your view, but let me ask this again, is credibility an issue or is it a claim? Credibility is an issue, Your Honor. There's no doubt. Good. Thank you, Mr. Visujan. I'm sorry, Mr. Duffy. Mr. Visujan. Are you going to show us where the record credibility might have been raised before the BIA? I wish I could, Your Honor. I can't. But the question that you presented to me and also presented to Mr. Duffy about the purpose of the Exolestional, it's a very important question. And Your Honor, you talked about it in terms of notice, putting the agency on notice. And I think in this instance clearly the board was on notice. The other rationale would be I guess to just because it's in every case. Not in every case, but most cases. In most of the silent cases, the other consideration would be to flesh out or develop the argument. However, in this case, what was missing in terms of fleshed out or developed argument, really it would not have been that. This is kind of a weird way of getting it this, but it wouldn't have been that significant. Because frankly, I think the immigration judge's credibility finding was very, very, very pedestrian
. Are you going to show us where the record credibility might have been raised before the BIA? I wish I could, Your Honor. I can't. But the question that you presented to me and also presented to Mr. Duffy about the purpose of the Exolestional, it's a very important question. And Your Honor, you talked about it in terms of notice, putting the agency on notice. And I think in this instance clearly the board was on notice. The other rationale would be I guess to just because it's in every case. Not in every case, but most cases. In most of the silent cases, the other consideration would be to flesh out or develop the argument. However, in this case, what was missing in terms of fleshed out or developed argument, really it would not have been that. This is kind of a weird way of getting it this, but it wouldn't have been that significant. Because frankly, I think the immigration judge's credibility finding was very, very, very pedestrian. And there was not a lot for the board to look at. It's something that it's on notice, it's really not a lot for the board to look at. Identifying the basis for the immigration judge's credibility finding. And analyzing it as much as it's often to analyze it. I think that the prejudice or the disadvantage to the agency that Mr. Duffy was alluding to. I think it really, in theory, in a formal sense, yes, there was. The agency was denied a full flushing out of the issue, but if we were to somehow measure or quantify what the agency didn't have available to reach the decision that it did. I don't really think it was, this was not a patent case or anything where there was a lot of need for careful technical analysis of many different things. It's just an asylum case, and it's a asylum case where there's, as in 99% of these cases, it rises or falls on credibility. I think that this advantage, if there is one, that the agency was labor-hander is really demands. Do you have a case law support for the idea that waiver by the board of immigration appeals will give the court of appeals a right to address an issue or is this the first of its kind? There certainly, I know the second circuit has addressed this issue, making this distinction between a jurisdictional and a mandatory, capitalizing the exhaustion rules are the jurisdictional mandatory
. And there was not a lot for the board to look at. It's something that it's on notice, it's really not a lot for the board to look at. Identifying the basis for the immigration judge's credibility finding. And analyzing it as much as it's often to analyze it. I think that the prejudice or the disadvantage to the agency that Mr. Duffy was alluding to. I think it really, in theory, in a formal sense, yes, there was. The agency was denied a full flushing out of the issue, but if we were to somehow measure or quantify what the agency didn't have available to reach the decision that it did. I don't really think it was, this was not a patent case or anything where there was a lot of need for careful technical analysis of many different things. It's just an asylum case, and it's a asylum case where there's, as in 99% of these cases, it rises or falls on credibility. I think that this advantage, if there is one, that the agency was labor-hander is really demands. Do you have a case law support for the idea that waiver by the board of immigration appeals will give the court of appeals a right to address an issue or is this the first of its kind? There certainly, I know the second circuit has addressed this issue, making this distinction between a jurisdictional and a mandatory, capitalizing the exhaustion rules are the jurisdictional mandatory. And the AZON case, does it help you? Yes, I will. That's the second circuit case you're on. Yes. Insofar as it is a mandatory but not jurisdictional rule, it allows a court to reach an address and issue that was waived by the agency. In that case, was it waived by the court or was it waived by the respondent? No, I believe in that case it waived by the board. Just a big difference though, in that case, didn't the Attorney General not object as he is here? Didn't they expressly say that in the opinion that how do we've been urged by the Attorney General not to review the arguments that the alien failed to raise before the BIA? We would not consider the merits, didn't they say that? Obviously, the Attorney General did speak further. It was, I said, respondent, but that's exactly what happened. The opinion says in light of the respondents' failure to challenge the petition for review, we won't review the issues. I'm paraphrase from the other panel. So I guess it doesn't directly help us around. Thank you, Mr. President
. Thank you very much. Thank you, Mr. Duffing. Thank you, Bob. We'll take the case under advisory. Call it, we'll be safe. That's a nice treat. Yeah, we don't get to do it