                                RECOMMENDED FOR FULL-TEXT PUBLICATION
                                     Pursuant to Sixth Circuit Rule 206
                                             File Name: 05a0241p.06

                       UNITED STATES COURT OF APPEALS
                                        FOR THE SIXTH CIRCUIT
                                          _________________


                                                   X
                                      Petitioners, -
 FERDINAND LITI et al.,
                                                    -
                                                    -
                                                    -
                                                        No. 03-3570
          v.
                                                    ,
                                                     >
 ALBERTO GONZALES, Attorney General,                -
                                     Respondent. -
                                                   N
                          On Petition for Review of an Order
                         of the Board of Immigration Appeals.
                    Nos. A73 396 749; A73 396 750; A73 396 751.
                                        Argued: November 2, 2004
                                     Decided and Filed: June 3, 2005
            Before: MOORE and GIBBONS, Circuit Judges; EDMUNDS, District Judge.*
                                            _________________
                                                  COUNSEL
ARGUED: Marshal E. Hyman, MARSHAL E. HYMAN & ASSOCIATES, Troy, Michigan, for
Petitioners. Elizabeth J. Stevens, UNITED STATES DEPARTMENT OF JUSTICE, Washington,
D.C., for Respondent. ON BRIEF: Marshal E. Hyman, MARSHAL E. HYMAN &
ASSOCIATES, Troy, Michigan, for Petitioners. Elizabeth J. Stevens, Linda S. Wendtland,
UNITED STATES DEPARTMENT OF JUSTICE, Washington, D.C., for Respondent.
     MOORE, J., delivered the opinion of the court, in which EDMUNDS, D. J., joined.
GIBBONS, J. (p. 9), delivered a separate concurring opinion.
                                            _________________
                                                OPINION
                                            _________________
        KAREN NELSON MOORE, Circuit Judge. Petitioners, Ferdinand Liti (“Liti”), his wife
Marieta Liti, and their daughter Sabina Liti, seek review of a final order of the Board of Immigration
Appeals (“BIA”) affirming an Immigration Judge’s decision to deny their request for asylum and
withholding of removal under the Immigration and Nationality Act (“INA”) and relief under the
Convention Against Torture (“CAT”). The BIA found that the Litis were incredible and that their
fear of future persecution was contradicted by the background evidence in the record. Moreover,

        *
         The Honorable Nancy G. Edmunds, United States District Judge for the Eastern District of Michigan, sitting
by designation.


