          United States Court of Appeals
                      For the First Circuit

No. 12-1382

                      HENRY MAZARIEGOS-PAIZ,

                           Petitioner,

                                v.

              ERIC H. HOLDER, JR., ATTORNEY GENERAL,

                           Respondent.


              PETITION FOR REVIEW OF AN ORDER OF THE

                   BOARD OF IMMIGRATION APPEALS


                              Before

                   Torruella, Selya and Howard,

                         Circuit Judges.




     Randy Olen on brief for petitioner.
     Stuart F. Delery, Principal Deputy Assistant Attorney General,
Civil Division, Anthony C. Payne, Senior Litigation Counsel, Office
of Immigration Litigation, and Ali Manuchehry, Trial Attorney,
Office of Immigration Litigation, Civil Division, U.S. Department
of Justice, on brief for respondent.




                         October 25, 2013
            SELYA, Circuit Judge.        Our consideration of the petition

for   judicial     review   in   this   immigration    case   starts   with   a

jurisdictional puzzle.           After piecing together this puzzle, we

hold, as a matter of first impression in this circuit, that the

administrative exhaustion requirement is satisfied as to particular

issues when the agency, either on its own initiative or at the

behest of some other party to the proceedings, has addressed those

claims on the merits, regardless of whether the petitioner himself

raised them.      This holding establishes our authority to review the

issues advanced in the present petition.              Concluding, as we do,

that those issues lack bite, we deny the petition.

I.    BACKGROUND

            The    historical      facts      are   straightforward.      The

petitioner, Henry Mazariegos-Paiz, a Guatemalan national, entered

the United States without inspection on August 20, 2006.                      He

reunited there with his cousin, Deny Adolfo Mazariegos-Mazariegos,

who had entered illegally at an earlier date.

            On February 11, 2008, the Department of Homeland Security

(DHS) commenced removal proceedings against the petitioner.             See 8

U.S.C. § 1182(a)(6)(A)(i).         He conceded removability, but applied

for asylum, withholding of removal, and protection under the United

Nations Convention Against Torture (CAT).             In support, he claimed

both past persecution and a well-founded fear of future persecution

based on both his political opinion and his membership in a


                                        -2-
particular social group.1        He also claimed a likelihood that he

would face torture if he returned to Guatemala.

              The DHS also initiated removal proceedings against his

cousin Deny, who likewise conceded removability and cross-applied

for similar relief. The two sets of proceedings were consolidated.

              Before the consolidated proceedings got underway, the

Immigration Judge (IJ) noted, without objection, that the only

files    on   record   were   each   man's   application   for   asylum   and

withholding of removal (Form I-589). Deny took the lead before the

agency and testified that he and the petitioner left Guatemala

because they had become targets of persecution.            Specifically, he

asserted that in August of 2005 — roughly one year after their

political party, the Great National Alliance (GANA), won the

general election — a group of men, ostensibly from the rival

Guatemalan Republican Front (FRG), beat the cousins, threatened

their lives, and warned that their family would be wiped out unless

they "withdrew from politics."

              On cross-examination, Deny was asked why his application

for withholding of removal was unsupported by affidavits or other

corroborating evidence.         His counsel interjected that she had

prepared affidavits for her clients and had assumed that they were

on file with the Immigration Court.             She then produced three



     1
      The petitioner has since abandoned his quest for asylum, and
we do not refer again to that ground for relief.

                                      -3-
untranslated Spanish-language documents.    Two of these — a police

report and a medical report — pertained to an attack against the

petitioner's uncle. The third document was a copy of Deny's report

to a Guatemalan human rights counselor about the August 2005

incident.

            Deny's attorney then requested a continuance in order to

submit the missing affidavits, translate the proffered documents,

and supply other corroborating evidence.    Observing that the case

had been pending for over a year, the DHS opposed this request.

The IJ denied the continuance and marked the untranslated documents

for identification only.

            When it came time for the petitioner to testify, his

counsel offered to waive direct examination.    She told the IJ that

the petitioner's testimony was "expected to corroborate that of

[his cousin] so it would be mostly repetitive."     The IJ accepted

this representation, and the DHS proceeded to cross-examine the

petitioner.

