Khаgendra KHADKA, Petitioner, v. Eric H. HOLDER Jr., Attorney General, Respondent.
No. 05-75726
United States Court of Appeals, Ninth Circuit
Argued and Submitted March 8, 2010. Filed Aug. 18, 2010.
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Peter D. Keisler, Assistant Attorney General, and James E. Grimes, Senior Litigation Counsel, Civil Division; and Erica Miles (argued), Attorney, Office of Immigration Litigation, U.S. Department of Justice, Washington, DC.
Before CYNTHIA HOLCOMB HALL, JOHN T. NOONAN, JR., and SIDNEY R. THOMAS, Circuit Judges.
Opinion by Judge THOMAS; Partial Concurrence and Partial Dissent by Judge HALL.
OPINION
THOMAS, Circuit Judge:
This petition for review presents us with the question of whether an adverse credibility finding by an immigration judge (“IJ“) based solely on the IJ‘s belief that the petitioner created a document for the purpose of supporting an asylum application can sustain a sua sponte finding that
I
Khagendra Khadka entered the United States on November 6, 2002, on a B-1 visitor visa. He applied for asylum in early December. He claimed that his service in the Nepali police force, and his family‘s affiliation with and support for the Nepali Student Union and Nepali Congress, exposed him as a target for Maoists. He statеd that Maoists had threatened his life, demanded money from his family, and were actively searching for him.1 Along with his application, Khadka submitted a large amount of documentation of his service in the Nepali police force and UN mission in Iraq, as well as affidavits from family members and a neighbor about threats that he had received. He submitted an article from the Tarun, a weekly Nepali newspaper affiliated with the D Faction of the Nepali Congress Party, that reported his activities fighting Maoists and Maoist threats to his life. The asylum officer who interviewed Khadka referred the case to immigration court, and a notice to appear charging him with removability for overstaying his visa was issued one week later.
Khadka renewed his application for asylum. During the hearings held before the IJ, the government argued that the newspaper article was fabricated. The government‘s primary witness was Stephen Brault, Chief of the Consular Section at the U.S. embassy in Nepal, who testified telephonically about the investigation that he and his associates conducted into the authenticity of the article. Although the editor of the Tarun faxed Brault a copy of the article that corresponded to the one submitted by Khadka, people at the embassy were concerned by what they saw as inaccuracies in the articlе. The embassy asked Taranath Dahal, the President of the Federation of Nepal Journalists, to look for the article in the National Press Council archives. Although Dahal found a copy of the September 30, 2002 edition of the Tarun, it did not include the article submitted by Khadka. Printed in its place was an article about a woman in a village 18 hours from the Kathmandu Valley. Brault sent a second investigator, who confirmed what the first contact had found. Surprised by what he was being told, Brault himself went to the archives, where he found two copies of the September 30, 2002 Tarun, but only a single issue from every other date upon which the Tarun had been printed that year. One of the copies contained the article on the village woman, and one contained the article about Khadka. There were no other substantive differences between the two versions. The masthead on the paper with the article about Khadka lacked the D Faction‘s torch logo (present on the other papers), was the only issue to include a phrase meaning outside the valley, and was printed in monotone rather than two shades. Dahal submitted an affidavit that the Tarun published only one version of one issue per week, and Brault agreed, explaining that the embassy‘s political section had studied every newspaper published in Nepal every day for elеven years. Brault also testified that Khadka‘s broth-
On notice before the hearing that the government questioned the authenticity of the article, Khadka called a rebuttal witness, John Adams, a professor at the University of Virginia and regional expert who conducted an investigation of his own. The Tarun‘s editor told Adams that, up until a year before, the paper had occasionally published a secоnd, outside the valley edition of the paper, in order to control management of its circulation. The editor wanted to get a better sense of the paper‘s market, which required a way to differentiate between papers sold in and away from Kathmandu, and he was concerned that sales numbers were being fabricated. Adams had not actually seen any other outside the valley copies of the paper, however; nor did he learn on what dates such editions had been printed.
