author: THOMPSON, Circuit Judge.

text:
    BELSITO COMMUNICATIONS, INC., d/b/a 1st Responder Newspaper; Brian K. Blackden, Plaintiffs, Appellants, v. James DECKER, New Hampshire State Trooper; Colonel Robert L. Quinn, Director of the Division of State Police, New Hampshire Department of Safety, Defendants, Appellees.
    No. 16-1130
    United States Court of Appeals, First Circuit.
    December 23, 2016

      Robert N. Isseks, Middletown, NY, for appellant.
    Matthew T, Broadhead, Assistant Attorney General, with whom Joseph A. Foster, New Hampshire Attorney General, was on brief, for appellees.
    Before THOMPSON and BARRON, Circuit Judges, and McCONNELL, District Judge.

       Of the District of Rhode Island, sitting by designation.

   THOMPSON, Circuit Judge.

LEAD-IN

Brian Blackden is a part-time freelance photographer who for years has sent photos to a bunch of regional-media outlets, including Belsito Communications, Inc. (just “Belsito” from now on). Belsito and Blackden filed this suit alleging that New Hampshire State Trooper James Decker violated their constitutional rights when he seized Blackden’s camera at the scene of a vehicle crash in August 2010. Belsito and Blackden lost on summary judgment. And they fare no better on appeal: having studied the record and considered the parties’ arguments in light of applicable law, we conclude, first, that Belsito lacks standing to pursue its constitutional claim; and, second, that even if Trooper Decker did violate Blackden’s constitutional rights (a point we need not decide), Blackden failed to identify clearly-established law in August 2010 placing the illegality of the Trooper’s conduct beyond debate.

HOW THE CASE GOT HERE

Back in the early 1980s, Blackden briefly worked as a firefighter-EMT for the New Hampshire towns of Kingston and Newton — though he has never been licensed or certified as a firefighter by the state. Jump forward a few years. In the early to mid-1990s, Blackden worked as an in-house photographer for the town of Milton’s fire department, a job that involved taking videos and pictures of fires and accidents for the department. And since the mid-2000s, he has worked as a freelance photographer, in addition to owning a company that sells camping-survival equipment (he gets most of his income from selling that gear).

As a freelance photog, Blackden submits photos to a number of regional news outlets, including Belsito, a publisher of a website and newspaper called “1st Responder News” — a “niche publication ... delivered to the emergency services community ... that reports on local news and incidents within the states that it serves.” Turns out, anyone can send in photos or stories to the website. All a person has to do is first create a username and password to access the website and then submit the material using an online form. Editors typically review stories submitted by newer “correspondents” — with “correspondent” defined as anyone who submits content to the website. But correspondents who have submitted content “for a while” can skip the review process. Most of the material Belsito publishes in its print newspaper comes from items it chooses to take from the website postings. And Belsito only pays correspondents if it publishes their content in its newspaper.

Blackden began sending photos to Belsi-to in 2009. He has submitted over 400. He does not remember how many made it into Belsito’s newspaper. But he does recall that one photo made the paper’s front page. Belsito has never paid him a dime for any photos. Blackden says that “instead of money” the company will give him “a trade-off for advertising.” But Belsito denies having that kind of relationship with him.

In 2009 or 2010, Blackden bought an ambulance once used by the town of Der-ry. He modified the vehicle only slightly, swapping out the red lenses from the vehicle’s front for yellow lenses (he did not touch the rear red lenses) and adding a sign above the rear license plate that read “Fire Department Photographer.” Black-den kept a portable radio in the ambulance tuned to all the fire department radio bands for essentially the whole southern half of the Granite State. And he usually kept lots of different gear in the ambulance, like a black firefighter helmet with the word “photographer” on it, a black turnout coat, and a blue vest with the word “photographer” on the back. The vest also had an ID badge with Blackden’s photo and the words “1st Responder News, Brian K. Blackden, New Hampshire Region Contributing Correspondent” on it.

Early on the morning of August 25, 2010, Blackden was awakened by an alert on his radio indicating that an auto accident had occurred on Interstate 93. The car had hit a tree in the median on the left side of the highway. And the Penacook rescue squad and the Canterbury fire department hurried to the scene. Dragging himself out of bed, Blackden hopped into his repurposed ambulance and drove to the scene. When he got there, he parked on the right side of the highway, at the edge of the pavement. He put on his “gear,” walked across the interstate, stood in front of a Penacook fire department’s rescue vehicle, and started taking pictures of the scene. His “gear” included a firefighter’s helmet with the word “photographer” on it and a firefighter’s turnout coat. Blackden knew that protocol required that he get the commanding firefighter’s permission before accessing the accident scene — he could tell where the scene was based on how the emergency vehicles parked. Anyway, he did not ask for permission here.

It is fair to say that Blackden’s getup confused some of the emergency responders at the crash site. For example, the scene commander, Canterbury Fire Chief Peter Angwin, assumed that Blackden was with the Penacook rescue team. At some point, Chief Angwin asked Blackden if that was his vehicle parked on the right side of the highway. Blackden said “yes.” Convinced that the vehicle’s location posed a potential safety hazard, Chief Angwin asked him to move it to the same side of the interstate as the rescue vehicles. Blackden did just that, driving his repur-posed ambulance to the left side of the highway and pulling up behind a fire truck. As he got out of the ambulance, Blackden activated the red “wig-wag” lights on the top rear of his vehicle, the yellow “arrow” lights, and the emergency (brake light) flashers.

Hearing that the driver of the vehicle involved in the accident had died, Blackden told Chief Angwin that “Penacook Rescue is leaving[;] I take photographs at a lot of their scenes” and asked if he would “like extraction photos,” to which the Chief replied “no.” Chief Angwin later said that Blackden had “stated that he was with Penacook or something about Penacook Rescue,” adding that had Blackden been “dressed in a shirt and a tie, I would have had him removed from the scene” and stressing that “Blackden was able to get that close to the vehicle because of the gear that he had on and because of what he had previously said” about being “with Penacook.” Anyhow, after Chief Angwin said “no” to his photo-extraction offer, Blackden started walking back to his ambulance. And that is when he ran into Trooper Decker.

When Trooper Decker got to the crash site, he saw an “ambulance-like” vehicle parked at the rear of the scene, with its red lights activated in a “wig-wag” fashion. Spotting Blackden in the “active scene” wearing a firefighter’s getup, the Trooper questioned him. According to Trooper Decker, Blackden identified himself as being “with Penacook Rescue” and said he was there to photograph the scene on behalf of Penacook Rescue. After determining that Blackden was not a rescue-team member of any of the responding fire departments, Trooper Decker asked him for his firefighter credentials. “You claimed you’re here with Penacook Rescue,” Trooper Decker recalled saying to Black-den, so “[y]ou must have something that says you’re with Penacook Rescue” — “[n]o-body over there knows you.” To this Trooper Decker recalled Blackden saying that he had “left them at home.”

Based on what had gone down, Trooper Decker believed Blackden had committed a slew of state-law crimes, including unlawfully impersonating an emergency rescue provider, unlawfully entering an emergency scene, and unlawfully using emergency lights. Trooper Decker also believed Blackden knew he was under investigation for possible state-law violations. And because he believed the camera contained evidence of criminal activity — evidence that easily could be destroyed quickly — Trooper Decker thought exigent circumstances justified taking the camera without a warrant. Still, he took the precaution of running this by a local prosecutor.

Whenever there is a fatal auto accident, the responding trooper must contact the county attorney’s office and say whether “there is a criminal aspect to the crash.” So Trooper Decker grabbed his cellphone, called the county attorney’s office, and spoke with Assistant County Attorney (“ACA”) Susan Venus. .Trooper Decker told her about the auto-crash fatality, saying he thought the driver had probably fallen asleep at the wheel. But then he told her about

a subject on.scene who was dressed in emergency turnout gear who had driven a surplus ambulance with active emergency lights to this scene and parked that vehicle on a restricted access highway in and amongst the other emergency vehicles and had gotten out and was in the scene taking photographs.

“[NJobody” there “knew who this person was,” the Trooper added, and “he was not a member of any ... of the responding agencies.” The Trooper also told ACA Venus that he was considering seizing Black-den’s digital camera as evidence of criminal conduct. And after filling her in on the particulars of the situation, Trooper Decker asked ACA Venus what she thought of his cameha-seizUre idea. She gave him the go-ahead.

So Trooper Decker took the camera. But he did not take anything else, like the turnout coat, helmet, or ambulance. Asked why he had not seized these other things, the Trooper explained at his deposition that he “was most concerned” with the camera because it contained easily destroyable evidence of potential criminal actions. The photos, he added, placed Black-den

in the scene. Impersonation is going to be contextual. It’s a contextual offense. If Mr. Blackden chooses to dress as a firefighter for Halloween and goes to a costume party, nobody’s going to charge him with impersonation.

But, the Trooper noted, if Blackden “dresses as a firefighter and drives a surplus ambulance to a fatal crash scene, gets out, takes photos which can only be taken from certain points of view” — ie., within the confines of the accident scene — “and then says” several times that “he’s with Penacook Rescue, contextually that’s impersonation.” Sounding a consistent theme, the Trooper stressed that the camera mattered the most because he believed its metadata — which Blackden could erase with just a push of a button — could help “recreate Blackden’s exact location within the scene relative to the location of the crash” and so provide evidence of Black-den’s unauthorized accident-scene presence.

Trooper Decker did not arrest Blackden on the spot, though the parties concede that he had probable cause to do so. After letting him go, the Trooper confirmed with the lead emergency responders that Black-den was not a member of their squads and had not gotten permission to be there. Running a records check, the Trooper also learned that Blackden had never been a licensed firefighter and that his EMT license had expired in the late 1980s.

The next day, August 26, Trooper Decker sought and received a warrant authorizing him to search the digital images on Blackden’s camera. Blackden got his camera back the following day. But consistent with state law, the police kept the memory card as evidence of Blackden’s alleged unlawful conduct. See generally N.H. Rev. Stat. Ann. § 595-A:6, Blackden later got charged under state law with: unlawfully displaying red emergency lights on his re-purposed ambulance; unlawfully entering a controlled emergency scene; purposely impersonating emergency medical personnel; and obstructing government administration. Skipping over details not relevant to the issues on appeal, we see that after his criminal case wended its way through state court, Blackden stands convicted of the red-light violation.

