Muteteri v. Holder

FILED
NOT FOR PUBLICATION MAY 27 2011
MOLLY C. DWYER, CLERK
UNITED STATES COURT OF APPEALS U .S. C O U R T OF APPE ALS
FOR THE NINTH CIRCUIT
RITTA MUTETERI, No. 07-72327
Petitioner, Agency No. A098-525-989
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 May 12, 2011
San Francisco, California
Before: GOODWIN and PAEZ, Circuit Judges, and O’GRADY,** District Judge.
Ritta Muteteri appeals denial of her application for political asylum, and of
her petitions for withholding of removal and for relief under Article III of the
Convention Against Torture. The immigration judge (IJ) denied relief on the basis
*
This disposition is not appropriate for publication and is not precedent
except as provided by 9th Cir. R. 36-3.
**
The Honorable Liam O’Grady, U.S. District Judge for the Eastern
District Court of Virginia, sitting by designation.
of adverse credibility. Muteteri also appeals a finding that she filed a frivolous
asylum application.
An adverse credibility determination must be supported by substantial
evidence and is overturned only when any reasonable fact-finder would be
compelled to do so. Singh v. Holder, __ F.3d __, 2011 WL 1127051, at *2
(9th Cir. 2011).
Muteteri submitted documents, including a medical record and a birth
certificate that were significantly contradicted by her testimony. Substantial
evidence does not compel this court to overturn the adverse credibility finding.
This court reviews de novo whether the IJ complied with the Board of
Immigration Appeals’ (BIA) procedural requirements for a frivolousness finding.
Yan Liu v. Holder, __ F.3d __, 2011 WL 1651244, at *4 (9th Cir. 2011). Among
those procedural requirements, an IJ must make a specific finding that the alien
knowingly filed a frivolous application. In re Y-L-, 24 I. & N. Dec. 151, 155
(B.I.A. 2007). “[A]n asylum application is frivolous if any of its material elements
is deliberately fabricated.” 8 C.F.R. § 1208.20. The deliberate fabrication must be
by the applicant. Khadka v. Holder, 618 F.3d 996, 1002 (9th Cir. 2010).
As the basis for frivolousness, the IJ found that Muteteri either knowingly
submitted false documents, or she was lying when she said she was competent in
2
English and had carefully reviewed all documentation submitted. Merely lying
about one’s English proficiency or about having carefully reviewed documents
submitted is not a deliberate fabrication of a material element of Muteteri’s claims,
and does not support a finding of frivolousness. Substantial evidence does not
support that finding.
The IJ found Muteteri’s asylum application frivolous before the BIA’s
opinion in In re Y-L- was filed. The matter is remanded to the BIA so that the
question of a frivolous penalty can be reviewed in light of In re Y-L-. Kalilu v.
Mukasey, 548 F.3d 1215, 1217 (9th Cir. 2008).
PETITION DENIED IN PART, GRANTED IN PART, AND
REMANDED
Each party to bear it’s own costs on appeal.
3