Viktoria Trantcheva v. Eric Holder, Jr. , 543 F. App'x 650 ( 2013 )

FILED
NOT FOR PUBLICATION OCT 22 2013
MOLLY C. DWYER, CLERK
UNITED STATES COURT OF APPEALS U.S. COURT OF APPEALS
FOR THE NINTH CIRCUIT
VIKTORIA IANKOVA TRANTCHEVA; No. 09-72064
MIRTCHO MIHAYLOV TRANTCHEV,
Agency Nos. A075-250-456
Petitioners, A075-250-457
v.
MEMORANDUM*
ERIC H. HOLDER Jr., Attorney General,
Respondent.
On Petition for Review of an Order of the
Board of Immigration Appeals
Argued and Submitted October 11, 2013
San Francisco, California
Before: HAWKINS, N.R. SMITH, and NGUYEN, Circuit Judges.
Viktoria Iankova Trantcheva and her husband, Mirtcho Mihaylov Trantchev
(collectively “Petitioners”), natives and citizens of Bulgaria, seek review of a final
order of the Board of Immigration Appeals (“the Board”) holding them removable and
*
This disposition is not appropriate for publication and is not precedent
except as provided by Ninth Circuit Rule 36-3.
ineligible for asylum and withholding of removal. We have jurisdiction pursuant to
8 U.S.C. § 1252 and deny the petition for review.
Petitioners correctly contend their case is governed by our pre-REAL ID Act
decision in Borja v. INS, 175 F.3d 732, 736-37 (9th Cir. 1999) (en banc), superseded
by statute as stated in Parussimova v. Mukasey, 555 F.3d 734, 739-40 (9th Cir. 2009).
Borja recognizes persecutors often have “mixed motives” for their actions and permits
applicants to establish eligibility for asylum so long as they can show their persecution
“was motivated, at least in part, by an actual or implied protected ground” enumerated
in the statutory definition, 8 U.S.C. § 1101(a)(42)(A) (2012). Id. at 736 (quoting
Matter of T-M-B-, 21 I. & N. Dec. 775, 777 (BIA 1997)); see also Grava v. INS, 205
F.3d 1177, 1181 n.3 (9th Cir. 2000) (persecution victims no “less deserving of
asylum” when persecutor’s motives are mixed).1
Against this backdrop, Petitioners challenge the Board’s factual determination
that their treatment at the hands of the SIC was not motivated in any way—not even
in part—by an actual or implied protected ground. We can disturb the Board’s factual
findings only if the evidence “compel[s] a different conclusion from the one reached
1
In Borja, we overruled the Board’s factual determination in Matter of T-M-B-
while sustaining the legal test the Board articulated in that case. Put another way, the
Board correctly stated the law in T-M-B-, but failed to correctly apply the law to the
facts of that case. See Borja, 175 F.3d at 735-36.
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by the BIA.” Zheng v. Holder, 644 F.3d 829, 835 (9th Cir. 2011) (citing INS v.
Elias–Zacarias, 502 U.S. 478, 481 n.1 (1992)). Petitioners cannot reach such a
demanding standard, as their own oral testimony points to their mistreatment at the
hands of the SIC as motivated solely by non-political considerations. Nor do
Petitioners’ numerous documentary submissions compel reversal of the Board’s
factual determination. On the record developed below, we are not inclined to disturb
the Board’s factual determination. Cf. Kozulin v. INS, 218 F.3d 1112 (9th Cir. 2000)
(substantial evidence supports denial of mixed motive claim where no evidence of a
political motive presented).
Petitioners also contend the Board erred in affirming the Immigration Judge’s
(“IJ”) decision to give no weight to the documentary evidence Petitioners submitted
in reopened proceedings. “We review an IJ’s decision to exclude a document from
evidence for lack of authentication for an abuse of discretion.” Vatyan v. Mukasey,
508 F.3d 1179, 1182 (9th Cir. 2007). Our circuit permits litigants in immigration
court to authenticate documents—even documents originating abroad—under the
procedures described in Federal Rule of Civil Procedure 44(a), Federal Rule of
Evidence 901, 8 C.F.R. § 287.6, or through “any recognized procedure for
authentication of documents in general.” Vatyan, 508 F.3d at 1183; Iran v. INS, 656
F.2d 469, 472 n.8 (9th Cir. 1981).
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Here, the IJ afforded Petitioners an opportunity to authenticate their evidentiary
submissions through their own oral testimony. The government introduced strong
rebuttal evidence calling into question the reliability of Petitioners’ evidence. On
these facts, the IJ did not abuse her discretion in finding Petitioners had failed to
authenticate these documents and the Board did not commit clear error in affirming
the IJ’s factual findings.
Having failed to establish eligibility for asylum, Petitioners’ claim for
withholding of removal necessarily fails. Pedro-Mateo v. INS, 224 F.3d 1147, 1150
(9th Cir. 2000).
PETITION DENIED.
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