Heng Ni v. Eric Holder, Jr.

575 F. App'x 769

Opinion

MEMORANDUM **

Heng Ni petitions for review of a decision of the Board of Immigration Appeals (BIA) affirming the Immigration Judge’s (IJ) adverse credibility finding and con-eluding that he is ineligible for asylum. We have jurisdiction under 8 U.S.C. § 1252(a)(1) and deny the petition for review.

Ni argues that the IJ and BIA erred, under Daubert v. Merrell Dow Pharmaceuticals, Inc., 509 U.S. 579, 113 S.Ct. 2786, 125 L.Ed.2d 469 (1993), in relying on the testimony and report of a forensic document analyst who found that Ni’s notarial birth certificate was counterfeit. We lack jurisdiction to consider this argument because Ni did not raise it in his appeal to the BIA. 8 U.S.C. § 1252(d)(1).

Ni also argues that the adverse credibility finding was not supported by substantial evidence. The IJ found that Ni’s notarial birth certificate was counterfeit. Ni contends that he did not know that the birth certificate was fraudulent because his wife sent it to him from China. The IJ found, however, that the birth certificate was created in Los Angeles and for that reason, Ni had reason to know that the document was counterfeit. The IJ’s finding distinguishes Ni’s case from Yeimane-Berhe v. Ashcroft, 393 F.3d 907, 911 (9th Cir.2004). See Khadka v. Holder, 618 F.3d 996, 1001 (9th Cir.2010). Because the birth certificate was offered to establish Ni’s identity, a “key element[ ] of the asylum claim,” the IJ’s adverse credibility finding is supported by substantial evidence. Farah v. Ashcroft, 348 F.3d 1153, 1156 (9th Cir.2003).

Ni’s remaining arguments are without merit.

Petition DENIED.

** This disposition is not appropriate for publication and is not precedent except as provided by 9th Cir. R. 36-3.