    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


                               3
. . . 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


                               4
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
                              5
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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