Invoking 42 U.S.C. § 1983 — a statute that (broadly speaking) imposes liability on a person acting under state law who infringes the federally-guaranteed rights of another — Belsito and Blackden eventually filed this civil suit against Trooper Decker in New Hampshire federal court. Their operative complaint alleged that Trooper Decker’s warrantless seizure of Blackden’s digital camera and memory card violated Blackden’s Fourth Amendment rights. They also alleged that Trooper Decker’s actions kept Blackden from exercising his Fust Amendment right to publish the accident-scene photos. And they further alleged that the Trooper’s actions violated Belsito’s own constitutionally-protected right to publish Blackden’s accident-scene pics as well.

After some discovery, Trooper Decker asked for summary judgment. Granting the motion, the judge’s ruling ran essentially as follows (we only hit the highlights). Belsito, the judge said, had no standing to bring any constitutional claim because (among other things) Belsito did not show that Trooper Decker took “any of its property” and did not “show[ ] any cognizable interest in the contents of Blackden’s memory card (other than the entirely speculative claim that if it had been given a timely opportunity to review Blackden’s photographs, it may — or may not — have exercised its discretion to publish them).” Convinced the Trooper had probable cause to believe Blackden had violated the law, the judge found “exigent circumstances” — specifically the threat of evidence destruction — justified the war-rantless seizure of Blackden’s camera. The judge also saw no First Amendment violation, given that Blackden had no constitutional “right to unlawfully enter a controlled emergency scene — even if he intended to engage in conduct otherwise typically protected by the First Amendment.” Wrapping up, the judge stressed that Trooper Decker was qualifiedly immune from suit, even if his actions resulted in a constitutional violation under current law, because constitutional standards (as applied to a situation like this) were unclear at the time of the disputed conduct.

STANDARD OF REVIEW

We review the judge’s grant of summary judgment de novo, asking whether, taking the facts in the light most agreeable to Blackden and Belsito, there is no genuine dispute as to any material fact and Trooper Decker is entitled to judgment as a matter of law. See, e.g., Rivera-Corraliza, 794 F.3d at 214; Collazo-Rosado v. Univ. of P.R., 765 F.3d 86, 89, 92 (1st Cir. 2014); see also Santiago-Ramos v. Autoridad de Energía Eléctrica de P.R., AEE, a/k/a P.R. Power Co., 834 F.3d 103,105-06 (1st Cir. 2016). And we can affirm summary judgment on any ground supported by the record. See, e.g., Houlton Citizens’ Coal v. Town of Houlton, 175 F.3d 178, 184 (1st Cir. 1999).

ISSUES INVOLVING BELSITO

As they did in the district court, the parties duke it out over whether Belsi-to has standing to litigate a First-Amendment claim against Trooper Decker. Belsi-to comes out swinging, insisting that Trooper Decker’s warrantless seizure of the camera “prevent[ed]” it from publishing “Blaekden’s photos” and so gave rise to an injury in fact fairly traceable to the Trooper’s conduct and redressable by judicial relief. Au contmire, counters Trooper Decker: the summary-judgment record contains no evidentiary support for “the claim that Blacken was taking photos on behalf of Belsito” or that Belsito “had any contractual relationship” with “or legal interest in Blackden’s personal property or photographs” and so Belsito’s “claim is far too attenuated to vest it with standing in this matter.” We score this round for Trooper Decker.

Standing Rules

It goes without saying — but we say it anyway — that federal courts are courts of limited jurisdiction, limited to deciding certain cases and controversies, for example. See U.S. Const, art. Ill, § 2. A key component of the case-or-controversy requirement is that a suing party demonstrate standing to sue. And to show standing in this sense, “[t]he party invoking federal jurisdiction” — here, Belsito— must show the following: (a) “an injury in fact” that is “concrete and particularized” and “actual or imminent, not conjectural or hypothetical”; (b) “a causal connection”— what the high Court occasionally calls “traceability” — between the injury and the challenged conduct; and (c) redressability — that the injury will “likely ... be redressed by a favorable decision.” Lujan v. Defs. of Wildlife, 504 U.S. 555, 560-61, 112 S.Ct. 2130, 119 L.Ed.2d 351 (1992) (quotation marks omitted). Importantly, the suing party at the summary-judgment stage must point to specific evidence in the record, not simply rely on “mere allegations.” See id. at 561, 112 S.Ct. 2130 (quotations omitted); accord Osediacz v. City of Cranston, 414 F.3d 136, 139 (1st Cir. 2005) (emphasizing that “[t]he party seeking to invoke the federal court’s jurisdiction— normally, the plaintiff — bears the burden of pleading and proof on each step of the standing pavane”).

Applying the Rules

Belsito spends a lot of time talking about how news gathering enjoys some First-Amendment protection, which is an uncontroversial statement of the obvious. See Branzburg v. Hayes, 408 U.S. 665, 681, 92 S.Ct. 2646, 33 L.Ed.2d 626 (1972) (noting that “without some protection for seeking out the news, freedom of the press could be eviscerated”). But as for its injury-in-fact claim, Belsito says (emphasis ours) that it is this, and this alone: “the ‘injury in fact’ is the loss of the opportunity to publish” the August 25 pics Blackden had snapped “on Belsito’s behalf while [he] was acting as [its] correspondent.” The insurmountable problem for Belsito is that it cites no evidence to back up its theory that Blackden took the photos on its behalf. And we will not become archeologists, devoting scarce judge-time to dig through the record in the hopes of finding something Belsito should have found. See Rodríguez-Machado v. Shinseki, 700 F.3d 48, 50 (1st Cir. 2012) (per curiam) (reminding lawyers and litigants — using a colorful quote from a Seventh-Circuit opinion— that “[j]udges are not like pigs, hunting for truffles” buried in the record (alteration in original) (quotation marks omitted)). What Belsito does do — helpfully and commendably — is concede that

• Belsito has no contractual relationship with Blackden;
• “the photos on” Blackden’s camera’s “memory card were not technically Belsito’s”;
• “Blackden could have taken the photos for anyone”; and
• Belsito “‘may — or may not — have’” published the pics had Blackden offered them to it (here, Belsito is quoting the district judge).

True, as Belsito notes, Blackden has submitted hundreds of photos to Belsito’s 1st Responder website since 2009. But Belsi-to’s reply brief does not dispute Trooper Decker’s point that “as a freelance photographer, Blackden may have sent the [August 25] photographs to any number of other media outlets without any obligation to Belsito.”

The net result: by failing to provide record support for its injury-in-fact theory — namely, that Blackden took the pics on its behalf — Belsito has not carried its burden of establishing standing. See Ose-diacz, 414 F.3d at 143.

Enough said about standing.

ISSUES INVOLVING BLACKDEN

On the qualified-immunity front, our combatants battle over whether Trooper Decker violated clearly-established Fourth- and First-Amendment law. This round goes to the Trooper too, however.

Qualified-Immunity Rules

Qualified immunity protects an officer from suit when a reasonable decision in the line of duty ends up being a bad guess — in other words, it shields from liability “all but the plainly incompetent or those who knowingly violate the law.” See Taylor v. Barkes, — U.S. —, 135 S.Ct. 2042, 2044, 192 L.Ed.2d 78 (2015) (quoting Ashcroft v. al-Kidd, 563 U.S. 731, 743, 131 S.Ct. 2074, 179 L.Ed.2d 1149 (2011)); see also Rivera-Corraliza, 794 F.3d at 215. “[Reasonable mistakes,” the Supreme Court tells us, “can be made as to the legal constraints” on officers, and when that happens, the officer is qualifiedly immune from damages. Saucier v. Katz, 533 U.S. 194, 205, 121 S.Ct. 2151, 150 L.Ed.2d 272 (2001), overruled on other grounds by Pearson v. Callahan, 555 U.S. 223, 129 S.Ct. 808, 172 L.Ed.2d 565 (2009); see also Morelli v. Webster, 552 F.3d 12, 19 (1st Cir. 2009) (stressing that “qualified immunity, when raised on summary judgment, demands deference to the reasonable, if mistaken, actions of the” officer). To avoid a qualified-immunity defense, Blackden must show (1) that Trooper Decker in-fracted his federal rights and (2) that these rights were so clearly established that a reasonable officer should have known how they applied to the situation at hand. See, e.g., City & Cnty. of S.F. v. Sheehan, — U.S. —, 135 S.Ct. 1765, 1774, 191 L.Ed.2d 856 (2015); Pearson, 555 U.S. at 232, 129 S.Ct. 808; Cortés-Reyes v. Salas-Quintana, 608 F.3d 41, 51-52 (1st Cir. 2010).

We of course may deal with these qualified-immunity steps in any order we please. See, e.g., Pearson, 555 U.S. at 236, 129 S.Ct. 808. And today we begin — and end — with the clearly-established step, which requires Blackden to spotlight “controlling authority” or “a robust consensus of cases of persuasive authority” (if there is one) that forbade Trooper Decker from acting as he did. See, e.g., Plumhoff v. Rickard, — U.S. —, 134 S.Ct. 2012, 2023, 188 L.Ed.2d 1056 (2014) (quotation marks omitted). Public officials, our judicial superiors tell us, need not be legal savants to win a qualified-immunity case. See Crawford-El v. Britton, 523 U.S. 574, 590, 118 S.Ct. 1584, 140 L.Ed.2d 759 (1998); cf. generally Statchen v. Palmer, 623 F.3d 15, 18 (1st Cir. 2010) (noting that qualified immunity’s aim is to “avoid the chilling effect of second-guessing where the officers, acting in the heat of events, made a defensible (albeit imperfect) judgment”). And, they also tell us, judges must

not ... define clearly established law at a high level of generality. The general proposition, for example, that an unreasonable search or seizure violates the Fourth Amendment is of little help in determining whether the violative nature of particular conduct is clearly established.

al-Kidd, 563 U.S. at 742, 131 S.Ct. 2074 (citations omitted). Rather, a “more particularized” inquiry is required. See, e.g., Anderson v. Creighton, 483 U.S. 635, 640, 107 S.Ct. 3034, 97 L.Ed.2d 523 (1987). That makes sense. Because “[cjourts penalize officers for violating bright lines, not” — as we just said — “for making bad guesses in gray areas,” Rivera-Corraliza, 794 F.3d at 215 (quotation marks omitted), if the pertinent “legal principles are clearly established only at a level of generality so high that officials cannot fairly anticipate the legal consequences of specific actions, then the requisite notice is lacking,” Savard v. Rhode Island, 338 F.3d 23, 28 (1st Cir. 2003) (en banc) (opinion of Selya, J.). So “the relevant legal rights and obligations must be particularized enough that a reasonable official can be expected to extrapolate from them and conclude that a certain course of conduct will violate the law.” Id. (citing Saucier, 533 U.S. at 201-02, 121 S.Ct. 2151).

