                                                                           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                            NOT FOR PUBLICATION                             MAY 12 2010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.
