Sixth Circuit Reaffirms REAL ID’s “Any Inconsistency” Credibility Rule and Holds Unexhausted Objections to Credible‑Fear Interview Notes Are Waived

Introduction

In Hasanul Islam Parvaj v. Garland (No. 24-3208, Dec. 3, 2024), the United States Court of Appeals for the Sixth Circuit denied a Bangladeshi petitioner’s challenge to the Board of Immigration Appeals’ (BIA) affirmance of an Immigration Judge’s (IJ’s) denial of asylum, withholding of removal, and protection under the Convention Against Torture (CAT). The panel (Judges Kethledge, Thapar, and Larsen; opinion by Judge Larsen) upheld an adverse credibility determination grounded in inconsistencies and omissions across the petitioner’s credible-fear interview, written application, and testimony.

The decision (not recommended for publication) underscores several recurring features of immigration litigation after the REAL ID Act of 2005:

Adverse credibility can rest on any inconsistency or omission, whether or not it goes to the “heart” of the claim.
Credible-fear interview notes can be used to evaluate credibility, and arguments challenging their use must be exhausted before the BIA.
Translation-error claims require record support; absent such support, interview discrepancies may be credited.
CAT claims that rise and fall with credibility fail if the adverse credibility finding stands.
Constitutional arguments premised on S.E.C. v. Jarkesy do not readily translate to removal proceedings and may be deemed abandoned if undeveloped.

Summary of the Opinion

The Sixth Circuit denied the petition for review and affirmed the BIA’s decision:

Adverse Credibility: Substantial evidence supported the IJ/BIA’s finding that the petitioner’s accounts of assaults and threats (2012 beating, 2013 group fight, 2014 threatening calls) were internally inconsistent and embellished over time. Under the REAL ID Act, such inconsistencies and omissions need not go to the claim’s core.
Credible-Fear Interview Notes: Petitioner’s objections to the IJ’s reliance on credible-fear interview notes were not exhausted before the BIA and thus could not be considered. Even on the merits, the record reflected follow-up, open-ended questions and a read-back with an interpreter, undermining claims of translation error.
CAT: Petitioner’s CAT claim was tied entirely to the credibility challenge; with credibility sustained, CAT failed.
Jarkesy-based Arguments: The court found no parallel between SEC fraud enforcement and removal proceedings and deemed the constitutional arguments abandoned for lack of development.

Analysis

Precedents and Authorities Cited

HASSAN v. HOLDER, 604 F.3d 915 (6th Cir. 2010): When the BIA issues its own opinion, the BIA’s decision is the final agency action; to the extent it adopts the IJ, the court also reviews the IJ’s reasoning. This frames the appellate lens here.
Sanchez-Robles v. Lynch, 808 F.3d 688 (6th Cir. 2015): Confirms the dual review approach—examining both BIA and IJ reasoning where the BIA adopts or relies on the IJ’s analysis.
Slyusar v. Holder, 740 F.3d 1068 (6th Cir. 2014): Articulates the deferential substantial-evidence standard for credibility and explains the post-REAL ID framework permitting reliance on any inconsistency or falsehood, whether or not it goes to the heart of the claim. This standard guided the court’s affirmance of adverse credibility.
8 U.S.C. § 1158(b)(1)(B)(iii) (REAL ID Act): Codifies that IJs may consider inaccuracies and falsehoods “without regard to whether an inconsistency, inaccuracy, or falsehood goes to the heart of the applicant’s claim,” evaluating credibility under the totality of the circumstances and without any presumption of credibility.
Kolov v. Garland, 78 F.4th 911 (6th Cir. 2023): Supports discounting later-added incidents or embellished harms as inconsistent with earlier statements—particularly relevant to the petitioner’s escalating accounts of injuries and threats.
Singh v. Rosen, 984 F.3d 1142 (6th Cir. 2021): Reinforces the exhaustion requirement: arguments not raised to the BIA cannot be raised for the first time in the court of appeals. This foreclosed challenges to the IJ’s reliance on credible-fear interview notes.
S.E.C. v. Jarkesy, 144 S. Ct. 2117 (2024): The Supreme Court’s holding, grounded in the common-law fraud analogue, did not translate to removal proceedings. The Sixth Circuit found no relevant parallel.
United States v. Johnson, 440 F.3d 832 (6th Cir. 2006): Establishes abandonment of undeveloped arguments—a basis for rejecting the Jarkesy-based constitutional claim given the petitioner’s failure to flesh it out.

Legal Reasoning

The court’s reasoning proceeds in three principal steps: (1) the adverse credibility determination under REAL ID; (2) the exhaustion bar and reliability of credible-fear interview notes; and (3) the derivative fate of CAT and undeveloped constitutional claims.

1) Adverse Credibility Under the REAL ID Act

Applying § 1158(b)(1)(B)(iii) and the substantial evidence standard, the court found the record supported the IJ’s and BIA’s conclusion that the petitioner’s account was inconsistent and embellished. Three categories mattered:

2012 beating injuries: At the credible-fear interview, the petitioner reported hand “cut and scratch”; before the IJ, he claimed a knife stabbing. He admitted “no reason” for omitting the knife earlier. This shift suggested embellishment.
2013 group fight injuries and treatment: Initially he reported injury to teeth and lip; later he testified to two broken teeth, stitches, and a two-day hospital stay, without corroborating records and without a persuasive explanation for the earlier underdescription.
2014 threatening calls: He first reported one threatening call post-election; later he testified to multiple calls both pre- and post-election.

