Fesehaye Okube Habte v. ERIC H. HOLDER, Jr., Attorney General

NOT FOR PUBLICATION
UNITED STATES COURT OF APPEALS
FOR THE NINTH CIRCUIT
FESEHAYE OKUBE HABTE,
Petitioner,
v.
ERIC H. HOLDER, Jr., Attorney General,
Respondent.
No. 10-72524
Agency No. A089-671-191
MEMORANDUM*
FESEHAYE OKUBE HABTE,
Petitioner,
v.
ERIC H. HOLDER, Jr., Attorney General,
Respondent.
No. 11-71821
Agency No. A089-671-191
FESEHAYE OKUBE HABTE,
Petitioner,
v.
No. 13-72360
Agency No. A089-671-191
FILED
JAN 30 2015
MOLLY C. DWYER, CLERK
U.S. COURT OF APPEALS
* This disposition is not appropriate for publication and is not precedent
except as provided by 9th Cir. R. 36-3.

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ERIC H. HOLDER, Jr., Attorney General,
Respondent.
On Petition for Review of an Order of the
Board of Immigration Appeals
Argued and Submitted December 12, 2014
San Francisco, California
Before: FISHER, RAWLINSON, and MURGUIA, Circuit Judges.
I. The Board’s Denial of Habte’s Asylum Application
Fesehaye Okube Habte petitions for review of the denial of his application
for asylum, withholding of removal, and relief under the Convention Against
Torture (“CAT”). The Immigration Judge (“IJ”) based her adverse credibility
finding on multiple inconsistencies. In the absence of credible testimony, the IJ
found the remaining evidence insufficient to establish eligibility for relief from
removal. The Board of Immigration Appeals (“Board”) reviewed the IJ’s findings
of fact and conclusions of law and affirmed the judgment.
We have jurisdiction under 8 U.S.C. § 1252 and review the Board’s decision
for substantial evidence. See Singh v. Ashcroft, 362 F.3d 1164, 1168 (9th Cir.
2004). The judgment of the Board is supported by substantial evidence, therefore
we deny the petition.
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An adverse credibility finding can be based on “any relevant factor that,
considered in light of the totality of the circumstances, can reasonably be said to
have a bearing on petitioner’s veracity.” Ren v. Holder, 648 F.3d 1079, 1084 (9th
Cir. 2011) (internal quotation marks omitted). “Major inconsistencies on issues
material to the alien’s claim of persecution constitute substantial evidence
supporting an adverse credibility determination.” Rizk v. Holder, 629 F.3d 1083,
1088 (9th Cir. 2011).
The adverse credibility finding was based on inconsistencies in Habte’s
testimony as well as Habte’s failure to produce reliable documentary evidence.
For example, Habte submitted a copy of an identification card that listed a birth
place different from the one he noted in his testimony, and he failed to plausibly
explain the discrepancy. Habte also submitted a school record that had been
visibly altered despite language on the school record indicating that any alteration
would invalidate it. None of the submitted documents established Habte’s identity,
which was essential to his claim. See Farah v. Ashcroft, 348 F.3d 1153, 1156 (9th
Cir. 2003).
In light of the totality of the circumstances, the discrepancies and omissions
were material and provide substantial evidence supporting the adverse credibility
finding. See Rizk, 629 F.3d at 1088.
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The remaining record evidence does not compel a finding that Habte was or
will be subject to persecution. See Farah, 348 F.3d at 1156. Nor does the record
compel a finding that Habte would, more likely than not, be subject to torture upon
return to Eritrea. See id. at 1157.
Therefore, Habte’s petition for review of the Board’s denial of his
application for relief from removal is DENIED.
II. The Board’s Denial of Habte’s Motion to Reopen
Habte also petitions for review of the Board’s denial of his second motion to
reopen, submitted in January 2013. The Board denied Habte’s motion as time-
barred, on the ground that Habte failed to introduce previously unavailable material
evidence of changed conditions in Eritrea. See 8 U.S.C. § 1229a(c)(7)(C)(ii).
We have jurisdiction under 8 U.S.C. § 1252 and review the Board’s decision
for an abuse of discretion. See Lopez-Vasquez v. Holder, 706 F.3d 1072, 1078 (9th
Cir. 2013). Because the Board acted “arbitrarily, irrationally, or contrary to law”
in denying Habte’s motion to reopen without considering newly submitted country
conditions evidence, id. (quoting Singh v. INS, 213 F.3d 1050, 1052 (9th Cir.
2000)), we grant the petition.
The Board abused its discretion by denying Habte’s second motion to reopen
without considering the previously unavailable evidence of changed conditions in
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Eritrea, which Habte submitted in support of his motion. See id. The later-
submitted country conditions evidence is qualitatively different from the evidence
available at the time of Habte’s removal hearing because it is more detailed, better
substantiated, and more compelling. See Najmabadi v. Holder, 597 F.3d 983, 987
(9th Cir. 2010); see also Malty v. Ashcroft, 381 F.3d 942, 945–46 (9th Cir. 2004).
Whereas the previously submitted evidence supported the possibility that Habte
might be persecuted if returned to Eritrea, the newly submitted evidence supports
the probability that Habte will, with near certainty, be persecuted if returned to
Eritrea as an asylum-seeker.
Therefore, Habte’s petition for review of the Board’s denial of his second
motion to reopen is GRANTED. We REMAND for the Board to reconsider
Habte’s motion to reopen in light of the material evidence of changed conditions in
Eritrea, which was not available at the time of Habte’s removal hearing.
In No. 10-72524, PETITION DENIED.
In No. 11-71821, PETITION DISMISSED, because petitioner has chosen
not to pursue his appeal.
In No. 13-72360, PETITION GRANTED; REMANDED.
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