Heng Ni v. Eric Holder, Jr. , 575 F. App'x 769 ( 2014 )

FILED
NOT FOR PUBLICATION MAY 27 2014
MOLLY C. DWYER, CLERK
UNITED STATES COURT OF APPEALS U.S. COURT OF APPEALS
FOR THE NINTH CIRCUIT
HENG NI, No. 10-72480
Petitioner, Agency No. A095-446-774
v.
MEMORANDUM*
ERIC H. HOLDER, Jr., Attorney General,
Respondent.
On Petition for Review of an Order of the
Board of Immigration Appeals
Submitted May 13, 2014**
Pasadena, California
Before: PREGERSON, REINHARDT, and NGUYEN, Circuit Judges.
Heng Ni petitions for review of a decision of the Board of Immigration
Appeals (BIA) affirming the Immigration Judge’s (IJ) adverse credibility finding
*
This disposition is not appropriate for publication and is not precedent
except as provided by 9th Cir. R. 36-3.
**
The panel unanimously concludes this case is suitable for decision
without oral argument. See Fed. R. App. P. 34(a)(2).
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and concluding that he is ineligible for asylum. We have jurisdiction under 8
U.S.C. § 1252(a)(1) and deny the petition for review.
Ni argues that the IJ and BIA erred, under Daubert v. Merrell Dow
Pharmaceuticals, Inc., 509 U.S. 579 (1993), in relying on the testimony and report
of a forensic document analyst who found that Ni’s notarial birth certificate was
counterfeit. We lack jurisdiction to consider this argument because Ni did not raise
it in his appeal to the BIA. 8 U.S.C. § 1252(d)(1).
Ni also argues that the adverse credibility finding was not supported by
substantial evidence. The IJ found that Ni’s notarial birth certificate was
counterfeit. Ni contends that he did not know that the birth certificate was
fraudulent because his wife sent it to him from China. The IJ found, however, that
the birth certificate was created in Los Angeles and for that reason, Ni had reason
to know that the document was counterfeit. The IJ’s finding distinguishes Ni’s
case from Yeimane-Berhe v. Ashcroft, 393 F.3d 907, 911 (9th Cir. 2004). See
Khadka v. Holder, 618 F.3d 996, 1001 (9th Cir. 2010). Because the birth
certificate was offered to establish Ni’s identity, a “key element[] of the asylum
claim,” the IJ’s adverse credibility finding is supported by substantial evidence.
Farah v. Ashcroft, 348 F.3d 1153, 1156 (9th Cir. 2003).
Ni’s remaining arguments are without merit.
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Petition DENIED.
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