* Pursuant t o Feder al Rule of Appellat e Proced ure 43(c )(2), At

torney Genera l Alberto 1 Gonzales i s substituted for his p redece ssor, Atto

rney Genera l John Ashcr

oft, as the respondent in 2 this case. 3 1 05-0170-ag Mei Chai Ye v. U.S. Dep’t of Just ice

UNIT ED S TAT ES COU RT OF A PP EALS 1 2 FOR THE SE CON D CIR CUIT 3 4

____________________________________ 5 6 August Term, 2006 7 8 (Argued: March 16, 2007 Decided: June 6, 2007) 9 10 Docket No. 05-0170-ag 11

____________________________________ 12 13 MEI CHAI YE, 14 15 Petitioner , 16 17 v. 18 19 UNITED STATES DEPARTMENT OF JUSTI CE, ALBERTO GONZ

ALES, ATTORNEY 20 GEN ER AL, * 21 22 Respondent. 23 24

____________________________________ 25 26 Before: CALAB RESI, SACK and WESLEY, Circuit Judges. 27 28

____________________________________ 29 30 Petition for review of a decision of the Board of I mmigration Appeals, affirming an 31 Immigration Judge’s denial of petitioner’s applications for asy lum, withholding of removal, and 32 relief under the Convention Against Torture. Petitioner ar gues, inter alia , that the Immigration 33 Judge, in finding petitioner incredible, impermissibly relied upon “striking similarities” between 34 petitione

r’s aff idavit and an aff

idavit fil ed by

a diffe rent alie n in a sepa

rate ca se. We hold

that, in 351 Indeed, it has become so much a part of our practice that this has been done regularly by 1 summary order

. 2 2 the circumstances of this case, the I mmigration Judge properly considered such “striking 1 similarities.” The petition for review is DENI ED. 2 3 4 THEODORE COX (David X. Feng, The Feng La w Firm, P.C., on 5 the brief ), New York, NY, for Petitioner

. 6 7 RICHARD S. MURRAY, Assistant United States Attorney , for 8 Margaret M. Chiara, United States Attorney for the Western 9 District of Michigan, Grand Rapids, MI , for Respondents

. 10 11

____________________________________ 12 13 14 CALABRESI , Circuit Judge : 15 When an as ylu m applica nt himself

has submitt

ed two or more af fidavits in support o f his 16 applica

tion that, h

e say s, have b een prov

ided by differe nt person s, but which are str ikingly 17 similar in their structure or language, our court has allowed an Immig ration Judge (“IJ”) to treat 18 those similarities as evidence supporting an adverse c redibility finding. See Surinder Singh v. 19 Bd. of Imm igration Ap peals , 438 F.3d 145, 148 (2d Cir. 2006) (per curiam) (holding that the I J’s 20 adverse credibility finding was properly

based on “the nearly

identical language in the written 21 affidavits [petitioner] submitted,” which the petitioner had alleged were “ provided by diffe

rent 22 people in India in support of [petitioner’s] applications”). We have re peatedly a

llowed IJs to take 23 into account such “intra-proceeding ” similarities 1 because, in most cases, it is reasonable and 24 unproblematic for an IJ to infer that an a pplicant who herself submits the strikingly similar 25 document s is the co mmon sourc e of those suspiciou s similarit

ies. 26 In the case bef ore us, we are confronted with a re lated but far more difficult question: 272 In addition, there is the possibility , also present when dealing with intra-proceeding 1 likenesses, that the similarities may be the pr oduct, not of copying , but merely of c oincidence. 2 3 whether an IJ may

consider “ inter -proceeding” similarities — that is, striking similarities 1 between affidavits that were submitted separate ly by o stensibly unrelat ed asy lum applic ants — 2 as evidence of incredibility . To assume that one asylum applicant is responsible for, or even 3 aware of, the striking similarities that appear in an unr elated applicant’s submissions is much 4 more problematic. This is because, in inter -proceeding cases, it may well be, inter alia , (1) that 5 both applicants have inserted truthful information into a similar standardized template; (2) that 6 the diffe

rent app licants e

mployed the sa

me scrive ner, who wrote up both storie s in his own r

igid 7 style; (3) that “the other ” applicant plagiarized the truthful statements of the petitioner; or (4)that 8 the simila

rities re sulted, not from the origina l documen

ts themselves, but r

ather f rom inac curate 9 or formulaic translations — which unaffiliated applicants would not be in a position to discover 10

or conte st. 2 11 In light of these possibilities, it is clear that any reliance an I

