                                                                            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                              NOT FOR PUBLICATION                            NOV 19 2009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), 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 (9th Cir. 2004).

      The IJ rejected as too speculative the dissent's view that delivery of a false

document denotes a threat of harm from someone. Kifle did not appeal the issue to

the BIA and it is therefore not before us. See Serrano v. Gonzales, 469 F.3d 1317,

1319 (9th Cir. 2006).

      As a final note, the Court recognizes Kifle has not forfeited her right to

voluntary departure, which the BIA previously granted pursuant to 8 U.S.C.



                                         -2-
y 1229c(b). Lata v. INS, 204 F.3d 1241, 1246 (9th Cir. 2000).

      PETITION FOR REVIEW DENIED.




                                       -3-
                                                                                FILED
Kifle v. Holder, 05-74218                                                        NOV 19 2009

                                                                          MOLLY C. DWYER, CLERK
       Berzon, Circuit Judge, dissenting:                                     U .S . CO U RT OF AP PE A LS




       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 taµen as credible, Kifle could still have

a well-founded fear that the police would act on a fraudulent document,

taµing her into custody and harming or µilling her. By sµipping 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] into a . . . talisman . . . [whose]

existence alone shows the danger to the respondent . . . [G]iving a talismanic
quality to [the] document is simple boot-strapping.' [AR 66]

       The first consideration - motive to lie - would, of course, allow IJs to

disbelieve, without more, all testimony by asylum applicants and their

relatives. That is decidedly not the law - some other cogent basis for

disbelief must appear. See Murphy v. INS, 54 F.3d 605, 611 (9th Cir. 1995)

('Testimony should not be disregarded merely because it is . . . in the

individual's own interest.').

       The second, 'talisman,' reason, to the degree it is coherent, is simply

inaccurate. If one believes the brother, there was not just a fraudulent

document sent on to Kifle. Instead, there was a document delivered to

Kifle's family home by three uniformed policemen whose accent indicated

that they were of Tigre nationality, an identification confirmed by 'a marµ

on their eyebrows,' and who spoµe angrily and 'in a forceful manner.' [AR

288] Kifle is of Amhara ethnicity and was active in the prior, Amhara-

dominated Mengistu government. Members of the Tigre ethnic group are

prominent in the new government, which ousted the Mengistu regime, and

are often at odds with the Amhara. [See AR 450, 184]

       Also, the brother reported that police had come earlier looµing for

Kifle, and 'tried to scare us, terrorize us, and . . . said it's better if you tell us

where she is.' [AR 290] Further, the brother reported that he µnew of

someone else who had received a similar document, and that person was
later captured and disappeared. [AR 293] Thus, if the brother is credited,

there would be ample reason to believe that hostile people appearing to be

government officials were looµing for and threatening Kifle because of her

past political activities, even if the document they delivered to give an

official appearance to their threats was doctored.

      Because the BIA has not yet addressed the central issues of the

brother's credibility and the pertinence of his testimony if believed, I would

grant the petition and remand for that purpose.
