Li v. Eric Holder, Jr.

FOR PUBLICATION

UNITED STATES COURT OF APPEALS
FOR THE NINTH CIRCUIT

ENYING LI, No. 08-70586
Petitioner,
Agency No.
v. A098-462-999

ERIC H. HOLDER, JR., Attorney
General, OPINION
Respondent.

On Petition for Review of an Order of the
Board of Immigration Appeals

Submitted August 29, 2013*
Pasadena, California

Filed December 31, 2013

Before: Diarmuid F. O’Scannlain, Carlos T. Bea,
and Morgan Christen, Circuit Judges.

Opinion by Judge Bea;
Dissent by Judge Christen

*
The panel unanimously concludes this case is suitable for decision
without oral argument. See Fed. R. App. P. 34(a)(2).
2 LI V. HOLDER

SUMMARY**

Immigration

The panel denied a petition for review of the Board of
Immigration Appeals’ denial of asylum and related relief on
adverse credibility grounds, holding that the Board and
immigration judge may use the maxim falsus in uno, falsus in
omnibus (i.e. false in one thing, false in everything) to find
that material inconsistencies in testimony regarding one claim
support an adverse credibility determination on another claim
in a pre-REAL ID Act case.

The panel held that substantial evidence supported the
Board’s determination that petitioner’s testimony included
material inconsistencies concerning her religious persecution
claim, and that the Board therefore properly discredited all of
petitioner’s testimony, including testimony concerning her
family planning claim.

Dissenting, Judge Christen wrote that the majority
announces a new rule permitting adverse credibility findings
to wash over from one asylum claim to another, regardless of
whether inconsistencies that give rise to an adverse credibility
finding “go to the heart of” the separate asylum claim, as
required in pre-REAL ID Act cases.

**
This summary constitutes no part of the opinion of the court. It has
been prepared by court staff for the convenience of the reader.
 LI V. HOLDER 3

COUNSEL

Evan Lee Murri, Law Offices of Evan L. Murri, PLC, San
Gabriel, California; Dixon Wong, Law Offices of Dixon
Wong, Pasadena, California, for Petitioner.

Yedidya Cohen, United States Department of Justice,
Washington, D.C.; Douglas E. Ginsburg and David V.
Bernal, Assistant Directors, Office of Immigration
Litigation, Civil Division, United States Department of
Justice, Washington, D.C., for Respondent.

OPINION

BEA, Circuit Judge:

Enying Li was denied asylum, withholding of removal
pursuant to § 241(b)(3) of the Immigration and Nationality
Act, and withholding of removal pursuant to the Convention
Against Torture (“CAT”) on two separate claims of past
persecution because the Immigration Judge (“IJ”) found her
testimony regarding one of her claims not credible. We must
now decide whether an IJ may use the maxim falsus in uno,
falsus in omnibus (i.e. false in one thing, false in everything)
to find that material inconsistencies in testimony regarding
one claim support an adverse credibility determination on
another claim in a pre-REAL ID Act case. We hold the
maxim falsus in uno, falsus in omnibus may be used by an
immigration judge, and we deny Li’s petition.
4 LI V. HOLDER

I. Background

Li, a citizen of China of Korean and Chinese descent,
entered the United States without being admitted or paroled.
She filed an application for asylum, withholding of removal
under the Immigration and Nationality Act, and withholding
of removal under CAT, claiming she had suffered religious
persecution and had been subject to China’s restrictive
population control measures. Subsequently, the former
Immigration and Naturalization Service commenced removal
proceedings against Li by filing a Notice to Appear and
charging her with removability for being present in the
United States without having been admitted or paroled.

A. Forced Abortion Claim

At the merits hearing, Li testified that she found out she
was pregnant with her second child one month after her
husband’s death. When asked about China’s one-child
policy, Li testified that Korean-Chinese persons like herself
were permitted to have two children. But she testified that
her employer would not allow her to have the child because
she did not have a husband. Li testified that she then went to
stay at her aunt’s house. While there, someone noticed she
was visibly pregnant and reported her to a women’s social
organization. After this report, Li testified she was forced to
have an abortion.

B. Religious Persecution Claim

After Li’s husband passed away, a friend recommended
that she go to church. Li testified that she attended a
Christian church for the first time on April 6, 2003, and at
least twice a week after that date. She stated that it was a
 LI V. HOLDER 5

home church service and that the church attendees kept
changing the location because the government was searching
for home church services. On November 7, 2004, a service
was held at Li’s house. Li testified that one of the deacons
was giving a sermon when there was a knock on the door. Li
went to the door and between four and six police officers
raided her home.

The police arrested Li and the other home church
attendants and took them to the police station. She testified
that she was detained for about ten days, during which time
she was interrogated and hit with an “electric stick.” She was
released after she paid a fine of 5,000 yuan, but she was still
required to report to the police station once a week. Although
Li testified that she had attended the home church from April
6, 2003, until November 7, 2004, a period of nineteen
months, she later stated on cross-examination that she had not
been baptized because people had to practice in the home
church for six to twelve months before they could be
baptized.

