Heng Ni v. Eric Holder, Jr.

FILED
NOT FOR PUBLICATION MAY 27 2014

MOLLY C. DWYER, CLERK
UNITED STATES COURT OF APPEALS U.S. COURT OF APPEALS

FOR THE NINTH CIRCUIT

HENG NI, No. 10-72480

Petitioner, Agency No. A095-446-774

v.
MEMORANDUM*
ERIC H. HOLDER, Jr., Attorney General,

Respondent.

On Petition for Review of an Order of the
Board of Immigration Appeals

Submitted May 13, 2014**
Pasadena, California

Before: PREGERSON, REINHARDT, and NGUYEN, Circuit Judges.

Heng Ni petitions for review of a decision of the Board of Immigration

Appeals (BIA) affirming the Immigration Judge’s (IJ) adverse credibility finding

*
This disposition is not appropriate for publication and is not precedent
except as provided by 9th Cir. R. 36-3.
**
The panel unanimously concludes this case is suitable for decision
without oral argument. See Fed. R. App. P. 34(a)(2).

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and concluding that he is ineligible for asylum. We have jurisdiction under 8

U.S.C. § 1252(a)(1) and deny the petition for review.

Ni argues that the IJ and BIA erred, under Daubert v. Merrell Dow

Pharmaceuticals, Inc., 509 U.S. 579 (1993), in relying on the testimony and report

of a forensic document analyst who found that Ni’s notarial birth certificate was

counterfeit. We lack jurisdiction to consider this argument because Ni did not raise

it in his appeal to the BIA. 8 U.S.C. § 1252(d)(1).

Ni also argues that the adverse credibility finding was not supported by

substantial evidence. The IJ found that Ni’s notarial birth certificate was

counterfeit. Ni contends that he did not know that the birth certificate was

fraudulent because his wife sent it to him from China. The IJ found, however, that

the birth certificate was created in Los Angeles and for that reason, Ni had reason

to know that the document was counterfeit. The IJ’s finding distinguishes Ni’s

case from Yeimane-Berhe v. Ashcroft, 393 F.3d 907, 911 (9th Cir. 2004). See

Khadka v. Holder, 618 F.3d 996, 1001 (9th Cir. 2010). Because the birth

certificate was offered to establish Ni’s identity, a “key element[] of the asylum

claim,” the IJ’s adverse credibility finding is supported by substantial evidence.

Farah v. Ashcroft, 348 F.3d 1153, 1156 (9th Cir. 2003).

Ni’s remaining arguments are without merit.

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Petition DENIED.