FILED
NOT FOR PUBLICATION
DEC 22 2015
UNITED STATES COURT OF APPEALS MOLLY C. DWYER, CLERK
U.S. COURT OF APPEALS
FOR THE NINTH CIRCUIT
XINTAI ZHAI, No. 12-72777
Petitioner, Agency No. A095-876-560
v.
MEMORANDUM*
LORETTA E. LYNCH, Attorney General,
Respondent.
On Petition for Review of an Order of the
Board of Immigration Appeals
Argued and Submitted November 6, 2015
Pasadena, California
Before: SCHROEDER, PREGERSON, and FRIEDLAND, Circuit Judges.
Xintai Zhai petitions for review of a decision of the Board of Immigration
Appeals (“BIA”) affirming the Immigration Judge’s (“IJ”) denial of his
applications for asylum and withholding of removal. We have jurisdiction under 8
U.S.C. § 1252, and we deny the petition for review.
*
This disposition is not appropriate for publication and is not precedent
except as provided by 9th Cir. R. 36-3.
Where, as here, the BIA conducts an independent review of the evidence and
law, our review “is limited to the BIA’s decision, except to the extent that the IJ’s
opinion is expressly adopted.” Hosseini v. Gonzales, 471 F.3d 953, 957 (9th Cir.
2006). We therefore review the reasons identified by the BIA, as well as those
provided by the IJ in support of its adverse credibility finding. See Chawla v.
Holder, 599 F.3d 998, 1001 (9th Cir. 2010); Tekle v. Mukasey, 533 F.3d 1044,
1051 (9th Cir. 2008). Adverse credibility findings are reviewed for substantial
evidence and will be upheld unless a reasonable fact-finder would be compelled to
conclude to the contrary. Almaghzar v. Gonzales, 457 F.3d 915, 920 (9th Cir.
2006).
Substantial evidence supports the IJ’s adverse credibility finding and denial
of relief in this pre-REAL ID Act case. Zhai failed to credibly establish his
identity, a “key element[]” in his asylum claim. Farah v. Ashcroft, 348 F.3d 1153,
1156 (9th Cir. 2003). Based on the report and testimony of a forensic examiner
from the United States Immigration and Customs Enforcement Forensic Document
Laboratory (“FDL”), the BIA found that the Chinese Resident Identification Card
submitted by Zhai was counterfeit.
This case is distinguishable from Yeimane-Berhe v. Ashcroft, 393 F.3d 907,
911 (9th Cir. 2004). Under Yeimane-Berhe, submission of a fraudulent document
2
that may go to the heart of an asylum claim is not automatically determinative of
an adverse credibility finding, especially where there is no indication that the
petitioner knew the document was fraudulent. Id. Unlike in Yeimane-Berhe, the
BIA here pointed to specific evidence that Zhai knew that his identification card
was fraudulent. Zhai testified that the public security bureau in China issued the
identification card to him in person and that his wife sent the same card to him in
the United States from China. As the BIA indicated, if Zhai is credible, it leads to
the “unlikely inference that the public security bureau issued a counterfeit
document to him, or that he initially received a genuine identification card, but his
wife mailed him a different, fraudulent document without notifying him.”
Zhai also offered a notarial birth certificate, hospital letter, and medical
record along with the counterfeit identification card, none of which could be
authenticated. It was reasonable for the IJ and the BIA to decide that these
unauthenticated documents were insufficient to credibly establish Zhai’s identity.
See In Re O-D-, 21 I. & N. Dec. 1079, 1081–83 (BIA 1998). This is especially
true here, where Zhai knew years before his merits hearing that the identification
card was determined to be counterfeit by the FDL. Despite this notice, Zhai still
failed to provide a reasonable explanation for his submission of the counterfeit
document or to provide additional evidence to prove his identity. At the very least,
3
Zhai provided no evidence to compel the conclusion that he is credible. See Farah,
348 F.3d at 1156. Thus, substantial evidence supports the denial of asylum.
Because Zhai relied on the same testimony and evidence to prove his
withholding of removal claim, the BIA’s denial of withholding of removal is also
supported by substantial evidence. Id.
Petition DENIED.
4