C. Passport Inconsistency

Li testified that she used a Chinese passport to leave
China. When asked when she had obtained the Chinese
passport, Li stated, “On March the 18th [of 2005]. I think—I
think that’s December 18th. It’s been a long time.” She was
then asked by her counsel how she could have received a
passport in December 2005 when she left China in February
2005. Li stated that she applied for the passport “way
before.” Li stated that while she was pregnant at her aunt’s
house, her sister had told her that, if Li had a passport, she
could leave China. Later in the hearing, she was asked,
“[Y]ou obtained your passport in December 2003. Is that
6 LI V. HOLDER

correct?” Li replied, “Yes, I received my passport at that
time.” On cross-examination, she also testified that she
applied for her passport because her husband had passed
away and she had trouble with the police as a result of
attending home church. The IJ asked, “But ma’am, you
didn’t have any trouble with the home church until November
2004. Correct?” Li then stated, “that has nothing to do with
this passport.”

D. IJ and BIA Decisions

The IJ denied Li’s applications for asylum, withholding
of removal, and CAT relief. He found that she had not
provided credible testimony in two ways: (1) she provided
contradictory testimony regarding the circumstances
surrounding the receipt of her passport, and (2) she testified
that she was not baptized in China because she was a new
church member and had not participated in church services
for the requisite six to twelve months, but she also testified
that she had attended for a period of nineteen months (from
April 6, 2003, until her arrest on November 7, 2004). The IJ
held that “[t]he testimony goes to the heart of her claim and
causes the Court to doubt her credibility regarding her
participation in Chinese home church activities.” The BIA
affirmed the IJ’s denial of relief, found that the discrepancies
went to the heart of Li’s religion-based asylum claim, and
held: “The respondent’s lack of credibility as to these issues
also taints her credibility with respect to her forced-abortion
claim.”

II. Standard of Review

The court’s review of a BIA’s determination is highly
deferential. Gu v. Gonzales, 454 F.3d 1014, 1018 (9th Cir.
 LI V. HOLDER 7

2006). This court reviews BIA credibility findings for
substantial evidence and reverses “only if the evidence
compels a contrary conclusion.” Singh v. Gonzales, 439 F.3d
1100, 1105 (9th Cir. 2006). Under this pre-REAL ID Act
standard of review, “the IJ or BIA must identify specific,
cogent reasons for an adverse credibility finding” and the
reasons must “strike at the heart of the claim.” Id. (internal
quotation marks and citation omitted.)

III. Analysis

Li argues that it was impermissible for the BIA to find her
entire testimony not credible because it found her testimony
regarding her religious persecution claim not credible.1 We
disagree. Falsus in uno, falsus in omnibus is a hoary maxim
which allows a fact-finder to disbelieve a witness’s entire
testimony if the witness makes a material and conscious
falsehood in one aspect of his testimony. Cvitkovic v. United
States, 41 F.2d 682, 684 (9th Cir. 1930). The maxim is based
on the logic that a person may mistakenly testify wrongly and
still be believable, but if a person testifies falsely, willfully,
and materially on one matter, then his “oath” or word is not
“worth anything” and he is likely to be lying in other respects.
Id. The law of this circuit permits the use of the maxim
falsus in uno, falsus in omnibus in the immigration context.
See Lopez-Umanzor v. Gonzales, 405 F.3d 1049, 1059 (9th
Cir. 2005).

1
Li does not clearly argue that the inconsistencies in her testimony
cannot support an adverse credibility ruling with regard to the religious
persecution claim. Regardless, the argument has no merit. The BIA listed
two specific, material inconsistencies which are supported by the record.
These inconsistencies involve when and how long Li was involved in the
home church and thus strike at the heart of her religious persecution claim.
8 LI V. HOLDER

In Lopez-Umanzor, a pre-REAL ID Act immigration case,
the petitioner applied for cancellation of removal and
voluntary departure. Id. at 1050. The IJ denied relief and the
BIA affirmed. Id. The petitioner appealed the BIA decision
arguing the IJ’s decision was improperly based on personal
bias regarding domestic violence. Id. The IJ had denied her
application because he found the petitioner’s testimony
regarding claims of domestic violence were not credible and
he had “reason to believe” she had been involved in drug
trafficking. Id. at 1050–51. The IJ found it unbelievable that
the petitioner would return to her abuser, or that her abuser
would have the desire or ability to find petitioner, had
petitioner really tried to escape. Id. at 1054. Petitioner
appealed the decision to this court and this court granted the
petition and remanded. Id. at 1060.

