Malkandi v. Mukasey ( 2008 )

FOR PUBLICATION
UNITED STATES COURT OF APPEALS
FOR THE NINTH CIRCUIT
SAM MALKANDI, a.k.a. Sarbarz 
Abulgani Mohammad,
No. 06-73491
Petitioner-Appellant,
v.  Agency No.
A75-043-854
MICHAEL B. MUKASEY, Attorney
OPINION
General,
Respondent-Appellee.

On Petition for Review of an Order of the
Board of Immigration Appeals
Argued and Submitted
April 9, 2008—Seattle, Washington
Filed September 19, 2008
Before: Stephen Reinhardt, A. Wallace Tashima, and
M. Margaret McKeown, Circuit Judges.
Opinion by Judge McKeown
13271
13274 MALKANDI v. MUKASEY
COUNSEL
Frederic C. Tausend and Shaakirrah R. Sanders, Kirkpatrick
& Lockhart Preston Gates Ellis, LLP, Seattle, Washington, for
the petitioner-appellant.
MALKANDI v. MUKASEY 13275
Peter D. Keisler, Assistant Attorney General, Michael P.
Lindemann, Assistant Director, William C. Peachey, Senior
Litigation Counsel, Office of Immigration Litigation, Wash-
ington, D.C., for the respondent-appellee.
OPINION
McKeown, Circuit Judge:
This case focuses on the interplay between credibility find-
ings under the REAL ID Act of 2005 and the government’s
determination that “there are reasonable grounds for regarding
petitioner Sam Malkandi as a danger to national security.”
Malkandi, an Iraqi Kurd who has lived in the United States
since 1998, was granted permanent residence in 2000. He was
placed in removal proceedings, however, when it was
revealed that he lied to gain refugee status while in Pakistan
and maintained these misrepresentations throughout the natu-
ralization process, despite opportunities to correct them. An
apostate of Islam, Malkandi feared returning to Iraq, so he
applied for asylum, withholding from removal and relief
under the Convention Against Torture (“CAT”), but was
determined to be ineligible because he was found to be a
threat to national security.
This adverse national security finding was supported by
Malkandi’s own admissions plus testimony and documenta-
tion from government officials, who alleged that Malkandi
served as a “travel facilitator” for one Salah Mohammed,
a.k.a. “Khallad.” Khallad is a notorious al Qaeda operative
whom the intelligence establishment believes was involved in
several of al Qaeda’s most infamous attacks against U.S.
interests overseas and was also connected to the alleged archi-
tect of the attacks of September 11, 2001. The Immigration
Judge (“IJ”) found Malkandi not credible, a finding which
was upheld by the Board of Immigration Appeals (“BIA”)
13276 MALKANDI v. MUKASEY
and ultimately undermines Malkandi’s arguments that the evi-
dence “compels us” to accept his innocuous explanations for
his association with Khallad. Malkandi’s lack of credibility,
coupled with concrete evidence about his associations, con-
vinced the IJ and BIA that the government had met its burden
of showing that it had “reasonable grounds” to regard him as
“a danger to national security.” Under the national security
bar to withholding of removal and deferral of removal under
the CAT, Malkandi needed to “prov[e] by a preponderance of
the evidence that such grounds do not apply,” 8 C.F.R.
§ 1208.16(d)(2), which he failed to do.
To prevail on his petition for review, Malkandi must do
more than just poke holes in the government’s case against
him, but rather, must “compel” us to see the facts his way. See
Tawadrus v. Ashcroft, 364 F.3d 1099, 1102 (9th Cir. 2004)
(holding that under 8 U.S.C. § 1252(b)(4)(B), the BIA’s find-
ings of fact are “conclusive unless any reasonable adjudicator
would be compelled to conclude to the contrary.”); see also
INS v. Elias-Zacarias, 502 U.S. 478, 481 n.1 (1992). Adverse
credibility determinations are reviewed under the same sub-
stantial evidence standard as findings of fact. See Gui v. INS,
280 F.3d 1217, 1225 (9th Cir. 2002). Because substantial evi-
dence supports the BIA’s credibility determination, and Mal-
kandi has not met his burden to defeat the national security
finding, Malkandi’s petition for relief is denied.