After several merits hearings, the IJ ultimately found that the article had been published by the newspaper for the sole purpose of assisting Khadka‘s asylum claim and was not part of the paper circulated publicly. Finding Khadka not credible, the IJ refused to consider any other documents that he submitted.2 The IJ denied his asylum claim. The IJ also found that Khadka knowingly filed a frivolous asylum application and barred him “forever from receiving any benefits under the Immigration and Nationality Act.” The IJ denied Khadka‘s application for withholding of removal under the INA and the Convention Against Torture, and denied voluntary departure.
On appeal, Khadka challenged the IJ‘s adverse credibility finding, his denial of asylum, and his finding of frivolousness. The Board of Immigration Appeals (BIA or Board) summarily affirmed. In Khadka‘s petition for review, he challenges only the IJ‘s adverse credibility finding and finding of frivolousness.
II
Because the BIA affirmed the IJ‘s decision without opinion, we review the IJ‘s decision as the final agency determination. Kaur v. Gonzales, 418 F.3d 1061, 1064 (9th Cir. 2005). We review an IJ‘s credibility determination for substantial evidence. Id. We accord special deference to an IJ‘s credibility determination, and will only exercise our power to grant a petition for review when the evidence “compel[s] a contrary conclusion.” Id. (quoting Malhi v. INS, 336 F.3d 989, 993 (9th Cir. 2003)) (alteration in Kaur). As long as one of the identified grounds underlying a negative credibility finding is supported by substantial evidence and goes to the heart of the claims of persecution, we are bound to accept the negative credibility finding. See Li v. Ashcroft, 378 F.3d 959, 964 (9th Cir. 2004) (affirming negativе credibility finding even though some of the purported inconsistencies were factually unsupported or irrelevant); Wang v. INS, 352 F.3d 1250, 1259 (9th Cir. 2003) (“Whether we have rejected some of the IJ‘s grounds for an adverse credibility finding is irrelevant.“).
Substantial evidence supports the IJ‘s adverse credibility determination. Brault testified about an elaborate scheme,
Although it would have been preferable for the IJ to make a specific finding that Khadka knew about the circumstances of the article‘s publication, his failure to do so is not enough to support granting his petition. Brault‘s testimony, combined with Khadka‘s failure to disclaim the article or provide any explanation for how it came to his possession without him knowing that it was never circulated, supports the conclusion that Khadka was aware of the circumstances of the publication. On appeal, while challenging the finding that he misrepresented the article‘s history, Khadka still does not claim that he was misled to believe that the article was ever circulated. This is sufficient under our case law. See Yeimane-Berhe v. Ashcroft, 393 F.3d 907, 911 (9th Cir. 2004) (holding that an adverse credibility finding based only on the submission of a counterfeit medical document was not supported by the record where there was “no evidence indicating that she knew the document was fraudulent“); see also Corovic v. Mukasey, 519 F.3d 90, 97-98 (2d Cir. 2008) (where applicant disputes knowledge of fraud, IJ must “evaluate” whether applicant “had reason to know that the documents submitted were fraudulent“).
III
Pursuant to
We review a determination that an applicant knowingly made a frivolous application for asylum for compliance with a procedural framework outlined by the BIA. See Ahir v. Mukasey, 527 F.3d 912, 917 (9th Cir. 2008) (adopting framework from Y-L-, 24 I. & N. Dec. 151).
First, an asylum applicant must have notice of the consequences of filing a frivolous application. Second, the IJ or Board must make specific findings that the applicant knowingly filed a frivolous application. Third, those findings must be supported by a preponderance of the evidence. Finally, the applicant must be given sufficient opportunity to account for any discrepancies or implausibilities in his application.
Id. (internal citations omitted). Whethеr a fabrication was of material elements is a mixed question of fact and law. Y-L-, 24 I. & N. Dec. at 159. Whether the IJ properly applied the regulatory framework is a question of law. Id.
As is clear from these requirements, “a finding of frivolousness does not flow automatically from an adverse credibility determination.” Lin v. U.S. Dep‘t of Justice, 453 F.3d 108, 113 (2d Cir. 2006) (quoting Muhanna v. Gonzales, 399 F.3d 582, 589 (3d Cir. 2005)). For an IJ to make a frivolousness finding, he or she must be convinced that the applicant deliberately fabricated a material element, while an adverse credibility determination merely requires an omission, inconsistency, or discrepancy relating to a material element (the heart of the asylum claim). Compare
In this case, the IJ made a specific finding that Khadka knowingly filed a frivolous application.