This court found that the IJ’s view of the applicant’s
credibility as to the domestic violence claim was improperly
based on the IJ’s personal speculation, bias, and prejudgment
about domestic violence. Id. at 1054. The court reasoned this
prejudgment as to the domestic violence claim may have
infected the IJ’s assessment of Petitioner’s testimony
regarding Petitioner’s vulnerability to drug trafficking
because the IJ may have followed “long recognized” law that
a witness “deemed unbelievable as to one material fact may
be disbelieved in all other respects,” also known by the
maxim “falsus in uno, falsus in omnibus.” Id. at 1059. The
court remanded to a different immigration judge for further
proceedings. Id.

The court in Lopez-Umanzor thus acknowledged that the
maxim “falsus in uno, falsus in omnibus” may properly be
 LI V. HOLDER 9

used to evaluate witness testimony in immigration cases.2
Further, the maxim is the general law of the Ninth Circuit.
See Hattem v. United States, 283 F.2d 339, 343 (9th Cir.
1960) (approving a jury instruction that provided “[i]f you
find that any witness in this trial has wilfully testified falsely
as to any material fact in the case, then you are at liberty
wholly to disregard all of the testimony of that witness”)3;
Lozano Enters. v. NLRB, 327 F.2d 814, 816 n.2 (9th Cir.
1964) (holding that while “a witness may be totally
disbelieved if he is found to have testified falsely in any
respect,” this permissive rule “is not a command” that such a
witness be disbelieved (emphasis added));4 Ninth Circuit
Model Criminal Jury Instructions 3.9 (2010) (stating that
jurors may disbelieve all of a witness’s testimony based on
whether other evidence contradicted the testimony or any
other factors that bear on believability); Ninth Circuit Model

2
Well-reasoned dicta is the law of the circuit. United States v. Johnson,
256 F.3d 895, 914 (9th Cir. 2001) (en banc).
3
In Hattem, the petitioner appealed a criminal conviction based on
several errors, one of which was a jury instruction allowing jurors to
disregard the entire testimony of any witness who had willfully testified
falsely as to any material fact. 283 F.2d at 343. The court approved the
jury instruction as a correct statement of the law and affirmed the
conviction. Id. at 343–44.
4
In Lozano Enterprises, the petitioner sought review of an NLRB order
based on several claims of error. 327 F.2d at 815. One claimed error was
that the Board had credited most of a witness’ testimony despite an
inconsistency in the testimony. Id. at 816 n.2. The employer claimed that
the entire witness’ testimony should be discredited because there was an
inconsistency. Id. The court stated that, while a witness may be
disbelieved entirely if he is found to have testified falsely in any respect,
no rule mandates that such a witness be disbelieved. Id. The court did not
discredit the testimony entirely and affirmed that it was proper for the
testimony to be weighed by a trier of fact. Id.
10 LI V. HOLDER

Civil Jury Instructions 1.11 (2007) (same). The maxim is
also supported by unpublished cases.5

Another circuit, the Second Circuit, has also used the
maxim in the context of pre-REAL ID Act immigration cases.
In Siewe v. Gonzales, 480 F.3d 160, 161 (2d Cir. 2007), Felix
Siewe, a citizen of the Republic of Cameroon, sought review
of a BIA opinion affirming a decision of an IJ denying
Siewe’s application for asylum, withholding of removal, and
relief under CAT. Siewe claimed that the IJ’s adverse
credibility finding was not supported. Id. The Second Circuit
disagreed and denied the petition. Id. The Second Circuit
found that Siewe was not credible because he gave
inconsistent dates for important events. Id. at 162. In so
holding, the Second Circuit stated that “an IJ’s application of
the maxim falsus in uno, falsus in omnibus [false in one thing,
false in everything] may at times be [correct].” Id. at 170.
The court reasoned that, “In the immigration context,
corroborating evidence is often limited, and the petitioner’s
credibility is almost always crucial. So a single false
document or a single instance of false testimony may (if
attributable to the petitioner) infect the balance of the alien’s
uncorroborated or unauthenticated evidence .” Id. (emphasis

5
See Wang v. Mukasey, 262 F. App’x 798, 800 (9th Cir. 2008)
(unpublished) (reasoning that, in an immigration case, “[o]ur law has long
recognized that a person who is deemed unbelievable as to one material
fact may be disbelieved in all other respects”); Chen v. Ashcroft, 112 F.
App’x 633, 636 (9th Cir. 2004) (Bea, J., concurring) (noting that “this
court’s remand does not eliminate the opportunity for the IJ to follow the
well-established doctrine of falsus in uno, falsus in omnibus . . . . ”). But
see Zhu v. Mukasey, 261 F. App’x 43, 44 (9th Cir. 2007) (unpublished)
(holding that inconsistencies in one claim do not “go to the heart of” the
petitioner’s second claim and could not support an adverse credibility
finding).
 LI V. HOLDER 11

added). The court further explained “Falsus in uno is a
natural and instinctive tool of the factfinder, like a carpenter’s
hammer or plumber’s wrench.” Id. at 171. Thus, the court
found that the IJ’s adverse credibility finding was supported
by substantial evidence. Id.

