Hayfa Dawood v. Matthew Whitaker

• Court: Court of Appeals for the Ninth Circuit
• Decided: January 3, 2019
• Docket: 12-72116
• Status: Unpublished

Opinion

NOT FOR PUBLICATION FILED UNITED STATES COURT OF APPEALS JAN 3 2019 MOLLY C. DWYER, CLERK U.S. COURT OF APPEALS FOR THE NINTH CIRCUIT

HAYFA DAWOOD, No. 12-72116

Petitioner, Agency No. A095-875-213

v. MEMORANDUM* MATTHEW G. WHITAKER, Acting Attorney General,

Respondent.

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

Submitted November 8, 2018** Pasadena, California

Before: RAWLINSON, MELLOY,*** and HURWITZ, Circuit Judges.

Hayfa Dawood, a native and citizen of Ethiopia, petitions for review of a

decision of the Board of Immigration Appeals (“BIA”) dismissing her appeal from

* 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). *** The Honorable Michael J. Melloy, United States Circuit Judge for the U.S. Court of Appeals for the Eighth Circuit, sitting by designation. the denial by an Immigration Judge (“IJ”) of applications for asylum, withholding

of removal, and relief under the Convention Against Torture (“CAT”). We have

jurisdiction under 8 U.S.C. § 1252 and deny the petition.

1. Substantial evidence supported the IJ’s findings that Dawood’s declaration

and testimony were not credible and that, absent the discredited testimony, Dawood

did not establish eligibility for relief. In a pre-REAL ID case such as this one, an IJ

must base his adverse credibility determination on reasons that “go to the heart of

petitioner’s claim.” Desta v. Ashcroft, 365 F.3d 741, 745 (9th Cir. 2004). Dawood’s

declaration repeated verbatim excerpts from a declaration filed in support of an

earlier asylum application by another applicant; she gave inconsistent testimony

about how she wrote the declaration; and expert analysis revealed that her

documentary evidence had been fabricated. These inconsistencies considered

collectively go to the heart of her claims. See Rizk v. Holder, 629 F.3d 1083, 1088

(9th Cir. 2011).1

2. The IJ did not deny Dawood due process by admitting the other applicant’s

declaration into evidence. Any probative evidence can be considered in an

immigration proceeding if “its admission is fundamentally fair.” Rojas-Garcia v.

Ashcroft, 339 F.3d 814, 823 (9th Cir. 2003). The other declaration was probative of

1 Because Dawood filed her application in 2002, the REAL ID Act of 2005, Pub. L. No. 109–13, does not apply. See Shrestha v. Holder, 590 F.3d 1034, 1039– 40 (9th Cir. 2010).

2 Dawood’s credibility, because of its virtual identity to portions of her declaration.

The IJ ensured fairness by providing Dawood an opportunity to explain the

similarities between the declarations. See Matter of R-K-K-, 26 I. & N. Dec. 658,

661 (BIA 2015). Moreover, when asked if he objected to the introduction of the

other declaration, Dawood’s attorney said “no.”

3. The BIA declined to consider Dawood’s argument that the IJ denied her

due process by failing to enter a forensic report into evidence and not allowing her

to cross-examine the preparer of the report. Dawood failed to raise the arguments

to the IJ and therefore failed to exhaust them. We also may not consider them. See

Sola v. Holder, 720 F.3d 1134, 1135 (9th Cir. 2013).

PETITION DENIED.