I. FACTUAL AND PROCEDURAL BACKGROUND
A. LIFE IN IRAQ AND IRAN
Malkandi was born in Sulaimaniya, Iraqi Kurdistan, in
1958 and given the name Sarbarz Abulgani Mohammad. He
entered the University of Bagdad in 1978 and married in his
last year of study. With the escalation of the Iran-Iraq war,
Malkandi was conscripted into the Iraqi army. But when in
the mid-1980s he was ordered to report to an active military
unit, he deserted the army and returned to his hometown,
MALKANDI v. MUKASEY 13277
where he remained for a year until learning that the army was
planning a sweep for deserters.
Malkandi hails from a prominent family in his hometown
and used family connections to arrange to flee to Iran with his
wife. There they met up with the peshmerga, who were at the
time Iran’s allies in its war with Iraq. The peshmerga helped
Malkandi settle in Iran, where his first wife later gave birth to
his daughter. Near the end of the Iran-Iraq war, Malkandi’s
wife committed suicide, prompting Malkandi to leave Iran
with his daughter.
Due to his deserter status, Malkandi feared returning to
Iraq, so he arranged to be smuggled into Pakistan, where he
and his daughter lived in refugee camps. Malkandi used cas-
sette tapes to communicate with family members and friends,
who can be heard on the tapes referring to him by his nick-
name, Barzan. While in Pakistan, Malkandi met Mali, his cur-
rent wife, who gave birth to their son.
On October 3, 1997, Malkandi applied for refugee status
with the United Nations High Commissioner for Refugees
(“UNHCR”) in Islamabad, submitting a “Sworn Statement of
Refugee Applying for Entry into the United States” and a
“Registration for Classification as a Refugee” form. UNHCR
officials testified at Malkandi’s removal proceedings that his
mere status as a deserter would likely not have been enough
to earn him and his family refugee status for purposes of
entering the United States. Malkandi had been advised as
much through rumor in the refugee camps, and so he pres-
ented the UNHCR with a more dramatic and sympathetic ver-
sion of his personal history, embellishing and in some
respects completely fabricating the circumstances of his role
in the Iraqi army, his flight to Iran, and the persecution he and
his wife faced in Iran. Malkandi swore to the veracity of this
account in his statements to UNHCR and declined to
denounce this false history numerous times during his natural-
ization proceedings in the United States.
13278 MALKANDI v. MUKASEY
Malkandi told a UNHCR officer that he served in the Iraqi
army from 1984 to 1987, and, after completing this service,
had joined the Revolutionary Banner Movement Party. He
bragged that he served as a cell leader responsible for educat-
ing and training people for the Banner movement’s activities.
Malkandi also claimed that he was prompted to flee to Iran in
November 1987, when Iraqi forces arrested one of the five
members of the cell that he led. According to Malkandi’s
story, while searching him at a border checkpoint, Iranian sol-
diers found religious and political books in his custody, so
they arrested him and then imprisoned him on suspicion of
being a member of Komola (an Iranian Kurdish group), and
also of being an Iraqi Communist Party spy. Malkdani also
told UNHCR officials that during his one-year imprisonment,
the authorities questioned his spouse three times, and due to
the stress, she committed suicide by setting herself on fire.
B. NATURALIZATION PROCEEDINGS
Malkandi was granted refugee status and entered the United
States with his family in June 1998. After a brief stop in
Texas, the family moved to the Seattle area. In 1999, Mal-
kandi applied for permanent residence. On his application,
Malkandi, under penalty of perjury, indicated that he had
never sought to procure immigration benefits by fraud or mis-
representation. Malkandi was granted lawful permanent resi-
dency in November 2000. In January 2001, he legally adopted
the Americanized name, Sam Malkandi, and changed the
names of his wife and children as well. In Malkandi’s 2003
Application for Naturalization, he again stated under penalty
of perjury that he had never lied to any United States official
to gain entry or admission into the United States. In his
follow-up interview in January 2004, Malkandi did not cor-
rect any of his prior misrepresentations.
