Marshall v. Burlington Northern, Inc., 595 F.2d 511, 513 (9th Cir. 1979) (the underlying purpose of the doctrine of exhaustion of administrative remedies is as follows: "[The exhaustion requirement] "makes sense in terms of both judicial economy and agency efficiency", State of California ex rel. Christensen v. FTC, 549 F.2d at 1324, because it permits "an administrative agency to perform functions within its special competence to make a factual record, to apply its expertise, and to correct its own errors so as to moot judicial controversies". Parisi v. United States, 405 U.S. 34, 37, 92 S. Ct. 815, 818, 31 L. Ed. 2d 17 (1972)."); see also Sagermark v. INS, 767 F.2d 645, 648 (9th Cir. 1985) ("[T]he relevant policy concerns underlying the exhaustion requirement -- that an administrative agency should have a full opportunity to resolve a controversy or correct its own errors before judicial intervention -- have been satisfied here.").



     To exhaust, it is not necessary to use any specific language, so long as the issue is "referenced" in terms sufficient for the BIA to be aware of and review the claim. The Ninth Circuit drew the line clearly by rejecting one aspect, and accepting another, of a similar argument in Ladha v. INS, 215 F.3d 889, 901 (9th Cir. 2000):



     Although the INS argues that the Ladhas' political persecution claim was not exhausted, because the BIA held it to have been waived by not being raised on appeal, we disagree. Although before the BIA the parties do not specifically use the phrase "persecution on account of political opinion," the IJ had specifically considered and rejected the political asylum claim, in part apparently because he found not credible what he described as Mr. Ladha's claim of torture based on his membership in the MQM, and the Ladhas' brief before the BIA challenges this very aspect of the IJ's opinion. The BIA thus had sufficient reason to be aware of, and opportunity to review, this claim, cf. Sagermark, 767 F.2d at 648 (9th Cir. 1984), and we find that the Ladhas have administratively exhausted it. In contrast, the Ladhas have failed to exhaust their claim to persecution on account of social group, by failing to make reference to the relevant claim before the BIA, leaving us without jurisdiction to consider the claim on judicial review. See Vargas, 831 F.2d 906, 908.



Similarly, in Socop-Gonzalez v. INS, 272 F.3d 1176, 1183-84 (9th Cir. 2001), the Ninth Circuit found as follows: "We hold that even though Socop never specifically invoked the phrase "equitable tolling" in his briefs to the BIA, he sufficiently raised the issue before the BIA to permit us to review the issue on appeal."



Thanks to Lisa Brodyaga.