                                                                            FILED
                            NOT FOR PUBLICATION                              MAY 27 2011

                                                                         MOLLY C. DWYER, CLERK
                     UNITED STATES COURT OF APPEALS                       U .S. C O U R T OF APPE ALS




                            FOR THE NINTH CIRCUIT



RITTA MUTETERI,                                   No. 07-72327

              Petitioner,                         Agency No. A098-525-989

  v.
                                                  MEMORANDUM *
ERIC H. HOLDER, Jr., Attorney General,

              Respondent.



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

                        Argued and Submitted May 12, 2011
                             San Francisco, California

Before: GOODWIN and PAEZ, Circuit Judges, and O’GRADY,** District Judge.

       Ritta Muteteri appeals denial of her application for political asylum, and of

her petitions for withholding of removal and for relief under Article III of the

Convention Against Torture. The immigration judge (IJ) denied relief on the basis




        *
             This disposition is not appropriate for publication and is not precedent
except as provided by 9th Cir. R. 36-3.
        **
             The Honorable Liam O’Grady, U.S. District Judge for the Eastern
District Court of Virginia, sitting by designation.
of adverse credibility. Muteteri also appeals a finding that she filed a frivolous

asylum application.

      An adverse credibility determination must be supported by substantial

evidence and is overturned only when any reasonable fact-finder would be

compelled to do so. Singh v. Holder, __ F.3d __, 2011 WL 1127051, at *2

(9th Cir. 2011).

      Muteteri submitted documents, including a medical record and a birth

certificate that were significantly contradicted by her testimony. Substantial

evidence does not compel this court to overturn the adverse credibility finding.

      This court reviews de novo whether the IJ complied with the Board of

Immigration Appeals’ (BIA) procedural requirements for a frivolousness finding.

Yan Liu v. Holder, __ F.3d __, 2011 WL 1651244, at *4 (9th Cir. 2011). Among

those procedural requirements, an IJ must make a specific finding that the alien

knowingly filed a frivolous application. In re Y-L-, 24 I. & N. Dec. 151, 155

(B.I.A. 2007). “[A]n asylum application is frivolous if any of its material elements

is deliberately fabricated.” 8 C.F.R. § 1208.20. The deliberate fabrication must be

by the applicant. Khadka v. Holder, 618 F.3d 996, 1002 (9th Cir. 2010).

      As the basis for frivolousness, the IJ found that Muteteri either knowingly

submitted false documents, or she was lying when she said she was competent in


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English and had carefully reviewed all documentation submitted. Merely lying

about one’s English proficiency or about having carefully reviewed documents

submitted is not a deliberate fabrication of a material element of Muteteri’s claims,

and does not support a finding of frivolousness. Substantial evidence does not

support that finding.

      The IJ found Muteteri’s asylum application frivolous before the BIA’s

opinion in In re Y-L- was filed. The matter is remanded to the BIA so that the

question of a frivolous penalty can be reviewed in light of In re Y-L-. Kalilu v.

Mukasey, 548 F.3d 1215, 1217 (9th Cir. 2008).

      PETITION DENIED IN PART, GRANTED IN PART, AND

REMANDED

      Each party to bear it’s own costs on appeal.




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