The bottom line, then, is that while Blackden need not show that the eomplained-about conduct is the spitting image of conduct previously deemed unlawful, he must show that the conduct’s unlawfulness was “apparent,” given preexisting law. See Anderson, 483 U.S. at 640, 107 S.Ct. 3034. What that means is that qualified immunity protects Trooper Decker unless Blackden can persuade us that caselaw on the books in August 2010 put the constitutionality of his actions “beyond debate.” See al-Kidd, 563 U.S. at 741, 131 S.Ct. 2074; see also Brosseau v. Haugen, 543 U.S. 194, 198, 125 S.Ct. 596, 160 L.Ed.2d 583 (2004) (emphasizing that a right is “clearly established” when it is no longer within the “hazy” area of constitutional issues that might be “reasonably misapprehend[ed]” by an officer at the scene (quotation marks omitted)); see generally Morelli, 552 F.3d at 18-19 (discussing how qualified immunity works in a summary-judgment case).

One more important qualified-immunity nugget to keep in mind as we go forward: if an officer consulted with a prosecutor about “the legality of an intended action” — disclosing known info pertinent to that analysis — then his “reliance on emergent advice might be relevant ... to the reasonableness of his later conduct” and so “may help to establish qualified immunity.” Cox v. Hainey, 391 F.3d 25, 34 (1st Cir. 2004). As a policy matter, “it makes eminently good sense, when time and circumstances permit, to encourage officers to obtain an informed opinion before charging ahead.” Id. But we have cautioned that consultation with “a friendly prosecutor does not automatically guarantee that qualified immunity will follow” and that “the officer’s reliance on the prosecutor’s advice” must be “objectively reasonable” — i.e., “[r]eliance” will not forestall liability “if an objectively reasonable officer would have cause to believe that the prosecutor’s advice was flawed, off point, or otherwise untrustworthy.” Id. at 35.

Applying the Rules

The Fourth-Amendment Claim

Blackden says that Trooper Decker violated his Fourth-Amendment rights by warrantlessly seizing the camera and memory card absent exigent circumstances and that the judge reversibly erred by concluding otherwise. Trooper Decker, unsurprisingly, takes the exact opposite position. We side with the Trooper.

Blackden is right that the Fourth Amendment guards against “unreasonable” searches and seizures. Rivera-Corraliza, 794 F.3d at 215 (quoting U.S. Const. amend. IV). He is also right that a warrantless search or seizure is “per se unreasonable[ ] unless the police can show that it falls within one of a carefully defined set of exceptions based on the presence of ‘exigent circumstances.’ ” Coolidge v. New Hampshire, 403 U.S. 443, 474-75, 91 S.Ct. 2022, 29 L.Ed.2d 564 (1971). And he is right that “[t]o show exigent circumstances, the police must reasonably believe that there is such a compelling necessity for immediate action as will not brook the delay of obtaining a warrant,” like “when delay would risk the destruction of evidence” — with our caselaw requiring that the police have “an objectively reasonable basis” for believing that evidence destruction “is likely to occur.” See United States v. Samboy, 433 F.3d 154, 158 (1st Cir. 2005) (quotation marks omitted); see also id. (adding that “[p]roof of exigent circumstances should be supported by particularized, case-specific facts, not simply generalized suppositions about the behavior of a particular class of criminal suspects” (quotation marks omitted)); MacDonald v. Town of Eastham, 745 F.3d 8, 13 n.3 (1st Cir. 2014) (highlighting some of Samboy’s requirements). On this score, and by way of example, we note Samboy concluded that exigent circumstances permitted a warrantless entry into a suspected drug dealer’s apartment because what the officers did — “knocking and announcing their presence” — “gave rise to a reasonable belief’ that the dealer “probably would have realized” that the law was “closing in and begun disposing of the evidence.” 433 F.3d at 158-59.

But at step two of the qualified-immunity inquiry we must ask whether Blackden has pinpointed clearly-established law at the time of the seizure that would have stopped a reasonable trooper from thinking exigent circumstances existed “in the situation [he] encountered.” See Marrero-Méndez v. Calixto-Rodriguez, 830 F.3d 38, 46 (1st Cir. 2016). And that situation— remember — was this:

• Trooper Decker believed Blackden had violated a number of state laws, giving him probable cause to arrest Black-den — though the Trooper decided not to do that then and there.
• Blackden knew Trooper Decker was investigating him for possible criminal violations, or so the Trooper thought.
• Trooper Decker believed the camera and memory card contained evidence that could help establish Blackden’s presence at the scene, which could help prove Blackden had committed a crime.
• Unlike the turnout coat, helmet, or ambulance, the camera and memory could be destroyed in a flash without breaking a sweat — at least that is what the Trooper concluded.
• And Trooper Decker consulted with a prosecutor before taking the camera and memory card.

Blackden thinks he has a case — Menotti v. City of Seattle, 409 F.3d 1113 (9th Cir. 2005) — that clearly establishes the illegality of Trooper Decker’s conduct when the underlying events occurred. But this out-of-circuit decision does nothing of the sort.

An issue in Menotti was whether exigent circumstances justified an officer’s war-rantless seizure of a protestor’s sign. Id. at 1153. The court’s ruling had three components pertinent to our case. One, the court said that despite having probable cause to arrest the protestor for protesting in a restricted area, the officer made no arrest and so could not seize the sign under the seareh-incident-to-arrest exception to the warrant requirement — an exception justified in part by the need to prevent an arrestee from destroying evidence. Id. (quoting Knowles v. Iowa, 525 U.S. 113, 116-17, 119 S.Ct. 484, 142 L.Ed.2d 492 (1998)). Two, because the officer “faced a relatively calm situation” when he crossed paths with the protester — the officer was not “immediately engaged in combating violence” — the court ruled “no exigency requir[ed] seizing]” the sign without a warrant. Id. at 1153-54 (explaining that “the relatively calm situation” meant “the circumstances were not exigent when [the officer] confronted [the protester] and seized the sign”). And three, the court “did not see how” — on the facts of that case— the officer “legitimately could be concerned about a need to preserve evidence of a crime from being destroyed.” Id. at 1153.

Menotti does not help Blackden’s cause. Yes, like the officer there, Trooper Decker seized an item without making an arrest. But under Menotti, that just means the Trooper cannot rely on the search-incident-to-arrest exception — an exception he does not invoke. And in talking about whether violence at the scene triggered exigent circumstances, Menotti did not address the type of exigency in our case, described two paragraphs ago — namely (and we say this again as a matter of helpful repetition) that Trooper Decker (a) believed Blackden had broken a bunch of state laws; (b) suspected Blackden knew he had caught the Trooper’s eye; (c) concluded Blackden possessed evidence that could help nail him criminally; and (d) thought the evidence could be destroyed with ease before a search warrant could issue. Also, Menotti did not deal with an officer who had consulted with a prosecutor and so says nothing about how such a consultation should affect our qualified-immunity analysis. And because Menotti is little like our case, Blackden has not met his burden of showing that a reasonable trooper — confronted with the facts here— would have known beyond debate that he lacked exigent circumstances.

Of course, and to repeat a point made above (but with slightly different words), “a general constitutional rule already identified in the decisional law may apply with obvious clarity to the specific conduct in question, even though the very action in question has not previously been held unlawful.” United States v. Lanier, 520 U.S. 259, 271, 117 S.Ct. 1219, 137 L.Ed.2d 432 (1997) (emphasis added) (quotation marks and alterations omitted). But this is a narrow exception, as the example the Court used shows: although “[t]here has never been ... a section 1983 case accusing welfare officials of selling foster children into slavery,” the Court noted, “it does not follow that if such a case arose, the officials would be immune from damages,” id. (quotation marks omitted) — for simplicity, we refer to this as the “slavery hypothetical.” And Blackden makes no persuasive case that the general Fourth-Amendment principles he throws around (excerpted in the second paragraph to this section of this opinion) clearly establish the unlawfulness of Trooper Decker’s conduct, like the general principles at play in the slavery hypothetical would for the imagined welfare officials.

Let us be crystal clear: Because we resolve Blackden’s Fourth-Amendment claim at the second step of the qualified-immunity test (as we are free to do), we need not say whether Trooper Decker’s actions were legal — ie., we do not say whether exigent circumstances were or were not in play. Nor need we explore what the precise parameters of the exigent-circumstances exception are or should be. All we need say is that Blackden has not met his burden of showing that clearly-established law in August 2010 precluded a reasonable trooper from believing the exigent-circumstances exception applied in this situation. And it is on that basis alone that we affirm the judge’s qualified-immunity ruling on this claim. Cf. generally PDK Labs., Inc, v. Drug Enft Admin., 362 F.3d 786, 799 (D.C. Cir. 2004) (Roberts, J., concurring in part and concurring in judgment) (emphasizing the raw truism that “if it is not necessary to decide more, it is necessary not to decide more”).

The First-Amendment Claim

The parties agree — or at least do not dispute — that

• “the First Amendment goes beyond protection of the press and the self-expression of individuals to prohibit government from limiting the stock of information from which members of the public may draw,” Glik v. Cunniffe, 655 F.3d 78, 82 (1st Cir. 2011) (quotation marks omitted);
• a critical “corollary to this interest ... is that there is an undoubted right to gather news from any source by means within the law,” id. (emphasis added) (quotation marks and alteration omitted) — remember that emphasized phrase; and
• news-gatherers “have no constitutional right of access” to a restricted area “when the general public is excluded,” Branzburg, 408 U.S. at 684-85, 92 S.Ct. 2646.