                                                        1
No. 03-3570               Liti et al. v. Gonzales                                               Page 2


the BIA concluded that the absence of reasonably available corroborating evidence militated against
their claims. In their petition, the Litis argue that the BIA decision was not supported by the
evidence, and in the alternative, that they are entitled to asylum based on humanitarian grounds.
Though it erred in its credibility determination, we conclude that the BIA’s decision denying the
Litis’ claims was supported by substantial evidence. Furthermore, we hold that the Litis failed to
exhaust their administrative remedies with regard to their claim for asylum on humanitarian grounds.
Therefore their petition for review is DENIED in part and DISMISSED in part, but we STAY our
order for 120 days to allow the BIA the opportunity to address a new provision in the law.
                                              I. BACKGROUND
         Liti and his wife, both of whom are thirty-seven years old, are natives and citizens of
Albania; their daughter, Sabina, is a fourteen-year-old native of Germany but a citizen of Albania.
At their removal hearing, the Litis testified that beginning in 1984 they became involved in anti-
communist activities in Albania, for which they were repeatedly arrested and jailed. Liti explained
that he participated in public demonstrations and distributed anti-communist pamphlets. At one such
demonstration, he claimed that he participated with protestors in tearing down a statute of Stalin,
located in the center of Tirana, the capital of the country. He also testified that he was detained in
1988 for three or four days, during which his feet were repeatedly hit with a plastic stick and he was
placed in an unheated room during winter. Liti explained that “because they knew that we didn’t
like the [sic] communism . . . the communists would come and pick me up and they would torture
me . . . not because [of what] I did but because they . . . were suspicious of me.” Joint Appendix
(“J.A.”) at 179 (Removal Hr’g Tr. at 138). Mrs. Liti testified at the removal hearing that she spent
a year in prison in Albania for insulting a communist official. The Litis also claimed that their
family members were persecuted as well. Specifically, the Litis claimed that Liti’s father and Mrs.
Liti’s grandfather were executed by the communists and that Liti’s brother spent eight years in
prison for attempting to leave the country.
        On July 2, 1990, fearing a police crackdown of anti-communist activities, Liti, along with
his wife and five others, crashed a truck through the front gate of the German embassy in Tirana.
Because the Germans did not hand the protesters over to the Albanian authorities, other anti-
communist activists sought refuge within the embassy grounds. Mrs. Liti testified that up to 3,200
people entered the compound. For fourteen days, the protestors remained within the German
embassy grounds, while the Albanian government attempted to force them out by shutting off the
water and electricity. Mrs. Liti claimed that the Albanian government even sent in a truck with
contaminated water to harm the protestors. Eventually the United Nations arranged passage for the
3,200 protestors to Germany, where they were granted political asylum.
        In 1991, the communist regime in Albania fell and was replaced by a parliamentary republic.
Accordingly, in 1995, the German government revoked the asylum status of all the Albanian
protesters, including the Litis. In April 1995, Liti and his wife, along with their two daughters who
were born in1 Germany, entered the United States as non-immigrant visitors and filed an application
for asylum. The Immigration and Naturalization Service (“INS”) referred the asylum application
to the immigration court and issued a Notice to Appear charging the Litis with violation of
§ 237(a)(1)(B) of the INA, 8 U.S.C. § 1227(a)(1)(B). At their removal hearing, the Litis conceded
their unlawful status, but requested asylum, withholding of removal, and relief under CAT. In
support of their request, the Litis asserted that if they were to return to Albania, they would be
persecuted for their leadership role in the toppling of the communist regime. Liti testified that he
and his wife were the first ones “that . . . stood up against the communism [sic], they will never ever
forget that, and if I go back to Albania now, they are going to kill me, I am going to be the first one,


       1
           The Litis’ second child, Hilga, is not involved in the removal proceedings.
No. 03-3570            Liti et al. v. Gonzales                                                    Page 3


