Opinion
No. 04-72115.
Submitted February 8, 2008 Pasadena, California.
The panel unanimously finds this case suitable for decision without oral argument. See Fed.R.App.P. 34(a)(2).
October 14, 2008.
On Petition for Review of an Order of the Board of Immigration Appeals Agency No. A077-584-765.
This disposition is not appropriate for publication and is not precedent except as provided by 9th Cir. R. 36-3.
Teyibat Abdela Mohamed ("Mohamed"), a native and citizen of Ethiopia, petitions for review of a decision of the Board of Immigration Appeals that denied her claims for asylum, withholding of removal, and protection under the Convention Against Torture. The parties are familiar with facts of the case, so we repeat them here only as necessary to explain our decision. We have jurisdiction under 8 U.S.C. § 1252 and we grant Mohamed's petition.
When "the BIA conducts an independent review of the IJ's findings," we review "the BIA's decision and not that of the IJ." Sidhu v. INS, 220 F.3d 1085, 1088 (9th Cir. 2000). We therefore review the decision of the BIA.
The BIA made an adverse credibility determination, which we review for substantial evidence. Gui v. INS, 280 F.3d 1217, 1225 (9th Cir. 2002). We conclude that the BIA's determination that Mohamed was not credible was not supported by substantial evidence. The BIA based its adverse credibility determination on the fact that Mohamed did not produce evidence to corroborate her identity as an Eritrean. In so deciding, the BIA relied on our decision in Sidhu, 220 F.3d. 1085. That decision, however, holds that an adverse credibility finding may be upheld only where the "applicant fails to produce non-duplicative, material, easily available corroborating evidence and provides no credible explanation for such failure." Id. at 1092 (emphasis added). Under the REAL ID Act, "[n]o court shall reverse a determination made by a trier of fact with respect to the availability of corroborating evidence . . . unless the court finds . . . that a reasonable trier of fact is compelled to conclude that such corroborating evidence is unavailable." 8 U.S.C. § 1252(b)(4).
Here, there was no corroborating evidence that was "easily available." The BIA suggested that Mohamed's failure to obtain documents proving her identity was based not on the availability of the documents, but on Mohamed's unwillingness to obtain them. This speculation, however, is not supported by the record. See Shah v. INS, 220 F.3d 1062, 1071 (9th Cir. 2000) ("Speculation and conjecture cannot form the basis of an adverse credibility finding. . . .").
Beyond speculation, the BIA offers no explanation as to why Mohamed should have been able to obtain documents proving her Eritrean identity. By contrast, the record indicates that Mohamed made extensive efforts to procure further evidence of her identity. She attempted to obtain the documents from the Eritrean embassy, but was told that this was not possible without some identifying document. She also testified plausibly about her fear of contacting the Ethiopian embassy. She enlisted a friend who was traveling to Ethiopia for business to track down her high school and obtain school records that might contain the necessary evidence. She also contacted neighbors in Ethiopia to procure corroborating documents. The credible evidence of Mohamed's efforts to obtain the documents itself reveals that such documentation was, contrary to the BIA's conclusion, not "easily available."
Morever, a State Department letter to the U.S. Department of Justice Executive Office for Immigration Review states that "many deportees have been deprived of legal documentation that confirms their Ethiopian citizenship" and, in any event, "Ethiopian identity documents normally did not list the holder as `Eritrean.'" This further confirms that the documentation required by the IJ was far from "easily available."
Further, the record reflects that Mohamed provided credible testimony about her Eritrean heritage. She also produced a witness, a family friend, who testified that he believed the family was Eritrean. Under Sidhu, Mohamed was not required to provide additional corroborating evidence where such evidence was not easily available. The BIA thus erred in relying on the lack of corroborating evidence as a basis for finding Mohamed not to be credible. We therefore grant Mohamed's petition and remand to the BIA for proceedings consistent with this disposition.
PETITION GRANTED.