. But this Kumbaya-like vibe changes when the parties discuss the emphasized phrase from Glik — “by means within the law.” As Blackden sees it, that Trooper Decker possibly had probable cause to arrest him hardly means that he (Blackden) acted unlawfully when taking the pics at issue — a jury, Blackden writes, could find that he had acted above-board, given that the state “criminal charges against [him] were ultimately dismissed.” And because that is so, his argument continues, Trooper Decker is not qualifiedly immune from suit on the First-Amendment claim — despite what the judge ruled. Nonsense, says Trooper Decker: because Blackden (among other things) “gained access to the scene by deceptively operating” a repurposed ambulance “with red flashing lights” — don’t forget, Blackden’s attorney admitted below that his client was convicted of the red-light violation (turn back to footnote 5) — “Blackden was not acting ‘within the law ” and thus the judge rightly resolved the qualified-immunity defense in his favor. For our part, we see no reversible error either.

At qualified-immunity’s second step, Blackden must show that clearly-established law in August 2010 would have put Trooper Decker on clear notice of his potential First-Amendment liability. And regarding the “by means within the law” theory, Blackden points us to nothing that would have put a sensible trooper on notice in August 2010 that even if he (the trooper) had probable cause to pursue criminal charges against a photographer unauthorizedly in a restricted area and had talked to a prosecutor, he still could not have rationally concluded that the photographer had acted outside the law while shooting the photos. More, Blackden gives us no convincing reason to suppose that the pertinent constitutional principles were so particularized back then that Trooper Decker could not have rationally thought he had the legal wiggle room to do as he did — ie., he presents nothing to persuade us that Trooper Decker’s actions, like the actions of the welfare officials in the slavery hypothetical, constitute conduct so egregious that a reasonable official must have known it was unconstitutional.

So that there is no confusion about our holding on the First-Amendment claim: We do not say whether Trooper Decker’s actions did or did not violate Blackden’s First-Amendment rights. Nor do we say what a complete compendium of First-Amendment rights for news gathers is or should be. We say only that Blackden failed to identify clearly-established law as of August 2010 showing beyond debate that Trooper Decker’s specific acts violated the First Amendment. And that is that.

WRAP-UP

For the reasons recorded above, we affirm the judgment entered below.

      .We summarize the facts in the light most agreeable to Blackden and Belsito, the summary-judgment losers. See, e.g., Rivera-Corraliza v. Morales, 794 F.3d 208, 210 (1st Cir. 2015). Trooper Decker’s brief points out that the parties (and the judge) relied on his statement of undisputed facts sketched in his summary-judgment memo — plaintiffs’ memo opposing summary judgment "did not contest the facts described” in his summary-judgment papers, he adds. And plaintiffs’ reply brief does not contradict that point. So we ”deem[]” Trooper Decker’s fact statement "admitted.” See D. N.H. R. 56.1.

      . All towns mentioned in this opinion are in New Hampshire.

      . Blackden has also sent photos to various television stations and newspapers, like New England Cable News and the Concord Monitor.

      , "Exigent circumstances” is a fancy way of saying "there is an emergency or other urgent need.” United States v. Allman, 336 F.3d 555, 557 (7th Cir. 2003) (Posner, J., for the court).

      . Belsito and Blackden’s lawyer told the district judge in this case that his client’s red-light-violation conviction is "a valid conviction and it’s the only conviction of his” — at least that is what the judge said in his decision, and Belsito and Blackden’s briefs do not contradict that point.

      . Belsito and Blackden also sued Robert Quinn, in his official capacity as the Director of the Division of State Police, New Hampshire Department of Public Safety. But the judge granted Quinn’s motion to dismiss. And Belsito and Blackden do not challenge that ruling. So we say no more about Quinn.

      . We must address a party’s standing to push constitutional claims even if the claims are easier to resolve than the standing issue. See Steel Co. v. Citizens for a Better Env't, 523 U.S. 83, 99, 101, 118 S.Ct. 1003, 140 L.Ed.2d 210 (1998) (rejecting as "precedent-shattering” the idea that an "an ‘easy’ merits question may be decided on the assumption of jurisdiction,” and noting that "[hlypothetical jurisdiction produces nothing more than a hypothetical judgment — which comes to the same thing as an advisory opinion, disapproved by this Court from the beginning”).

      . Please note: because we resolve this case on the clearly-established ground, we express no view on the constitutionality of Trooper Decker's conduct, see Barton v. Clancy, 632 F.3d 9, 12, 30 n.20 (1st Cir. 2011) (taking a similar tack in a qualified-immunily case) — a point so important that we will repeat it again and again throughout this opinion.

      . A sibling circuit nicely explained why it is critically important to define the rights in question at the correct level of generality:
      If a court does not carefully define the right, it risks collapsing the two qualified-immunity inquiries into one, permitting the constitutional-violation inquiry always to answer the clearly established inquiry. Precedent demands instead that we go down the stairs of abstraction to a concrete, particularized description of the right. Though not too far down: just as a court can generalize too much, it can generalize too little. If it defeats the qualified-immunity analysis to define the right too broadly (as the right to be free of excessive force), it defeats the purpose of § 1983 to define the right too narrowly (as the right to be free of needless assaults by left-handed police officers during Tuesday siestas).
      Hagans v. Franklin Cty. Sheriff's Office, 695 F.3d 505, 508-09 (6th Cir. 2012).

      .Blackden does not argue that Trooper Decker should not have relied on the prosecutor’s approval.

      . To eliminate any confusion, we wish to emphasize that the slavery hypothetical discredits the notion that one must have a case on point, but one need not have a case as easily labeled "unconstitutional” as the slavery hypothetical to show a violation of clearly-established law.

      . Still hoping against hope for a reversal on the Fourth-Amendment ruling, Blackden suggests in a one-sentence footnote to his opening brief that "[a]ny claim by Decker that the preservation of images” amounts to exigent circumstances "is a bit suspect,” since he "did not bother to seize” other “potentially incriminating evidence,” like "Blackden’s vehicle or fire apparel.” But Blackden cites no clearly-established caselaw that would have put the Trooper on notice that his not seizing these other items made the camera seizure unlawful. Nor does he argue that this was so obvious a violation that any reasonable officer would have known about it. See Marrero-Méndez, 830 F.3d at 47. So Blackden’s footnote suggestion does not cut it.

      . See also Iacobucci v. Boulter, 193 F.3d 14, 25 (1st Cir. 1999) (explaining that because a journalist’s "activities were peaceful, not performed in derogation of any law, and done in the exercise of his First Amendment rights,” a police officer “lacked the authority” to arrest him for filming officials in the hallway outside a public meeting of a historic-district commission).

      . See also id. at 684, 92 S.Ct. 2646 (adding that "the First Amendment does not guarantee the press a constitutional right of special access to information not available to the public generally”); Cohen v. Cowles Media Co., 501 U.S. 663, 669, 111 S.Ct. 2513, 115 L.Ed.2d 586 (1991) (pointing out "that generally applicable laws do not offend the First Amendment simply because their enforcement against the press has incidental effects on its ability to gather and report the news”); Asociacion de Periodistas de P.R. v. Mueller, 529 F.3d 52, 58 (1st Cir. 2008) (emphasizing that “[t]he First Amendment does not grant the press a special right of access to property beyond the public domain”).

      . We repeat again what we said in footnote 10: Blackden makes no argument that Trooper Decker should not have relied on the prosecutor’s approval.


source: Caselaw Access Project

author: KAYATTA, Circuit Judge.

license: Public Domain

text:
    Ronnie JONES; Richard Beckers; Walter R. Washington; William E. Bridgeforth; Shawn N. Harris; Eugene Wade; George C. Downing, Jr.; Clararise Bristow; Massachusetts Association of Minority Law Enforcement Officers; Rachelle Couch; Keri Hogan, Plaintiffs, Appellants, v. CITY OF BOSTON; Boston Police Department; William B. Evans, Commissioner of the Boston Police Department, Defendants, Appellees.
    No. 15-2015
    United States Court of Appeals, First Circuit.
    December 28, 2016

      Lisa J. Pirozzolo, Boston, MA, with whom Jared B. Cohen, Livonia, MI, Jeffrey S. Olshan, Wilmer Cutler Pickering Hale and Dorr LLP, Boston, MA, Iván Espinoza-Madrigal, Oren M. Sellstrom, San Francisco, CA, Laura Maslow-Ar-mand, and Lawyers’ Committee for Civil Rights and Economic Justice, Boston, MA, were on brief, for appellants.
    Stephen S. Churchill and Fair Work, P.C., Boston, MA, on brief for Fair Employment Project, National Workrights Institute, Jewish Alliance for Law and Social Justice, Massachusetts Law Reform Institute, Boston Society of Vulcans of Massachusetts, Union of Minority Neighborhoods, Massachusetts Employment Lawyers Association, Brazilian Worker Center, Massachusetts Black Lawyers Association, Fair Housing Center of Greater Boston, and Community Change, Inc., am-ici curiae.
    Michael L. Foreman, Sarasota, FL, and Pennsylvania State University, Dickinson School of Law, Civil Rights Appellate Clinic on brief for National Employment Lawyers Association, Equal Justice Society, Justice at Work, and American Civil Liberties Union of Massachusetts, amici curiae.
    Helen G. Litsas, Boston, MA, with whom Law Office of Helen G. Litsas was on brief, for appellees.
    Before HOWARD, Chief Judge, SELYA and KAYATTA, Circuit Judges.
   KAYATTA, Circuit Judge.

Making their second appearance before this court are eight police officers, a police cadet, and a provisionally hired 911 operator (collectively, the “Officers”), who claim that they suffered adverse employment actions by the Boston Police Department (“Department”) as a result of a racially discriminatory hair drug test. Eschewing any claim that the Department discriminated against them intentionally, the Officers advance a so-called disparate impact claim under Title VII of the Civil Rights Act of 1964. See 42 U.S.C. § 2000e-2(k). Adjudicating the question of liability under such a claim begets a three-prong, sequential inquiry. See Lopez v. City of Lawrence, 823 F.3d 102, 110-11 (1st Cir. 2016). In our prior opinion, we held that the Officers — all of whom identify as black— had established under the first prong of that inquiry that the hair drug test caused a cognizable disparate impact. See Jones v. City of Boston (“Jones I”), 752 F.3d 38, 60 (1st Cir. 2014). We remanded the case to the district court to consider the next two prongs by determining, either on summary judgment or after trial, as appropriate: (1) whether the Department’s drug testing program was job related and consistent with business necessity; and, if so, (2) whether the Department refused to adopt an available alternative that would have met the Department’s legitimate needs while having less of a disparate impact.

