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Xinlin Cao v. Garland

United States Court of Appeals, Ninth Circuit
Oct 13, 2022
No. 15-72632 (9th Cir. Oct. 13, 2022)

Opinion

15-72632

10-13-2022

XINLIN CAO, Petitioner, v. MERRICK B. GARLAND, Attorney General, Respondent.


NOT FOR PUBLICATION

Submitted October 11, 2022 [**] Honolulu, Hawaii

On Petition for Review of an Order of the Board of Immigration Appeals Agency No. A205-673-544

Before: SCHROEDER, RAWLINSON, and BRESS, Circuit Judges.

MEMORANDUM [*]

Xinlin Cao (Cao), a native and citizen of China, petitions for review of a decision of the Board of Immigration Appeals (BIA) dismissing his appeal of the denial of asylum and withholding of removal premised on opposition to China's family planning policies. Cao contends that the BIA and immigration judge (IJ) erred in denying his claims based on an adverse credibility determination.

"Taking the totality of the circumstances into account, we review the BIA's credibility determination for substantial evidence." Barseghyan v. Garland, 39 F.4th 1138, 1142 (9th Cir. 2022) (citation omitted). "Under the substantial evidence standard, administrative findings of fact are conclusive unless any reasonable adjudicator would be compelled to conclude to the contrary." Ruiz-Colmenares v. Garland, 25 F.4th 742, 748 (9th Cir. 2022) (citation omitted) (emphasis in the original). "Accordingly, only the most extraordinary circumstances will justify overturning an adverse credibility determination. . . ." Id. (citation and internal quotation marks omitted).

Substantial evidence supports the BIA's adverse credibility determination based on a material omission in Cao's statement submitted in support of his asylum application. During his removal proceedings, Cao testified that, after local officials forcibly took his wife to a hospital to perform an abortion, he confronted the town's mayor, who threatened to punish him. Because Cao's asylum statement made no mention of any confrontation with the mayor or the mayor's threats, substantial evidence supports the BIA's determination that Cao embellished his asylum claim. See id. at 750 (concluding that an "evolving story is precisely what one would expect if a petitioner is fabricating or embellishing past harms, so it is eminently reasonable that the IJ would conclude these changes reflected poorly on Petitioner's credibility") (citation omitted).

Substantial evidence also supports the adverse credibility determination based on inconsistencies between Cao's testimony and other evidence submitted in support of his claims. In his statement, Cao conveyed that, after his confrontation with local officials, he "hid in Xinjiang for 8 years," and testified that "one time [he] secretly took [his] wife to be with [him] for several months." Yet, Cao's wife stated that Cao told her "to go to Xinjiang for a few years . . . to inspire [her] . . . to go on living." Cao further testified that he was unable to find his wife when he went to the hospital in Shigang. However, Cao's wife stated that her abortion was performed at Shigang Hospital, although the abortion certificate submitted by Cao indicated that an "induced abortion" was performed at No. 6 People's Hospital of Tongzhou City. The inconsistencies identified by the IJ support the agency's adverse credibility determination. See id. at 749.

Cao does not point to any specific finding that was speculative or factually inaccurate in support of his assertion that the adverse credibility determination was premised on conjecture and erroneous factual findings. Cao also maintains that the IJ did not sufficiently consider his explanations concerning his inconsistent testimony. Cao did not raise this contention in his brief to the BIA, and we are precluded from addressing this unexhausted issue. See Alanniz v. Barr, 924 F.3d 1061, 1068-69 (9th Cir. 2019); see also Zamorano v. Garland, 2 F.4th 1213, 1224 (9th Cir. 2021) (explaining that we lack jurisdiction to consider unexhausted claims "rais[ing] mere procedural error, and not a constitutional challenge beyond the competence of the BIA to decide") (citations and internal quotation marks omitted).

Substantial evidence also supports the BIA's determination that the documents submitted in support of Cao's claims, including the abortion certificate and the statements of his wife and daughter, did not satisfy his burden of proof or rehabilitate his non-credible testimony. Contrary to Cao's argument that he had no notice of the need to provide corroboration, the IJ informed Cao that it was "important" that Cao "gather corroborating evidence especially since [his] statement" lacked "any dates or many details." As the BIA observed, Cao did not "meaningfully challenge[ ] the [IJ's] lack of corroboration finding on appeal, asserting only that he filed a number of corroborating documents."

PETITION DENIED in part and DISMISSED in part.

[*] This disposition is not appropriate for publication and is not precedent except as provided by Ninth Circuit Rule 36-3.

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


Summaries of

Xinlin Cao v. Garland

United States Court of Appeals, Ninth Circuit
Oct 13, 2022
No. 15-72632 (9th Cir. Oct. 13, 2022)
Case details for

Xinlin Cao v. Garland

Case Details

Full title:XINLIN CAO, Petitioner, v. MERRICK B. GARLAND, Attorney General…

Court:United States Court of Appeals, Ninth Circuit

Date published: Oct 13, 2022

Citations

No. 15-72632 (9th Cir. Oct. 13, 2022)