J places on inter-proceeding 12 similarities must be met by a reviewing court with an especially

cautious eye. Nonetheless, for 13 the reasons here stated, we conclude tha t an IJ may , in appropriate situations, take such 14 similarities into account. Because the I J in this case carefully conside red the particular 15 similarities in question and rigorously complied with the pr ocedural protections of Ming Shi Xue 16 v. Board o

f Immigra tion Appea ls , 439 F.3d 111, 125 (2d Cir. 2006) (see infra at note 5 for a 17 description of these), we deny the petition for review as to the merits of petitioner’s asy lum 18 claim. And because petitioner either waived or f ailed to exhaust key issues with respect to her 19 withholding of removal and Convention Against Torture (“ CAT”) claims, we deny review of 204

these aswell. 1 BACKGROUND 2 Petitioner Mei Chai Ye (“Ye”), a native and citizen of the People’ s Republic of China, 3

entere d the United States in April 2002 . She was p laced in removal procee dings sho

rtly 4 thereafter, and, in January 2003, filed an application for asy lum, withholding of removal, and 5 relief under the CAT. I n a statement attached as an addendum to her I -589 form, Ye claimed that 6 she had b een subjected to tw o force d abortio ns in China, and that s he fear ed that, i f return

ed to 7 that country, she would be involuntarily sterilized. 8 Ye first appeared before I J Alan A. Vomacka on January 28, 2003, and the n testified at 9 length on June 13, 2003. On both occasions, she recounted the details of her two f orced 10 abortion s, as well as her e ventual e scape f

rom China. Ye’s hus band, Qiu Peng Hu (“Hu”) , also 11 testified at the June 13 hearing. Hu asserted that he and his wife left China together after she had 12 been subjected to the two forced abortions. When I J Vomacka asked Hu why he had not filed for 13 asyl um on h is own beh alf , Hu rep li ed t hat he h ad b een rec eiv in g as si st anc e fr om th e “H uan g Li 14 Li law

firm,” a nd that the

firm advi sed him tha

t he and hi s wife “c annot app ly to gether .” Hu als o 15 acknowledged that Huang Li Li wa s “helping [him] with [his] [i]m migration case,” and that the 16 firm helped his wife Ye with her asy lum application. IJ Vomacka commented, in passing, “ I see 17 a lot of lawyers in Court, but I don’t think I’m fa miliar with Huang Li L

i.” 18 Toward t

he close of the June

13 hearing, I

J Vomacka m

entioned to counse

l for both 19 parties t

hat he se emed to r

ecall a n asy lum applic ation filed by

a diffe rent pet itioner — in a case 20 also pending before I J Vomacka — that strikingly re sembled Ye’s own asy lum application. 21 Moreove

r, both Ye

and the un

identified petitione

r were t hen being repres ented by

the same 225

lawyer, B aird Cuber (“Cuber”). Bec ause IJ Vomacka believed pr ivacy conc erns were implicated 1 in the sharing of affidavits across unrela ted cases, he asked the Department of Home land 2 Security (“D HS”) to prepare redacted ve rsions of the two applications. DHS agreed to do so, and 3 th e h ea ri ng wa s t he n a dj ou rn ed fo r t he da y. 4 On June 17, 2 003, Cuber submitted t

o IJ Vomacka a h andwritt en state ment that w as in 5 the Chinese language. I J Vomacka stated that he could not read it, to which Cuber replied: 6 As y our Honor has state d that the

re are some simila

rities in th

is case, I just

wanted to 7 present

basically th

e handwr itten stat ements of the resp ective r

esponde nts just to, j ust to 8 show that t hey did individ

ually make out t

heir own statemen ts. 9 IJ Voma

cka admitted the documentsinto the a dministra tive rec ord, and

then asked Cuber to 10 respond t

o the fact that ther

e appea red to be striking similariti es between the two petitione rs’ 11 supposedly-unrela ted affidavits. Cuber attempted a response: 12 I believe that any similarities in the two cases would really relate more to a pattern of 13 practice of the Chinese Government with reg ard to their coercive family planning policy. 14 I do not believe that there a re unique details included in the statements that, that might 15 lead one to believe that, that the two, the two cases have striking similarities that would, 16 that would strike one as stra

nge. I , I do

believe that altho

ugh both female r esponde nts 17 received abortions, I believe that that is a common occurrence in, in the People’s 18 Republic of China. The, they do ha ve a population problem there. I, I believe that, I 19 think it’s the Country Re ports that state that they have about one quarter of the world’s 20 populatio n and only seven pe rcent of , of the f armable land in, in

the world . And, and

so 21 they — . . . . 22 IJ Vomacka interrupted at this point and pushed back: “ Well, that might be some explanation of 23 why they

might have a birth control policy , but the Immigration law indicates that that is an 24 acceptable congress in ter ms of forced birth control.” To this, Cuber said, “Yeah.” I J Vomacka 25 continued: 26 So the reason isn’t really relevant. It seems to me there are some noticeable similarities 27 in ter ms of t he narr ative state ments . . . . S imil ar phra sing, simi lar st ructu re, man y things 286