Not only is falsus in uno, falsus in omnibus the law of the
Ninth Circuit, it is consistent with the pre-REAL ID Act
standard of review. Under the pre-REAL ID Act standard of
review, adverse credibility findings require specific,
unexplained reasons that “strike at the heart of the [asylum]
claim.” Singh, 439 F.3d at 1105. This standard developed in
response to IJs’ adverse credibility findings based on minor
inconsistencies in petitioners’ testimonies which could result
from mistranslation or miscommunication. See, e.g., Maini
v. INS, 212 F.3d 1167, 1177 (9th Cir. 2000) citing, inter alia,
Vilorio-Lopez v. INS, 852 F.2d 1137, 1142 (9th Cir. 1988).
However, requiring the reason for an adverse credibility
finding go to the heart of the claim did not prohibit overall
findings of adverse credibility based on material
misstatements, which is consistent with the falsus in uno
maxim.

Ceballos-Castillo v. INS is an early case holding that
inconsistencies must go to the heart of an asylum claim.
904 F.2d 519, 520 (9th Cir. 1990). In Ceballos-Castillo, the
petitioners appealed the BIA’s denial of their application for
asylum and withholding. Id. The BIA had held that “the
aliens’ claims were not credible because of inconsistencies in
their testimony . . . .” Id. (emphasis added). The petitioners
argued that the inconsistencies were minor and could not
support the determination. Id. This court held that the
inconsistencies—which included switching one claim from
guerrilla persecution to government persecution, how the
12 LI V. HOLDER

petitioners obtained their passports, and whether one of the
petitioners was subject to a capture order—“involved the
heart of the asylum claim.” Id. The court held that “the
finding of the BIA that the aliens’ testimony was incredible
finds substantial support in the record.” Id. at 521.

In Jibril v. Gonzales, 423 F.3d 1129 (9th Cir. 2005), the
IJ found the petitioner’s testimony to be not credible, and the
petitioner asked for review of a BIA decision, claiming the
IJ’s adverse credibility finding was not supported by the
evidence. Id. at 1133–34. The BIA affirmed the IJ’s finding
of adverse credibility because of inconsistencies in the
petitioner’s testimony. Id. at 1133. On appeal, this court
noted that the IJ’s specific inconsistences were that the
petitioner remembered some details of the gun, dress, and
conversations of men who attacked him, but not complete
details. Id. at 1134. The court found that these reasons were
minor inconsistencies that were explainable by the
circumstances of the attack. Id. at 1135. The court held that
minor inconsistencies are an inadequate basis for an adverse
credibility finding and did not go to the heart of the claim. Id.
Because the court found the inconsistencies were minor, the
court granted the petition and remanded. Id. at 1139.

The maxim of falsus in uno, falsus in omnibus is
consistent with the pre-REAL ID Act standard of review
because both require that falsity be material and central to the
claim, not minor. Here, the inconsistencies in Li’s testimony
are not minor: inconsistencies regarding how long she was
involved in her home church and when and why she applied
for a passport are central to determining whether she suffered
religious persecution. While these inconsistencies concern
material aspects of her religious persecution claim for
asylum, they do not touch upon her forced abortion claim.
 LI V. HOLDER 13

But Li is the same person who testified about both her claims.
Whether she is a credible witness is central to any
claim—religious persecution or forced abortion. Her
credibility goes to the heart of either and both claims.

To hold otherwise would be to encourage asylum seekers
to make as many claims for asylum as possible, in the hope
that as to one, the IJ did not find any inconsistency that went
to the “heart of the matter.” Thus, an asylum seeker who lied
through three of his claims, but managed to recite a fourth
uncontradicted, would skirt an adverse credibility finding as
to the fourth. This result is not, and cannot be, the law. This
is not the law in other circuits either. The cases cited by the
dissent are distinguishable from this case. See Mansour v.
INS, 230 F.3d 902, 908 (7th Cir. 2000) (adverse credibility
finding not relevant to claim based on whether person is part
of a certain ethnic/religious group);6 Guo v. Ashcroft,

6
In Mansour, a petitioner was denied asylum because the IJ found him
not credible. 230 F.3d at 905. The BIA affirmed. Id. The petitioner then
moved to reopen proceedings based on a new CAT claim based on his
ethnic/religious group. Id. The BIA denied the motion to reopen, but
labeled the petitioner as a Syrian Christian instead of an Assyrian
Christian. Id. at 907–08. On appeal, the Seventh Circuit granted the
petition for review and remanded. Id. at 909. The Seventh Circuit was
“not comfortable with allowing a negative credibility determination” in an
earlier asylum hearing to affect a subsequent torture claim based on the
petitioner’s ethnic/religious affiliation, especially when the BIA had not
stated the petitioner’s ethnic/religious group correctly. Id. at 908. The
court determined that “the prior adverse credibility determination is not
necessarily significant in this situation” without explaining why the prior
adverse credibility determination was not significant. Id. But, after this
conclusion, the Seventh Circuit considered the U.S. Department of State
report and found that persons of petitioner’s ethnic/religious group had
suffered “systematic discrimination” and repression. Id. A fair reading
of Mansour is that on remand the BIA needed to identify the petitioner’s
ethnic/religious group and consider whether this classification would
14 LI V. HOLDER

