1 Attorney General Mukase y is substituted as respondent pursuant to Rule 43(c)(2) of the Federal Ru les of Appellate Procedure. 

## United States Court of Appeals
FOR THE EIGHTH CIRCUIT

___________
No. 06-3002 No. 06-4127

___________ L'Aid Zine, also known as Hafed * Benchellali, *

* Petitioner, * * Petitions for Review of Orders of v. * the Board of Immigration Appeals.

* Michael B. Mukasey, 1 *

* Respondent. *

___________ Submitted: October 15, 2007 Filed: February 19, 2008

___________ Before LOKEN, Chief Judge, GRUENDER and BENTON, Circuit Judges.

___________ LOKEN, Chief Judge.

L’Aid Zine, a native and citizen of Algeri a, fled that country in April 1996 and later used a fraudulent French passport to enter the United States under the Visa Waiver Program (“VWP”). Zine filed an application for asylum, withholding of removal, and relief under th e Convention Against Tortur e (“CAT”) on July 21, 2000. After six hearings over a three-year period, the immigration judge (“IJ”) denied the-2- application, finding that Zine’s testimony wa s not credible and therefore he failed to prove that he applied for as ylum within one year of arriving in the United States, or that he is eligible for asylum, withholding of removal, or CAT relief. The Board of Immigration Appeals (BIA) affirmed and then denied Zine’s timely motion to reconsider or reopen its decision. Zinepetitions for review of both orders. We consolidated and now deny the petitions for review.

I. The Order Denying Asylum, Withholding of Removal, and CAT Relief

In support of his application, Zine te stified that he was seized by Algerian security officers in February 1992 becausehe sympathized with a major Islamic opposition party. Imprisoned for two years at a military detention cen ter in the desert, Zine was exposed to harsh living conditions, beaten with rifle butts, and tortured with electric wires. After release in 1994, he wa s twice arrested by Algerian special forces after police officers were killed in his neighborhood; each time, he was denied food and tortured. In March 1996, Zine was conscripted into the Algerian military where he trained for twenty-five days before escaping because he feared having to kill innocent people if he stayed in the military. He made his way to Turkey by way of Tunisia, using a visitor visa and Algerian passport and intending to get to Europe and apply for asylum. Instead, he remained in Turkey for three years before a relative in Canada provided money to fly to Thailand. Wh ile in Turkey, Zine’s family in Algeria received a letter from an Islamic terrorist or ganization threatening to kill Zine because he had briefly served in the military, and military police detained two of his brothers and told the family they were tryi ng to capture Zine for deserting.

After arriving in Thailand, Zine purchased a fraudulent French passport bearing his photo but the name Hafed Benchellali. He testified that he destroyed his Algerian passport and flew by way of China to San Francisco, arriving on August 3, 1999, and entering under the VWP. This Program allows the Attorney General to waive the visa requirement and permit citizens of a sel ect list of nations, including France but not-3- Algeria, to visit the United Stat es for up to ninety days. See 8 U.S.C. § 1187(a). After arriving, Zine destroyed the French passport and his I-94 entry card but kept a photocopy of the portion of the I-94 card that is retained by the entering alien. He settled in Minneapolis, overstayed the allo wed VWP period, and applied for asylum. The INS issued a removal noti ce and placed him in an “asy lum only” proceeding. See 8 U.S.C. § 1187(b); 8 C.F.R. § 1208.2.

The asylum-only hearings were repeated ly continued to allow the parties to gather additional evidence. Zine presen ted facsimile copies of documents from Algeria, including letters from friends and family generally supporting his testimony, a document allegedly provide d upon his release from the detention center, a threat letter from a “Covenant of God” organization, and a 1996 military summons. He testified that his family mailed the origin als of these documents, but they never arrived. An expert on Alge ria testified that Zine’s te stimony was generally consistent with reports of the armed conflicts between the Algerian military and Islamic rebel groups between 1992 and 1998. Zine testified that, if he is removed to Algeria, he fears prison, torture, or death at the hands of the government based upon his perceived association with anti-government political or ganizations, or that he will be killed by terrorists because of his brief time in the Algerian military.

The IJ found Zine’s testimony not credible . The IJ denied asylum, withholding of removal, and CAT relief “due to the negative credibility finding and the lack of objective, credible supporting documentation. ” The IJ also denied asylum on an additional ground -- because Zine destroyed his fraudulent passport and entry card and presented no other evidence documenting his place and time of arrival, he failed to prove by clear and convincing evidence that he applied for asylum within one year after arriving in the United States. See 8 U.S.C. § 1158(a)(2)(B).