they would kill me.” J.A. at 185 (Removal Hr’g Tr. at 144). Liti fears returning even after the
collapse of the communist regime, because he believes the currently elected Socialist party is
comprised of the same people who were in power during the communist regime or their descendants.
He stated that “[t]he communism regime never collapsed, they pretended that the communist [sic]
collapsed but . . . [it] will never collapse.” J.A. at 193 (Removal Hr’g Tr. at 152). Mrs. Liti echoed
this fear, stating that “we are very well known and prominent people, we are the first one, we are
the first one that destroyed everything . . . the same people are there, their children are in power and
they could never, ever forget what happened.” J.A. at 209 (Removal Hr’g Tr. at 168). To
corroborate their claims, Liti stated that a former anti-communist demonstrator, who participated
in the embassy break-in and was granted asylum in Germany, was murdered by the communists
upon his return to Albania.
        At the conclusion of the hearing, the immigration judge (“IJ”) denied the Litis’ requests for
asylum, withholding of removal, and relief under CAT. The IJ found the Litis to be incredible based
on several inconsistencies between their testimony and the asylum application they submitted.
Specifically, the application did not mention either the Litis’ participation in the toppling of the
statute of Stalin or their leadership role in crashing the German embassy gate. Therefore, the IJ
characterized the Litis’ testimony as embellishment rather than fact. The IJ also noted that the Litis
failed to present any additional evidence to corroborate their claims of a fear of future persecution.
Given the fact that Liti’s brother, with whom he claims he is in frequent contact, is a journalist in
Greece covering the injustices in Albania, the IJ concluded that documentation in the form of
newspaper articles or affidavits was reasonably available to them. Most importantly, the Litis failed
to provide any evidence to prove their claim that a fellow anti-communist demonstrator, whose
asylum in Germany had been revoked, had been murdered upon his return to Albania. Furthermore,
even if the Litis were credible, the IJ held that they would not be entitled to relief in light of the
changed conditions in Albania. Finally, the IJ found that evidence of past persecution was not so
severe as to warrant a discretionary grant of asylum on humanitarian grounds. The Litis filed a
timely notice of appeal to the BIA.
         On March 24, 2003, the BIA affirmed the IJ’s decision, finding that “on the total record of
oral testimony and documentary evidence as to country conditions in Albania, the [Litis] do not meet
the definition of a refugee as set forth in . . . [the INA].” J.A. at 6 (BIA Decision at 2). Specifically,
the BIA agreed with the IJ’s adverse credibility determination based on the discrepancies between
the Litis’ hearing testimony and their asylum application. Furthermore, the BIA held the
background evidence in the record contradicted the Litis’ claim of a well-founded fear of future
persecution and also concluded that the absence of reasonably available corroborating evidence
militated against their claims. The Litis now petition this court for review.
                                            II. ANALYSIS
A. Asylum Claim
        The Litis argue in their petition that the BIA erred in denying their request for asylum.
Under the INA, the Attorney General may grant asylum to an alien who qualifies as a “refugee,”
which is defined as one “who is unable or unwilling to return to . . . [his or her home country]
because of persecution or a well-founded 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). We review “administrative findings of fact concerning whether [an] alien qualifies
as a refugee under a substantial evidence test.” Ramani v. Ashcroft, 378 F.3d 554, 558 (6th Cir.
2004). Under that standard, findings of fact are treated as “‘conclusive unless any reasonable
adjudicator would be compelled to conclude to the contrary.’” Yu v. Ashcroft, 364 F.3d 700, 702
(6th Cir. 2004) (quoting 8 U.S.C. § 1252(b)(4)(B)). “[T]he petitioner must show that the evidence
presented was so compelling that no reasonable factfinder could fail to find the requisite persecution
No. 03-3570            Liti et al. v. Gonzales                                                     Page 4