On remand, the district court again entered summary judgment for the Department, concluding that the evidence could not support a jury verdict for the Officers on either of the remaining prongs of the disparate impact liability inquiry. We now vacate that judgment, albeit only in part. Although the drug test was indisputably job related and its use was consistent with business necessity, a reasonable factfinder could nevertheless conclude that the Department refused to adopt an available alternative to the challenged hair testing program that would have met the Department’s legitimate needs while having less of a disparate impact. Our reasoning follows.

I. Background

Our prior opinion details much of the relevant factual background. See Jones I, 752 F.3d at 42-46. In a nutshell, from 1999 to 2006, the Department administered a hair drug test to thousands of officers, cadets, and job applicants. The testing procedure called for the gathering of a hair sample, which was then “washed” and analyzed for the presence of cocaine, marijuana, opiates, POP, and amphetamines. Upon detecting cocaine in a hair sample, a licensed physician would determine whether legally administered medication could have caused the positive result. The individual who tested positive was also permitted to submit a second sample for a so-called “safety-net” test.

The results were negative for over 99% of the white individuals tested and over 98% of the black individuals tested. The Officers now before us, however, were among the fewer than two percent of black individuals who tested positive for cocaine. As a result, nine lost a job or job offer, and one received an unpaid suspension subject to participation in a drug rehabilitation and testing program.

In the first go-around, the district court relied on a rule of thumb promulgated by the U.S. Equal Employment Opportunity Commission (“EEOC”) to declare that there was no actionable disparate impact, because the one-percent difference in pass rates between white and black officers was so miniscule as to be of no practical significance. We, in turn, found the EEOC rule of thumb not controlling. See id. at 52. Instead, because the difference in exam results by race was indisputably statistically significant, we concluded that the Officers prevailed as a matter of law on the first prong of the three-prong disparate impact inquiry. Id. at 60. On remand, the case was randomly assigned to a new district court judge in accord with the district’s customary practice.

In short order, the parties marshalled their evidence, mostly in the form of competing expert opinions concerning the reliability of the test, together with affidavits from the Officers denying drug use. In a lengthy and attentive opinion, the district court found that no reasonable jury could rule in favor of the Officers on either of the two remaining prongs. Specifically, the court found that the Department “demonstrated ... the business necessity and job relatedness of the hair drug test,” Jones v. City of Boston, 118 F.Supp.3d 425, 440 (D. Mass 2015), and that the Officers failed to offer “any compelling evidence of the [Department’s] refusal to consider and adopt an alternative equally valid procedure,” id. at 446. The Officers appeal both findings.

II. Discussion

Ruling on a motion for summary judgment, the district court was required to assume that any disputes of material fact-including conflicting opinions offered by competent experts — could be resolved by the jury in the Officers’ favor. See Cortés-Irizarry v. Corporación Insular de Seguros, 111 F.3d 184, 191 (1st Cir. 1997). On appeal, we must also so assume, see Sensing v. Outback Steakhouse of Fla., LLC, 575 F.3d 145,153 (1st Cir. 2009), and we consider the summary judgment ruling de novo, Martinez v. Petrenko, 792 F.3d 173,179 (1st Cir. 2015).

A. Job-Relatedness and Consistency with Business Necessity

We consider first whether a reasonable jury could find that the Department’s use of the hair drug test to terminate or suspend officers was “job related ... and consistent with business necessity.” 42 U.S.C. § 2000e-2(k)(l)(A)(i). The parties agree that “abstention from drug use is an important element of police officer behavior,” and is thus job related. The Officers also quite understandably concede that selecting police officers for retention or discharge based on that job-related behavior is consistent with business necessity. The pivotal question, therefore, is whether a reasonable jury could nonetheless find that the hair drug test as used by the Department was so unreliable that its use did not meaningfully further the Department’s legitimate need for a drug-abstaining police force. See Jones I, 752 F.3d at 54 (suggesting that the ham test would have to be “so unreliable that its results have no significant correlation with drug use”); see also Lopez, 823 F.3d at 111 (“[A] selection practice is valid if it materially enhances the employer’s ability to pick individuals who are more likely to perform [their jobs] better than those not picked.” (emphasis added)).

Certainly, the evidence would allow a reasonable jury to find that the hair test as employed by the Department was not 100% reliable because (according to the Officers’ experts) it could not always distinguish between ingestion of drugs and contamination of the hair by environmental exposure to drugs. The Officers’ experts further testified that this inability to distinguish unerringly between ingestion and exposure could well have caused the disparate impact because, at the margins, black hair, especially if damaged by some cosmetic treatments more commonly used by black individuals, is more likely to absorb and retain contaminants to which the hair might be exposed.

So far, so good for the Officers. The problem, though, is that a finding that all of the test’s few positive results might not have accurately distinguished between ingestion and exposure logically falls short of establishing that using the test to move towards a drug-abstaining police force did not further the Department’s important needs. To evaluate the reliability of the hair drug test in this context, one must consider the test as a whole and the relative numbers of errors among both the positive and negative results.

The Department employs thousands of officers. It would like to know which officers abstain from drug use and which do not. As best the record reveals — and no party argued otherwise to the district court — the negative hair test results were all accurate. This means that the ham test was accurate in the overwhelming majority of cases, reliably confirming that almost all officers, irrespective of race, very likely abstained from using the tested-for drugs within as many as ninety days prior to the test. This undisputed high degree of accuracy is far beyond what we have recently and repeatedly indicated satisfies the employer’s burden of proving that a challenged employment practice furthers an important need of the employer. See Jones I, 752 F.3d at 54; see also Lopez, 823 F.3d at 111. It also eliminates any reason to look at the technical guidance for assessing job relatedness promulgated by the EEOC. See Lopez, 823 F.3d at 112.

Of course, unless the test was 100% accurate at distinguishing exposure from ingestion, obtaining a drug-abstaining police force in this manner could well have been unfair to some of the few officers who received positive results. As we will discuss, this potential unfairness was the focus of a state administrative “just cause” adjudication. The second prong of the disparate impact inquiry, though, focuses only on the reliability of the test in meeting the employer’s needs. See Albemarle Paper Co. v. Moody, 422 U.S. 405, 431, 95 S.Ct. 2362, 45 L.Ed.2d 280 (1975). And as we have previously stated, see Lopez, 823 F.3d at 119, there is no reason why a test need be anything near 100% reliable (few tests are) to be consistent with business necessity (keeping in mind that the presence of an alternative method that would have had less of a disparate impact will still be relevant under the third prong of the inquiry).

Notwithstanding the foregoing reasoning, the Officers argue that a ruling in 2013 by the Massachusetts Civil Service Commission (“MCSC”) collaterally precludes the Department from claiming that the hair test was job related and consistent with business necessity. In that ruling, the MCSC overturned most (but not all) of the Officers’ dismissals, determining that a positive hair test was insufficiently reliable by itself to establish just cause for termination by a preponderance of the evidence. Both the Massachusetts Superior Court, see Bos. Police Dep’t v. Civil Serv. Comm’n, Nos. 13-1250-A & 13-1256-A, slip op. at 20-21 (Mass. Super. Ct. Oct. 6, 2014), and the Massachusetts Court of Appeals, see Thompson v. Civil Serv. Comm’n, 90 Mass.App.Ct. 462, 59 N.E.3d 1185, 1190 (2016), have since affirmed the MCSC’s conclusions regarding the reliability of the positive results generated by the hair drug test.

We review the applicability vel non of issue preclusion de novo. Monarch Life Ins. Co. v. Ropes & Gray, 65 F.3d 973, 978 (1st Cir. 1995). A party advocating for issue preclusion must show (among other things) that “the issues raised in the two actions are the same” and “the determination of the issue was necessary to that judgment.” Manganella v. Evanston Ins. Co., 700 F.3d 585, 591 (1st Cir. 2012). “The identity of the issues need not be absolute; rather, it is enough that the issues are in substance identical.” Id. (citing Montana v. United States, 440 U.S. 147, 155, 99 S.Ct. 970, 59 L.Ed.2d 210 (1979)).

The issue before the MCSC was whether a positive test result by itself was just cause for terminating a tenured public employee. That is simply not an issue in this case. The Officers nevertheless point out that the MCSC made a subsidiary finding that the positive results failed to show that drug ingestion was more likely than not. There is nothing in this finding, though, that conflicts with the district court’s central conclusion that use of the hair drug test furthered the Department’s legitimate need to have a police force comprised of officers who abstain from using the tested-for drugs. Indeed, the MCSC expressly stated that the test “has a legitimate place in narrowing down which of its few officers may reasonably be suspected of abusing illicit drugs.” This statement supports, rather than precludes, the district court’s conclusion that the use of the drug test furthered a significant employer need. The MCSC parted company with the district court only to the extent that the MCSC was required to ask a further question not germane to the district court’s inquiry, i.e., whether a reasonable suspicion of illicit drug use was “just cause” for terminating a tenured public employee.

We therefore agree with the district court that the record in this case (even including the MCSC’s findings) renders unreasonable any claim that the Department has not proved that its use of the hair test was job related and consistent with business necessity.

B. Refusal to Adopt Available Alternative that Would Have Met Employer’s Legitimate Needs with Less Disparate Impact

Our conclusion that a reasonable jury would have to find that the hair drug test was job related and consistent with business necessity does not mean that it was necessarily lawful to use the disparately impactful test. Rather, it brings us to the third and final prong of the disparate impact liability inquiry: whether the evidence could support a jury finding that the Department nevertheless “refuses to adopt an available alternative employment practice that has less disparate impact and serves the employer’s legitimate needs.” Ricci v. DeStefano, 557 U.S. 557, 578, 129 S.Ct. 2658, 174 L.Ed.2d 490 (2009) (citing 42 U.S.C. § 2000e-2(k)(l)(A)(ii), (C)). Application of this prong in this case turns on the answers to three questions: First, does the record contain evidence that would allow a jury to find that there was an “alternative” method of meeting the Department’s legitimate needs? Second, does the record also allow a jury to find that adopting that alternative method would have had less of a disparate impact? And finally, could a jury find that the Department “refuses to adopt” that alternative method? We consider each question in turn.

