Collective Inconsistencies & Post-Santos-Zocaria Exhaustion
Commentary on Abdul Ohab v. U.S. Attorney General

1. Introduction

In Abdul Ohab v. U.S. Attorney General, the Eleventh Circuit Court of Appeals revisited two perennial themes in U.S. immigration jurisprudence:

• How immigration adjudicators may use multiple minor inconsistencies to sustain an adverse credibility determination under the REAL ID Act’s “totality of the circumstances” standard; and
• How the Court will treat the statutory administrative-exhaustion requirement after the Supreme Court’s 2023 decision in Santos-Zocaria v. Garland, which re-classified § 1252(d)(1) as a non-jurisdictional, claim-processing rule.

Petitioner Abdul Ohab, a Bangladeshi national and Bangladesh National Party (BNP) activist, sought asylum, withholding of removal, and protection under the Convention Against Torture (CAT). He alleged persecution by members of the ruling Awami League. Both the Immigration Judge (IJ) and the Board of Immigration Appeals (BIA) rejected his claims, finding his testimony not credible and inadequately corroborated. The Eleventh Circuit affirmed, simultaneously (i) endorsing the “collective-inconsistencies” approach to credibility determinations and (ii) holding that an unexhausted “pattern-or-practice” theory of future persecution is barred when the government invokes the exhaustion rule, even though that rule is no longer jurisdictional.

2. Summary of the Judgment

Sitting on the non-argument calendar, a per curiam panel (Rosenbaum, J. Pryor, and Kidd, JJ.) issued three key holdings:

1. Adverse Credibility Upheld. Substantial evidence supported the IJ’s and BIA’s finding that inconsistencies in (a) when and how Mr. Ohab obtained his passport and (b) the omission of certain events from his credible-fear interview collectively undermined his credibility.
2. No Review of Pattern-or-Practice Claim. Because Mr. Ohab did not raise a stand-alone “pattern or practice of persecution” argument before the BIA, and the government opposed consideration on that basis, the Court dismissed this portion of the petition pursuant to § 1252(d)(1).
3. Petition Partly Denied, Partly Dismissed. The Court denied the petition regarding credibility-based claims (asylum and withholding) and dismissed the unexhausted pattern-or-practice theory.

3. Analysis

3.1 Precedents Cited & Their Influence

• Ayala v. U.S. Att’y Gen. (2010) & Seck (2011): Defined the scope of review—Court examines BIA opinion plus IJ reasoning adopted therein.
• Ruiz (2006), Kazemzadeh (2009): Articulated the highly deferential “substantial-evidence” standard for factual findings.
• Forgue (2005), Chen (2006): Clarified that credible testimony alone can satisfy an asylum burden and that adverse credibility can defeat a claim absent persuasive corroboration.
• Tang (2009), Shkambi (2009): Distinguished omissions from outright contradictions in credibility analysis.
• Kueviakoe (2009): Held that “wholly immaterial” inconsistencies cannot sustain adverse credibility; Court used this to show the present inconsistencies were not immaterial.
• Santos-Zocaria v. Garland (U.S. 2023): Re-defined § 1252(d)(1) exhaustion as non-jurisdictional. The Eleventh Circuit applies it as a claim-processing rule when the government raises the defense.
• Kemokai (11th Cir. 2023): Confirmed post-Santos-Zocaria practice; relied upon here to dismiss the unexhausted claim.
• Jeune (2016) & Indrawati (2015): Set the standard for what constitutes adequate issue exhaustion before the BIA.
• Clement (2023): Reinforced the rule that appellate courts can review only the grounds actually relied upon by the agency.

Collectively, these cases provided the doctrinal scaffolding for the panel to: (1) defer to the IJ/BIA on credibility, (2) view multiple minor inconsistencies through a “totality” lens, and (3) dismiss unexhausted arguments as claim-processing defaults.

3.2 The Court’s Legal Reasoning

1. Adverse Credibility Determination.
   • The REAL ID Act permits adjudicators to rely on any inconsistency or omission, even if not “at the heart” of the claim, à la Shkambi.
   • The IJ isolated two clusters of inconsistency:
     • Passport Process: Whether obtained in 2012 or 2013; whether applicant appeared in person; where photo was taken.
     • Credible-Fear Interview v. Hearing: Omission of his alleged police detention and earlier threat.
   • Although each inconsistency might be “minor,” the IJ and BIA could, under the “collective-inconsistencies doctrine,” weigh them cumulatively to sustain an adverse credibility finding.
   • The panel emphasized appellate restraint: Even if alternative inferences are plausible, reversal is warranted only when the record compels the opposite conclusion (per Chen).
2. Failure to Exhaust Pattern-or-Practice Theory.
   • Section 1252(d)(1) bars judicial review of issues not presented to the BIA when the government raises the exhaustion defense.
   • Santos-Zocaria changed the label from “jurisdictional prerequisite” to “claim-processing rule,” but did not alter the Eleventh Circuit’s willingness to enforce the requirement when invoked. The panel cited Kemokai for this proposition.
   • Because Mr. Ohab’s BIA brief challenged only credibility, the “pattern-or-practice” argument was deemed forfeited and dismissed.

3.3 Potential Impact of the Judgment

The decision, though unpublished, is instructive for the bar:

• Heightened Scrutiny of Peripheral Details. Applicants must ensure consistency not merely on central persecution events but also on logistical details (e.g., passport issuance, travel route) that can form the basis for credibility attacks.
• Total-Inconsistency Approach Endorsed. The Eleventh Circuit re-affirms that several individually insignificant inconsistencies may together justify an adverse credibility finding.
• Exhaustion After Santos-Zocaria. Practitioners cannot assume the Court will excuse unexhausted issues on the ground that exhaustion is now “non-jurisdictional.” If DHS raises the defense, an argument omitted from the BIA brief is likely doomed.
• Burdens on Country-Condition-Only Cases. The panel’s disposition implies that, where credibility fails, stand-alone country-condition evidence must have been explicitly presented and preserved below or it will not salvage the claim on appeal.

4. Complex Concepts Simplified

• Adverse Credibility Determination: A finding that the applicant is not believable. Under the REAL ID Act, inconsistencies, omissions, demeanor, and plausibility may all be considered.
• Substantial-Evidence Review: An appellate court will reverse only if no reasonable adjudicator could reach the agency’s conclusion based on the record. It is the second-most deferential standard in U.S. law (after “arbitrary and capricious”).
• Pattern-or-Practice of Persecution: A way to establish a well-founded fear even without personal targeting by proving that the government or its proxies generally persecute a protected class.
• Exhaustion (8 U.S.C. § 1252(d)(1)): A statutory requirement that an issue be first raised with the BIA. Post-Santos-Zocaria, it is not jurisdictional but operates as a procedural default if the government invokes it.
• Claim-Processing Rule: A rule governing litigation procedure that may be waived or forfeited, unlike jurisdictional rules, which cannot be.

5. Conclusion

Abdul Ohab v. U.S. Attorney General crystallizes two practical lessons for immigration litigants in the Eleventh Circuit. First, credibility is a holistic inquiry: a series of minor discrepancies, even on peripheral matters like passport logistics, can doom an asylum claim if they cumulatively erode trust in the applicant’s narrative. Second, despite the Supreme Court’s reframing of § 1252(d)(1), exhaustion remains a potent procedural hurdle whenever the Department of Homeland Security chooses to invoke it. Together, these principles reinforce meticulous preparation at every procedural stage—from credible-fear interview to BIA briefing—to preserve both factual credibility and legal arguments for eventual judicial review.