or fear of persecution.” Ouda v. INS, 324 F.3d 445, 451 (6th Cir. 2003). Upon review in this case,
we conclude that the record does not compel a contrary result.
         Under the INA, an applicant for asylum bears the burden of demonstrating that “persecution
is a reasonable possibility should he be returned to his country of origin.” Perkovic v. INS, 33 F.3d
615, 620 (6th Cir. 1994) (internal quotation omitted). The applicant need not demonstrate that he
will probably be persecuted if returned because “[o]ne can certainly have a well-founded fear of an
event happening when there is less than a 50% chance of the occurrence taking place.” INS v.
Cardoza-Fonseca, 480 U.S. 421, 431 (1987). In this case, the BIA found that the Litis failed to
satisfy this burden because their testimony was incredible, they presented no corroborating evidence
though it was reasonably available, and the Government demonstrated a fundamental change in
circumstances in Albania to dispel any fears of future persecution upon their return. The Litis
challenge those findings.
        1. Adverse Credibility Determination
        The first issue which the Litis raise in their petition is that the BIA erred in affirming the IJ’s
adverse credibility determination. We have stated that though “an adverse credibility finding is
afforded substantial deference, the finding must be supported by specific reasons. An adverse
credibility finding must be based on issues that go to the heart of the applicant’s claim. They cannot
be based on an irrelevant inconsistency.” Sylla v. INS, 388 F.3d 924, 926 (6th Cir. 2004) (internal
quotation and citations omitted). Moreover, “[s]peculation and conjecture cannot form the basis of
an adverse credibility finding, which must instead be based on substantial evidence.” Shire v.
Ashcroft, 388 F.3d 1288, 1296 (9th Cir. 2004) (internal quotation omitted). Where the credibility
determination is based on inconsistencies unsupported in the record, we have reversed the
determination. Sylla, 388 F.3d at 930; see also Ileana v. INS, No. 02-3972, 2004 WL 1770569, at
*2 (6th Cir. Aug. 5, 2004) (“The Court will not accept blindly an IJ’s conclusion that a petitioner
is not credible.”). In this case, the record does not support the BIA’s credibility finding, and
therefore, we are compelled to a contrary result.
         In its decision, the BIA deferred to the IJ’s adverse credibility determination because “there
were important conflicts between the testimony of the lead respondent and the written asylum
application on central events of the asylum claim, and no reasonable explanation for those
discrepancies was provided.” J.A. at 6 (BIA Decision at 2). The discrepancies were explained by
the IJ as the omission of certain events from Liti’s asylum application. Specifically, the IJ found
that Liti failed to mention in the application his “participat[ion] in the toppling of Stalin’s monument
during a major anticommunist protest in Albania” and his “leadership role in crashing the gates of
the German Embassy with his own vehicle.” J.A. at 18 (IJ Decision & Order at 8). Like affirmative
inconsistencies, omissions may form the basis of an adverse credibility determination, provided that
they are substantially related to the asylum claim. Secaida-Rosales v. INS, 331 F.3d 297, 308 (2d
Cir. 2003); Aguilera-Cota v. INS, 914 F.2d 1375, 1382 (9th Cir. 1990). In this case, however,
neither of the omissions cited by the IJ are substantial enough to justify an adverse credibility
determination.
        Specifically, the IJ did not find anything in the application which contradicted the Litis’ later
testimony at the removal hearing. In the application, Liti wrote that his family was involved in the
democratic anti-communist movement, that they attended secret meetings, and that they
demonstrated against the communists to bring democracy to the country. In his supplemental
application, he wrote that he was an anti-communist activist and escaped from Albania to Germany
and was granted asylum there. Liti attached to the asylum application the letter from the German
government, which stated that the Litis sought protection in the German embassy in Tirana in 1990
and were granted asylum. While the IJ is correct that the application itself did not provide specific
details of the two events about which the Litis testified, the application does not contain any specific
No. 03-3570                Liti et al. v. Gonzales                                                                    Page 5


incidents,2 but rather consists of generalized statements of the Litis’ anti-communist activities in
Albania. Under the IJ’s reasoning, any incident to which the Litis testified at the removal hearing
could be used to justify an inconsistency supporting an adverse credibility determination. The
absence of specific incidents in the application, however, does not give rise to the inference that the
Litis are incredible, but rather reinforces their claim of a long history of political protest which
cannot be limited to a few specific instances. The Litis’ asylum claim is based on a series of events
over six years, which demonstrate their political activity as well as the resulting persecution by the
Albanian government. When measured against their six years of protest, the omission of one
specific incident, such as the tearing down of Stalin’s statue, is insubstantial and does not go to the
heart of their broader asylum claim. See Secaida-Rosales, 331 F.3d at 309.
        Furthermore, we reject the BIA’s underlying rationale that the Litis are required to provide
an exhaustive, detailed list of their anti-communist activities in their asylum application. As the
Second Circuit stated, “the circumstances surrounding the application process do not often lend
themselves to a perfectly complete and comprehensive recitation of an applicant’s claim to asylum
or withholding, and . . . holding applicants to such a standard is not only unrealistic but also unfair.”
Id. at 308. The court noted that:
         the form utilized by the INS for applications for asylum and withholding provides
         half a page for the applicant to explain why he or she is seeking asylum, and no more
         than two inches to recount mistreatment or threats against the applicant or the
         applicant’s family by the government or other groups. Although the application
         invites the applicant to attach additional pages, we think the small space on the form
         itself would hardly indicate to an applicant that the failure to include every detail
         regarding the basis for asylum could later lead to an adverse credibility finding when
         the applicant elaborates on them in the course of a deportation hearing.
Id.; see also Ileana, 2004 WL 1770569, at *3 (holding that several omissions of specific incidents
in an asylum application do not support an adverse credibility determination); Pop v. INS, 270 F.3d
527, 531-32 (7th Cir. 2001) (“We hesitate to find that one seeking asylum must state in his or her
application every incident of persecution lest the applicant have his or her credibility questioned if
the incident is later elicited in direct testimony.”); Aguilera-Cota, 914 F.2d at 1382 (holding that the
omission of two collateral incidents is insufficient to support an adverse credibility determination
where “there were no contradictions between the information set forth in the application and his
testimony”). The purpose of holding a removal hearing is not simply to reiterate the statements
made in the asylum application, but rather to allow an alien “to present evidence on the alien’s own
behalf” including to elaborate on the generalized claims made in the application itself. 8 U.S.C.
§ 1229a(b)(4)(B). Therefore, because the statements in the application were not inconsistent with
the Litis’ subsequent testimony of the specific events at their removal hearing, we conclude the
BIA’s adverse credibility finding is unsupported by the evidence, and therefore we are compelled
to conclude to the contrary.




