
    Fensong ZHU, Petitioner, v. Eric H. HOLDER, Jr., Attorney General, Respondent.
    No. 05-72337.
    United States Court of Appeals, Ninth Circuit.
    Argued and Submitted May 8, 2009.
    Filed May 29, 2009.
    
      Joel Spence, Law Offices of Joel Spence, Huntington Park, CA, for Petitioner.
    Margaret Anne O’Donnell, Oil, William Charles Peachey, Senior Litigation Counsel, U.S. Department of Justice, Civil Division/Office of Immigration Litigation, Victor D. Stone, Esquire, U.S. Department of Justice, Civil Division-Appellate, Washington, D.C., CAC-District Counsel, Esquire, Office of the District Counsel Department of Homeland Security, Los Angeles, CA, Ronald E. Lefevre, Office of the District Counsel Department of Homeland Security, San Francisco, CA, for Respondent.
    Before HALL, RYMER and SILVERMAN, Circuit Judges.
   MEMORANDUM

Fensong Zhu petitions for review of the Board of Immigration Appeals’ decision affirming the Immigration Judge’s denial of his requests for asylum, withholding of removal, and protection under the Convention Against Torture. We review the IJ’s credibility findings for substantial evidence. Gui v. INS, 280 F.3d 1217, 1225 (9th Cir.2002). We grant the petition because the IJ did not allow Zhu’s lawyer to cross-examine the government’s key witness — the questioned documents examiner who issued a report opining that Zhu’s documents were fraudulent. Cross-examination should have been allowed. See 8 U.S.C. § 1229a(b)(4)(B) (providing that an alien in a removal hearing must have “a reasonable opportunity ... to cross-examine witnesses presented by the government”); Saidane v. INS, 129 F.3d 1063, 1064-65 (9th Cir.1997). The witness was available by telephone, and, contrary to the government’s assertions, Zhu did object to the IJ’s ruling at the appropriate times and noted specific deficiencies with the report. The result of this error is that the adverse credibility finding was proee-durally flawed.

We remand for a new hearing. See Soto-Olarte v. Holder, 555 F.3d 1089, 1096 (9th Cir.2009).

PETITION FOR REVIEW GRANTED; REMANDED.

HALL, Circuit Judge,

dissenting.

I dissent. I find this case more analogous to Dowmbia v. Gonzales, which upheld the admission of a government forensics report without cross-examination. See 472 F.3d 957, 962 (7th Cir.2007). As that court noted:

■The fact that the evidence comes from official reports also resolves whether their admission was fundamentally fair. Any argument that the admission of the Embassy report was unfair fails upon the realization that even if Doumbia’s proceeding were subject to the protections of the Federal Rules of Evidence, official reports like these would be admissible despite their status as hearsay and regardless of the availability of any opportunity to cross-examine the authors. See Fed.R.Evid. 803(8)(C). The admissibility of the report is therefore also unaffected by Domnbia’s inability to question the Embassy investigator. Id. at 963.

Federal Rule of Evidence 803 — embodying a stricter standard than is required in immigration proceedings — permits reports prepared by agency investigators for use in individual cases to be admitted whether or not their authors are available because of the indicia of reliability that accompany such reports, including the “assumption that a public official will perform his duty properly.” Fed.R.Evid. 803 advisory committee’s note (listing as an example of an admissible evaluative report an INS investigator’s report on how a petitioner was known in the community); see generally Fed.R.Evid. 803(8)(C). Such indicia are absent from the spousal affidavits at issue in the cases cited by the majority and, for that matter, from expert opinions generally, when not from official agency staff or pursuant to investigations authorized by law.

In this case, an examiner from the Forensic Document Laboratory, a specialized federal crime laboratory dedicated exclusively to the forensic examination of identity documents in support of the U.S. Immigration and Customs Enforcement, issued a report suggesting three of Zhu’s documents were likely fabrications. This court has previously found similar reports admissible without cross-examination. See, e.g., Espinoza v. INS, 45 F.3d 308, 310-11 (9th Cir.1995) (admitting the government’s Form 1-213, a Report of Deportable Alien completed by an INS investigator on an individual petitioner, without cross-examination in immigration proceeding for reasons that “closely track[ ]” Rule 803(8)(C)); Marlowe v. INS, 457 F.2d 1314, 1315 (9th Cir.1972) (finding admission of an investigative report without accompanying foundation testimony from live witnesses to be fundamentally fair in an immigration proceeding). Thus, it was not error for the IJ to admit the report without cross-examination here.

Even assuming error, Zhu has failed to show the required prejudice for his constitutional claim, see Martinez-de Bojorquez v. Ashcroft, 365 F.3d 800, 806 (9th Cir.2004), given that what he hoped to elicit from cross-examination went to concerns which were already before the IJ, apparent on the face of the report, and noted by the IJ in her decision.

The report was properly admitted and, when considered with the IJ’s independent concerns about one of Zhu’s documents and other inconsistencies in Zhu’s testimony, supports the IJ’s adverse credibility determination. See In re 0-D-, 21 I. & N. Dec. 1079, 1082 (BIA 1998); Kaur v. Gonzales, 418 F.3d 1061, 1067 (9th Cir.2005); cf. Yeimane-Berhe v. Ashcroft, 393 F.3d 907, 912-13 (9th Cir.2004). I would, therefore, deny the petition. 
      
       This disposition is not appropriate for publication and is not precedent except as provided by 9th Cir. R. 36-3.
     