FILED
NOT FOR PUBLICATION MAY 12 2010
MOLLY C. DWYER, CLERK
UNITED STATES COURT OF APPEALS U.S . CO UR T OF AP PE A LS
FOR THE NINTH CIRCUIT
GASIM ABUHAWA, No. 05-75276
Petitioner, Agency No. A075-727-333
v.
MEMORANDUM *
ERIC H. HOLDER, Jr., Attorney General,
Respondent.
GASIM ABUHAWA, No. 05-77269
Petitioner, Agency No. A075-727-333
v.
ERIC H. HOLDER, Jr., Attorney General,
Respondent.
GASIM ABUHAWA, No. 06-73290
Petitioner, Agency No. A075-727-333
v.
*
This disposition is not appropriate for publication and is not precedent
except as provided by 9th Cir. R. 36-3.
ERIC H. HOLDER, Jr., Attorney General,
Respondent.
On Petition for Review of an Order of the
Board of Immigration Appeals
Argued and Submitted April 7, 2010
Pasadena, California
Before: FRIEDMAN, … D.W. NELSON and REINHARDT, Circuit Judges.
Gasim Abuhawa petitions for review of a Board of Immigration Appeals
(BIA) decision that dismissed his appeal of an Immigration Judge's (IJ) decision
denying his applications for asylum, withholding of removal, and relief under the
Convention Against Torture. He also petitions for review of the BIA's subsequent
decisions denying his motions to reopen and reconsider. We grant his initial
petition for review, No. 05-75276, and dismiss the subsequent two petitions, Nos.
05-77269 and 06-73290. We remand for further proceedings consistent with this
decision.
…
The Honorable Daniel M. Friedman, United States Circuit Judge for
the Federal Circuit, sitting by designation.
Page 2 of 7
The BIA held that Abuhawa was not credible because he 'failed to present
sufficient evidence to establish his identity.' An asylum applicant's credible
testimony is, on its own, sufficient to meet his burden of establishing eligibility for
asylum, including his burden to establish his 'identity.' See Ladha v. INS, 215
F.3d 889, 900 (9th Cir. 2000).1 However, where there is a legitimate reason to
question an applicant's credibility, the applicant's unexplained failure to produce
'non-duplicative, material, easily available corroborating evidence' may support
an adverse credibility finding, and thus a conclusion that he has failed to meet his
burden of proof. Sidhu v. INS,
220 F.3d 1085, 1092 (9th Cir. 2000).
Abuhawa testified that he is a native and citizen of Sudan, and that he was
born on January 5, 1973. He also submitted photocopies of his passport and visa,
both of which reflect his Sudanese citizenship, but list a birth date of January 5,
1978, five years later than the date to which he testified. He provided an
explanation for the discrepancy: Sudan has a policy of denying passports to men
over the age of 21. In order to receive permission to leave the country, he obtained
his passport and visa through unofficial channels, using a fraudulent birth date. Id.
1
Ladha's rule that corroboration may not be required from a credible
applicant has been superceded by the REAL ID Act. See Aden v. Holder, 589 F.3d
1040, 1043-44 (9th Cir. 2009). However, because Abuhawa applied for asylum
before May 11, 2005, his case is governed by pre-REAL ID Act standards. See
id.
at 1044 n.6.
Page 3 of 7
In addition to the copies of his passport and visa, Abuhawa submitted a
photocopy of his birth certificate.2 He testified that his father had obtained the
birth certificate through normal, official channels. The birth certificate reflects a
birth date of January 5, 1973, which, as noted above, Abuhawa testified to be his
true birth date.
The BIA's adverse credibility finding is based on speculation and legal error
regarding the evidence produced by Abuhawa. First, it is well-established that the
fact that an asylum applicant relied on fraudulent identity documents to gain entry
into the United States may not serve as the basis for an adverse credibility finding.
See Aµinmade v. INS, 196 F.3d 951, 956 (9th Cir. 1999); In re O-D-,
21 I. & N.
Dec. 1079, 1081 (1998). Accordingly, the fact that Abuhawa's passport and visa
contained inaccurate birthdates because, as he explained, he had to lie about his age
in order to be able to leave the Sudan, was not a permissible basis for an adverse
credibility determination.
2
The photocopied birth certificate lists an issue date of September 14, 1997.
At his hearing, Abuhawa explained that the birth certificate issued at the time of
his birth had been lost, and that the birth certificate issued on September 14, 1997
was an official replacement. It is clear that the 'original' birth certificate to which
the BIA refers in its decision is the original, as opposed to the photocopied, version
of the birth certificate issued on September 14, 1997.