         2
           It appears from the asylum application that the Litis intended to provide details on specific incidents of their
political activity. Liti stated in his application that his family participated in anti-communist activities and “some of these
incidents are enumerated in the statement attached.” J.A. at 365 (Asylum Application at 5). The Litis claim in their
appellate brief that their prior attorney forgot to attach the additional statement. Even without the statement detailing
specific incidents, there is nothing in the application which is inconsistent with the Litis’ subsequent testimony and can
thereby support an adverse credibility determination.
No. 03-3570           Liti et al. v. Gonzales                                                    Page 6


        2. Changed Country Conditions and the Absence of Corroboration
        The second issue raised in the petition is that the BIA erred by concluding that even if the
Litis were credible, they were not entitled to relief in light of the fundamentally changed conditions
in Albania and the absence of reasonably available corroborating evidence. Upon review of the
record, we hold that the BIA’s decision is supported by substantial evidence.
         Because the Litis were granted asylum in Germany in 1990, the Government stipulated to
the fact that the Litis suffered past persecution based on a statutorily protected ground, which entitles
them to a presumption of a well-founded fear of future persecution. 8 C.F.R. § 1208.13(b)(1).
Where an Albanian asylum applicant has demonstrated past persecution based on the applicant’s
anti-communist activities, the collapse of the communist regime may be a sufficient change in
country conditions to rebut that presumption. See, e.g., Delaj v. INS, No. 02-3797, 2004 WL
1791474, at *2 (6th Cir. Aug. 6, 2004); Tanazi v. Ashcroft, No. 02-4200, 2004 WL 1770617, at *4
(6th Cir. Aug. 5, 2004); Potka v. Ashcroft, No. 02-3654, 2003 WL 21054683, at *2 (6th Cir. May
6, 2003). Thus, to establish their asylum claim, the Litis must demonstrate a well-founded fear of
future persecution notwithstanding the political change which has occurred in Albania since they
left in 1990.
        In support of their claim, the Litis introduced several newspaper articles and reports detailing
the conditions in Albania. Though the documents submitted by the Litis detail a number of instances
of violence, corruption, and protest within the country, nothing specifically supports their claim that
were they to return, they would be persecuted for their anti-communist opinions. Instead, the Litis’
evidence “describe[s] the type of general civil disorder and lawlessness to which anyone living in
Albania would be exposed.” Mullai v. Ashcroft, 385 F.3d 635, 639 (6th Cir. 2004). The country
reports submitted by the Government reinforce that conclusion. The State Department’s 1999
country report states that “[t]here were no confirmed cases of political killings by the Government,
despite repeated claims by the main opposition party that its members were harassed, beaten, and
sometimes murdered by government agents.” J.A. at 252 (1999 Country Reports on Human Rights
Practices at 2). The report also notes that “[t]here were no confirmed reports of politically motivated
disappearances” nor any “clear cases of detainees being held for strictly political reasons.” J.A. at
253, 255 (1999 Country Reports on Human Rights Practices at 3, 5). In a 1998 report, the State
Department explains that “[a]pplicants [for asylum] frequently and incorrectly seek to portray the
socialist government as ‘Communist’ and actively targeting supporters of the opposition.” J.A. at
268 (Albania - Profile of Asylum Claims & Country Conditions Addendum). The report notes,
however, that “Democratic Party members were indeed the victims of numerous attacks and
murders, but in Albania’s general atmosphere of lawlessness and lax law enforcement, neither
culprits nor motives were ever found or confirmed for most of these crimes.” J.A. at 268 (Albania -
Profile of Asylum Claims & Country Conditions Addendum).
         The most compelling evidence the Litis presented in support of a well-founded fear of future
political persecution was their own testimony that a fellow anti-communist protester, who
participated in the embassy break-in and was granted asylum in Germany, was murdered by the
communists upon his return to Albania. The IJ discounted the testimony, however, because the Litis
failed to present any evidence corroborating either the murder or the motive behind it. In their brief,
the Litis argue that written corroboration is not required since “[t]he testimony of the applicant, if
credible, may be sufficient to sustain the burden of proof without corroboration.” 8 C.F.R.
§ 1208.13(a). While recognizing that corroboration is not required, we have also stated that even
if the applicant is credible, “[t]he absence of [reasonably available] corroborating evidence can lead
to a finding that an applicant has failed to meet her burden of proof.” Dorosh v. Ashcroft, 398 F.3d
379, 382 (6th Cir. 2004) (internal quotation omitted). In this case, the IJ found that corroborating
evidence was reasonably available to the Litis, yet not provided. Specifically, though they have
family members still living in Albania, the Litis failed to provide any affidavits in support of their
No. 03-3570           Liti et al. v. Gonzales                                                  Page 7