that are mentioned which wouldn’t necessarily have to be mentioned but are mentioned. 1 And it see

ms as thoug

h the, the paralle l nature of the str ucture o f the stat

ements is p

retty 2 noticeable . . . . But I still think that the, the explanation, whatever e xplanation there 3 might be

for why the state ments are so similar

in structu

re and vo cabular

y, I guess, would 4 be what’s puzzling the Court. You might assume that there is a country where a lot of 5 people are persecuted the same w ay, but y ou wouldn’t expect two people in the United 6 St at es to wr it e d ow n t he hi st or y of th ei r p er se cu ti on in su ch a n ot ic ea bl y si mi la r w ay. 7 8 Cuber ch

imed in and argu ed that, “I guess, y ou know, I

guess, Your Hon or, you know, with 9 regard to translating, I , I think that when somebody , somebody starts translating documents, I, I 10 think they develop a c ertain style.” I J Vomacka acknowledged this possibility, but re joined, 11 “Well, I don’t have any evidence that that’s so. I don’t e ven know that the documents were 12 translated by the sa me person.” And Cuber conceded, “Rig ht, that’s true.” The June 17 hearing 13 was then adjourned. 14 The parties reconvened on June 30, 2003. Cuber did not attend, but Ye was re presented 15 at the hearing by

David X. Feng (“Fe

ng”). As IJ Vomacka

explained, 16 the Court has provided the attorney s [including both Cuber and Feng] with copies of the 17 narrative statements of the respondents in this case and the other case, in which I’ve

made 18 notes in capital letters of what seems to me to be extremely similar. And, as we’ve 19 discussed off the record, I expect this case to be reset in case Mr. Cuber finds any thing he 20 needs to explain, present, et cetera, in terms of documents, after studying the Court’s 21 notationsand so on a bout these

similariti es. 22 On August 8, 2003, counsel reconvened, althoug h Ye — who had requested a waiver of 23 appear

ance — w as not herself pre sent. As to the striking simila

rities tha t the I J had identif

ied in 24 his careful annotations, Cuber had no explanation to offer. I nstead, Cuber requested a 25 withdrawal from his representation of Ye: 26 Your Honor, I do not speak the Chinese language and I

do have to rely on othe

r 27 individuals to translate documentation as well as addend[a]. And after reviewing the 28 notationsthat Your Honor ha s made in th

ese two se

parate addend[a ], I would reque st a 29 withd

rawa l fro m my repr esen tatio n of [Ye]. 307

IJ Voma cka asked, “Now, without tr ying to lea

d the coun sel, is thisdue to poss ible conf licts 1 between y ou and your client a bout the subject matter of the case, is that one way to sum it up?” 2 Cuber ag

reed. I J Vomacka p

roceed ed to gr ant the motion, and a

llowed F eng — who was also 3 present at the hearing — to substitute as counsel for Ye

. 4 On August 8, 2003, IJ Vomacka issued an or al decision in In the Matter of Ye, Mei Chai , 5 No. A 78 974 047 (Immig. Ct. New Yor k, N.Y. Aug. 8, 2003). First, I J Vomacka identified 6 several supposed inconsistencies within Ye’s testimony and between her testimony , affidavit and 7 corrobo

rative documenta

tion. I J Vomacka made cle ar, howe ver, tha t he did not

consider these 8 inconsistencies to be major. In fact, the IJ acknowledged that “ [t]he basic story of the respondent 9 is set out fairly well in the narr ative statement attached to her asy lum application[, and while s]he 10 did not tell

the story exactly the same way in her te stimony

. . . the dif

ferenc es are not radic ally 11 different in terms of major elements of the story .” 12 Then, IJ Vomacka turned to what he c onsidered to be “the main issue in the present 13

ca se ,” na me ly, “t he st ri ki ng si mi la ri ty” be tw ee n Y e’ s a ff id av it an d t he af

fi da vi t s ub mi tt ed by a 14 differe

nt petitioner in an u

nrelate d case. I

J Vomacka r

ecalle d the annotations he had provided to 15 the parties, which identified twenty -three separate places at whic h the two affidavits were 16 strikingly similar in lang uage and grammatica

l structure. Moreover, these identical portions 17 app ear ed, wit h on ly tw o m in or e xc ept io ns, in th e ex act sam e or der in bot h affid avi ts . IJ 18 Vomacka

concluded, “a re asonable person f amiliar with the pre sentation of such do cuments 19 would find

that the similaritie s here a re much t oo striking

and far too many to likely be the re sult 20 of an accident.” The I J continued, 21 [I]t is theoretically possible that two different people from China who had suffered 223 While the I J found the d

ocument t o be “fa bricated,” the I

J did not elab orate wh

ether th is 1 meant that he was making a finding of f rivolousness, with all the draconic consequences of such 2 a finding. And the BI A, in affirming the I