Zine timely appealed to the BIA. The no tice of appeal assert ed that the denial of asylum “was incorrect as a matter of law” because the IJ’s adverse credibility2 The parties agree that the BIA’s or der denying relief in an asylum-only proceeding is a final order of removal subject to judicial review under 8 U.S.C. § 1252(a)(1). SeeNreka v. U.S. Attorney General , 408 F.3d 1361, 1366-68 (11th Cir. 2005). At oral argument, Zi ne’s attorney confirmed that he has not appealed the denial of relief under the CAT.

-4- finding lacked factual support in the record and the IJ gave inadequate weight to Zine’s supporting evidence. His lengthy brie f to the BIA argued that he is entitled to asylum because he presented credible, su fficient testimony and documentary evidence establishing past persecution and a well-founded fear of future persecution by the Algerian government on account of his political opinion and associations. On the untimeliness issue, Zine argued that it wa s error to place him in an asylum-only proceeding based upon an August 1999 VWP en try document and then find that his consistent testimony corroborating the I-94 photocopy failed to prove entry within one year of his July 2000 application.

The BIA in a two-paragraph Order adoptedand affirmed the decision of the IJ “that there are not exceptional circumstances sufficient to overcome [Zine’s] failure to timely file his application for asylum, and that without credible testimony [Zine] is not eligible for withholdi ng of removal or relief under the [CAT].” The BIA added that, “[w]ith respect to the adverse credib ility finding, we are not persuaded that it is clearly erroneous.” See 8 C.F.R. § 1003.1(d)(3)(i) (BIAstandard of review).

On appeal, Zine argues that the BIA erre d in concluding that the IJ’s adverse credibility finding was not clearly erroneous. Therefore, he argues, we should vacate the order denying asylum and withholding of removal and remand for further agency proceedings. 2The government argues that we lack jurisdiction to consider either the asylum claim or the withholding of removal claim for two distinct reasons. The argument pertaining to asylum is clearly correct. The argument pertaining to withholding of removal is more complex.3 The regulations provide that applica tions for withholding of removal “are hereinafter referred to as ‘asy lum applications,’” and that an asylum application “shall be deemed to constitute at the same time an application for withholding of removal.” 8 C.F.R. §§ 1208.1(a), 1208.3(b).

-5- A. Asylum. The statute governing asylum pr ovides that “[n]o court shall have jurisdiction to review any de termination” denying an asylum application as untimely. 8 U.S.C. § 1158(a)(3). We have consistently held that this provision bars judicial review of the agency’s resolution of the relevant issues of fact. See Bejet-Viali AlJojo v. Gonzales , 424 F.3d 823, 827 (8th Cir. 2005) (extraordinary circumstances issue); Aden v. Ashcroft , 396 F.3d 966, 968 (8th Cir. 2005) (timeliness issue). As Zine raises no colorable constitutional challe nge or question of law that might avoid this jurisdictional bar, seeMouawad v. Gonzales , 485 F.3d 405, 411 (8th Cir. 2007), we lack jurisdiction to review the denial of asylum.

B. Withholding of Removal. The statute governing judicial review of removal orders provides that we may review a final order of remova l only if “the alien has exhausted all administrative remedies available to the a lien as of right.” 8 U.S.C. § 1252(d)(1). The Attorney General’s re gulations governing administrative appeals to the BIA provide that the alien “must specifically identify the findings of fact, the conclusions of law, or both, that are bei ng challenged.” 8 C.F.R. § 1003.3(b). Here, Zine’s notice of appeal and brief to th e BIA specifically challenged the denial of asylum but not the denial of withholding of removal. Accordingly, the government argues, we lack jurisdiction to consider the denial of withholding of removal because Zine failed to exhaust his ad ministrative remedies for this claim. Zine responds that this exhaustion issue is not jurisdictional. He urges us to consider the merits of the issue because asylum and withholding of removal are specifically linked in the regulations 3 and because the BIA specifically addressed withholding of removal in affirming the IJ’s decision.-6- Resolving the parties’ conflicting contentions would embroil us in unsettled questions of immigration law. Our prior decisions are inconsistent on the question whether the failure to raise an issue before the BIA is a ju risdictionally-fatal failure to exhaust an administrative remedyfor purposes of 8 U.S.C. § 1252(d)(1), or simply raises the non-jurisdictional question whether review of that issue is precluded by the doctrine of administrative exhaustion. Compare Sultani v. Gonzales , 455 F.3d 878, 884 (8th Cir. 2006), withFrango v. Gonzales , 437 F.3d 726, 728-29 (8th Cir. 2006), andEtchu-Njang v. Gonzales , 403 F.3d 577, 581-84 (8th Cir. 2005). To further complicate matters, there is disagreement among our sister circuits on the related question whether a claim or issue not presen ted to the BIA, but c onsidered by the BIA sua sponte , is jurisdictionally barred for failure to exhaust administrative remedies. Compare Amaya-Artunduaga v. U.S. Attorney General , 463 F.3d 1247, 1250-51 (11th Cir. 2006), withSidabutar v. Gonzales , 503 F.3d 1116, 1118-22 (10th Cir. 2007). We conclude that we need not enter this thic ket because the issue presented in this case can be resolved more narrowly.