386 F.3d 556, 559 (3d Cir. 2004) (prior adverse credibility
determination on a religious persecution claim was not
relevant to an asylum claim based on fear of persecution
under China’s one-child policy when it was not disputed that
petitioner now had two American-born children)7; Paul v.
Gonzales, 444 F.3d 148, 150 (2d Cir. 2006) (prior adverse
credibility determination as to petitioner’s “stories” of past
persecution was not relevant to petitioner’s claim of fear of
future persecution when it was not disputed he was a

allow him CAT relief, regardless whether the petitioner was not credible.
It is well established that, unlike what is the case in asylum cases, an
adverse credibility finding does not always bar CAT relief. Shrestha v.
Holder, 590 F.3d 1034, 1049 (9th Cir. 2010) (“finding that an adverse
credibility determination is not “necessarily a death knell to CAT
protection” but that when petitioner’s “testimony [is] found not credible,
to reverse the BIA’s decision [denying CAT protection,] we would have
to find that the reports alone compelled the conclusion that [the petitioner]
is more likely than not to be tortured” (alternations in original)).
7
In Guo, the petitioner applied for asylum and withholding of removal
because of religious persecution. 386 F.3d at 560. An IJ denied Guo’s
application for asylum because she was not credible, and the BIA
affirmed. Id. Three years later, Guo filed a motion to reopen the
proceedings based on intervening developments including giving birth to
one child in the United States and becoming pregnant with a second child.
Id. The BIA denied the motion to reopen based on her previous negative
credibility determination and a lack of evidence that Chinese officials
punish nationals who have given birth to children in foreign countries. Id.
The Third Circuit granted the petition and remanded. Id. at 566. The
Third Circuit held that the previous adverse credibility finding was not
relevant to this motion to reopen when it was not disputed that she now
had two children. Id. at 562 & n.6. Whether Guo was untruthful three
years previous did not change the fact she now had two children.
 LI V. HOLDER 15

Christian in Pakistan).8 Mansour, Guo, and Paul all involve
a prior adverse credibility determination incorrectly affecting
a subsequent claim based on an undisputed fact: in Mansour
that the petitioner was an Assyrian Christian, in Guo that the
petitioner had given birth to two children in the United States,
and in Paul that the petitioner was a practicing Christian. The
maxim falsus in uno, falsus in omnibus should not be applied
when the truthfulness of the witness has no bearing on the
claim, as is the case when the claim is based on proveable
fact such as having two children or an undisputed ethnic
classification. Here, however, Li offers no evidence of her
concurrent claims other than her testimony; whether the IJ
found Li to be a liar as to part of that testimony is entirely
relevant, and material, to both her claims.

The dissent also points out that immigration
proceedings, on average, take many years, which may lead
to inconsistences based on faulty memory—not
untruthfulness—and that aliens fleeing their country because
of persecution are not always able to grab corroborating
documentation. The dissent also cites Kadia v. Gonzales,

8
Petitioner Paul, a citizen of Pakistan, sought asylum and withholding
of removal. Paul, 444 F.3d at 150. The IJ found Paul’s “stories” of past
persecution not credible, but explicitly credited petitioner’s testimony that
he was a practicing Christian. Id. The BIA affirmed the IJ’s decision. Id.
at 152. About two months after the BIA’s decision, petitioner filed a
motion to reopen the proceedings based on an updated country report that
showed increasingly harsh conditions in Pakistan for Christians. Id. The
BIA denied the motion on the ground the evidence was not relevant to the
IJ’s original adverse credibility determination. Id. The petitioner
appealed and this court granted the petition and remanded. Id. at 157.
The court held that, “In the instant case, because the IJ credited Paul’s
testimony that he was, in fact, a practicing Christian, a claim based on
Paul’s fear that he will be persecuted in the future because of his religious
beliefs remained viable.” Id. at 154 (emphasis omitted).
16 LI V. HOLDER

501 F.3d 817, 821 (7th Cir. 2007), a Seventh Circuit case
which disapproves of the maxim on the grounds that human
memory is fallible and memory “slips” do not mean a witness
is unreliable. As Judge Posner’s decision makes clear, he
believes the maxim applies to “the mistakes that witnesses
make in all innocence” as well as “slips that . . . show the
witness is a liar.” Id. at 822. That may be how the maxim is
applied in that circuit. That is not how it is applied here. The
maxim is applied in this circuit not when the witnesses makes
a “mistake in all innocence,” but only when the “witness . . .
has willfully testified falsely as to any material fact.”
Hattem, 283 F.2d at 343 (emphasis added). Minor
inconsistencies due to a lapse of time and faded memories are
not the type of material, intentional, false testimony which
allows the use of falsus in uno, falsus in omnibus. Further,
we trust that IJs are aware of these problems with gathering
evidence while fleeing, and we do not hold that IJs should
discredit otherwise credible testimony based solely on a lack
of corroborating evidence.