Page 4 of 7
Next, the BIA questioned the accuracy of Abuhawa's birth certificate
because it was 'handwritten' and 'not authenticated.' However, in the absence of
specific evidence undermining the reliability of an asylum applicant's documentary
evidence, '[m]ere failure to authenticate [the] documents . . . does not constitute a
sufficient foundation for an adverse credibility finding.' Wang v. INS, 352 F.3d
1250, 1254 (9th Cir. 2003). Further, the BIA provided no explanation or support
for its assumption that a true Sudanese birth certificate would be entirely type-
written. Its 'basis for questioning the[] document[] 'amounts to nothing more than
a subjective view of what [the document] would looµ liµe.''
Id. at 1255 (quoting
Shah v. INS,
220 F.3d 1062, 1071 (9th Cir. 2000)). 'Our substantial evidence
standard requires more for an adverse credibility finding.'
Id.
Finally, the BIA found Abuhawa incredible because he had 'testified . . .
that he is currently in possession of an original copy of his birth certificate,' yet
failed to submit the original at a subsequent proceeding. However, as described
above, the BIA has provided no 'legitimate reason' to question Abuhawa's
credibility that would permit it to base an adverse credibility determination on his
failure to provide corroboration. See Salaam v. INS, 229 F.3d 1234, 1239 (9th Cir.
2000) (holding that corroboration may be required under Sidhu only where there is
a 'legitimate reason' to question the applicant's credibility). Further, even
Page 5 of 7
assuming there was a legitimate reason to question Abuhawa's credibility, the BIA
erred by basing an adverse credibility determination on his failure to provide a
specific corroborating document without providing him with notice that that
document was required. '[D]ue process requires that an applicant be given a
second opportunity to establish eligibility for asylum where the adverse credibility
determination was based, without notice to the applicant, on a failure to produce'
corroborating evidence.3 Zi Lin Chen v. Ashcroft, 362 F.3d 611, 620 (9th Cir.
2004). Abuhawa was not on notice that the photocopied birth certificate that he
provided was unacceptable, and that he would need to produce the original at a
subsequent hearing. Accordingly, the BIA could not base an adverse credibility
determination on his failure to do so.
Because the BIA's adverse credibility finding is not supported by substantial
evidence, we GRANT the petition, REVERSE the adverse credibility finding, and
REMAND for further proceedings. On remand, Abuhawa's testimony shall be
taµen to be credible. Guo v. Ashcroft, 361 F.3d 1194, 1203-04 (9th Cir. 2004); He
3
We have recently held that Due Process does not require an IJ to provide
notice before requiring corroboration from an asylum applicant whose claim is
governed by the REAL ID Act, because the Act itself provides sufficient notice
that corroboration may be required. See Singh v. Holder, --- F.3d ----, 2010 WL
1529405, *4-*6 & n.9 (9th Cir. April 19, 2010). Singh does not apply to this case,
which is governed by pre-REAL ID Act standards. See supra, note 1.
Page 6 of 7
v. Ashcroft, 328 F.3d 593, 604 (9th Cir. 2003); see also Soto-Olarte v. Holder,
555
F.3d 1089, 1095 (9th Cir. 2009). The question whether Abuhawa has met his
burden of establishing eligibility for asylum must be resolved in light of his
credible testimony.
Id. Abuhawa's withholding and CAT claims, which were
denied solely on the basis of the adverse credibility finding that we now reverse,
must be resolved in a similar manner.
GRANTED and REMANDED.
Page 7 of 7
FILED
Abuhawa v. Holder, Nos. 05-75276, 05-77269, 06-73290 MAY 12 2010
MOLLY C. DWYER, CLERK
U.S . CO UR T OF AP PE A LS
FRIEDMAN, Circuit Judge, concurring.
When an adjudicator who has seen and heard a witness' testimony and,
based on the adjudicator's evaluation of the witness' demeanor, rejects that
testimony because he determines the witness was not credible, an appellate tribunal
almost never rejects that credibility determination. That is the usual situation
where a determination of witness credibility is challenged on appeal.
Here, however, the situation is quite different. The credibility determination
that we review was made not by the person who saw and heard Abuhawa testify
(the Immigration Judge), but by the Board of Immigration Appeals in its review of
the Immigration Judge's decision. Abuhawa was found not credible not because of
his demeanor while testifying, but because of objective evidence that the Board of
Immigration Appeals believed undermined his testimony. The validity of that
conclusion turns upon an evaluation of that evidence, and that is a function that an
appellate tribunal typically performs. That is the situation here. Based upon Ninth
Circuit precedent, I have no reason to disagree with this court's conclusion that the
evidence does not justify the Board's ruling that Abuhawa was not a credible
witness.