The misrepresented newspaper article was icing on the cake: Khadka “knew” his asylum claim was fabricated, “and yet he submitted his claim along with a newspaper article from his party‘s partisan press, ... which is a special edition that was printed specifically to support [the] asylum claim.”
Because Khadka‘s asylum application rests on interactions with Maoists (both as a Striking Commander and thereafter and therefore as an extorted and threatened asylum seeker), if supported by the record, this would constitute a fabrication of a material element of his claim. But the finding is not supported. The government submitted a copy of Khadka‘s employment records that clearly indicates that he was a Deputy Superintendent of the Nepal Police who was assigned at one point to an anti-terrorist unit, deployed as a striking unit commander in both Chitawan and Pyuthan provinces, and twice placed in a standby group for a U.N. Peace Keeping Mission.6 Khadka specifically testified that he had not reported any of the threats to his superiors, so it is no wonder that they were unaware of any.7
The IJ also erred by not informing Khadka that he was considering making a frivolousness finding or otherwise giving Khadka sufficient opportunity to account for any of the alleged discrepancies and implausibilities in the record other than those few that supported the government‘s suspicions that the newspaper article was fabricated. See Ahir, 527 F.3d at 917. Had he done so, Khadka would have had the opportunity to demonstrate why the petition was not frivolous.
The BIA has clearly contemplated that someone—either the IJ or the government—would raise the issue of fabrication. See Y-L-, 24 I. & N. Dec. at 159-60 (“[I]t would be a good practice for an Immigration Judge ... to bring this concern to the attention of the applicant prior to the conclusion of proceedings[, though i]n some cases, the Government may raise the issue of frivolousness ....“). Although it was clear in this case that the IJ was suspicious of the authenticity of the newspaper article, it was not until he read his ruling that Khadka was informed that the IJ did not believe that Khadka had ever confronted or been threatened by Maoists. The IJ did not even hint that he was going to reject all of Khadka‘s documentary evidence. Even if the IJ does not have to inform the applicant that he is considering a frivolousness finding in so many words, where it is not otherwise obvious from the record, he needs to indicate that he questions material aspects of the claim. Cf. Ye v. Dep‘t of Homeland Security, 446 F.3d 285, 295-96 (2d Cir. 2006) (finding that for purposes of an adverse credibility determination the respondent need not be afforded an opportunity to respond to self-evident inconsistencies).
The IJ‘s mistakes in this case highlight the importance of such a warning. With so many of the “facts” underlying the IJ‘s adverse credibility and frivolousness findings unsupported by the record, it almost certainly would have made a difference to permit Khadka аnd his attorney to respond to the IJ‘s concerns. At the very least, Khadka could have attempted to authenticate the supporting documents he presented to the court—many of which came from impartial sources—through some method other than his own testimony.
Given proper warning, an asylum applicant may be able to rebut an allegation that he filed a frivolous asylum application without actually convincing a finder of fact that he had not presented fabricated evidence. Because Khadka only was warned that the IJ questioned the authenticity of a
IV
The IJ‘s adverse credibility determination was supported by substantial evidence. However, because the IJ‘s finding that Khadka filed a frivolous asylum application is not supported by a preponderance of the evidence, and because the IJ‘s application of the frivolous asylum application bar was procedurally unsound, we grant Khadka‘s petition in part and reverse the IJ‘s application of the bar. We remand for further proceedings consistent with this opinion.
GRANTED IN PART; DENIED IN PART; REMANDED.
HALL, Circuit Judge, concurring in part and dissenting in part:
I agree with the majority that the IJ‘s adverse credibility finding was supported by substantial evidence. I dissent, however, from Section III of the majority opinion, because the IJ properly found that Khadka submitted a frivolous asylum application.
I.
