“The Multiple-Inconsistency Exhaustion Test” – Clarifying Credibility and Exhaustion in Immigration Appeals
(Commentary on Li v. Bondi, Court of Appeals for the Second Circuit, 19 Aug 2025)

1. Introduction

Li v. Bondi is a 2025 summary order from the United States Court of Appeals for the Second Circuit that—while officially non-precedential under the Court’s Local Rule 32.1.1—nevertheless sharpens two recurring issues in immigration law:

1. How many and what kind of inconsistencies are sufficient to sustain an adverse credibility determination under 8 U.S.C. § 1158(b)(1)(B)(iii); and
2. How the post-Santos-Zacaria v. Garland conception of administrative exhaustion interacts with the government’s power to waive or forfeit the defense.

The petitioner, Mr. Jianchuan Li, a Chinese national, sought asylum, withholding of removal, and CAT protection based on alleged religious persecution for attending underground Christian gatherings in China. Both the Immigration Judge (“IJ”) and the Board of Immigration Appeals (“BIA”) found him not credible, pointing to several contradictions between his oral testimony, written application, supporting affidavits and hospital records. Li petitioned the Second Circuit for review, arguing that the IJ overstated minor discrepancies and that any unresolved points were harmless.

The Second Circuit—Judges Walker, Sullivan, and Pérez—disagreed and denied the petition, supplying a concise yet instructive roadmap for evaluating credibility and exhaustion in the wake of recent Supreme Court guidance.

2. Summary of the Judgment

Applying the “substantial evidence” standard for factual findings and de novo review for questions of law, the Court:

• Affirmed the BIA’s adverse credibility ruling, holding that multiple inconsistencies concerning (1) the host of the underground church service, (2) whether Li’s injury required surgery, and (3) whether he honored police reporting requirements were substantial and unresolved.
• Rejected Li’s explanations for the name discrepancy as unexhausted because he never presented that argument to the BIA (Punin v. Garland principle).
• Confirmed that exhaustion is a claim-processing rule, subject to waiver and forfeiture (Santos-Zacaria v. Garland), but found no waiver by the government on the discrete points it invoked.
• Held that the credibility ruling was dispositive of all three forms of relief—asylum, withholding, and CAT—because the claims relied on the same factual predicate.
• Accordingly, denied the petition for review and vacated all stays.

3. Analysis

3.1 Precedents Cited

• Hong Fei Gao v. Sessions, 891 F.3d 67 (2d Cir. 2018) – Reiterated the “totality of the circumstances” framework for credibility. Gao furnished the basic articulation of how substantial evidence review applies after the REAL ID Act.
• Xiu Xia Lin v. Mukasey, 534 F.3d 162 (2d Cir. 2008) – Endorsed robust deference to IJ credibility findings unless no reasonable fact-finder could agree. The Court quotes Lin for the rule that omissions and inconsistencies—even those not “going to the heart” of the claim—may be considered.
• Likai Gao v. Barr, 968 F.3d 137 (2d Cir. 2020) – Introduced the memorable dictum that “even a single inconsistency might preclude” relief, while multiple discrepancies do so “more forcefully.” The panel employs this to underscore the three mismatches in Li’s record.
• Punin v. Garland, 108 F.4th 114 (2d Cir. 2024) – Clarifies that a petitioner must present the same specific argument to the BIA; otherwise the argument is deemed unexhausted in the Court of Appeals.
• Santos-Zacaria v. Garland, 598 U.S. 411 (2023) – Established that 8 U.S.C. § 1252(d)(1) is not jurisdictional but “a classic, non-jurisdictional claim-processing rule” that can be waived or forfeited by the government. The Second Circuit applies Santos-Zacaria to explain why it reached certain exhaustion questions yet declined to entertain others.

3.2 Legal Reasoning

The Court’s reasoning proceeds in two layers: credibility and exhaustion.