J, nowhere mentioned the IJ’s frivolousness ruling, a 3 result of either Ye’s counseled decision not to arg ue the issue to the BIA or a n ambiguity in the 4 IJ’s ruling. Under the circ umstances, we assume that no issue of frivolousness is before us, and 5 discuss the matter no further. We note, however, that to the extent the I J’s or the BIA’s decisions 6 might have been read to include a finding of frivolousness, the BIA’ s recent opinion in In re 7 8

problems under a birth control policy might explain their stories in a remarkably similar 1 way . That could happe n. But I think giv en the num

ber of w ords and s entence s in these 2 statements, and given the number of possible variations that might have been introduced 3 in terms of how people tell a story that happened to them, the chance that these two 4 statements are the result of accidental similarity is a very small cha

nce, and I do not fee

l 5 bad in saying it might be one in a million. 6 But IJ Vomacka did not rest his conclusion on this impression alone. Rather, he noted ( 1) 7 that he had given Ye various opportunities to respond to the striking similarities, and that she 8 failed to provide any convincing response; (2) that he had received no evidence to sugge st that 9 the translations were not accurate — and Ye offered no proof in s upport of such an a rgumen t; 10 and (3) that there was no evidence sug gesting that “one respondent might ha ve somehow 11 obtained a copy

of [Ye’s] Chinese narrative and then used it to make up a story by, in other 12 words, plagiarizing someone’s true experience s.” In addition, I J Vomacka observed that Hu’s 13 testimony about the assistance he received from Huang L

i Li, which I

J Vomacka suspected was 14

not a ver

itable la w firm, 15 raise[d] . . . a very clear e xplanation

of how thissimilarity

might ha ve resul ted, that is to 16 say, the ag ency mig ht simply be preparing

stories for would-be asy

lum applicants and 17 selling the story, so to spea k, as a service so that they have a basis to apply

for asylum 18 regardless of whether they actually had a

ny problem in China. 19 20 Given all this, IJ Vomacka concluded (1) “that the respondent has not met her burden to prove 21 that the factual basis for any of her three applications is more likely true than not,” and (2) that 22 “the Court further finds that the respondent did submit a fabricated a pplication for asylum.” 3 23Y—L— , 24 I. & N. Dec . 151 (B.I.A. Apr. 25, 2007) , would appear to cast doubt on the 1 sustainability of such finding. See id. at 156 (seeming to require a separ ate and detailed finding 2 of delibera te fabrication). 3

4 Our court has not been consistent in its description of the substantial evidence standard. 1 In Jin Shui Q iu v. Ashc roft , 329 F.3d 140 (2d Cir. 2003), a panel sugge sted, in dicta, that 2 “[s]ubstantial evidence review in the immigration context is ‘slightly stricter’ than the clear-error 3 standard that the circuit courts ty pically apply

in reviewing a district court’s factual finding s,” id. 4 at 149. More recently , a panel in Siewe v. Gonzales , 480 F.3d 160 (2d Cir . 2007), s tated, a lso in 5 dicta, that the clear error and substantial evidenc e standards are identical, id. at 168 (“ These 6 standards of review bespeak no lesser de ference to an I

J than to a district judge when each draws 7 inferences from the evidence a s a finder of fact.”). 8 In the

end, this d

isagreement ove

r formal labels is not the re al issue. As our court so 9 presciently stated in Ming Xia Ch en v. Boa rd of Immi gration App eals , 435 F.3d 141 (2d Cir. 10 2006), “[w]hile the various statements made in the course of upholding or rejecting the adequacy 11 of a particular finding are of ten helpful, they ca

nnot become rigid rules of law that dictate the 12 outcome in every case,” because “[w]e know of no way to apply precise

calipers to all such 13 finding s so that a ny p articula

r finding would be viewed by

any three of the 23 judges of this 14 Court as either sustainable or not sustainable,” id. at 145. In practice, “ [p]anels will have to do 15 what judges alway s do in similar circumstances: apply the ir best judgment, guided by the 16 statutory standard g overning review and the holdings of our precedents, to the administrative 17 decision and the record assembled to support it.” Id. And sound judgment of this sort cannot be 18 channeled into rigid formulae. 19 9 Accord ingly , Ye was o

rdered removed from the U

nited State s. 1 Ye appe aled the IJ’s r uling to t he BI A, and on D ecembe

r 22, 2004 , the BI

A summari ly 2 affirmed. See In re Ye, Mei Chai , A 78 974 047 (B.I.A. Dec. 22, 2004), aff’g No. A 78 974 047 3 (Immig. Ct. New York, N.Y . Aug. 8, 2003). This petition for review followed. 4 DISCUSSION 5 “Where the BIA expressly adopts the I