At some point while Malkandi’s naturalization application
was pending, burgeoning evidence appeared to implicate con-
nections between him and al Qaeda. Two FBI agents made an
MALKANDI v. MUKASEY 13279
initial inquiry into these connections in a series of interviews
with Malkandi in late September 2004. It was during these
interviews that Malkandi first admitted to having lied to the
UNHCR in order to gain refugee status.
The FBI questioned Malkandi about a letter allegedly sent
to his home regarding a medical appointment for a man
named Salah Mohammed. The letter, dated April 9, 1999, is
addressed to Salah Mohammed in care of Sarbarz Mohammad
(Malkandi’s given name). It confirms the appointment at a
Bellevue, Washington prosthetics clinic called NovaCare. A
handwritten sticky-note on the letter states that Sarbarz called
to confirm the appointment and check the costs of the opera-
tion. In addition to reflecting that Salah Mohammed was a
“no show,” the note says that “Sarbarz Mohammad needed a
letter for Mr. Salah Mohammed in Yemen, [ ], his embassy
needs to know he has an appt. here.” Special Agent James
Donovan obtained a copy of the letter from NovaCare’s files.
On the initial day of interviews with the FBI, Malkandi
denied any knowledge of the letter or of Salah Mohammed.
The next day, however, Malkandi corrected himself, stating
that his wife reminded him that he had by “coincidence” met
a man from Yemen named Ahmed Bawareth, who was in
Seattle on vacation. Over the course of their acquaintance,
Bawareth asked Malkandi if he could use his address as a
point of contact, so that Bawareth could make a medical
appointment for an overseas friend, Salah Mohammed, who
was in need of a prosthetic leg.1
Malkandi also told the FBI that he later received a phone
call from abroad that he believes was placed by Salah
Mohammed from “somewhere in the Middle East.” During
the call, Malkandi relayed the price quoted to him by Nova-
Care and the telephone caller said it was “very expensive.”
1
Salah Mohammed, a.k.a., Khallad, lost his leg in Afghanistan partici-
pating in the battle against the Northern Alliance.
13280 MALKANDI v. MUKASEY
According to Malkandi, the caller referred to him as “Bar-
zan.” Malkandi claims to have discontinued his acquaintance
with Bawareth soon after this call. Special Agent Darrick
Smalley, an Immigration and Customs Enforcement (“ICE”)
officer assigned to the Joint Terrorism Task Force, testified
that he conducted a record check of immigration files and
could not find proof that a man named Ahmed Bawareth had
ever entered the United States.
C. MALKANDI’S LINKS TO KHALLAD AND AL QAEDA
The government’s suspicions of Malkandi came to a head
on August 25, 2005, when Malkandi came to the FBI’s Seattle
offices to retrieve a computer he had voluntarily turned over
for examination. On that day, several agents of the Joint Ter-
rorism Task Force confronted him regarding information
released in the 9/11 Commission Report. The Task Force
believed that the report linked him with Salah Saeed Moham-
med bin Yousaf (a.k.a. “Khallad”2), an al Qaeda operative
who directed the attacks on the American embassies in Nai-
robi, Kenya, and Dar es Salaam, Tanzania, was a participant
in the attack on the USS Cole, and was trained by Khallad
Sheikh Mohammed, the principal architect of the 9/11 attacks.
See THE 9/11 COMMISSION REPORT: FINAL REPORT OF THE
NATIONAL COMMISSION ON TERRORIST ATTACKS UPON THE
UNITED STATES 492 n.44 (2004) (“9/11 Report”) (“[a]ccording
to the CIA, ‘Barzan’ [Malkandi’s nickname] is possibly iden-
tifiable with Sarbarz Mohammad, the person who resided at
the address in Bothell, Washington, that Khallad had listed on
his visa application as his final destination.”) (citing “Intelli-
gence report, interrogation of Khallad, Aug. 20, 2003).
2
The government’s brief before the BIA notes that “Khallad’s name
appears as Tafiq Muhammed Saleh bin Roshayd bin Attash on page 5 of
the indictment filed in United States v. Al-Badawi and Al-Quso in the U.S.
District Court, Southern District of New York.” Much of the information
about Khallad presented by the government in this case comes from inter-
rogations of Khallad, who was captured in 2003 and remains in U.S. cus-
tody.
