NOT FOR PUBLICATION FILED
UNITED STATES COURT OF APPEALS SEP 16 2020
MOLLY C. DWYER, CLERK
U.S. COURT OF APPEALS
FOR THE NINTH CIRCUIT
ANNETTE ACHAGHA TABE, No. 19-72170
Petitioner, Agency No. A097-598-808
v.
MEMORANDUM*
WILLIAM P. BARR, Attorney General,
Respondent.
On Petition for Review of an Order of the
Board of Immigration Appeals
Submitted September 8, 2020**
Before: TASHIMA, SILVERMAN, and OWENS, Circuit Judges.
Annette Achagha Tabe, a native and citizen of Cameroon, petitions pro se
for review of the Board of Immigration Appeals’ (“BIA”) order dismissing her
appeal from an immigration judge’s (“IJ”) decision denying her application for
asylum, withholding of removal, and relief under the Convention Against Torture
(“CAT”). Our jurisdiction is governed by 8 U.S.C § 1252. We review de novo
*
This disposition is not appropriate for publication and is not precedent
except as provided by Ninth Circuit Rule 36-3.
**
The panel unanimously concludes this case is suitable for decision
without oral argument. See Fed. R. App. P. 34(a)(2).
questions of law, including frivolous application findings. Liu v. Holder, 640 F.3d
918, 925 (9th Cir. 2011). We review for substantial evidence the agency’s factual
findings, applying the standards governing adverse credibility determinations
created by the REAL ID Act. Shrestha v. Holder, 590 F.3d 1034, 1039-40 (9th
Cir. 2010). We grant in part, deny in part, and dismiss in part the petition for
review, and we remand.
The agency erred in finding that Tabe filed a frivolous asylum application
where the record does not establish by a preponderance of the evidence that Tabe
deliberately fabricated evidence submitted in support of her claim. See Liu, 640
F.3d at 930.
The agency also found Tabe not credible based on a finding that she
deliberately fabricated evidence. Substantial evidence does not support the
agency’s adverse credibility determination. See Ren v. Holder, 648 F.3d 1079,
1089 (9th Cir. 2011) (adverse credibility finding not supported under the totality of
the circumstances); Kumar v. Gonzales, 444 F.3d 1043, 1050 (9th Cir. 2006)
(adverse credibility determination not supported where IJ’s belief that a document
was a forgery was based on speculation and conjecture).
Thus, we grant the petition for review as to Tabe’s asylum and withholding
of removal claims, and remand to the agency for further proceedings consistent
with this disposition. See INS v. Ventura, 537 U.S. 12, 16-18 (2002) (per curiam).
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Tabe does not challenge the BIA’s determination that she waived her
challenge to the IJ’s denial of CAT relief, see Martinez-Serrano v. INS, 94 F.3d
1256, 1259-60 (9th Cir. 1996) (issues not specifically raised and argued in a
party’s opening brief are waived), and we lack jurisdiction to review Tabe’s
contentions concerning the merits of her CAT claim, see Barron v. Ashcroft, 358
F.3d 674, 677-78 (9th Cir. 2004) (court lacks jurisdiction to consider claims not
raised to the BIA).
Tabe’s removal is stayed pending a decision by the BIA.
The government must bear the costs for this petition for review.
PETITION FOR REVIEW GRANTED in part; DENIED in part;
DISMISSED in part; REMANDED.
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