To be eligible for asylum, an alien must prove that he is a “refugee,” a person unable or unwilling to return to his own country “because of persecution or a wellfounded fear of persecution on account of race, religion, nationality, membership in a particular social group, or political opinion.” 8 U.S.C. §§ 1158(b)(1), 1101(a)(42)(A). Withholding of removal is a narrower remedy; it bars removal only to a particular country. The statute that defines eligibility for withholding of removal uses language from the United Nations Conven tion Relating to the Status of Refugees, rather than the word “persecution.” See 8 U.S.C. § 1231(b)(3)(A). But it is wellsettled that eligibility under this statute requi res proof “that it is more likely than not that the alien would be subject to persecution on one of the specified grounds” if removed to the country in question. INS v. Stevic , 467 U.S. 407, 429-30 (1984). This burden of proof “is more demanding than that for asylum.” Alemu v. Gonzales , 403 F.3d 572, 576 (8th Cir. 2005). Therefore, “[a] n alien who fails to prove eligibility for4 “Only the BIA order is subject to our review, including the IJ’s findings and reasoning to the extent they were expr essly adopted by the BIA.” Fofanah v. Gonzales , 447 F.3d 1037, 1040 (8th Cir. 2006).

-7- asylum cannot meet the standard for establishing withholding of removal.” Turay v. Ashcroft , 405 F.3d 663, 667 (8th Cir. 2005).

In this case, the IJ denied both as ylum and withholding of removal on the merits, based upon an adverse credibility finding and the lack of supporting documentation. Zine appealed that decisi on, arguing that he was eligible for asylum because he demonstrated past persecu tion and a well-founded fear of future persecution in Algeria on account of a protected ground. If that asylum argument failed, Zine had no hope of satisfying th e more demanding standard for withholding of removal to Algeria. In addition, the IJ denied asyl um on the alternative ground that Zine’s application was untimely. He also appealed that ruling to the BIA. But he was ill-advised in not specifically appealing the denial of withholding of removal, because if the BIA affirmed the ruli ng that the asylum application was barred as untimely, it need only reach the merits of the pers ecution issue if reviewing the denial of withholding of removal. The BIA obviously recognized this oversight and, given the great emphasis on the merits of the persecution issue in Zine’s app eal brief, addressed that issue by specifically affirming the deni al of withholding of removal. We accept the agency’s determination th at the persecution issue was adequately exhausted as to both claims and therefore r each the merits of the withholding of removal denial. However, we caution practitioners that, if the BIA declines to grant relief from this oversight in a future case, judicial revi ew of the withholding of removal claim may well be precluded for failure to exhaust.

Turning to the merits, we review the BIA’s decision to deny withholding of removal under the deferential subs tantial evidence standard. See Menendez-Donis v. Ashcroft , 360 F.3d 915, 918-19 (8th Cir. 2004). 4The agency’s adverse credibility finding, like other factual determinations , is “conclusive unless any reasonable-8- adjudicator would be compelled to c onclude to the contrary.” 8 U.S.C. § 1252(b)(4)(B); seeAbdelwase v. Gonzales , 496 F.3d 904, 908 (8th Cir. 2007). “Credibility findings in particular are entitled to much weight becau se the IJ sees the witness testify and is therefore in the bestposition to determine his or her credibility.” Fofanah , 447 F.3d at 1040. Accordingly, “we de fer to that finding if it is supported by a specific, cogent reason for disbelief.” Aden , 396 F.3d at 968 (quotation omitted).