This court gives IJs the deference to exercise their
common sense in making credibility findings:

[A]n IJ must be allowed to exercise common
sense in rejecting a petitioner’s testimony
even if the IJ cannot point to specific, contrary
evidence in the record to refute it. Without
such latitude, IJs would be bound to credit
even the most outlandish testimony as long as
it was internally consistent and not
contradicted by independent evidence in the
record.
 LI V. HOLDER 17

Jibril, 423 F.3d at 1135. Further, while an applicant may
establish his case through his testimony alone, Karouni v.
Gonzales, 399 F.3d 1163, 1174 (9th Cir. 2005), the testimony
establishes the claim only if the testimony is credible.
8 C.F.R. § 1208.13 (“The testimony of the applicant, if
credible, may be sufficient to sustain the burden of proof
without corroboration.”) (emphasis added). The credibility
of witnesses is thus material and central to all their asylum
claims.

In conclusion, Ninth Circuit precedent permits the BIA to
use an adverse credibility finding on one claim to support an
adverse finding on another claim in a pre-REAL ID Act case.
Li’s petition for review is DENIED.

CHRISTEN, Circuit Judge, dissenting:

The decision issued by our court today announces a new
rule permitting adverse credibility findings to wash over from
one asylum claim to another, whether inconsistencies that
give rise to an adverse credibility finding “go to the heart of”
the separate asylum claim, or not. Because this new rule
cannot be squared with this circuit’s pre-REAL ID Act case
law mandating that adverse credibility findings must go to the
heart of an applicant’s claim, I respectfully dissent.

I. The BIA Erred By Upholding an Adverse
Credibility Finding that Did Not Go “To the
Heart” of Li’s Pre-REAL ID Act Claim.

Li, a citizen of China, presented two claims for asylum to
the immigration court. One was based on undergoing a
18 LI V. HOLDER

forced abortion; the other was based on religious persecution
for participating in a home church. Regarding the forced
abortion claim, Li testified that she discovered she was
pregnant a month after her husband’s death. She was told by
authorities that she would not be permitted to give birth to a
second child because she was an unmarried woman with one
child. Li escaped to her aunt’s house in the countryside, but
several months later she was discovered and forced to have a
late-term abortion. According to her testimony, Li was tied
to the hospital bed, her unborn child was killed with a needle,
and she delivered the stillborn child.

Regarding the religious persecution claim, Li testified that
in April 2003 she became involved in a home church, and in
November 2004 the police raided the church, arrested her,
and detained her for ten days. She testified that she applied
for a passport in part because of religious persecution. She
also testified that she had never been baptized. The IJ found
that Li lacked credibility for two reasons. First, the IJ found
that Li provided contradictory testimony regarding the
circumstances under which she obtained her passport because
she applied for the passport in September 2003, before her
alleged arrest in November 2004. Second, the IJ found that
Li was inconsistent regarding why she was never baptized.
Her stated reason was that she believed she needed to be a
practitioner for six months to a year before she could be
baptized. But she also testified that she was a member of the
home church from April 2003 until her arrest in November
2004, a period of approximately nineteen months.

After finding that Li’s testimony concerning her religious
persecution claim was not credible, the IJ dismissed both of
her asylum claims. The IJ made no findings at all with
 LI V. HOLDER 19

respect to the merits of the asylum claim based on forced
abortion.

The BIA affirmed the denial of Li’s petition, citing Lopez-
Umanzor v. Gonzales, 405 F.3d 1049 (9th Cir. 2005), as
authority for what it called “the Ninth Circuit’s well-settled
case law that a person who is deemed unbelievable as to one
material fact may be disbelieved in all other respects.” But
the BIA miscited Lopez-Umanzor, which actually involved a
petitioner’s claim for cancellation of removal based on a
denial of due process. The petitioner in that case testified she
was a victim of domestic violence and offered medical
records to corroborate the injuries she had sustained, id. at
1050–51, but she was not permitted to introduce expert
testimony on domestic violence, id. at 1052, 1056. The
posture of the case required the IJ to assess the petitioner’s
credibility and weigh it against that of a police officer who
testified that petitioner was involved in drug trafficking. Id.
at 1053. Our court was clear that if the agency properly
concluded the petitioner was a drug trafficker, she was
ineligible for cancellation of removal. Id. at 1059. But
because the IJ’s finding that the petitioner lacked credibility
regarding domestic violence rested on the IJ’s “personal
speculation, bias, conjecture, and prejudgment,” id., and
because the IJ’s “preconceived view of her credibility on that
point” may have affected his resolution of the drug-related
credibility dispute, our court decided that petitioner
established prejudice, id. at 1058. The court remanded for a
new credibility determination, suggesting that a different
judicial officer should hear the case. Id. at 1059. Lopez-
Umanzor did not discuss exporting an adverse credibility
finding from one asylum theory to a separate and unrelated
asylum theory.
20 LI V. HOLDER