J’s findings and reasoning, as it did here, we 6 review the decision of the I J as if it were that of the BIA.” Chun Gao v. Gonzales , 424 F.3d 122, 7 124 (2d Cir. 2005). The IJ’s factual finding s, including adverse credibility findings, are reviewed 8 under the substantial evidence standard of 8 U.S.C. § 1252(b)(4)(B). While this standard of 9 review i s especi ally defere ntial, 4 we have made clear that “the f act that the [agency] has relied 1010

primarily on credibility grounds in dismissing an asy lum application cannot insulate the decision 1 from review.” Ramsame achire v . Ashcroft , 357 F.3d 169, 178 ( 2d Cir. 200

4). An ad verse 2 credibility finding tha t is “based on flawed reasoning . . . will not satisfy the substantial evidence 3 standard.” Secaida-Rosales v. Immigration and Naturalization Serv. , 331 F.3d 297, 307 (2d Cir. 4 2003). 5 I 6 In her bri efing t o thi s cour t, Ye a rgues t hat “[ t]he simi larit y the Immigra tion Judge 7 mentioned between two applicants is irrational.” We disagree. 8 A 9 Although this court has never spoken to the precise issue of w hether inter-proceeding 10 similarities may support an adver se credibility finding , our case law on intra-proceeding 11 similarities has firmly embraced the commonsensical notion that striking similarities between 12 affidavits are an indication that the statements are “c anned.” See, e.g. , Surinder Singh , 438 F.3d 13 at 148; see also s upra note 1. We b elieve it is likewise

reasona ble, in ap propria te circu mstance s, 14 to draw a

n infere nce of f alsity from inte r-proc eeding

similariti es. 15 To be sure, it is far more dangerous to dra w such an inference from inter-pr oceeding 16 similarities. And this is worth emphasizing. As explained earlier, see supra , inter-proceeding 17 similarities may result simply because, inter alia , applicants are inserting wholly truthful 18 information into standardized templates; or, because the different applica nts were illiterate and 19 relat ed the ir st ories to th e same s criven er who w rote t hem up in hi s own — uncha nging — 20 locution; or, even if plagiarism did occur, it may be impossible to determine who copied whom. 21 Alternatively, such similarities may have been inserted into the documents by the translators 2211

rather than by the appli cants the

mselves. 1 In

ligh t of th ese d ang ers, it is c lear

that inter-pro cee ding

case s call for

caut ion. We 2 therefore encourag e the BIA to addr ess more formally a

nd systematically

the issue of inter3 proceeding similarities, so that, upon its consideration of the frequency, ty pe, and manner of such 4 cases, it might provide us with expert guidance as to the most appropriate way to avoid mistaken 5 findings of falsity, a nd yet identify

instances of fraud. But the BI A has yet to addr

ess the issue. 6 Until it does, this court must determine for itself whether inter-proceeding similarities have been 7 properly c onsidered. 8 B 9 In the present case , IJ Vomacka meticulously followed certain procedural safeguards 10 which, taken together, sufficiently addressed the dangers inhere nt in relying on inter

-proceeding 11 similarities. We believe it appropriate, in explaining this holding, to identify a nd describe the 12 features of IJ Vomacka ’s decision that have led us to deny Ye’s petition for review. To that we 13

now turn. 14 1 15 IJ Vomacka caref ully annotated the twenty -three strikingly

similar portions of the two 16 affidavits, and considered the possibility that the similarities might have been the result of mere 17 coincidence. He concluded, quite rea sonably, that the similarities in this case were plainly too 18 pervasive to have resulted from chance , and that the stories were so blatantly similar in both form 19 and substantive details that they could not have been the result of honest applicants inserting 20 truthful informati on into sta ndardize d template s. Equally important

ly, IJ Voma

cka rig orously 215 In Ming Shi Xue , our court held that “an IJ may not rest an adverse credibility finding on 1 non-dramatic putative contradictions or incongruities in an alien’ s narrative without first giving 2 the applicant a chance to reconcile the testimony.” 439 F.3d at 125. We noted, howe ver, that 3 when “the relevant inconsistency [is] plainly self-evident so that identification of it [is] not 4 needed to make the alien cognizant of the def ect,” an IJ was not obligated to br ing it to the 5 attention of the alien. Id. ; see Majidi v. Gonzales , 430 F.3d 77, 81 (2d