1. Could a reasonable jury find that an alternative drug-testing method would have met the Department’s legitimate needs?

With relatively little explanation or elaboration, the Officers’ opening brief offers four proposed alternatives to the hair drug test, only one of which it subsequently contends the Department refused to adopt even though it would have been equally effective in meeting the Department’s needs and less disparately impactful. The parties refer to that alternative as “hair testing plus urinalysis.” By this, the Officers mean the following: first, administer the hair test to all officers (which will clear over 98% of the individuals tested); then, administer a follow-up series of random urinalysis tests only to those officers who receive positive results on the hair test; and discharge (or suspend, pending rehabilitation and further drug testing) only those who flunk one of the follow-up random urinalysis tests.

This approach would have fully replicated the results of the hair test alone except, a jury might find, it would have cleared those who received a positive hair test yet were likely not using cocaine. And if the urinalysis tests continued randomly over the course of more than ninety days, they would have confirmed a period of drug abstention equal to that confirmed by a negative hair test.

Would this alternative have equally met the Department’s needs? A reasonable jury might so find. Keep in mind that the Department already used a series of negative urinalysis tests as a basis to reinstate suspended officers who tested positive on the hair test: officers who tested positive on the hair test under the challenged practice could choose to admit to drug use; receive a forty-five day unpaid suspension; undergo drug rehabilitation; and submit to frequent, random urinalysis for three years. The only difference between the challenged practice and the proposed “hair testing plus urinalysis” alternative is that firing (or suspension and drug rehabilitation) preceded the urinalysis testing in the actual regime, whereas no change in employment status would have occurred until after urinalysis confirmation in the alternative scheme. Additionally, Department policy has long permitted supervisors with a reasonable suspicion that an officer is using drugs to order urinalysis screening of that officer. That the Department used urinalysis in these scenarios — where officers had already tested positive for drugs or were reasonably suspected of using drugs — naturally suggests that the Department viewed random urinalysis as an acceptably reliable method for detecting drug use on a targeted (rather than mass) basis. To the extent that a concern with urinalysis is its manipulability, a jury could find that the more frequent and randomized nature of the Officers’ proposed urinalysis program would have sufficiently minimized such a concern.

Crucially, the alternative would have retained the main benefit of the challenged drug testing program: using a relatively unintrusive, easy-to-supervise hair test to generate the negative results that confirm that almost all officers, regardless of race, do not use illegal drugs. All in all, we think that this is a close enough call that a jury could conclude that the Officers’ proffered alternative equally would have met the Department’s needs. Indeed, if a jury believed the thrust of the Officers’ evidence, it might conclude that the alternative test method would have saved the Department from losing several veteran officers who were not using cocaine.

2. Could a reasonable jury find that the alternative would have generated less of a disparate impact?

In Jones I, we observed that “[a] plaintiff who subjects a defendant’s job-related practice to the sensitivity of a large sample analysis can fairly be required to show through statistical evidence, and with equal confidence, that the proffered alternative practice will have a smaller impact, except where the alternative is self-evidently incapable of causing a differential.” 752 F.3d at 53. The Department reads this statement as always requiring a new, large-sample statistical analysis that specifies the precise impact of an alternative practice. We reject this overly narrow reading of the manner by which statistical evidence can be marshalled. Rather, the plaintiff in some situations can use the statistically determined impact of the challenged process as a baseline, and demonstrate that the alternative practice must necessarily be less. Suppose, for example, that an employer selected job applicants by height, creating a disparate gender impact revealed through a large-sample statistical analysis. If the proposed alternar tive were to use a random selection tool (such as a coin flip), it would be self-evident that the impact would be less; hence, there would be no need for actually running the numbers through a new analysis.

Here, if the jury were to believe the Officers and their experts rather than the Department and its experts, it would be self-evident that the “hair testing plus urinalysis” alternative would have generated less of a disparate impact than that revealed by the large-sample statistical analysis of the hair drug test results. The jury could find that the hair test alone can generate false positives for some black individuals, that black individuals have no greater likelihood of receiving a false positive result from urinalysis than do white individuals, and that the Officers (who swear that they did not use cocaine) more likely than not received false positive results that urinalysis would have identified as such. Given such findings, the alternative would necessarily have resulted in the termination of a lower ratio of black officers to white officers. That is, because the statistical analysis of the challenged practice shows an overall disparate impact of X, where the number of black officers with positive results was Y, a reduction in Y alone would necessarily have resulted in an overall disparate impact of less than X,

None of this is to say that the jurors must so find. The jury could conclude, for example, that the hah- test as administered by the Department did not generate false positives based on race, and hence, that the alternative would not have had a lesser disparate impact. The point is that, though the evidence is conflicting, the mathematical import of either conflicting view is self-evident. A jury could therefore find that the Officers’ proposed alternative would have had less of a disparate impact than that resulting from the challenged practice.

3. Could a reasonable jury find that the Department “refuses” to adopt the alternative?

Title VII requires as an element of a successful disparate impact claim a finding that “the [employer] refuses to adopt such alternative employment practice.” 42 U.S.C. § 2000e-2(k)(l)(A)(ii). This language is susceptible to a number of different readings. Does an employer only “refuse to adopt” an alternative practice if the employer knows it will meet its needs and have less of a disparate impact? If this were a correct reading, then a finding for plaintiffs on the third prong of the disparate impact inquiry would effectively constitute a finding of intentional discrimination. Cf. Wards Cove Packing Co. v. Atonio, 490 U.S. 642, 660-61, 109 S.Ct. 2115, 104 L.Ed.2d 733 (1989) (observing that a refusal to adopt an alternative “would belie a claim by petitioners that their incumbent practices are being employed for nondiseriminatory reasons”), superseded by statute, Civil Rights Act of 1991, Pub. L. No. 102-166, 105 Stat. 1074; Albemarle Paper Co., 422 U.S. at 425, 95 S.Ct. 2362 (“Such a showing would be evidence that the employer was using its tests merely as a ‘pretext’ for discrimination.”). As we have previously observed, however, “proof of a disparate impact claim requires no proof of intentional discrimination.” Jones I, 752 F.3d at 50; see also Ricci, 557 U.S. at 583, 129 S.Ct. 2658.

Other possible readings of the statute remain. Is it enough that the alternative was available and not used, or must its availability have been known? Must it be specifically proposed, like a dinner special at a restaurant, or is it enough that it was on the known menu of options and not selected? What are we to make of the statute’s use of the present tense (“refuses”)? The parties provide no express discussion of these nuances. Indeed, their briefs contain no acknowledgement that there are meaningfully different possible readings of the statutory text. The only cases upon which the Officers rely are the Seventh Circuit’s decisions in Adams v. City of Chicago, 469 F.3d 609 (7th Cir. 2006), and Allen v. City of Chicago, 351 F.3d 306 (7th Cir. 2003). The Department, too, urges us to follow the Seventh Circuit, pointing specifically to Allen. The formulation employed in Allen and repeated in Adams is that “the statutory scheme requires plaintiffs to demonstrate a viable alternative and give the employer an opportunity to adopt it.” Adams, 469 F.3d at 613 (quoting Allen, 351 F.3d at 313). Adams elsewhere seems to suggest that the employer is given an opportunity to adopt the alternative if the employer “had an opportunity” to adopt it, see id. at 613, 616, and that such an “opportunity” existed if the alternative was “available,” see id. at 614, and the employer was free to adopt it, see id. at 615 n.4.

Confronted with the limited briefing on point, and the parties’ consensus in pointing to Seventh Circuit precedent, we will follow the path of Allen and Adams by default (rather than by decision). We asked at oral argument whether there was evidence in the record that the “hair testing plus urinalysis” alternative was available to the Department at a time relevant to this lawsuit. The Officers’ counsel directed us only to the fact that in 2003, they gave the Department an affidavit signed by their expert, Dr. Kidwell, proposing the alternative. This affidavit by Dr. Kidwell is the same evidence on which plaintiffs relied in the district court. The affidavit appears to be an expert disclosure detailing Dr. Kidwell’s opinions on hair testing as well as “more enlightened approaches] to drug testing,” which include hair testing followed by random, frequent urinalysis. It is dated June 3, 2003. Plaintiffs’ “Additional Statement of Material Facts” states that “[a]s early as 2003, Dr. Kidwell suggested alternative methods” of testing for drug use to the Department, pointing to this affidavit as evidence of the fact. The Officers make no claim that the alternative was otherwise “available” before Dr. Kid-well proposed it. Exactly when in 2003 the suggestion was made is not revealed. We infer that it was when the affidavit was served on the Department’s counsel sometime that year. In any event, the affidavit does indeed propose that the Department could use what we refer to as the “hair testing plus urinalysis” alternative.

Accordingly, we agree with the Officers that the summary judgment record reveals a material dispute of fact concerning whether, sometime in 2003, the Department, by continuing to administer the challenged hair test, “necessarily ... refused to adopt” the alternative made available to it by the suggestion of Dr. Kidwell. See Ricci, 557 U.S. at 589, 129 S.Ct. 2658. The parties appear to agree that some (but not all) of the Officers were selected for termination or suspension after Dr. Kidwell submitted his affidavit to the Department in 2003. Those Officers, but not the others, could succeed at trial under the third prong of the disparate impact inquiry. Precisely which Officers’ claims survive based on this timeline can be determined in the district court on remand.

III. Conclusion

In sum, we affirm the district court’s ruling on summary judgment that the Department’s use of the hair test was job related and consistent with business necessity, but we vacate the district court’s grant of summary judgment to the Department on the third prong of the disparate impact inquiry. The record contains sufficient evidence from which a reasonable factfinder could conclude that hair testing plus a follow-up series of random urinalysis tests for those few officers who tested positive on the hair test would have been as accurate as the hair test alone at detecting the nonpresence of cocaine metabolites while simultaneously yielding a smaller share of false positives in a manner that would have reduced the disparate impact of the hair test. We also think that, on the present record, a reasonable factfinder could conclude that the Department in 2003 refused to adopt this alternative. We remand for further proceedings consistent with this opinion. The district court will decide at the time of final judgment whether costs of this appeal are to be shifted in favor of a finally prevailing party under any applicable statute.

      . The Officers do not claim that all of the positive results were inaccurate.

