                                                                           FILED
                            NOT FOR PUBLICATION
                                                                            FEB 18 2016
                    UNITED STATES COURT OF APPEALS                      MOLLY C. DWYER, CLERK
                                                                         U.S. COURT OF APPEALS


                            FOR THE NINTH CIRCUIT


FAN WU,                                          Nos. 12-74066, 13-71511

              Petitioner,                        Agency No. A096-364-713

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

              Respondent.


                      On Petitions for Review of Orders of the
                          Board of Immigration Appeals

                     Argued and Submitted February 9, 2016
                              Pasadena, California

Before: FARRIS, CLIFTON, and BEA, Circuit Judges.

      Fan Wu, a native and citizen of China, petitions for review of the Board of

Immigration Appeals’ decisions (1) dismissing her appeal from an immigration

judge’s denial of her application for asylum, and (2) denying her motion to reopen

proceedings based on new evidence.


        *
             This disposition is not appropriate for publication and is not precedent
except as provided by 9th Cir. R. 36-3.
      The immigration judge’s adverse credibility determination, entered in the

course of proceedings on Wu’s asylum application, is not supported by substantial

evidence. Under Yeimane-Berhe v. Ashcroft, 393 F.3d 907 (9th Cir. 2004), the

submission of a fraudulent document cannot serve as the sole basis for an adverse

credibility determination without a finding, or at least an indication, that the

petitioner knew or should have known that the document was fraudulent. Id. at

911; see also Khadka v. Holder, 618 F.3d 996, 1001 (9th Cir. 2010). There has

been no finding, and there is no indication in the record, that Wu knew or should

have known that her notarial birth certificate and resident identification card were

fraudulent. Her submission of those documents, on its own, cannot sustain an

adverse credibility determination. See Yeimane-Berhe, 393 F.3d at 911.

      (2) The BIA did not abuse its discretion in denying Wu’s motion to reopen

proceedings based on new evidence. Wu has not demonstrated that her Chinese

passport was previously unavailable. See 8 C.F.R. § 1003.2(c)(1) (“A motion to

reopen proceedings shall not be granted unless it appears to the Board that

evidence sought to be offered is material and was not available and could not have

been discovered or presented at the former hearing.”). We express no opinion as to

the authenticity or probative effect of the Chinese passport Wu proffered in support

of her motion.


                                           2
      Wu’s petition for review of the BIA’s decision dismissing her appeal from

the IJ’s denial of her asylum application (No. 12-74066) is granted and the case

remanded to the BIA for further proceedings on an open record. Wu’s petition for

review of the BIA’s decision denying her motion to reopen proceedings

(No. 13-71511) is denied. Each party shall bear their own costs on appeal.

      No. 12-74066: PETITION GRANTED; REMANDED

      No. 13-71511: PETITION DENIED




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