Cir. 2005) (holding

that, 6 where an asy

lum seeker has given “dramatica lly different”accounts of his alleged persecution, an 7 IJ may

properly find him incredible “without soliciting from the applicant an explanation for the 8 inconsiste

ncy ”); Hoxhallari v. Gonzales , 468 F .3d 17 9, 187 -88 (2 d Cir . 2006 ) (appl ying Majidi 9 to an IJ’s finding of chang ed country c onditions where that finding was “clearly sufficient” and 10 wher

e “there [ was] no doubt

that there has been a fundamental change in the political structure 11 and government of Albania” (empha sis added)). 12 The pre sent cas e, of cou rse, invo lves consistencies that appe ar to impug n the credibility 13 of the ap

plicant. But Ming Shi Xue is also ap plicable in this con

text. I n fact, w hen dea ling with 14 inter-proceeding similarities, Ming Shi Xue , rather than Majidi , will virtually alway s apply — and 15 with special force. This is because, absent clea r evidence that one alien has acce ssed the 16 submissionsof the other and, g iven that the simila

rities ar ise, not wi

thin eithe r aliens’ 17 submissions, but in a comparison of them, it is unreasonable to assume that inter-proceeding 18 similarities are “plainly self -evident” to either alien. 19 At its narrowest, Ming Shi Xue applies to this case because a credibility finding is here 20 involved. But beyond that, the pr otections of Ming Shi Xu e are applicable because the core 21 holding of Ming Shi Xue is that petitioners have a right to be informed of the bases of decisions 22 as to which an explanation is crucial, and as to which the need for a n explanation is not obvious. 23 That is true in some credibility situations and not in others, see, e.g. , Majidi , 430 F.3d at 81; it is 24 equally true in some c hanged country

conditions cases and not in others, see, e.g. , Hoxhalla ri , 25 468 F.3d at 187-88. 26 12 complied with the notice requirements of Ming Shi Xue , 5 by ( 1) notify ing Ye o f the simila

rities, 1 and providing her with copies of his annotations; (2) openly and exhaustively expressing to Ye 2 his conce

rns about the inter -proceeding similaritie s; (3) g ranting Ye seve ral oppor tunities to 3

comment o n those similarities ; and (4) inviting Ye to off er evide nce of pl agiar

ism, inacc

urate 4 translat

ions, or a ny other poss ible innoc ent explan ation. Once it bec ame evid ent that Ye would 5 not seek to take advantage of these nume rous opportunities to explain, it became reasonable for 6 IJ Vomacka to draw the infere nce that the remarkable inter-proce eding similarities were evidence 76 IJ Vomacka further supported his conc lusion with the evidence suggesting that Ye ’s 1 submissions were prepared by an illegitimate agency , Huang Li L i. While evidence of an alien’s 2 access to “canned” asy lum narratives undoubtedly would, a s a general matter, tend to bolster an 3 infere

nce of f alsity , we belie

ve that, in this cas e, I

J Vomacka d

id not suff

iciently bring th is 4 particular issue to the attention of Ye. Stated differently , under Ming Shi Xue , it w as not enough 5 for I

J Vomacka m

erely to say that “I don’t thin

k I’m familiar with Huang Li

Li.”In or

der to re ly 6 on Ye’s c ontacts with Huang Li L i as evide nce off ering a n “explana

tion of how

this similar

ity 7 might have resulted,” I J Vomacka needed to make clear to Ye, not just that he was unfa miliar 8 with Huang Li

Li, bu t also that he was inclined to

draw ad verse in ferenc es from th

e fact o f his 9 un fa mi li ar it y. 10 Nonetheless, we conclude that, in this case, the evidence of striking inter-proceeding 11 similariti es was str ong enough to su

pport the IJ’s a dverse c redibilit y f inding, e ven without this 12 additional evidence of “opportunity .” 13

7 Siewe lists five situations in which it would be inappropriate for an IJ to rely on the 1 doctrine of falsus in uno

. See Siew e , 480 F.3d at 171. The Siewe panel did not propos e that list 2 to be exhau stive, and we do not take it to b e as such ; in this con text, as in a

ny other con

text in 3 which ad

verse c redibilit y f indings m ust be ass essed, a

reviewing cour

t is calle d on to exer

cise 4 sound judgment, and hence, any circumstances that might make the doctrine of falsus in uno 5 inappropriate must be taken into account. See supra note 4; see also Ming Xia Chen , 435 F.3d at 6 145. 7 13 that Ye’s asylum applica

tion was false. 6 1 We furthe

r conclu de that, o nce I

J Vomacka h ad care

fully parsed t hrough the rema rkable 2 similarities and rigorously c omplied with the safeguards of Ming Shi Xue , and drew the 3 reasonable inference that Ye ’s narrative was falsified, it was appropriate for the IJ to find, in the 4 circumstances of this case, that Ye’s submission of the false docume nt undermined her general 5 credibility — and, by extension, the credibility of her husband Hu, w ho had offered identical 6 testimony. I