      . The district court found that the Officers failed to show that use of urinalysis testing in lieu of hair testing would have sufficed. Urinalysis detects only very recent cocaine use (within two days), whereas hair testing detects cocaine use for a much longer period (within as many as ninety days). If urinalysis were administered frequently enough to all officers, it might be prohibitively expensive. See Watson v. Fort Worth Bank & Tr., 487 U.S. 977, 998, 108 S.Ct. 2777, 101 L.Ed.2d 827 (1988) (plurality opinion) ("Factors such as the cost or other burdens of proposed alternative selection devices are relevant in determining whether they would be equally as effective as the challenged practice in serving the employer's legitimate business goals.”). Particularly if it were administered on thousands of occasions, urinalysis might be easier to tamper with. And as a more intrusive test (especially if done in a manner that avoids tampering), its use without individualized suspicion might well be legally problematic. See Guiney v. Police Comm'r, 411 Mass. 328, 582 N.E.2d 523, 526-27 (1991). The Officers concede little of the foregoing, but nevertheless do not press on appeal the substitution of urinalysis as an alternative to hair testing.

      . Similarly, while it may be within the scope of inquiry to consider the putative costs of the Officers’ proposed alternative, see Watson, 487 U.S. at 998, 108 S.Ct. 2777 (plurality opinion), a reasonable jury could find that there would have been no material cost differential, especially given that the Department had shown a willingness to assume those costs by virtue of the rehabilitation option that it offered (and continues to offer) to all officers who tested positive on the hair test.

      . We note that the challenged hair test program itself was not intended to catch all use of illegal drugs. Rather, the aim was to ensure that there was at least a sixty- to ninety-day period of abstention.

      . This point is undisputed.


author: BURROUGHS, District Judge.

text:
    YE Xian Jing, a/k/a Xian Jing Ye, Petitioner, v. Loretta E. LYNCH, Attorney General of the United States, Respondent.
    No. 16-1290
    United States Court of Appeals, First Circuit.
    January 4, 2017

      Gerald Karikari and Karikari & Associates, P.C., New York, NY, on brief for petitioner.
    Benjamin C. Mizer, Principal Deputy Assistant Attorney General, Civil Division, United States Department of Justice, Emily Anne Radford, Assistant Director, and Aric A. Anderson, Trial Attorney, Office of Immigration Litigation, on brief for respondent.
    Before LYNCH and SELYA, Circuit Judges, and BURROUGHS , District Judge.

       Of the District of Massachusetts, sitting by designation.

   BURROUGHS, District Judge.

Ye Xian Jing a/k/a Xian Jing Ye (‘Ye”), a native of China, filed a petition for review of a Board of Immigration Appeals (“BIA”) decision, which dismissed his appeal of the Immigration Judge’s (“IJ”) denial of his applications for asylum, withholding of removal, and protection under the Convention Against Torture (“CAT”). Because the BIA’s decision was supported by substantial evidence, we deny the petition.

I. BACKGROUND

On July 19, 2012, Ye, a citizen of China, entered the United States without admission or parole in Arizona. He was detained by the Department of Homeland Security (“DHS”), and interviewed (the “DHS Interview”) on July 19, 2012. The record of the DHS Interview includes a three-page “Record of Sworn Statement in Proceedings Under Section 235(b)(1) of the Act” (hereinafter, the “Sworn Statement”) and a one-page “Jurat for Record of Sworn Statement in Proceedings under Section 235(b)(1) of the Act” (hereinafter, the “Ju-rat”).

The Sworn Statement, dated July 19, 2012, indicates that a Mandarin interpreter was used, and that Ye was advised by a Border Patrol agent that “U.S. law provides protection to certain persons who face prosecution, harm or torture upon return to their home country.” The Border Patrol agent also informed Ye that “[i]f you fear or have a concern about being removed from the United States or about being sent home, you should tell me so during this interview because you may not have another chance.” Ye said he understood. When asked why he came to the United States, Ye answered “I just wanted to come to the United States.” When asked if he wanted to add anything at the end of the interview, Ye indicated that there was nothing else he wanted to say. Despite being specifically warned that he might not have another opportunity to raise his fears or concerns regarding removal later, Ye did not raise his alleged past persecution or fear of future persecution. Ye signed all three pages of the Sworn Statement.

The Jurat, dated July 20, 2012, is also signed by Ye, and appears to be part of the same interview documented in the Sworn Statement. The Jurat contained Ye’s answers to a series of questions, including that he had left China “to live and work,” that he had no fear or concern about returning, and that he would not be harmed if he returned.

Thereafter, Ye expressed a fear of returning to China, and in November 2012 he was given a “credible fear interview,” where he stated that when he was in China he had been arrested and beaten by Chinese authorities at an unauthorized house church and then detained for over a month. On November 14, 2012, an asylum officer determined that Ye had expressed a credible fear of persecution. He was subsequently charged with being removable as an alien seeking admission without required documents. He filed an asylum application, requested withholding of removal, and sought protection under CAT. In response, DHS submitted the July 19 and July 20, 2012 Sworn Statement and Jurat.

On September 4, 2014, the IJ held a hearing on the asylum application, request for withholding of removal, and CAT protection claim. Ye and a friend with whom he attended church in the United States testified, and he submitted a 2012 State Department report on religious freedom in China. During his testimony, Ye conceded his removability, but testified that he feared religious persecution in China if he returned and that he had suffered a specific instance of religious persecution by Chinese officials in the past. Ye admitted that during the DHS Interview he had answered questions through an interpreter, that the interpreter had read back the answers, and that Ye had then signed all of the pages, indicating that the answers were accurate and truthful. Ye also testified that he had not understood all of the questions, that he had been nervous during the interview, and that he had feared he would be sent back to China for saying the “wrong thing.” At no point did he distinguish between the Sworn Statement and the Jurat. The 2012 State Department report on religious freedom in China, submitted to the IJ, contained some general evidence of problems certain Christians have faced in some parts of China.

At the conclusion of the hearing, the IJ denied all of Ye’s claims and ordered him removed from the United States. In support of his decision, the IJ found that Ye was not credible. Relying largely on the DHS Interview, he reasoned it was “absolutely inconceivable that if those events [being beaten and kicked by the police, arrested, and detained in China] had occurred and if indeed the respondent had left China for the sole purpose of escaping that persecution, that he would have failed to mention those events to the Border Patrol agents.” The IJ found that Ye “ha[d] failed to provide a rational and reasonable explanation for his failure to state his claim to the Border Patrol agent.”

Ye appealed the decision of the IJ, noting, inter alia, that the dates on the Sworn Statement and Jurat did not match. On February 18, 2016, the BIA dismissed Ye’s appeal. The BIA upheld the IJ’s denial of the asylum and withholding of removal applications, and concluded that Ye’s CAT claim failed because “the facts do not demonstrate that the respondent would more likely than not be tortured in China by or with the acquiescence of a public official or other person acting in an official capacity.” In reaching this outcome, the BIA adopted and affirmed the IJ’s adverse credibility determination because “the IJ articulated specific, cogent reasons based in the record for finding that the respondent was not credible.” The BIA noted that Ye raised the issue of the Jui-at’s date for the first time on appeal, but concluded that he “ha[d] not shown that this affects the substance of his interview.” In upholding the adverse credibility finding, the BIA emphasized that Ye had an interpreter during the DHS Interview, that he understood the interpreter, that he was re-read his answers, and that he signed the interview record attesting that his answers were truthful and accurate. The BIA additionally noted that Ye did not tell the Border Patrol agent that he was nervous or unable to understand the questions. The BIA also held that Ye’s alternative argument, that despite the adverse credibility determination he had established a well-founded fear of future persecution, was not raised below, and further, that it was meritless based on the record. On March 14, 2016, Ye petitioned for review of the dismissal.

II. STANDARD OF REVIEW

“We review the decision of the BIA and ‘those portions of the [IJ]’s opinion that the BIA has adopted.’ ” Pheng v. Holder, 640 F.3d 43, 44 (1st Cir. 2011) (quoting Romilus v. Ashcroft, 385 F.3d 1, 5 (1st Cir. 2004)). Questions of law are reviewed de novo, with appropriate deference to the agency’s interpretation of the statute it administers. Romilus, 385 F.3d at 5. We review questions of fact, including credibility determinations, under the substantial evidence standard, reversing “only if ‘a reasonable adjudicator would be compelled to conclude to the contrary.’ ” Pheng, 640 F.3d at 44 (quoting Castillo-Diaz v. Holder, 562 F.3d 23, 26 (1st Cir. 2009)) (further internal quotation marks omitted).

III. DISCUSSION

Ye has the burden of establishing eligibility for asylum, withholding of removal, or CAT protection. See Wen Feng Liu v. Holder, 714 F.3d 56, 60 (1st Cir. 2013). In his petition for review, with respect to his asylum application, Ye argues (1) that the IJ clearly erred in finding him not credible, and (2) that regardless of any adverse credibility finding, he independently established a well-founded fear of persecution. Ye makes the same arguments with respect to his application for withholding for removal. Finally, he argues that no substantial evidence supported the rejection of his CAT claim.

A. Asylum,

To qualify for asylum, an applicant must be a “refugee,” who faces “persecution or [has] a well-founded fear of persecution on account of race, religion, nationality, membership in a particular social group, or political opinion” in his country of citizenship or where he “last habitually resided.” 8 U.S.C. §§ 1101(a)(42)(A), 1158(b)(1)(A). “A well-founded fear of future persecution must be both subjectively authentic and objectively reasonable,” so that “an alien must show that he genuinely fears persecution were he to be repatriated and that his fear has an objectively reasonable basis.” Villafranca v. Lynch, 797 F.3d 91, 95 (1st Cir. 2015). A well-founded fear of persecution is presumed if the applicant establishes past persecution, but the presumption can be rebutted. 8 C.F.R. § 1208.13(b). The crux of Ye’s petition is his challenge to the IJ’s determination that he was not credible, and the BIA’s acceptance of that adverse credibility determination. Ye also argues that, even if the adverse credibility determination stands, he established a well-founded fear of future persecution.