Underscoring that Lopez-Umanzor did not settle the
question of credibility spill over in the asylum context, our
court addressed this issue twice after it published Lopez-
Umanzor, and reached opposite outcomes in unpublished
decisions. See Wang v. Mukasey, 262 Fed. App’x 798, 800
(9th Cir. 2008); Zhu v. Mukasey, 261 Fed. App’x 43, 44 (9th
Cir. 2007). In Wang, our court held that one adequately-
supported adverse credibility determination was sufficient to
uphold rejection of two different claims for asylum. 262 Fed.
App’x at 800–01. But in Zhu, our court granted a petition for
review and withholding of removal where the IJ had non-
speculative reasons for disbelieving Zhu’s political
persecution claim and the inconsistencies “did not go to the
heart of Zhu’s alternative claim that his wife had suffered a
forced abortion.” 261 Fed. App’x at 44 (citation omitted).

The rule announced by the court today, that an adverse
credibility determination on any theory of asylum is sufficient
to dismiss an asylum petition based on a completely different
theory, defies well-settled pre-REAL ID Act precedent that
adverse credibility findings must go to the heart of a
petitioner’s claim. See Singh v. Gonzales, 439 F.3d 1100,
1105 (9th Cir. 2006) (“[T]he IJ or BIA must identify
‘specific, cogent reasons’ for an adverse credibility finding,
and the reasons must be substantial and legitimately
connected to the finding. This means that the reason
identified must ‘strike at the heart of the claim’ for asylum.”
(citations omitted)).

Other circuits have been unwilling to allow one adverse
credibility determination in an immigration case to dictate the
outcome of unrelated claims. For example, the Seventh
Circuit vacated and remanded a Convention Against Torture
(“CAT”) determination, writing that “[w]e are not
 LI V. HOLDER 21

comfortable with allowing a negative credibility
determination in the asylum context to wash over the torture
claim; especially when the prior adverse credibility
determination is not necessarily significant in this situation.”
Mansour v. INS, 230 F.3d 902, 908 (7th Cir. 2000).1 The
Seventh Circuit has also described the doctrine relied upon by
the majority, falsus in uno, falsus in omnibus (false in one
thing, false in all things), as “discredited,” Kadia v. Gonzales,
501 F.3d 817, 821 (7th Cir. 2007), and endorsed the
characterization of it as “absolutely false as a maxim of life,”
United States v. Schimmel, 943 F.2d 802, 808 (7th Cir. 1991).
In Kadia, Judge Posner explained:

Human memory is selective as well as
fallible, and the mistakes that witnesses make
in all innocence must be distinguished from
slips that, whether or not they go to the core
of the witness’s testimony, show that the
witness is a liar or his memory completely
unreliable.

501 F.3d at 822.

Several circuits limit the preclusive effect of unrelated
adverse credibility determinations when considering motions

1
Mansour involved a petitioner who moved to reopen proceedings
based on a new CAT claim after the IJ had found him not credible and
denied his asylum claim. The court further wrote that “the BIA’s adverse
credibility determination in the asylum context seems to overshadow its
analysis of Mansour’s torture claim. The BIA in a minimalistic and non-
detailed manner addressed Mansour’s torture claim; leaving us to ponder
whether the BIA sufficiently focused on this claim or merely concluded
it was not viable because of its determination that Mansour’s prior
testimony on the asylum issue was not credible.” 230 F.3d at 908.
22 LI V. HOLDER

to reopen asylum claims based on changed circumstances.
The Third Circuit observed, “[n]or does one adverse
credibility finding beget another. On the contrary, an IJ must
justify each adverse credibility finding with statements or
record evidence specifically related to the issue under
consideration.” Guo v. Ashcroft, 386 F.3d 556, 562 (3d Cir.
2004). The Second Circuit has also considered and rejected
the proposition that an “adverse credibility determination
with respect to some of an alien’s claims . . . necessarily
infects related but essentially freestanding claims made by the
same applicant in the course of the same petition.” Paul v.
Gonzales, 444 F.3d 148, 154 (2d Cir. 2006). In Paul, the
Second Circuit held a petitioner could prevail on a theory of
future persecution, despite an adverse credibility ruling
regarding past persecution, so long as the factual predicate of
the future persecution claim was independent of the testimony
the IJ found not credible. Id.; see also Gebreeyus v.
Gonzales, 482 F.3d 952, 955 (7th Cir. 2007) (adopting the
holding from Paul that an adverse credibility determination
did not control a claim of future persecution based on
independent facts).