claim of persecution of anti-communists by members of the current government. Moreover, though
Liti is in frequent contact with his brother, who lives in Greece and works as a journalist
documenting the injustices in Albania, the Litis failed to provide an affidavit or a newspaper article
written by the brother to bolster their claims of a well-founded fear of political persecution.
Furthermore, at the removal hearing, the Litis did not provide any reasonable explanation for the
absence of any corroborating evidence. Without such evidence, we agree with the BIA that in light
of the fundamentally changed conditions in Albania, the Litis failed to satisfy their burden of
demonstrating a well-founded fear of future persecution if they were to return. Therefore, we
conclude that the BIA’s decision denying the Litis’ asylum claim was supported by substantial
evidence.
B. Withholding of Removal and Relief under CAT
        In addition to their asylum claim, the Litis also petition for review of the BIA’s denial of
their request for withholding of removal under INA § 241(b)(3), 8 U.S.C. § 1231(b)(3).
Withholding of removal is required if the alien can demonstrate that “his or her life or freedom
would be threatened in the proposed country of removal on account of race, religion, nationality,
membership in a particular social group, or political opinion.” 8 C.F.R. § 1208.16(b). “An applicant
seeking withholding of removal faces a more stringent burden than what is required on a claim for
asylum.” Pilica v. Ashcroft, 388 F.3d 941, 951 (6th Cir. 2004). In order to qualify for withholding
of removal, the Litis “must establish that there is a clear probability that [they] will be subject to
persecution if forced to return to [Albania].” Id. To establish a clear probability, the applicant must
demonstrate that “it is more likely than not” that he or she will be persecuted upon return. 8 C.F.R.
§ 1208.16(b)(2). Because the Litis have failed to establish their eligibility for asylum, “it therefore
follows that [they] cannot satisfy the more stringent standard for withholding of [removal]” as well.
Koliada v. INS, 259 F.3d 482, 489 (6th Cir. 2001).
        Similarly, the Litis petition for review of the BIA’s denial of relief under CAT. “Protection
under the Convention exists in the form of withholding of removal to the country of torture.” Ali
v. Reno, 237 F.3d 591, 596 (6th Cir. 2001). To obtain relief under CAT, the applicant bears the
burden of establishing “it is more likely than not that he or she would be tortured if removed to the
proposed country of removal.” 8 C.F.R. § 1208.16(c)(2). Once again, because the Litis failed to
establish eligibility for asylum, they also cannot meet the heightened requirements for relief under
CAT. Pilica, 388 F.3d at 955; Yu, 364 F.3d at 703 n.3.
      Therefore, we conclude that the BIA’s decision denying the Litis’ claims for withholding of
removal and relief under CAT was supported by substantial evidence.
C. Asylum on Humanitarian Grounds
        The Litis also petition for review of the IJ’s denial of their request for asylum on
humanitarian grounds pursuant to 8 C.F.R. § 1208.13(b)(1)(iii)(A). In the absence of a well-founded
fear of future persecution, an alien may still be entitled to a discretionary grant of asylum if he or
she “has demonstrated compelling reasons for being unwilling or unable to return to the country
arising out of the severity of the past persecution.” 8 C.F.R. § 1208.13(b)(1)(iii)(A). In this case,
the IJ denied the Litis’ claim under this provision, finding that there was no evidence that the “past
persecution [was] so severe as to compel” asylum on humanitarian grounds. J.A. at 20 (IJ Decision
& Order at 10). Because the Litis failed to raise this issue before the BIA below, we are without
jurisdiction to consider their petition for review on this ground. 8 U.S.C. § 1252(d)(1); Perkovic,
33 F.3d at 619; see also Ramani, 378 F.3d at 560 (holding “that only claims properly presented to
the BIA and considered on their merits can be reviewed by this court in an immigration appeal”).
Thus, the Litis’ claim under § 1208.13(b)(1)(iii)(A) is dismissed.
No. 03-3570             Liti et al. v. Gonzales                                                          Page 8