Credible testimony can satisfy an applicant’s burden of proof, but an IJ is “entitled to evaluate the asylum-seeker’s credibility.” Muñoz-Monsalve v. Mukasey, 551 F.3d 1, 8 (1st Cir. 2008). Congress codified guidance on how a factfinder should make credibility determinations in such cases:

Considering the totality of the circumstances, and all relevant factors, a trier of fact may base a credibility determination on the demeanor, candor, or responsiveness of the applicant or witness, the inherent plausibility of the applicant’s or witness’s account, the consistency between the applicant’s or witness’s written and oral statements (whenever made and whether or not under oath, and considering the circumstances under which the statements were made), the internal consistency of each such statement, the consistency of such statements with other evidence of record (including the reports of the Department of State on country conditions), and any inaccuracies or falsehoods in such statements, without regard to whether an inconsistency, inaccuracy, or falsehood goes to the heart of the applicant’s claim, or any other relevant factor.

8 U.S.C. § 1158(b)(l)(B)(iii). An applicant’s demeanor at a hearing, which the IJ is best positioned to assess, “is often a critical factor in determining [his] truthfulness.” Wen Feng Liu, 714 F.3d at 61 (quoting Laurent v. Ashcroft, 359 F.3d 59, 64 (1st Cir. 2004)). An IJ may ultimately disregard or discount incredible evidence. Pan v. Gonzales, 489 F.3d 80, 86 (1st Cir. 2007).

There was substantial evidence supporting the IJ’s adverse credibility determination and the BIA’s acceptance of it. In supporting the determination, the IJ and BIA relied heavily on the DHS Interview and the fact that Ye omitted any mention whatsoever of past persecution, a fear of future persecution, or events that might imply such a fear despite the fact that he received a direct instruction soliciting such information and a warning that he might not have the opportunity to disclose his fear later. Further, the IJ and BIA relied specifically on the Jurat in which Ye affirmatively stated that he was not afraid of returning home and that he would not be harmed if he did so. In a situation where “petitioner has told different tales at different times,” “a judge is entitled to ‘sharply discount’ the testimony.” Muñoz-Monsalve, 551 F.3d at 8 (quoting Pan, 489 F.3d at 86). The BIA also explained in detail that Ye’s testimony before the IJ supported the IJ’s reliance on the DHS Interview; namely, Ye’s own testimony confirmed that he understood the questions, that the interpreter read the answers back to him to verify their accuracy, and that Ye signed the interview attesting to its accuracy and truthfulness. Under § 1158(b)(l)(iii), the IJ was entitled to rely on the DHS Interview, its surrounding circumstances, the omissions it evidenced, and its inconsistency with both the subsequent credible fear interview and Ye’s hearing testimony in reaching the adverse credibility determination. Because “determining credibility is a matter of sound judgment and common sense ..., when an alien’s earlier statements omit any mention of a particularly significant event or datum, an IJ is justified — at least in the absence of a compelling explanation — in doubting the petitioner’s veracity.” Wen Feng Liu, 714 F.3d at 61 (quoting Muñoz-Monsalve, 551 F.3d at 8).

The IJ and BIA did not err in finding that Ye’s explanations for the inconsistency between the DHS Interview and later claims, which included nerves, lack of understanding, and the difficult journey, were insufficiently compelling. The BIA noted that Ye never told the Border Patrol agent that he could not understand the questions or that he was too nervous to be accurate. The BIA clearly articulated its reasons for treating the DHS Interview as reliable: the interview record and Ye’s subsequent testimony indicated that an interpreter was used, that Ye understood the questions asked, and that he attested to the accuracy and truthfulness of his answers. In finding Ye not credible in his explanation that he did not understand the questions, the IJ emphasized that Ye had admitted to answering at least some of the questions during the DHS Interview correctly, which undermined his claim that he could not understand what he was being asked. The IJ reasonably found it implausible that Ye would have so blatantly omitted any mention of the alleged past persecution from the DHS Interview if it had actually happened. Finally, the BIA explained that it relied on the DHS Interview despite the different dates on the Jurat and the Sworn Statement because Ye did not raise the issue of the dates before the IJ and also failed to explain why any such discrepancy substantially affected the record.

Ye next argues that the border interview was unreliable and urges us to assess its reliability under the Second Circuit standard as set forth in Ramsameachire v. Ashcroft, 357 F.3d 169, 180 (2d Cir. 2004). This Circuit does not require IJs to undertake an inquiry into the reliability of initial interviews with Border Patrol agents using specifically enumerated factors. See, e.g., Conde Cuatzo v. Lynch, 796 F.3d 153, 156 (1st Cir. 2015) (finding inconsistencies across three interviews, including omissions in initial interview with Border Patrol, to support IJ’s adverse credibility determination); see also Jianli Chen v. Holder, 703 F.3d 17, 23 (1st Cir. 2012) (holding that BIA could rely on a form customarily prepared by Border Patrol agents in supporting adverse credibility determination because “[i]t is normally enough if the IJ reasonably finds a proffered piece of evidence to be reliable and its use to be fundamentally fair”). Ye has failed to persuade us that the current case law in this Circuit and the applicable statutes provide insufficient guidance on making credibility determinations. Section 101(a)(3) of the REAL ID Act outlines how IJs must make credibility determinations, and was added following the decision in Ramsameachire. See REAL ID Act of 2005, Pub. L. No. 109-13, Div. B, Title I, § 101(a)(3), 119 Stat. 302, 303 (codified at 8 U.S.C. § 1158(b)(l)(B)(iii)). Section 101(a)(3) specifically allows IJs to consider “the consistency between the applicant’s or witness’s written and oral statements (whenever made and whether or not under oath, and considering the circumstances under which the statements were made).” 8 U.S.C. § 1158(b)(l)(B)(iii). For all the reasons already stated, including the confirmatory statements by Ye during his testimony before the IJ, the BIA’s reliance on the Sworn Statement and Jurat was reasonable and supported by substantial evidence. Thus, substantial evidence supported the adverse credibility determination. Given that Ye’s claim of past persecution relied on his credibility, the BIA also did not err in concluding that Ye failed to establish his eligibility for asylum based on past persecution.

Ye claims that, regardless of any adverse credibility finding, he nonetheless adequately established a well-founded fear of future persecution. The argument runs as follows: because there is a pattern or practice of persecuting Christians in China and because Ye is Christian, Ye had a well-founded fear of future persecution. The BIA noted that Ye presented this argument for the first time before the BIA. He did not argue before the IJ that, independent of his claims of past persecution, he had a well-founded fear of future persecution because there was a pattern or practice of persecuting Christians in China. Thus, the BIA did not err in concluding that the argument was not exhausted. See Kechichian v. Mukasey, 535 F.3d 15, 22 (1st Cir. 2008).

Nor did the BIA err in finding that the claim lacked merit, in any event. Asylum “solely based on [an applicant’s] membership in a protected group” is only available in “some extreme cases.” Rasiah v. Holder, 589 F.3d 1, 5 (1st Cir. 2009) (emphasis omitted). The standard for proving a “pattern or practice” of persecution “is demanding and in substance requires a showing of regular and widespread persecution creating a reasonable likelihood of persecution of all persons in the group.” Id. at 5. Here, the only evidence submitted regarding a pattern or practice of persecution, independent of Ye’s discredited testimony regarding past persecution, was the 2012 State Department report on religious freedom in China. The report, which indicates that certain Christians can avoid persecution in certain areas under certain circumstances, is not enough. See Chen Qin v. Lynch, 833 F.3d 40, 45 (1st Cir. 2016) (holding that State Department report was “not enough to establish a pattern or practice of persecution” of Christians in China). Moreover, Ye’s failure to tie the report to his specific circumstances proves fatal to his argument. See id. (“Nor is [the State Department report] sufficiently related to her own situation to be persuasive.”). We have repeatedly recognized that the BIA is justified in concluding that there is no well-founded fear of future persecution based on a State Department report alone, when no connection is established between the incidents in the report and the petitioner’s specific circumstances. See, e.g., Xian Tong Dong v. Holder, 696 F.3d 121, 126 (1st Cir. 2012) (“[OJverview reports ... ‘do very little to substantiate’ claims of persecution as they do not ordinarily ‘either directly or by reasonable implication, connect these foibles with the petitioner’s particular situation.’ ” (quoting Lopez Perez v. Holder, 587 F.3d 456, 461 (1st Cir. 2009))); see also Hong Chen v. Holder, 558 Fed.Appx. 11, 16 (1st Cir. 2014) (collecting cases). Thus, because he is unable to estab: lish either past persecution or a well-founded fear of future persecution, Ye’s asylum claim fails.

B. Withholding of Removal

To qualify for withholding of removal, ari applicant must demonstrate that it is more likely than not that his “life or freedom would be threatened in that country because of the alien’s race, religion, nationality, membership in a particular social group, or political opinion.” 8 U.S.C. § 1231(b)(3)(A); 8 C.F.R. § 1208.16(b). Because the bar for withholding of removal is higher than the bar for asylum, an applicant cannot prevail on a withholding application if he fails to establish the elements of an asylum claim. Jianli Chen, 703 F.3d at 27; see also Mendez-Barrera v. Holder, 602 F.3d 21, 27 (1st Cir. 2010) (“After ah, withholding of removal requires a showing, by a clear probability, that an alien will more likely than not face persecution if repatriated.”). Because his asylum claim fails, Ye’s withholding of removal claim necessarily fails as well.

C. CAT Protection

Finally, CAT protection requires an applicant to demonstrate that in the proposed country of removal, “it is more likely than not that he or she would be tortured” by or with the acquiescence of the government. 8 C.F.R. § 1208.16(c)(2); Mendez-Barrera, 602 F.3d at 27. Ye failed to present any credible, “particularized facts relating to [his] specific claim that [he] would face a likelihood of government-sanctioned torture.” Mendez-Barrera, 602 F.3d at 28. Besides his discredited testimony, Ye presented a country report on religious freedom in China from 2012. Country reports “are rarely disposi-tive” because of their “generic nature,” id. and Ye does not persuade us that the IJ or BIA erred in their determinations. Thus, substantial evidence existed to support the BIA’s rejection of Ye’s CAT claim.

IV. CONCLUSION

For the foregoing reasons, the petition for review is DENIED.

      . During the hearing before the IJ, the Sworn Statement and Jurat were entered as a single exhibit. Ye testified that his signature was on "each and every page,” including the Jurat. At the hearing, Ye never raised any issues regarding the reliability of the Jurat based on its date or distinguished it from the Sworn Statement. Therefore, unless otherwise noted, the Jurat and the Sworn Statement will be collectively referred to as the DHS Interview.