            At the conclusion of the hearing, the IJ denied the

cousins' applications for withholding of removal and protection

under the CAT.      She grounded this decision principally on a

determination that neither man had testified credibly.      In this

regard, she noted numerous discrepancies between the applications

for relief and the testimony offered at the hearing.      She found




                                 -4-
that the story that the two cousins told was vague, implausible,

and wholly uncorroborated.

           Both the petitioner and his cousin appealed to the Board

of Immigration Appeals (BIA). In his brief, the petitioner focused

solely on the IJ's (allegedly erroneous) decision to consolidate

the two cases.     In contrast, Deny's brief challenged both the

adverse credibility determination and the refusal to continue the

hearing.

           The   BIA   consolidated   the   two   appeals,   adopted   and

affirmed the IJ's adverse credibility determination, and upheld the

other disputed rulings.    The BIA made no distinction as to who had

raised which claims but, rather, proceeded as if each man had

advanced every claim. Based on the foregoing, the BIA affirmed the

orders of removal.

           The petitioner secured new counsel and filed this timely

petition for judicial review.     For aught that appears, his cousin

has not sought judicial review.

II.   ANALYSIS

           We divide our analysis into three segments.         First, we

ponder the existence of subject-matter jurisdiction.         Thereafter,

we mull two separate merits-related rulings.

                           A.   Jurisdiction.

           The government argues that this court lacks subject-

matter jurisdiction over the petitioner's claims because he failed


                                   -5-
to exhaust his administrative remedies with respect to those

claims.      In elaboration, it points out that even though the

petitioner in this venue tries to advance two merits-related claims

— one dealing with the adverse credibility determination and one

dealing with the denial of a continuance — he, himself, did not

raise either claim before the BIA. The petitioner's best chance to

parry this thrust boils down to the following sequence of events:

his case and his cousin's were consolidated; his cousin squarely

raised before the BIA the issues that the petitioner now seeks to

argue; and the BIA actually adjudicated those issues.         So viewed,

this sequence sufficiently exhausted the issues.

             We begin our inquiry into the existence of subject-matter

jurisdiction    with   first   principles.   As   a   court   of   limited

jurisdiction, our authority to act in any given case depends upon

the extent to which Congress has imbued us with jurisdiction.          See

Am. Fiber & Finishing, Inc. v. Tyco Healthcare Grp., LP, 362 F.3d

136, 138 (1st Cir. 2004).          Pertinently for present purposes,

Congress has granted us jurisdiction to review non-constitutional

claims arising in the removal context only if "the alien has

exhausted all administrative remedies available to the alien as of

right."   8 U.S.C. § 1252(d)(1).      This exhaustion requirement is

jurisdictional; that is, it constitutes a limitation on our power

of review.     See Athehortua-Vanegas v. INS, 876 F.2d 238, 240 (1st

Cir. 1989).


                                   -6-
             We   have    interpreted    this   exhaustion   requirement   as

demanding that issues be exhausted in agency proceedings.              See,

e.g., Makhoul v. Ashcroft, 387 F.3d 75, 80 (1st Cir. 2004);

Ravindran v. INS, 976 F.2d 754, 761 (1st Cir. 1992).            Ordinarily,

then, an alien who neglects to present an issue to the BIA fails to

exhaust his administrative remedies with respect to that issue and,

thus, places it beyond our jurisdictional reach.

             This method of exhaustion, however, is not exclusive. We

think that, short of an alien's direct presentation of an issue to

the agency, there is at least one other way in which exhaustion may

occur.   We explain briefly.

             The primary rationale behind the exhaustion requirement

is apparent.      At bottom, the role of a court on a petition for

judicial review of agency action is to appraise the agency's

handiwork.    Were the court free to delve into the merits of issues

not presented to the agency, it would effectively usurp the

agency's function.         See Unemp't Comp. Comm'n v. Aragon, 329 U.S.

143, 155 (1946).         The exhaustion requirement stands as a sentinel

against such usurpation.        At the same time, it creates a carefully

calibrated balance of responsibilities, affording the parties the

full benefit of the agency's expertise and allowing the agency the

first opportunity to correct its own bevues.            See SEC v. Chenery

Corp., 332 U.S. 194, 200-01, 209 (1947); Sidabutar v. Gonzales, 503

F.3d 1116, 1121 (10th Cir. 2007).


