Mandatory Issue-Exhaustion and Corroboration Standards in Asylum Appeals: Nkezea Efuetnji v. Bondi (2d Cir. 2025)

1. Introduction

This commentary examines the Second Circuit’s Summary Order in Nkezea Efuetnji v. Bondi, No. 23-6129 (May 9, 2025). While the decision is designated “non-precedential,” it is notable for its clear restatement of two critical doctrines in U.S. immigration litigation:

1. Mandatory issue-exhaustion when the Government invokes it.
2. The intertwined role of credibility findings and corroboration in meeting the asylum applicant’s burden of proof.

The petitioner, Mr. Nkezea Efuetnji, a Cameroonian national, sought judicial review of the Board of Immigration Appeals’ (“BIA”) summary affirmance of an Immigration Judge’s (“IJ”) denial of asylum, withholding of removal, and Convention Against Torture (“CAT”) protection. The Second Circuit denied the petition, primarily because:

• Key legal arguments were unexhausted at the agency level, and
• The IJ’s adverse credibility determination—reinforced by a lack of corroborating evidence—was supported by substantial evidence.

2. Summary of the Judgment

The panel (Judges Raggi, Menashi, and Kahn) held:

1. Arguments alleging misapplication of Fifth Circuit law and violation of the right to counsel were barred for failure to exhaust them before the BIA. Citing Ud Din v. Garland, the Court reiterated that issue exhaustion, while not jurisdictional under Santos-Zacaria v. Garland, is nonetheless mandatory once the Department of Justice raises the defense.
2. The IJ’s adverse credibility findings—based on (i) vague, scripted testimony and (ii) a two-year inconsistency in the timeline—were entitled to deference under the substantial-evidence standard.
3. The paucity of independent corroboration further undermined the petitioner’s case and, standing alone, justified denial of relief.
4. Given the credibility ruling, all three forms of requested relief (asylum, withholding, CAT) necessarily failed.

3. Detailed Analysis

3.1 Precedents Cited and Their Influence

• Shunfu Li v. Mukasey, 529 F.3d 141 (2d Cir. 2008) – Clarifies that when the BIA affirms without opinion, the IJ’s decision is the “final agency determination” reviewed by the Court.
• Hong Fei Gao v. Sessions, 891 F.3d 67 (2d Cir. 2018) – Defines standards of review: de novo for legal questions; substantial evidence for factual determinations including credibility.
• Santos-Zacaria v. Garland, 598 U.S. 411 (2023) – Holds issue-exhaustion is not jurisdictional. The Second Circuit pairs this with Ud Din v. Garland, 72 F.4th 411 (2d Cir. 2023), to demonstrate that exhaustion is still compulsory when the Government invokes it.
• Xiu Xia Lin v. Mukasey, 534 F.3d 162 (2d Cir. 2008) and Likai Gao v. Barr, 968 F.3d 137 (2d Cir. 2020) – Emphasize that even minor inconsistencies can sustain an adverse credibility finding under the “totality of the circumstances.”
• Majidi v. Gonzales, 430 F.3d 77 (2d Cir. 2005) – Confirms that an IJ may rely on demeanor and reject an applicant’s explanation for discrepancies unless any reasonable adjudicator would be compelled to accept it.
• Biao Yang v. Gonzales, 496 F.3d 268 (2d Cir. 2007) – Links the absence of corroboration to credibility and burden-of-proof analyses.
• Pinel-Gomez v. Garland, 52 F.4th 523 (2d Cir. 2022) – Allows denial of relief for insufficient, albeit credible, testimony lacking specific facts or corroboration.
• Suzhen Meng v. Holder, 770 F.3d 1071 (2d Cir. 2014) & Mu-Xing Wang v. Ashcroft, 320 F.3d 130 (2d Cir. 2003) – Address CAT’s “more likely than not” torture standard, underscoring that past torture does not create a presumption of future torture.

3.2 Legal Reasoning of the Court

1. Issue Exhaustion Doctrine. The petitioner’s new claims were barred because they were not first presented to the BIA. Post-Santos-Zacaria, the Second Circuit clarifies that once the Government pleads non-exhaustion, the court must enforce it. The rationale is to respect agency expertise and allow it the first opportunity to correct any errors.
2. Adverse Credibility Analysis. The Court deferred to the IJ’s credibility findings because:
   • Demeanor/Vagueness: Testimony perceived as “scripted” and lacking persuasive detail justified skepticism.
   • Inconsistency: A two-year discrepancy (moving to Buea in 2016 vs. 2018) went to a material portion of the narrative and remained unexplained to the IJ’s satisfaction.
3. Corroboration Requirement. Under 8 U.S.C. § 1158(b)(1)(B)(ii), credible testimony may suffice, but an IJ can require corroboration when testimony is inadequate. Here, the only corroboration was a cousin’s letter of limited probative value.
4. Interdependence of Claims. Because asylum, withholding, and CAT relief shared the same factual predicate, an adverse credibility finding on asylum automatically defeated the other claims.

3.3 Likely Impact of the Judgment

Although this Summary Order is not precedential under Second Circuit Local Rule 32.1.1, it is “persuasive authority” for lower tribunals and advocates. It will likely:

• Reinforce litigation strategy to exhaust every viable argument before the BIA, especially post-Santos-Zacaria.
• Prompt asylum counsel to provide detailed, internally consistent testimony supplemented by documentary or third-party evidence.
• Be cited by the Government to oppose petitions where credibility and corroboration are at issue.
• Signal to IJs that findings regarding rehearsed testimony and minor inconsistencies will be upheld if tethered to the “totality of circumstances.”

4. Complex Concepts Simplified

• Summary Order. A non-precedential opinion resolving a case without full published reasoning; still citable pursuant to Federal Rule of Appellate Procedure 32.1.
• Issue Exhaustion. A procedural rule requiring litigants to first present legal arguments to the administrative agency so the agency can address them before judicial review.
• Substantial Evidence Standard. Appellate courts must uphold agency fact-finding unless the record compels a contrary conclusion.
• Adverse Credibility Determination. A finding that the applicant’s testimony is not believable, based on inconsistencies, demeanor, or other factors.
• Corroboration. Independent evidence (documents, witness statements) that supports an applicant’s claims. Failure to provide reasonable corroboration can doom a petition.
• CAT Relief. Protection from removal where an applicant shows it is “more likely than not” that they would be tortured by, or with the acquiescence of, the home-state authorities.

5. Conclusion

Efuetnji v. Bondi serves as a cautionary tale for asylum litigants. The Second Circuit underscores that:

1. Issue-exhaustion remains a rigid gatekeeper; new arguments unveiled on appeal will be summarily rejected when the Government invokes the defense.
2. Detailed, internally consistent, and spontaneous testimony—corroborated where reasonably possible—is indispensable. Even “minor” timeline discrepancies may prove fatal.
3. An adverse credibility finding generally collapses all derivative forms of protection (asylum, withholding, CAT) premised on the same facts.

In the broader legal landscape, while the order is not formally precedential, it synthesizes post-Santos-Zacaria exhaustion doctrine with well-established credibility jurisprudence, reinforcing the high evidentiary and procedural bars asylum applicants must clear in the Second Circuit.