        In their brief before this court, the Litis also assert a claim for asylum under 8 C.F.R.
§ 1208.13(b)(1)(iii)(B), which allows for a discretionary grant of asylum to an alien who can
establish “a reasonable possibility that he or she may suffer other serious harm upon removal to that
country.” 8 C.F.R. § 1208.13(b)(1)(iii)(B). Other serious harm is “‘harm that is not inflicted on
account of race, religion, nationality, membership in a particular social group, or political opinion,
but is so serious that it equals the severity of persecution.’” Krastev v. INS, 292 F.3d 1268, 1271
(10th Cir. 2002) (quoting 65 Fed. Reg. 76121, 76127 (Dec. 6, 2000)). This new section became
effective on January 5, 2001, after the Litis had appealed the IJ’s order, but before the BIA issued
its decision. Because it was not in existence at the time, the Litis failed to seek relief under this new
regulation before the BIA, and thus we lack jurisdiction to consider the merits of this claim.
8 U.S.C. § 1252(d)(1); Ramani, 378 F.3d at 560.
        We note, however, that this “new provision provides a second avenue of relief for victims
of past persecution whose fear of future persecution on account of a protected ground has been
rebutted by evidence of changed country conditions or of safe harbors within his or her home
country.” Belishta v. Ashcroft, 378 F.3d 1078, 1081 (9th Cir. 2004). In adopting the rule, the Justice
Department stated that it “believes it is appropriate to broaden the standards for the exercise of
discretion in such cases.” 63 Fed. Reg. 31945, 31947 (June 11, 1998). The Justice Department
noted that “there may be cases where it is appropriate to offer protection to applicants who have
suffered persecution in the past and who are at risk of future harm that is not related to a protected
ground.” Id. Though the Litis may be entitled to asylum under this new provision, it is the BIA,
rather than this court, which is the proper forum to address their claim. We have stated that the
purpose of the exhaustion requirement in § 1252(d)(1) is:
        (1) to ensure that the [DHS], as the agency responsible for construing and applying
        the immigration laws and implementing regulations, has had a full opportunity to
        consider a petitioner’s claims; (2) to avoid premature interference with the agency’s
        processes; and (3) to allow the BIA to compile a record which is adequate for
        judicial review.
Ramani, 378 F.3d at 559 (internal quotations and citations omitted). All of these interests are
furthered by allowing the BIA the opportunity to interpret this new provision. Accordingly, we
dismiss the Litis’ claim brought under § 1208.13(b)(1)(iii)(B) without expressing an opinion as to
whether they qualify for relief, but stay our order to allow the BIA the opportunity to reopen the case
and consider the Litis’ new claim.3 See Belishta, 378 F.3d at 1081.
                                           III. CONCLUSION
        In sum, though we conclude the BIA erred in its adverse credibility determination, the Litis’
petition for review is DENIED in part and DISMISSED in part. Our order is STAYED for 120
days to allow the BIA the opportunity to reopen the case to consider the Litis’ new claim under
§ 1208.13(b)(1)(iii)(B).