                                        -7-
             In the classic case, this rationale permits a finding of

exhaustion when a party has squarely presented an issue to the

agency.    See, e.g., Sunoto v. Gonzales, 504 F.3d 56, 59 (1st Cir.

2007).    But it also permits a finding of exhaustion whenever the

agency has elected to address in sufficient detail the merits of a

particular issue.        Cf. INS v. Orlando Ventura, 537 U.S. 12, 16

(2002)    (emphasizing    importance   of   allowing   agency   to   address

questions in first instance).      Where an agency has opted to follow

the latter course, there is no logical reason why exhaustion should

turn on which party (if either) brought the issue to the agency's

attention.    We hold, therefore, that an issue is exhausted when it

has been squarely presented to and squarely addressed by the

agency, regardless of which party raised the issue (or, indeed,

even if the agency raised it sua sponte).

             We do not write on a pristine page. Our holding today is

consonant with the holdings of several of our sister circuits.

See, e.g., Lopez-Dubon v. Holder, 609 F.3d 642, 644-45 (5th Cir.

2010); Lin v. Att'y Gen., 543 F.3d 114, 123-26 (3d Cir. 2008);

Sidabutar, 503 F.3d at 1112; Abebe v. Gonzales, 432 F.3d 1037, 1041

(9th Cir. 2005) (en banc); Hassan v. Gonzales, 403 F.3d 429, 433

(6th Cir. 2005); Johnson v. Ashcroft, 378 F.3d 164, 170 (2d Cir.

2004). But see Amaya-Artunduaga v. Att'y Gen., 463 F.3d 1247, 1250

(11th Cir. 2006) (per curiam).




                                   -8-
            In   addition,    our    holding     is   structurally   sound:    by

addressing an issue on the merits,2 an agency is expressing its

judgment as to what it considers to be a sufficiently developed

issue. When a court defers to that exhaustion-related judgment, it

avoids   judicial   intrusion       into   the    domain   that   Congress    has

delegated to the agency.          See Orlando Ventura, 537 U.S. at 16.         We

think it follows that if the BIA deems an issue sufficiently

presented to warrant full-dress consideration on the merits, a

court should not second-guess that determination but, rather,

should agree that such consideration exhausts the issue.                      See

Sidabutar, 503 F.3d at 1119-20.

            With this framework in place, we can make short shrift of

the government's argument.            In this case, the BIA undertook a

developed    discussion      of    the   merits-related     issues   that     the

petitioner now seeks to raise.                 Consequently, this court has

jurisdiction to consider those issues notwithstanding the fact that

it was Deny, not the petitioner, who urged them before the BIA.




     2
      There is some disagreement among the courts of appeals as to
how deeply an agency, acting sua sponte, must probe an issue in
order to exhaust it. Compare, e.g., Sidabutar, 503 F.3d at 1122
(explaining that the sua sponte exhaustion rule should be narrowly
applied to instances in which the BIA issues a full explanatory
opinion or a discernible substantive discussion on the merits),
with, e.g., Hassan, 403 F.3d at 433 (finding exhaustion despite
absence of extended agency discussion). The case at hand does not
require us to enter into this debate, and we take no view on the
matter.

                                         -9-
                B.   Adverse Credibility Determination.

             The IJ rested her decision in this case largely on an

adverse credibility determination. She found, in essence, that the

petitioner and his cousin — who had subscribed to a common story —

were   not   credible.      The   petitioner    challenges   that   adverse

credibility determination.

             On a petition for judicial review in an immigration case,

our customary focal point is the opinion of the BIA.          But when "the

BIA adopts portions of the IJ's findings while adding its own

gloss, we review both the IJ's and the BIA's decisions as a unit."

Chen v. Holder, 703 F.3d 17, 21 (1st Cir. 2012).           So it is here.

             Our review is deferential.        We assay findings of fact,

including     credibility     determinations,      under     the    familiar

substantial evidence standard.        See López-Castro v. Holder, 577

F.3d 49, 52 (1st Cir. 2009).       This standard requires us to accept

the agency's factual findings as long as they are "supported by

reasonable, substantial, and probative evidence on the record

considered as a whole."      INS v. Elias-Zacarias, 502 U.S. 478, 481

(1992) (internal quotation marks omitted).           This means that the

agency's factual findings must endure unless the record is such as

to compel a reasonable factfinder to reach a contrary conclusion.

