13-2103
Cao v. Holder
BIA
Vomacka, IJ
A089 200 541
UNITED STATES COURT OF APPEALS
FOR THE SECOND CIRCUIT
SUMMARY ORDER
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At a stated term of the United States Court of Appeals
for the Second Circuit, held at the Thurgood Marshall United
States Courthouse, 40 Foley Square, in the City of New York,
on the 25th day of June, two thousand fourteen.
PRESENT:
JON O. NEWMAN,
RICHARD C. WESLEY,
GERARD E. LYNCH,
Circuit Judges.
_____________________________________
DAOLIANG CAO,
Petitioner,
v. 13-2103
NAC
ERIC H. HOLDER, JR., UNITED STATES
ATTORNEY GENERAL,
Respondent.
_____________________________________
FOR PETITIONER: David J. Rodkin, New York, NY.
FOR RESPONDENT: Stuart F. Delery, Assistant Attorney
General; Douglas E. Ginsburg,
Assistant Director; Katherine A.
Smith, Trial Attorney, Office of
Immigration Litigation, United
States Department of Justice,
Washington, D.C.
UPON DUE CONSIDERATION of this petition for review of a
decision of the Board of Immigration Appeals (“BIA”), it is
hereby ORDERED, ADJUDGED, AND DECREED that the petition for
review is DENIED.
Daoliang Cao, a native and citizen of China, seeks
review of an April 29, 2013, decision of the BIA affirming
an Immigration Judge’s (“IJ”) August 19, 2011, denial of
asylum, withholding of removal, and relief under the
Convention Against Torture (“CAT”). In re Daoliang Cao, No.
A089 200 541 (B.I.A. Apr. 29, 2013), aff’g No. A089 200 541
(Immig. Ct. N.Y. City Aug. 19, 2011). We assume the
parties’ familiarity with the underlying facts and
procedural history of this case.
Under the circumstances of this case, we have reviewed
both the BIA’s and IJ’s decisions. See Yun-Zui Guan v.
Gonzales, 432 F.3d 391, 394 (2d Cir. 2005) (per curiam).
The applicable standards of review are well-established.
See 8 U.S.C. § 1252(b)(4)(B); see also Xiu Xia Lin v.
Mukasey, 534 F.3d 162, 165-66 (2d Cir. 2008) (per curiam).
For asylum applications, like Cao’s, governed by the
REAL ID Act, the agency may, “[c]onsidering the totality of
the circumstances,” base a credibility finding on
inconsistencies in the applicant’s statements and other
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record evidence without regard to whether they go “to the
heart of the applicant’s claim.” 8 U.S.C.
§ 1158(b)(1)(B)(iii); Xiu Xia Lin, 534 F.3d at 163-64.
Substantial evidence supports the agency’s adverse
credibility determination.
Because Cao did not argue before the BIA that the IJ
erred in his findings regarding Cao’s passport, omissions in
his asylum application, and issues pertaining to his food
cart license, and the government has raised this failure to
exhaust in its brief to this Court, we decline to consider
these issues. See Lin Zhong v. U.S. Dep’t of Justice, 480
F.3d 104, 119-20 (2d Cir. 2007). Accordingly, these
findings stand as valid bases for the adverse credibility
determination. See Shunfu Li v. Mukasey, 529 F.3d 141, 146-
47 (2d Cir. 2008).
Nor did the agency err in considering Cao’s admission
that he had lied to a U.S. Consulate official to secure a
visa. Cao admitted that he provided documentation about a
fake business and that he lied when he informed the official
that he was going to the U.S. for business. The agency’s
consideration of these falsities in making an adverse
credibility determination was proper. We have “‘frequently
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. . . held [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 appropriate.’” Siewe v.
Gonzales, 480 F.3d 160, 170 (2d Cir. 2007) (quoting Lin
Zhong v. U.S. Dep’t of Justice, 461 F.3d 101, 123 (2d Cir.
2006)). While the falsus in uno maxim is inapplicable when
an asylee admits to using a “fraudulent document to escape
immediate danger or imminent persecution,” Rui Ying Lin v.
Gonzales, 445 F.3d 127, 133 (2d Cir. 2006), Cao was not in
immediate danger at the time he made the false statements.
From 2006 until he fled China in 2008, Cao did not
experience any incidents with government officials, nor did
he claim that he faced imminent danger of persecution at the
time he made the false statements. Therefore, contrary to
his contention in his brief, Cao does not fall under the
exception to the falsus in uno maxim discussed in Rui Ying
Lin.
In addition, the record supports the agency’s finding
that Cao’s testimony that he was laid off in September 2005
conflicted with a “lay off certificate” in the record dated
January 2008. When asked to explain this inconsistency, Cao
responded that the certificate bore an incorrect date. The
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agency was not compelled to credit this explanation, as
there was a three-year gap between these two dates, and not
only was the year incorrect, but there is also a discrepancy
as to what month Cao was laid off. See Majidi v. Gonzales,
430 F.3d 77, 80-81 (2d Cir. 2005).
Given this lack of credibility, the agency properly
considered the absence of corroborating evidence. See Biao
Yang v. Gonzales, 496 F.3d 268, 273 (2d Cir. 2007) (per
curiam). The agency did not err in according diminished
weight to Cao’s wife’s letter. See In re H-L-H & Z-Y-Z, 25
I. & N. Dec. 209, 215 (BIA 2010), rev’d on other grounds by
Hui Lin Huang v. Holder, 677 F.3d 130 (2d Cir. 2012); see
also Xiao Ji Chen v. U.S. Dep’t of Justice, 471 F.3d 315,
342 (2d Cir. 2006). Additionally, as the agency found, Cao
did not provide a statement from his uncle, who harbored
Cao’s wife while she hid from family planning officials
during her second pregnancy, or any medical documentation
confirming that his wife had an abortion. Contrary to Cao’s
argument in his brief, evidence of his wife’s abortion is
relevant, as his application was based on a claim that he
was laid off from work because he had violated the family
planning policy. In any event, the agency is permitted to
consider the lack of such corroborating evidence where
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credibility is already at issue. See Xiao Ji Chen, 471 F.3d
at 341.
The false information Cao admittedly provided to a U.S.
Consulate official, the inconsistencies in the record, and
the lack of corroboration, all call into question Cao’s
assertions that he was laid off because of his violation of
the family planning policy and became a protest organizer.
Thus, the “totality of the circumstances” supports the
agency’s adverse credibility determination. See Xiu Xia
Lin, 534 F.3d at 167. As all of Cao’s claims share the same
factual predicate, the adverse credibility determination is
dispositive of asylum, withholding of removal, and CAT
relief. See Paul v. Gonzales, 444 F.3d 148, 155-57 (2d Cir.
2006).
For the foregoing reasons, the petition for review is
DENIED.
FOR THE COURT:
Catherine O’Hagan Wolfe, Clerk
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