Under REAL ID, the agency could deem these discrepancies material even if peripheral and could weigh them under the totality of circumstances. Citing Kolov, the court emphasized the agency’s discretion to view later-added or amplified harms as inconsistent. The record did not compel a contrary credibility finding; hence, substantial evidence required affirmance.

2) Use of Credible-Fear Interview Notes; Exhaustion and Reliability

The petitioner argued that the IJ should not have relied on credible-fear interview notes because they were not verbatim or comprehensive, and because the I-589 form has limited space. The court refused to consider these contentions because they were not raised before the BIA (Singh v. Rosen).

The panel also addressed the merits in the alternative. The asylum officer asked follow-up, open-ended questions, and used an interpreter; the officer read back a summary of the claim, and the petitioner stated he understood. The BIA reasonably concluded there was no strong indication that inconsistencies flowed from translation errors or misunderstanding. In short, even aside from exhaustion, the record supported giving the notes evidentiary weight in the credibility calculus.

3) CAT and Jarkesy

The petitioner tied CAT relief to the alleged credibility errors. Because the adverse credibility finding stood, the CAT claim failed as presented.

As for constitutional arguments referencing S.E.C. v. Jarkesy—principally an intimation that a jury-trial right might attach to removal—those were undeveloped and thus abandoned (Johnson). The court also noted the lack of a meaningful parallel between SEC fraud enforcement and deportation proceedings.

Impact

Although nonprecedential, the decision usefully consolidates several practical rules in the Sixth Circuit’s immigration jurisprudence:

Credibility under REAL ID is broad and cumulative: Applicants should expect IJs and the BIA to weigh all deviations across time and documents, including omissions or seemingly minor discrepancies, and to draw adverse inferences from escalation in the severity of harms.
Credible-fear interview notes matter: When an interview includes open-ended follow-up, read-back, and confirmed interpreter comprehension, the notes can be relied upon to impeach later testimony. If a respondent intends to challenge their use, that objection must be raised to the BIA to preserve appellate review.
Translation claims require contemporaneous support: Absent record evidence of translation problems (e.g., interpreter objections, documented confusion, or corrections), courts will be reluctant to attribute inconsistencies to language issues.
Corroboration can be decisive: Where petitioners assert serious injuries (stabbings, broken teeth, hospitalizations), hospital records, medical reports, or affidavits can mitigate credibility concerns. The lack of corroboration here compounded the credibility problem.
CAT claims should be developed independently: Petitioners should not rely solely on credibility; CAT can be supported by independent country-condition evidence and expert testimony even if testimony is discounted. Tying CAT exclusively to credibility invites affirmance if the adverse credibility finding is sustained.
Jarkesy is not a silver bullet for removal cases: The panel’s analysis signals little appetite to import Jarkesy’s jury-trial and structural arguments into the removal context, at least absent robust briefing.

Complex Concepts Simplified

Adverse Credibility Determination: A finding that an applicant’s account isn’t believable, often based on inconsistencies, omissions, implausibilities, or demeanor. Post-REAL ID, even small inconsistencies can count.
Substantial Evidence Standard: Highly deferential appellate review of agency factfinding. The court asks whether any reasonable adjudicator could have reached the agency’s conclusion; if yes, the finding stands even if the court might have decided differently.
REAL ID Act Credibility Provision (8 U.S.C. § 1158(b)(1)(B)(iii)): Allows decisionmakers to consider any inaccuracies or falsehoods without requiring that they go to the claim’s core, and to assess credibility under the totality of circumstances, with no presumption of credibility.
Credible-Fear Interview: A threshold screening to determine if there’s a “significant possibility” the person could establish eligibility for asylum. A positive credible-fear finding does not bind the IJ; it only moves the case forward.
Exhaustion of Administrative Remedies: Parties must present legal arguments to the BIA before raising them in federal court. Failure to do so typically forfeits those arguments on judicial review.
Rule 28(j) Letter: A short letter to the court advising of pertinent and significant authority that comes to a party’s attention after briefing, such as a new Supreme Court decision, and explaining its relevance.
Asylum vs. Withholding of Removal: Asylum is discretionary and generally requires showing a well-founded fear of persecution; withholding is mandatory if the applicant shows it is more likely than not they’ll be persecuted. An adverse credibility finding can defeat both where testimony is central.
CAT Protection: Bars removal to a country where it is more likely than not the person will be tortured. Unlike asylum/withholding, CAT can be proven with objective evidence even if testimony is disbelieved—but petitioners must develop that evidence and argument.
Nonprecedential Decision: “Not recommended for publication” means the opinion is not binding precedent, though it may have persuasive value.

Conclusion

The Sixth Circuit’s decision in Parvaj v. Garland reaffirms the post-REAL ID landscape: adverse credibility can rest on any inconsistency or omission, and courts will uphold such findings under the substantial evidence standard absent a record that compels the opposite conclusion. The opinion also highlights the procedural rigor demanded in immigration appeals—objections to the use of credible-fear interview notes must be preserved before the BIA; translation objections require concrete record support; and undeveloped constitutional theories (including Jarkesy-based ideas) are deemed abandoned.

For practitioners and applicants alike, the case is a cautionary tale: maintain consistency across all statements from the credible-fear interview onward; promptly explain any discrepancies; marshal corroboration for alleged harms; and preserve every procedural and evidentiary challenge at the administrative level. While not precedential, the court’s reasoning is a clear, practical guide to how credibility and preservation rules continue to shape relief eligibility in the Sixth Circuit.