The IJ supported the adverse credib ility finding by explaining that Zine’s account of detention and torture at the desert detention center was inconsistent with testimony about the timing of visits by his family and was uncorroborated except for facsimile copies of a release document a nd unspecific letters from friends and family addressed to Zine’s attorney. Moreover, no evidence corroborated his testimony of subsequent arrests, or his purported fear that the government was looking for him for deserting the military, a claim that seemed inconsistent with his ability to leave the country without challenge. Moreover, the IJ found, Zine’s testimony about his life after leaving Algeria was not credible. He presented no documentation regarding his three years in Turkey, and no support for his explanation why he did not apply for asylum in that country. Destroying his Algerian passport in Thailand and his fraudulent French passport in the United Stat es while keeping a photocopy of his I-94 entry card struck the IJ as particularly incr edible and raised the specter of many aliens fraudulently claiming entry as “Hafed Benchellali.”

Zine argues that each of th ese reasons, standing alone, is inadequate support for the adverse credibility finding. But the i ssue is whether their cumulative weight is sufficient to provide a “specific, cogent r eason for disbelief.” After careful review of the record, and bearing in mind the IJ’s s uperior ability to gauge a witness’s demeanor while testifying, we concl ude that Zine’s testimony and limited supporting evidence were not so overwhelming as to compel any reasonable adjudicator to find that testimony credible. Therefore, the advers e credibility finding must be upheld. See Falaja v. Gonzales , 418 F.3d 889, 896-97 (8th Cir. 2005). When asylum, withholding of removal, and CAT claims are based on th e same discredited te stimony, “the adverse-9- credibility finding is fatal to all three claims.” Fofanah , 447 F.3d at 1040. Accordingly, we deny the petition for revi ew of the BIA’s July 13, 2006, Order.

II. The Order Denying Zine’s Mo tion to Reconsider and Reopen

Zine married a U.S. citizen in August 2002, while the asylum-only proceeding was pending before the IJ. His wife filed a Form I-130 petition for an immediate relative visa in 2003. See 8 U.S.C. §§ 1151(b)(2)(A)(i), 1154(a)(1)(A). The petition was pending when the IJ denied Zine’s as ylum application. The Department of Homeland Security approved the wife’s pe tition while Zine’s administrative appeal to the BIA was pending. Af ter the BIA’s adverse decisi on, Zine filed a motion to reopen and reconsider, arguing (1) the BIA erred in affirming the IJ’s adverse credibility finding, and (2) the proceedi ng should be reopened so he may pursue adjustment of status based upon his wife’s immediate relative visa. The BIA denied the motion. Zine petitions for judicial review of this second BIA order.

(1) Zine argues that the BIA abusedits discretion in denying his motion to reconsider “the IJ’s flawed credibility analysis.” Because motions to reopen are disfavored, our review for abuse of di scretion is highly de ferential. See Esenwah v. Ashcroft , 378 F.3d 763, 765 (8th Cir. 2004), cert. denied , 544 U.S. 962 (2005). Here, Zine’s motion to reconsider merely reiterated his prior attacks on the IJ’s credibility analysis, and the motion to reopen was ba sed on an additional document that was not newly discovered evidence and di d not demonstrate that Zine is entitled to relief. The BIA did not abuse its discretion in concludi ng that Zine “failed to meet the ‘heavy burden’ of showing that a motion to reopen or to reconsider is warranted.” Order of November 24, 2006, at p.1.

(2) Zine further argues that the BIA abused its discretion by refusing to reopen the asylum-only proceeding to allow him to apply for adjustment of status based on the grant of his wife’s immediate relative vi sa petition. The BIA denied this relief on the ground that “adjustment of status is not available to aliens admitted under the Visa-10- Waiver Program.” As we will explain, this assertion is so broadly worded that it may conflict with 8 U.S.C. § 1255(c )(4). However, we agree that Zine was not entitled to the relief he requested.

The VWP eliminates barriers to travel, stimulates tourism, and reduces the burden of processing visa applications by citizens of “countries whose nationals have traditionally abided by U.S. immigration la w.” H.R. Rep. No. 99-682(I), at 50 (1986), reprinted in 1986 U.S.C.C.A.N. 5649, 5654. Bu t the Program includes safeguards to minimize abuses. To be admitted under the VWP, an eligible alien must travel to the United States on a round-trip ticket, may not stay more than ninety days, and must agree not to contest removal “other than on the basis of an application for asylum.” 8 U.S.C. §§ 1187(a)(1), (a)(8), (b )(2). When an alien overs tays the ninety-day period but wishes to apply for asylum, withholding of removal, and CAT relief, immigration officials issue an I-863 Notice of Referral to an IJ who then has exclusive jurisdiction to rule on the asylum application. This pr oceeding before the IJ is referred to as an asylum-only proceeding because, consistent with 8 U.S.C. § 1187(b)(2), “all parties are prohibited from raising or considering any other issues, including but not limited to issues of admissibility, deportability, elig ibility for waivers, and eligibility for any other form of relief.” 8 C.F.R. § 1208.2(c)(3)(i).

