Fan Wu v. Loretta E. Lynch ( 2016 )

FILED
NOT FOR PUBLICATION
FEB 18 2016
UNITED STATES COURT OF APPEALS MOLLY C. DWYER, CLERK
U.S. COURT OF APPEALS
FOR THE NINTH CIRCUIT
FAN WU, Nos. 12-74066, 13-71511
Petitioner, Agency No. A096-364-713
v.
MEMORANDUM*
LORETTA E. LYNCH, Attorney General,
Respondent.
On Petitions for Review of Orders of the
Board of Immigration Appeals
Argued and Submitted February 9, 2016
Pasadena, California
Before: FARRIS, CLIFTON, and BEA, Circuit Judges.
Fan Wu, a native and citizen of China, petitions for review of the Board of
Immigration Appeals’ decisions (1) dismissing her appeal from an immigration
judge’s denial of her application for asylum, and (2) denying her motion to reopen
proceedings based on new evidence.
*
This disposition is not appropriate for publication and is not precedent
except as provided by 9th Cir. R. 36-3.
The immigration judge’s adverse credibility determination, entered in the
course of proceedings on Wu’s asylum application, is not supported by substantial
evidence. Under Yeimane-Berhe v. Ashcroft, 393 F.3d 907 (9th Cir. 2004), the
submission of a fraudulent document cannot serve as the sole basis for an adverse
credibility determination without a finding, or at least an indication, that the
petitioner knew or should have known that the document was fraudulent. Id. at
911; see also Khadka v. Holder, 618 F.3d 996, 1001 (9th Cir. 2010). There has
been no finding, and there is no indication in the record, that Wu knew or should
have known that her notarial birth certificate and resident identification card were
fraudulent. Her submission of those documents, on its own, cannot sustain an
adverse credibility determination. See Yeimane-Berhe, 393 F.3d at 911.
(2) The BIA did not abuse its discretion in denying Wu’s motion to reopen
proceedings based on new evidence. Wu has not demonstrated that her Chinese
passport was previously unavailable. See 8 C.F.R. § 1003.2(c)(1) (“A motion to
reopen proceedings shall not be granted unless it appears to the Board that
evidence sought to be offered is material and was not available and could not have
been discovered or presented at the former hearing.”). We express no opinion as to
the authenticity or probative effect of the Chinese passport Wu proffered in support
of her motion.
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Wu’s petition for review of the BIA’s decision dismissing her appeal from
the IJ’s denial of her asylum application (No. 12-74066) is granted and the case
remanded to the BIA for further proceedings on an open record. Wu’s petition for
review of the BIA’s decision denying her motion to reopen proceedings
(No. 13-71511) is denied. Each party shall bear their own costs on appeal.
No. 12-74066: PETITION GRANTED; REMANDED
No. 13-71511: PETITION DENIED
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