                                                                           FILED
                            NOT FOR PUBLICATION
                                                                           DEC 22 2015
                    UNITED STATES COURT OF APPEALS                      MOLLY C. DWYER, CLERK
                                                                         U.S. COURT OF APPEALS


                            FOR THE NINTH CIRCUIT


XINTAI ZHAI,                                     No. 12-72777

              Petitioner,                        Agency No. A095-876-560

 v.
                                                 MEMORANDUM*
LORETTA E. LYNCH, Attorney General,

              Respondent.


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

                     Argued and Submitted November 6, 2015
                              Pasadena, California

Before: SCHROEDER, PREGERSON, and FRIEDLAND, Circuit Judges.

      Xintai Zhai petitions for review of a decision of the Board of Immigration

Appeals (“BIA”) affirming the Immigration Judge’s (“IJ”) denial of his

applications for asylum and withholding of removal. We have jurisdiction under 8

U.S.C. § 1252, and we deny the petition for review.


        *
             This disposition is not appropriate for publication and is not precedent
except as provided by 9th Cir. R. 36-3.
      Where, as here, the BIA conducts an independent review of the evidence and

law, our review “is limited to the BIA’s decision, except to the extent that the IJ’s

opinion is expressly adopted.” Hosseini v. Gonzales, 471 F.3d 953, 957 (9th Cir.

2006). We therefore review the reasons identified by the BIA, as well as those

provided by the IJ in support of its adverse credibility finding. See Chawla v.

Holder, 599 F.3d 998, 1001 (9th Cir. 2010); Tekle v. Mukasey, 533 F.3d 1044,

1051 (9th Cir. 2008). Adverse credibility findings are reviewed for substantial

evidence and will be upheld unless a reasonable fact-finder would be compelled to

conclude to the contrary. Almaghzar v. Gonzales, 457 F.3d 915, 920 (9th Cir.

2006).

      Substantial evidence supports the IJ’s adverse credibility finding and denial

of relief in this pre-REAL ID Act case. Zhai failed to credibly establish his

identity, a “key element[]” in his asylum claim. Farah v. Ashcroft, 348 F.3d 1153,

1156 (9th Cir. 2003). Based on the report and testimony of a forensic examiner

from the United States Immigration and Customs Enforcement Forensic Document

Laboratory (“FDL”), the BIA found that the Chinese Resident Identification Card

submitted by Zhai was counterfeit.

      This case is distinguishable from Yeimane-Berhe v. Ashcroft, 393 F.3d 907,

911 (9th Cir. 2004). Under Yeimane-Berhe, submission of a fraudulent document


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that may go to the heart of an asylum claim is not automatically determinative of

an adverse credibility finding, especially where there is no indication that the

petitioner knew the document was fraudulent. Id. Unlike in Yeimane-Berhe, the

BIA here pointed to specific evidence that Zhai knew that his identification card

was fraudulent. Zhai testified that the public security bureau in China issued the

identification card to him in person and that his wife sent the same card to him in

the United States from China. As the BIA indicated, if Zhai is credible, it leads to

the “unlikely inference that the public security bureau issued a counterfeit

document to him, or that he initially received a genuine identification card, but his

wife mailed him a different, fraudulent document without notifying him.”

      Zhai also offered a notarial birth certificate, hospital letter, and medical

record along with the counterfeit identification card, none of which could be

authenticated. It was reasonable for the IJ and the BIA to decide that these

unauthenticated documents were insufficient to credibly establish Zhai’s identity.

See In Re O-D-, 21 I. & N. Dec. 1079, 1081–83 (BIA 1998). This is especially

true here, where Zhai knew years before his merits hearing that the identification

card was determined to be counterfeit by the FDL. Despite this notice, Zhai still

failed to provide a reasonable explanation for his submission of the counterfeit

document or to provide additional evidence to prove his identity. At the very least,


                                           3
Zhai provided no evidence to compel the conclusion that he is credible. See Farah,

348 F.3d at 1156. Thus, substantial evidence supports the denial of asylum.

      Because Zhai relied on the same testimony and evidence to prove his

withholding of removal claim, the BIA’s denial of withholding of removal is also

supported by substantial evidence. Id.

      Petition DENIED.




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