See Chhay v. Mukasey, 540 F.3d 1, 5 (1st Cir. 2008); Laurent v.

Ashcroft, 359 F.3d 59, 64 (1st Cir. 2004).




                                    -10-
           In the case at hand, the supportability of the adverse

credibility determination is controlled by the REAL ID Act of 2005.

Under that regimen, the IJ is directed to consider all relevant

factors, including but not limited to the alien's responsiveness,

the consistency (or lack of consistency) between his written and

oral statements, and the overall plausibility of his tale.            See 8

U.S.C. § 1158(b)(1)(B)(iii).      In addition, the IJ is encouraged to

weigh the presence or absence of corroborating evidence.            See id.

§ 1158(b)(1)(B)(ii); see also Balachandran v. Holder, 566 F.3d 269,

273 (1st Cir. 2009).       A reviewing court should assess an IJ's

credibility determination through the prism of the statute and in

light of the totality of the circumstances.              See Rivas-Mira v.

Holder, 556 F.3d 1, 4 (1st Cir. 2009).

           Against this backdrop, we turn to the petitioner's claim

for withholding of removal.       To be eligible for such relief, an

alien "has the burden of proving that, more likely than not, he

would be subject to persecution on account of a statutorily

protected ground should he be repatriated."             Pulisir v. Mukasey,

524 F.3d 302, 308 (1st Cir. 2008).        The alien can carry this burden

by demonstrating either that he has suffered past persecution on

account   of   a   statutorily   protected    ground,    "thus   creating   a

rebuttable presumption that he may suffer future persecution" if

repatriated, or that "it is more likely than not that he will be




                                   -11-
persecuted on account of a protected ground upon his return to his

native land."    Da Silva v. Ashcroft, 394 F.3d 1, 4 (1st Cir. 2005).

          Here, the petitioner relates his claim of persecution to

his political opinion and his membership in a particular social

group.   These two theories coalesce because the social group to

which the petitioner alludes is his political party (the GANA).

The only evidence of persecution on account of political animus,

however, was out of the mouths of the petitioner and his cousin.3

The IJ's adverse credibility determination rendered that evidence

worthless and led inexorably to the rejection of the claim.

          The IJ premised her adverse credibility determination on

a series of specific findings.    To begin, the IJ questioned Deny's

I-589 application, which chronicled his membership in the FRG.

This was a highly relevant fact because Deny and the petitioner

asserted that the FRG was the source of the alleged persecution.

          Deny    offered   no   convincing   explanation   for    this

profession of FRG membership.       Although he asserted that his

statement was a mistake, this assertion was undercut by evidence

that his application had been read to him; that he was fully aware

of its contents; and that he had not sought to correct it.        Under

these circumstances, we believe that the IJ was entitled not only



     3
        The IJ determined, at least implicitly, that the
interlocking stories told by the petitioner and his cousin had to
stand or fall together. The petitioner has not challenged this
approach.

                                 -12-
to reject Deny's self-serving explanation but also to doubt his

veracity.     See Jiang v. Gonzales, 474 F.3d 25, 28 (1st Cir. 2007)

(explaining that "[w]here there are two plausible but conflicting

views of the evidence, the BIA's choice between them cannot be

found to be unsupported by substantial evidence").

              The IJ also concluded that the cousins' account of

threats to wipe out their family unless they refrained from

political activity was implausible.         She supported this conclusion

by pointing out that neither of the cousins had ever run for, let

alone held, political office. Nor was there any extrinsic evidence

of political involvement on either man's part.            This reasoning is

logical, though not inevitable; and there is nothing in the record

that would compel a reasonable factfinder to deem the tale of the

threat credible.

              The IJ also found it troubling that the two cousins

failed to produce any corroborating evidence to confirm that they

had    been   beaten   by   FRG    adherents;   that     they   had   in   fact

participated in Guatemalan politics; or that threats had been

directed to their family.         Where, as here, corroborating evidence

appears easily obtainable, the absence of such evidence can be

fatal to an alien's application for relief. See Chhay, 540 F.3d at

6.    On the facts of this case, the IJ did not act irrationally in

attaching     weight   to   the   utter   absence   of    any   corroborating

evidence.     See Muñoz-Monsalve v. Mukasey, 551 F.3d 1, 8 (1st Cir.