Khadka seeks asylum on the grounds that Maoists in Nepal have threatened him and his family in retaliation for his victories fighting Maoist rebels. His asylum application traces Maoist animosity towards him to encounters on June 15, 1998 and July 5, 1999 in the Chitwan and Pyu-
Khadka signed a Form I-589 asylum application, which indicated that the knowing submission of a frivolous asylum application would render him permanently ineligible for relief under the Immigration and Nationality Act. On the same page, Khadka‘s attorney signed a certification that he had read the application to Khadka in his native language.
On September 30, 2003, the government submitted evidence to the immigration court—including an affidavit from Steven F. Brault, Chief of the Consulate Section of the U.S. Embassy in Kathmandu—indicating that the Tarun article had been fabricated. On October 10, 2003, the IJ granted Khadka a continuance of his merits hearing so that his counsel could conduct his own investigation into the origins of the Tarun article. On April 22, 2004, the IJ devoted an entire day‘s hearing to the authenticity of the Tarun article, including testimony from both Brault and Khadka‘s own expert witness. As the majority sets forth in detail, Brault‘s testimony demonstrated that the Tarun article had been published in a special version of the newspaper for the sole purpose of assisting Khadka‘s asylum claim. The majority makes only passing reference, however, to Brault‘s testimony that the reported June 15, 1998 and July 5,
II.
Under
A.
Khadka had sufficient notice of the consequences of filing a frivolous asylum application and was well aware that the authenticity of the Tarun article was at issue. Khadka‘s Form I-589 asylum application warned that he would be permanently barred from relief under the INA if he filed a frivolous application, and Khadka‘s attorney signed a certification that Khadka had been read his application in his native language.
The Tenth Circuit has explicitly held that the Form I-589 warning is sufficient notice of the consequences of a frivolous application. Ribas v. Mukasey, 545 F.3d 922, 929-30 (10th Cir. 2008). As Ribas acknowledges, the governing statute seems to require only written notice of the consequences of a frivolous application. See
B.
The majority alternatively argues that Khadka‘s submission of a fabricated newspaper article was insufficient evidence to support a frivolousness finding. Although the Tarun article is material evidence of persecution, thе majority concludes that Khadka did not falsify a material element of his asylum application, given the existence of other corroborating evidence.
The majority provides thin support for distinguishing between “material evidence” and a “material element,” and case law does not seem to require such parsing. In Selami v. Gonzales, 423 F.3d 621, 626 (6th Cir. 2005), the Sixth Circuit upheld a finding of frivolousness based upon the submission of fraudulent newspaper article, reasoning that the article “was submitted by Selami to corroborate the core elements of his asylum claim.”2 Even though there may have been other evidence to support Selami‘s asylum application, the newspaper article went to the heart of his claim and therefore its fabrication was a fabrication of a “material element.” Similarly here, Khadka argues that Maoists have targeted him and his family as a result of his counter-insurgency successes, and he introduced the Tarun article specifically to corroborate this story. Khadka‘s submission of a fraudulent newspaper article to corroborate a core element of his claim is sufficient to support a frivolousness finding.
The majority also overstates the significance of the remainder of Khadka‘s documentary evidence. Although the record is “replete with Nepalese and United Nations employment records” indicating that Khadka was assigned to anti-terrorist units, Maj. Op. at 1004, the fact that he may have held these positions does not demonstrate that he actually had any significant interactions with Maoist rebels. The “affidavits of friends and family about Maoist threats,” id., do broadly declare Maoists’ desire for retribution against Khadka as well as the purported subjective fears of Khadka‘s family members, but they similarly lack any persuasive basis for concluding that Khadka had ever in fact “made great loss” against the insurgents
Given the lack of any other documentary evidence of particular encounters with Maoists, it is hard to imagine how the Tarun article could be more central to Khadka‘s asylum application. If the fabrication of the Tarun article is insufficient to support a frivolousness finding, it is difficult to imagine how pervasively and egregiously false an asylum application would need to be in order to satisfy the majority‘s standard.
III.
For the foregoing reasons, I dissent in part from the majority opinion.
UNITED STATES of America, Plaintiff-Appellee, v. Michel WITHERS, Defendant-Appellant.
Nos. 05-50795, 08-55096.
United States Court of Appeals, Ninth Circuit.
Argued and Submitted Dec. 1, 2009. Filed Aug. 18, 2010.