Hayfa Dawood v. MATTHEW G. WHITAKER, Acting Attorney General

NOT FOR PUBLICATION
UNITED STATES COURT OF APPEALS
FOR THE NINTH CIRCUIT
HAYFA DAWOOD,
Petitioner,
v.
MATTHEW G. WHITAKER, Acting
Attorney General,
Respondent.
No. 12-72116
Agency No. A095-875-213
MEMORANDUM*
On Petition for Review of an Order of the
Board of Immigration Appeals
Submitted November 8, 2018**
Pasadena, California
Before: RAWLINSON, MELLOY,*** and HURWITZ, Circuit Judges.
Hayfa Dawood, a native and citizen of Ethiopia, petitions for review of a
decision of the Board of Immigration Appeals (“BIA”) dismissing her appeal from
* This disposition is not appropriate for publication and is not precedent
except as provided by Ninth Circuit Rule 36-3.
** The panel unanimously concludes this case is suitable for decision
without oral argument. See Fed. R. App. P. 34(a)(2).
*** The Honorable Michael J. Melloy, United States Circuit Judge for the
U.S. Court of Appeals for the Eighth Circuit, sitting by designation.
FILED
JAN 3 2019
MOLLY C. DWYER, CLERK
U.S. COURT OF APPEALS

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the denial by an Immigration Judge (“IJ”) of applications for asylum, withholding
of removal, and relief under the Convention Against Torture (“CAT”). We have
jurisdiction under 8 U.S.C. § 1252 and deny the petition.
1. Substantial evidence supported the IJ’s findings that Dawood’s declaration
and testimony were not credible and that, absent the discredited testimony, Dawood
did not establish eligibility for relief. In a pre-REAL ID case such as this one, an IJ
must base his adverse credibility determination on reasons that “go to the heart of
petitioner’s claim.” Desta v. Ashcroft, 365 F.3d 741, 745 (9th Cir. 2004). Dawood’s
declaration repeated verbatim excerpts from a declaration filed in support of an
earlier asylum application by another applicant; she gave inconsistent testimony
about how she wrote the declaration; and expert analysis revealed that her
documentary evidence had been fabricated. These inconsistencies considered
collectively go to the heart of her claims. See Rizk v. Holder, 629 F.3d 1083, 1088
(9th Cir. 2011).1
2. The IJ did not deny Dawood due process by admitting the other applicant’s
declaration into evidence. Any probative evidence can be considered in an
immigration proceeding if “its admission is fundamentally fair.” Rojas-Garcia v.
Ashcroft, 339 F.3d 814, 823 (9th Cir. 2003). The other declaration was probative of
1 Because Dawood filed her application in 2002, the REAL ID Act of 2005,
Pub. L. No. 109–13, does not apply. See Shrestha v. Holder, 590 F.3d 1034, 1039–
40 (9th Cir. 2010).

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Dawood’s credibility, because of its virtual identity to portions of her declaration.
The IJ ensured fairness by providing Dawood an opportunity to explain the
similarities between the declarations. See Matter of R-K-K-, 26 I. & N. Dec. 658,
661 (BIA 2015). Moreover, when asked if he objected to the introduction of the
other declaration, Dawood’s attorney said “no.”
3. The BIA declined to consider Dawood’s argument that the IJ denied her
due process by failing to enter a forensic report into evidence and not allowing her
to cross-examine the preparer of the report. Dawood failed to raise the arguments
to the IJ and therefore failed to exhaust them. We also may not consider them. See
Sola v. Holder, 720 F.3d 1134, 1135 (9th Cir. 2013).
PETITION DENIED.

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