ndeed, Ye’s willingness to submit a false document is in itself sufficient evidence of 7 incredibility. See Siew e , 480 F.3d at 170-71 (discussing the falsus in uno, falsus in omnibus 8 doctrine , and expla ining tha t an alien ’s submissi on of a fa lse docum

ent “re dounds upo n all 9 evidence the probative force of w hich relies in any pa

rt on the credibility of the pe titioner”). 7 10 2 118 In addition, we do not intend to sugg est that, in the context of intra-proceeding 1 similarities, an IJ need not follow any procedural safeguar

ds. The opinion in Surinder Singh , and 2 the nu merou s sum mary order s appl ying Surinder Singh ’s holding, did not discuss the issue of an 3 IJ’s obligations in that context. Because this case involves inter- proceeding similarities only , we 4 hav e no occ asi on t o co nsi der wha t k in ds o f pr oce dur al s afe gua rds are app rop ria te w hen an IJ 5 wishes to r

ely on intra- procee ding simil arities. 6 14

We pause to make clear that our holding today does not purport to promulgate and 1 impose a s pecific

set of pr ocedura l safeg uards wh ich I Js must follow

in all res pects and in all 2 cases. Rather, and as we indicated above , our holding is necessarily based on the limited 3 informat

ion conce rning in ter-pro ceeding

similariti es that thi s court currently has at its d

isposal, 4 and does not preclude the BI A from developing more appropriate g uidelines of its own. 8 5 We hold merely that the dang ers inherent in rely ing on inter-proceeding similarities are 6 signific antly

reduce d when, a s here, a n IJ (1)caref

ully identifie s any

similariti es; (2) c losely 7 considers the nature and number of those particular similarities and determines (a) whether there 8 is a mean

ingful likelihood

that they resulted from mer

e coinci dence, (b) whe

ther it is p lausible 9 that different asy

lum applicants inserted truthful information into a standardized template or, for 10 illiteracy r

easons, c onvey

ed it to a sc

rivener tied to an unchang ing sty le; (c) w hether t he same 11 translat

or conve rted val id accou nts into a p eculiar

ly s imilar stor

y; a nd (d) wh ether there is a 12 likelihood that the petitioner was an innocent “plagiaree ”; and (3) rigorously complies with the 13 procedural protections of Ming Shi Xue , 439 F.3d at 125, by a llowing an alien the opportunity (a) 14 to explain or contest the similarities; (b) to investigate the possibility that her af fidavit might 15 somehow h ave bee n plagia rized; or ( c) to con sider whe ther the seemingly s imilar af

fidavits 16 mi gh t m er el y ha ve be en tr an sl at ed or re co rd ed in ac cu ra te ly o r for mu la ic al ly. 17 Our holding has tw o implicat ions. On the one ha

nd, when a

n IJ ca refully follows th

ese 189 There is nothing novel about our insisting on the application of heig htened procedural 1 protections to a context in which they are necessary

to safeguard the integrity of the agency ’s 2 fact-finding function. When an I J finds that corroborative evidence is required to support an 3 asylum application, for e xample, we have held that “the IJ and BI A [have] no leeway to deny [an 4 alien’s] application without first (a) pointing to specific pieces of missing, re levant 5 documentation, and (b) showing that this documentation was reasonably available to [the alien],” 6 Jin Shui Q iu , 329 F.3d at 153, and, in addit

ion, we ha

ve requi red the a gency explicitly

to “asse ss 7 [the applicant’s] explanations for his failure to produce the requested corrobora tive evidence,” 8 Diallo v. I

NS , 232 F.3d 279, 289 (2d Cir. 2000). As our court has explained, “[t]hese directives 9 ens ure [] th at, bef ore den ying an a sylu m p eti ti on b eca use of i nsu ffi cie nt cor rob ora ti on, an IJ 10 g[ives] adequate and meaningful notice to the applica nt of evidence that the IJ believed wa s 11 significant and missing,” and, in addition, “and equally importantly, [the directives] guara ntee 12 applicants an opportunity to remedy the supposed evidentiar y ga p,” Ming Shi Xue , 439 F.3d at 13 122. 14 In similar fashion, we have he ld that, when an applicant’s testimony is so vag ue as to lead 15 an IJ to “fairly

wonder whether the testimony is fabricated,” Jin Shui Q iu , 32 9 F. 3d a t 1 52, an IJ 16 should not “reflexively surrende r[] to ‘nagging doubts about an applicant’s credibility due to the 17 sparene ss of her

testimony ,’” but r

ather, a n IJ is e ncouraged to “‘p

robe for incident al detail s, 18 seeking to draw out inconsistencies that would support a finding of la ck of credibility.’” Ming 19 Shi Xue , 439 F .3d at 122-2 3 (quo ting Jin Sui Qiu , 329 F.3d at 152)). One reason for our 20 recomme