There are sound reasons for requiring that each asylum
claim be considered on its merits. First, immigration cases
involve uniquely difficult problems of proof. See Singh v.
Holder, 638 F.3d 1264, 1270 (9th Cir. 2011) (“Asylum cases
differ from ordinary civil cases in that the events happen in
foreign countries, and the expense and difficulty of obtaining
corroboration can be overwhelming.”); Sangha v. INS,
103 F.3d 1482, 1487 (9th Cir. 1997) (“Because asylum cases
are inherently difficult to prove, an applicant may establish
his case through his own testimony alone.” (citation
omitted)). Second, immigration claims are also notorious for
involving long delays. The 2013 data from Syracuse
 LI V. HOLDER 23

University’s Transactional Records Access Clearinghouse
shows that Immigration Court proceedings—not including
appeals—took an average of 580 days from filing to
completion.2 Given the amount of time that typically passes
between filing an immigration petition and receiving a
hearing, it is not surprising that inconsistencies are sometimes
noted between an application and a petitioner’s testimony.
Singh, 439 F.3d at 1105 (“An IJ must also afford petitioners
a chance to explain inconsistencies, and must address these
explanations.” (citations omitted)). Petitioners may provide
corroborating evidence where their testimony alone is
deemed insufficient, but individuals who flee persecution are
not always able to assemble corroborating documentation as
they make their escape, and the logistical problems associated
with trying to obtain corroborating documentation after the
fact are easy to predict.

The majority cites the Second Circuit’s decision in Siewe
v. Gonzales, 480 F.3d 160 (2d Cir. 2007), and summarizes its
holding as “an IJ’s application of the maxim falsus in uno,
falsus in omnibus . . . may at times be [correct].” But what
the Second Circuit actually held is that the application of the
maxim “may at times be appropriate” to “discredit evidence
that does not benefit from corroboration or authentication
independent of the petitioner’s own credibility” and to
“influence the IJ’s assessment of the credibility of the
corroborative evidence itself.” Id. (emphasis in original).
The Second Circuit went on to enumerate at least five

2
Immigration Court Processing Times by Charge, TRAC Immigration,
http://trac.syr.edu/phptools/immigration/court_backlog/court_proctime_
charge.php (select “What to tabulate: Average Days,” “Charge Type:
Immigration,” and “State: Entire US”) (last visited Dec. 12, 2013). Data
computed by fiscal year.
24 LI V. HOLDER

categories in which application of the maxim is not
appropriate in the immigration context: (1) a finding that the
petitioner adduced false evidence does not excuse the
assessment of evidence that is independently corroborated;
(2) the presentation of fraudulent documents that were created
to escape persecution (which, as the court noted, may actually
tend to support an alien’s application); (3) false evidence that
is wholly ancillary to the alien’s claim may be insufficient by
itself to warrant a conclusion that the entirety of the alien’s
uncorroborated material evidence is false; (4) false statements
made during an airport interview, depending on the
circumstances, may not be a sufficient ground for invoking
the maxim; and (5) an alien’s submission of documentary
evidence that the alien does not know, and has no reason to
know, is inauthentic, is no basis for falsus in uno. Id. at
170–71. Even when none of these exceptions applies, Siewe
at best endorses use of the maxim where testimony lacks
corroboration or authentication. The rule announced today
has a far greater sweep: if one asylum claim has
inconsistencies deemed material, IJs will not need to consider
alternative asylum claims at all. And on review, our court
will have no way of knowing whether a petitioner produced
corroboration or authentication in support of an alternative
claim that was sufficient to overcome real or perceived
inconsistencies in her evidence. There will be no findings to
review.

Our pre-REAL ID Act case law recognizes the logistical
difficulties inherent in immigration cases and established
limitations on the types of inconsistencies that provide
sufficient support for adverse credibility determinations.
Assessing claims on their merits and requiring “independent,
specific, and cogent” reasons for adverse credibility
determinations as to each claim adheres to our circuit’s pre-
 LI V. HOLDER 25

REAL ID Act rule that adverse credibility determinations
must be based only on inconsistencies that go to the heart of
the petitioner’s claim. This rule does nothing more than
insure that each basis for asylum is given fair consideration.
Here, it requires that whether or not Li was able to provide
testimony or corroboration sufficient to convince the IJ that
she had been the victim of persecution based on her religious
beliefs, she was entitled to a merits ruling on her other
asylum claim.

No court will determine whether Li is entitled to asylum
as a refugee who was forced to undergo an abortion because
the immigration courts addressed her religious persecution
claim first, decided there were inconsistencies in her
testimony that she was not able to sufficiently explain, and
dismissed her forced abortion claim without ruling on its
merits. But whether Li applied for a passport in response to
being arrested for her home church activities, whether she
was baptized in China, or had a good explanation for not
being baptized in China, are all questions that have nothing
to do with whether she was forced to undergo an abortion.
As the majority acknowledges, these inconsistencies “do not
touch upon her forced abortion claim.” They certainly do not
go to the heart of it.

Unfortunately, under the new rule announced today, many
more applicants will see their asylum claims dismissed, as
Li’s was, without a merits ruling from any court.

II. Conclusion

For the preceding reasons, I would grant the petition for
review and remand this case for consideration of Li’s asylum
26 LI V. HOLDER

claim based on forced abortion and her claim for withholding
of removal.