        3
          Though petitioners are time barred from filing a motion to reopen proceedings, the BIA “may at any time
reopen or reconsider on its own motion any case in which it has rendered a decision.” 8 C.F.R. § 1003.2(a).
No. 03-3570           Liti et al. v. Gonzales                                                  Page 9


                                     _____________________
                                        CONCURRENCE
                                     _____________________
       JULIA SMITH GIBBONS, Circuit Judge, concurring. While I agree with the majority’s
conclusion that the Litis’ petition for review should be denied in part and dismissed in part and its
reasoning except in Part II.A.1, I write separately to note my disagreement with that part of the
majority’s opinion (Part II.A.1) finding that the BIA erred in deferring to the IJ’s determination that
lead petitioner Ferdinand Liti was not credible.
        This court reviews credibility determinations under the substantial evidence standard. Sylla
v. INS, 388 F.3d 924, 925 (6th Cir. 2004). “This is a deferential standard: A reviewing court should
not reverse simply because it is convinced that it would have decided the case differently.” Id. at
925-26 (internal quotation marks and citation omitted). In making the adverse credibility
determination, the IJ in this case pointed to the inconsistencies between Liti’s testimony at the
removal hearing and the Litis’ application for asylum:
       For example, in his I-589 applications, there was no mention of his having participated in
       the toppling of [Stalin’s] monument during a major anticommunist protest in Albania, nor
       was there any mention of respondent’s leadership role in crashing the gates of the German
       Embassy with his own vehicle, and with respect to these omissions there were no plausible
       explanations by respondents for [the] absence of two major events supporting his claim for
       relief. Based on these omissions, the Court finds respondent’s credibility questionable and
       believes his testimonial claims of being singly responsible for the collapse of communist rule
       in Albania, [which he] made during one point in the hearing, to be the result of
       embellishment rather than any fact.
These were not “irrelevant inconsistenc[ies],” cf. id. at 926 (citation omitted); rather, they were
significant omissions that could reasonably create skepticism about whether Liti was telling the
truth. Surely, the IJ was justified in finding Liti’s claim to be singly responsible for the fall of
Albanian communism to be “embellishment.” The majority points out that the Litis evidently
intended to enumerate specific incidents of their political activity (presumably, including the
monument-toppling and embassy-crashing incidents) as part of their 1997 application for asylum,
but, according to the Litis, their attorney neglected to attach a statement including such details.
Even if the Litis’ attorney did neglect to attach the statement or statements, however, the Litis could
have introduced such statements at the removal hearing as prior consistent statements. The failure
to do so suggests that they would not have been helpful in corroborating Liti’s testimony. Moreover,
the Litis’ 1995 application for asylum contains a detailed narrative that fails to include major events
such as the ones discussed by Liti at the hearing.
       In sum, these omissions are striking and provide an adequate basis for an adverse credibility
determination.