This regulation appears to resolve the i ssue in favor of the BIA’s ruling. But Zine counters with two different arguments . First, although he entered the United States under the VWP, Zine is an Algerian , a “national” of a country that does not participate in the VWP. See 8 U.S.C. § 1187(a)(2). Because he was not eligible to enter under the VWP, Zine argues, he should not be bound by its restrictions on discretionary relief such as ad justment of status. This argument is without merit. The Attorney General’s regulations expressly provide that an alien who enters under the VWP by “present[ing] fraudulent or counte rfeit travel documents” will be removed without referral to an immigration judge unl ess he applies for asylum, in which case he “must be issued a Form I-863, Notice of Referral . . . for a proceeding in accordance with [8 C.F.R. § 1208.2].” 8 C.F.R. § 217.4(a)(1). The BIA strictly5 We note, but do not pause to consider , that Zine may be ineligible for adjustment of status under § 1255(c)(4) because he was admitted under the VWP using fraudulent travel documents. -11- enforces this provision. See In re Kanagasundram , 22 I & N Dec. 963, 964-65 (BIA 1999) (rejecting the government’s request for expedited removal instead of an asylumonly proceeding). And properly so. If Zine’s interpretation of the VWP were correct, ineligible aliens who fraudul ently abuse the Program would receive the benefits of VWP entry but be free of the Program’s restrictions. Thus, Zine is subject to the restrictions on asylum-only proceedings se t forth in 8 C.F.R. § 1208.2(c)(3)(i).

Second, the adjustment of status statute provides that this relief is not available to an alien who entered under the VWP “other than an immediate relative” of a U.S. citizen. 8 U.S.C. § 1255(c)(4). Now that hi s wife’s immediate relative visa has been granted, Zine argues, he is eligible for adjustment of status under 8 U.S.C. § 1255(a), 5
and therefore the BIA abused its discretion when it refused to reopen this proceeding to allow him to obtain that relief. We disagree.

Though Zine as an immediate relative may beeligible for adjustment of status, the relevant statutes and implementing re gulations do not grant the BIA jurisdiction to adjust Zine’s status in an asylum-only proceeding. The regulations grant immigration judges exclusive jurisdiction to consider the adjustment application of an alien “who has been placed . . . in rem oval proceedings.” 8 C.F.R. § 1245.2(a)(1). But aliens admitted under the VWP are not eligible for removal proceedings, only asylum-only proceedings in which adjustment of status may not be sought. See8 C.F.R. § 1208.2(c)(iv). Thus, under the re gulations, a VWP alien who is ordered removed because he ove rstayed his ninety-day authorized visit and is referred to an asylum-only proceeding “has waived his right to contest that removal through an application for adjustment of status. . . . To conclude othe rwise would frustrate Congress’ intent in establishing the VWP, a nd would be contrary to the statutes and regulations governing an alien’s right to an adjustment of status.” Ferry v. Gonzales
,6 We need not consider what impact 8 U.S.C. § 1255(c)(4) may have on otherwise applicable procedures when analien who entered under the VWP applies for adjustment of status before his or her authorized ni nety-day visit has expired. Compare Freeman v. Gonzales , 444 F.3d 1031, 1035-37 (9th Cir. 2006), withFerry
, 457 F.3d at 1127 n.15. -12- 457 F.3d 1117, 1128 (10th Cir. 2006); accordLacey v. Gonzales , 499 F.3d 514 (6th Cir. 2007). We agree with this interpre tation of the statutes and regulations.

For these reasons, even if Zine had applie d for adjustment of status prior to the conclusion of his asylum-only hearing, th e IJ would not have had jurisdiction to consider that application. See Ferry , 457 F.3d at 1126-28; Lacey , 499 F.3d at 519. Indeed, at the second of the six hearings, the IJ clearly advised Zine that, “even if . . . the I-130 is approved, I still have no ju risdiction to consider an adjustment application” in this asylum-only proceedi ng. Thus, Zine had ample notice of this limitation on the IJ’s jurisdicti on, yet he did not object to being placed in the asylumonly proceeding.

As the IJ lacked jurisdiction to consideran adjustment of status application in this asylum-only proceeding, the BIA plai nly did not abuse its discretion when it denied Zine’s motion to reopen the proceeding for that purpose. 6

We deny the petitions for review.

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