ndation w as our recogniti on of the danger s of allowing I Js to rely on such re asons — in 21 that cont

ext, “the d anger s of allowing judg es to dispo se of pote ntially legitima te asy lum claims 22 for reasons that could be conjured up at will.” Ming Shi Xue , 439 F.3d at 123. 23 15 procedural safeguar

ds 9 — as I

J Vomacka d

id — a reviewing

court ca n confide ntly defer t o 1 reasonable inferences that an I J draws from the inter-proceeding similarities — including the 2 gener

ally permissib le infer

ence tha t, when str

iking int er-pro ceeding

similariti es are p

resent, those 3 similarities are evidence of a “canned” story. Cf. Surinder Singh , 438 F.3d at 148; see also 4 Siewe , 480 F.3d at 169 (“So long as an inferential lea p is tethered to the evidentiary record, we 5 will accord deference to the finding .”). 6 On the other hand, our holding indicates that we would view much more skeptically an 7 adverse credibility finding by a

n IJ who, in rely

ing on inter-proceeding similarities, adopted a 8 less rigorous approach than that employ ed by I J Vomacka in this case. 9 C 1016

We are mindful that the IJ also identified several par ts of Ye’s testimony which he 1 believed were inconsistent. I t is unnecessary

to analyze whether

these supposed inconsistencies 2 were proper bases for the I J’s adverse credibility finding , however, because the I J made 3 abundantly clea

r that he believed them to be minor. See In re Ye, Mei Chai , No. A 78 974 047, at 4 6 (“The

basic sto ry of the re spondent i s set out fa irly well in the

narrat ive state ment atta ched to 5 her asylum applica tion. She did not tell the story exactly the same way

in her testimony, and I 6 will discuss the discrepancies. But the difference s are not radically different in terms of major 7 elementsof the sto ry .”). Because, in effect, the I J based his a

dverse c redibilit y f inding a lmost 8 exclusively on his identification of striking inter-pr oceeding similarities, and because we 9

co nc lu de th at th os e s im il ar it ie s w er e a pp ro pr ia te ly t re at ed as su bs ta nt ia l e vi de nc e o f i nc re di bi li ty, 10 “we can state with confidence that the I J would adhere to his decision were the petition 11 remanded.” Surinder Singh , 438 F.3d at 147-48 (citation and internal quotation marks omitted). 12 II 13 It is n ot entire ly c lear whe

ther Ye a dequate ly e xhausted he

r withhold

ing and CAT claim s 14 before the BI

A. If she did not, then we would lack jur isdiction to consider them. See Lin Zhong 15 v. U.S. Dep’t of Justice , 480 F.3d 104, 107 (2d Cir. 2007) (“[E]xhaustion of . . . claims for relief, 16 is jurisdictional.”). But we need not resolve whether the jurisdictional c laim exhaustion 17 requi rement was sa tisf ied be cause, assum ing arguendo that the claims were exhausted, they 18 neverth

eless should not be c onsidered by us. 19 First, Ye

does not r

aise her withholding claim

in her br iefing to us, and t

his claim i s 20 therefore waived. Second, as to Ye’s CAT r elief claim, she now raises, for the first time, the 21 argument that she will be tortured for having left China illegally. A

nd this is the only basis on 2217

which she seeks CAT relief before us now. B ut Ye did not exhaust this issue before the BIA. 1 And, to the extent Ye implicitly relies on our court’s decision in Lin Zhong , her efforts are 2 entirely misguided. As the opinion in Lin Zhong makes perfec tly clear, “in ho ldin g that, thou gh 3 not jurisdictional, issue exhaustion is mandatory, [we] expect[] that virtually no case will be 4 treated differently from the way

it would be were the requirement deemed jurisdictional.” Id. at 5 107 n.1; cf. Xiao Ji Chen v. U.S. Dep’t of Justice , 471 F.3d 315, 320 n.1 (2d Cir. 2006) (refusing 6 to consider petitioner’s unexhausted issues on appeal despite government’ s failure to raise the 7 issue exhaustion defense, and noting, correctly , that “nothing in Lin Zhong requires” a contrary 8 result). The opinion in Lin Zhong merely cla rifies — and thus strengthens — the doctrinal 9 foundati ons of our court’sissue exha

ustion juri sprudenc e. To sug gest tha t Lin Zhong drains the 10 force of longstanding exhaustion principles would be to rea d the opinion in reverse. Assuming 11 arguendo , then, that Ye exhausted her claims before the BI A, (1) Ye has waived her withholding 12 claim, and, (2) consistent with Lin Zhong and the longstanding practice it fully embraces, we 13 must decline to cons ider her unexhausted CAT reli ef arg ument. 14 CONCLUSION 15 For the foregoing r easons, the petition for review is DENI ED. Any pending

motions are 16 DENI

ED as moot

. 17