Kifle

MEMORANDUM **

Erkabwa Kifle, a native Ethiopian, petitions for review of the Board of Immigration Appeals’ (the “BIA”) decision upholding the Immigration Judge’s (the “IJ”) decision that Kifle was ineligible for asylum relief, under 8 U.S.C. § 1158 , withholding of deportation relief, under 8 U.S.C. § 1231 (b)(3), or protection under the Convention Against Torture (“CAT”). The BIA adopted the IJ’s conclusions that the conviction document Kifle presented, purporting to be an in absentia conviction and death sentence, was fraudulent and that Kifle had failed to present evidence necessitating asylum relief, withholding of deportation relief, or protection under the CAT.

Substantial evidence supports the IJ’s conclusion that the conviction document Kifle presented was fraudulent. Specifically, the testimony and written report of William McCarthy, an immigration forensic documents examiner, are substantial evidence supporting the IJ’s decision. While Kifle presented contradictory evidence indicating the conviction document was authentic, the IJ properly discredited this evidence, and the BIA found no clear error in the IJ’s decision. See Yeimane-Berhe v. Ashcroft, 393 F.3d 907, 910…

I would grant the petition and remand to the Board of Immigration Appeals (BIA) for further proceedings. As the government counsel recognized at argument, the BIA limited its holding to affirming the Immigration Judge’s (IJ) conclusion that the Ethiopian court document is fraudulent, without passing on the IJ’s decision to discount the brother’s testimony. The majority now does the same. But whether the IJ’s determination about the authenticity of the document is supported by substantial evidence is not necessarily determinative of Kifle’s asylum claim. If the brother’s testimony about receiving the document at the family home from three uniformed police is taken as credible, Kifle could still have a well-founded fear that the police would act on a fraudulent document, taking her into custody and harming or killing her. By slapping any assessment of the brother’s credibility, the BIA fails to grapple with this possibility.

Moreover, the IJ’s assessment of this asserted ground for a well-founded fear is certainly not self-evidently convincing. The IJ discounted the brother’s testimony because it came from a person with motivation to lie, and also because “it turns [the document]…

FILED

NOT FOR PUBLICATION NOV 19 2009

MOLLY C. DWYER, CLERK

UNITED STATES COURT OF APPEALS U .S . CO U RT OF AP PE A LS

FOR THE NINTH CIRCUIT

ERKABWA KIFLE, No. 05-74218

Petitioner, Agency No. A71-620-116

v.

ERIC H. HOLDER, JR., Attorney General, MEMORANDUM *

Respondent.

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

Argued and Submitted October 5, 2009 San Francisco, California

Before: SCHROEDER and BERZON, Circuit Judges, and STROM,** District Judge.

Erµabwa Kifle, a native Ethiopian, petitions for review of the Board of

Immigration Appeals' (the 'BIA') decision upholding the Immigration Judge's

(the 'IJ') decision that Kifle was ineligible for asylum relief, under 8 U.S.C.

* This disposition is not appropriate for publication and is not precedent except as provided by 9th Cir. R. 36-3. ** The Honorable Lyle E. Strom, Senior United States District Judge for the District of Nebrasµa, sitting by designation. y 1158 , withholding of deportation relief, under 8 U.S.C. y 1231(b)(3),…