1. Totality Standard: Under § 1158(b)(1)(B)(iii), adjudicators may consider any mismatch among oral testimony, written statements, and record evidence—regardless of whether each inconsistency goes to the “heart” of the claim. The Court cites Hong Fei Gao and REAL ID Act language verbatim.
2. Triad of Inconsistencies: The panel meticulously lists the three factual splits:
   • Location/host of the service – Three different names given.
   • Nature of medical treatment – Claimed one-month hospitalization and surgery; records silent on surgery; conflicting bleeding testimony.
   • Police reporting – Hearing: sporadic; application & credible-fear interview: mostly compliant; claimed vandalism of vegetable stand absent from earlier accounts.
   Each inconsistency independently undercuts credibility; taken together they are “substantial evidence” under the deferential standard.
3. Lack of Plausible Explanation: Li’s attempt to downplay the “Da Ming/Da Peng” name variance was neither raised to the agency nor persuasive; no explanation was ever offered for the “Chen Yuen” divergence or the medical gaps.
4. Dispositive Effect: Because all forms of relief were rooted in the same persecution narrative, the credibility finding collapses asylum, withholding, and CAT claims simultaneously.

1. The Court reiterates Santos-Zacaria: exhaustion is non-jurisdictional and may be waived.
2. However, the government explicitly invoked exhaustion only for selected arguments (e.g., explanation of name discrepancies). On these, the Court found forfeiture absent and deemed Li’s arguments unexhausted.
3. Because the BIA itself affirmed credibility without suggesting waiver, the Court accepted the BIA’s analysis as the operative decision (Xue Hong Yang framework).

3.3 Potential Impact

• Reinforces the “Multiple-Inconsistency” heuristic: Though unpublished, the order adds to the growing body of Second Circuit opinions applying Likai Gao’s dictum. Practitioners should assume that two or more unexplained conflicts will almost invariably doom credibility.
• Narrows “technical-exhaustion” escapes: After Santos-Zacaria, some litigants hoped that exhaustion arguments would fade. Li reminds counsel that, unless the government waives the defense on a specific point, new theories not squarely presented to the BIA remain barred.
• Strategic drafting of affidavits: The Court’s reliance on letters omitting certain facts (e.g., bleeding, vandalism) signals that corroborating statements must align precisely with the principal witness or risk being used negatively.
• Appellate brief-writing checkpoints: Petitioners must cross-reference every explanation offered on appeal with the administrative record to avoid Punin-based dismissals.

4. Complex Concepts Simplified

Adverse Credibility Determination

An IJ or the BIA’s formal finding that the applicant’s testimony is not believable. Under the REAL ID Act, any inconsistency—large or small—may be considered, and courts give heavy deference to that finding unless “no reasonable fact-finder” could agree.

Substantial Evidence Standard

A highly deferential test: the Court must uphold agency findings unless the evidence is so compelling that every reasonable adjudicator would reach the opposite conclusion.

Claim-Processing Rule

A procedural rule that directs how and when claims must be raised but is not jurisdictional. Courts can forgive non-compliance if the opposing party does not insist on it.

Exhaustion of Administrative Remedies

The requirement that an immigrant raise an argument first to the BIA before a federal court may hear it. After Santos-Zacaria, this is mandatory but waivable.

5. Conclusion

Li v. Bondi may carry no formal precedential weight, but it offers a crisp, two-fold lesson for both immigration advocates and government counsel:

1. Under the REAL ID regime, multiple, unresolved discrepancies—even on seemingly peripheral facts—will almost always sustain an adverse credibility finding, which in turn can summarily defeat asylum, withholding, and CAT claims.
2. Following Santos-Zacaria, exhaustion remains indispensable unless the government expressly relinquishes the defense. Arguments debuting in the Court of Appeals will be deemed forfeited.

Ultimately, Li underscores the imperative for asylum applicants to maintain internal consistency and for appellate lawyers to scrupulously mirror the arguments exhausted below. Failure on either front— as Mr. Li’s case illustrates—can be fatal.