                                     -13-
2008) ("[T]he IJ is warranted in weighing in the balance the

existence and availability of corroborating evidence, and the

effect of its non-production.").

            To sum up, the IJ made a series of specific factual

findings    that,    taken   together,   cogently   support   her   adverse

credibility determination.        Accordingly, the adverse credibility

determination must be upheld because it is adequately tied to

substantial evidence in the record. The denial of the petitioner's

application for withholding of removal was, therefore, proper.

            This leaves the petitioner's application for protection

under the CAT.      To gain relief on this application, he had to prove

that, more likely than not, he would be tortured if removed to his

homeland.    See Mariko v. Holder, 632 F.3d 1, 7 (1st Cir. 2011); 8

C.F.R. § 1208.16(c)(2).       Because the factual underpinnings of this

claim are inextricably intertwined with the factual underpinnings

of the withholding of removal claim, the IJ's supportable adverse

credibility determination dooms both claims.         See Mariko, 632 F.3d

at 7.

                             C.   Continuance.

            The petitioner's last claim of error implicates the

denial of his request for a continuance.            While an "Immigration

Judge may grant a motion for continuance for good cause shown," 8

C.F.R. § 1003.29, the granting of a continuance rests largely in




                                    -14-
her discretion.          See Amouri v. Holder, 572 F.3d 29, 36 (1st Cir.

2009); see also Morris v. Slappy, 461 U.S. 1, 11-12 (1983).

                  We   have     jurisdiction     to    review    the     petitioner's

allegation of abuse of discretion with respect to the denial of a

continuance, notwithstanding the jurisdictional bar contained in 8

U.S.C. § 1252(a)(2)(B)(ii).             See Alsamhouri v. Gonzales, 484 F.3d

117, 121-22 (1st Cir. 2007).             We do not find that the agency abused

its discretion here.

                  Under the applicable regulation, 8 C.F.R. § 1003.29, the

party who seeks a continuance (here, the petitioner) bears the

burden of showing good cause.               See Ramchandani v. Gonzales, 434

F.3d       337,    338   (5th    Cir.   2005).        The   petitioner    offered   no

convincing reason for his failure, over a period of more than a

year, to procure corroborating evidence.                    By the same token, he

offered no convincing explanation for his failure to have the

untranslated documents put in proper form.4                       Parties have an

obligation to exercise due diligence in marshaling evidence. Viewed

in this light, the IJ's denial of the petitioner's mid-trial

request for a continuance was not an abuse of discretion.




       4
       It is perhaps worthy of mention that only one of these
untranslated documents appears to be directly relevant.        That
document is Deny's report to a Guatemalan human rights counselor
about the alleged attack. With respect to that document, the IJ
warrantably found that, even if admitted, it "would fail to cure
the inconsistencies and implausibility in [the petitioner's] case."

                                          -15-
               In   an   attempt   to   fashion    a   fallback   position,   the

petitioner asserts that the denied continuance deprived him of a

fair hearing and, thus, transgressed his right to due process.                We

have jurisdiction to review this constitutional claim.                     See 8

U.S.C. § 1252(a)(2)(D).            Our review is de novo.         See Chhay, 540

F.3d at 8.

               Here, the petitioner received all of the process that was

due.       We already have established that the IJ did not abuse her

discretion in denying the request for continuance. See text supra.

That being so, there is no basis for a colorable claim that the

denied       continuance    somehow     produced       a   fundamentally   unfair

hearing.5      See Alsamhouri, 484 F.3d at 124.

III.       CONCLUSION

               We need go no further. For the reasons elucidated above,

we deny the petition for review.



So Ordered.




       5
       In a related vein, the petitioner suggests that the failure
to furnish corroborating evidence was the result of ineffective
assistance of his former counsel. We lack jurisdiction to consider
this suggestion because the issue was neither raised before, nor
addressed by, the BIA. See Makhoul, 387 F.3d at 80.

                                        -16-