MALKANDI v. MUKASEY 13281
Special Agent Smalley showed segments of the 9/11 Report
to Malkandi as well as photographs of Khallad and another
individual related to the plot to bring Khallad to the United
States. Malkandi denied knowing either individual and,
according to Smalley, “became verbally combative,” in
response to this line of questioning, protesting that he had
already answered these questions with the FBI.
Smalley then asked Malkandi to read some excerpts from
the report, including footnote 44, which summarized the
information obtained from Khallad’s interrogations. Appar-
ently, Malkandi’s demeanor changed abruptly when he came
to the portion of the report where Khallad identifies his point
of contact in the U.S. as someone named “something like
‘Barzan.’ ” According to Agent Smalley’s testimony, when
Malkandi read this section, his “attitude of being combative
stopped,” and “[h]e became, well, he said uh-oh . . . . And his
total demeanor changed from that point forward.”
Agent Smalley testified that once he saw that Malkandi
would not cooperate further without the presence of an attor-
ney, he served Malkandi with the denial of his naturalization
application, a Notice to Appear at removal proceedings, an
arrest warrant for immigration fraud, and a bond determina-
tion. He then placed Malkandi under arrest. The Notice to
Appear stated that pursuant to INA § 237(a)(1)(A), 8 U.S.C.
§ 1227(a)(1)(A), Malkandi was subject to removal because he
was charged as inadmissible at time of entry under INA
§ 212(a)(6)(C)(I) for having sought to procure immigration
benefits “by fraud or by willfully misrepresenting a material
fact.” Malkandi does not dispute that he is removable on this
basis. Malkandi later submitted an application for asylum,
withholding from removal, and protection under the CAT, and
also requested release on bond, which was denied in Novem-
ber 2005. Malkandi has remained in detention since his arrest.
D. REMOVAL PROCEEDINGS AND THE BIA Appeal
Proceedings on the removal charge took place in November
2005, followed by hearings on Malkandi’s asylum and with-
13282 MALKANDI v. MUKASEY
holding applications in January and February 2006. The IJ
issued his decision on February 11, 2006, finding Malkandi
not credible and removable as charged because he “knowingly
made material false representations to induce the United
States Government to approve [the family’s] admission into
the United States as refugees.” The IJ also determined that
Malkandi was statutorily ineligible for asylum, withholding
from removal or protection under CAT because there are
“reasonable grounds to regard” Malkandi “as a danger to
national security.” See INA § 208(b)(2)(A)(iv), 8 U.S.C.
§ 1158(b)(2)(A)(iv) (exception to grant of asylum); INA
§ 241(b)(3)(B)(iv), 8 U.S.C. § 1231(b)(3)(B)(iv) (exception to
withholding from removal); 8 C.F.R. § 1208.16(1)(2) (excep-
tion to CAT withholding); see also Bellout v. Ashcroft, 363
F.3d 975, 979 (9th Cir. 2004) (“an alien is ineligible for asy-
lum if the Attorney General decides that there are reasonable
grounds for regarding the alien as a danger to the security of
the United States or that the alien is inadmissible or remov-
able for terrorist activity. Either ground will support the IJ’s
denial of asylum.”). This finding was based on the IJ’s read-
ing of our case law in Cheema v. Ashcroft, 383 F.3d 848, 856
(9th Cir. 2004), where we held that an alien poses a danger
to the security of the United States where he acts “in a way
which 1) endangers the lives, property, or welfare of United
States citizens; 2) compromises the national defense of the
United States; or 3) materially damages the foreign relations
or economic interests of the United States.”
The IJ rejected, however, the government’s contention that
Malkandi had “engaged in terrorist activities,” a more serious
charge requiring more specific proof. He noted specifically
that Malkandi’s “association with” Khallad did not “rise[ ] to
the level of material support.” See INA § 241(a)(4)(B), 8
U.S.C. § 1182(a)(3)(B)(iv)(VI), (rendering deportable any
alien who has “engaged, is engaged, or at any time after entry
engages in any terrorist activity (as defined in
§ 212(a)(3)(B)(iv).”). The IJ observed that “a finding to the
contrary would . . . defy the plain language of INA Section
MALKANDI v. MUKASEY 13283
212(a)(3)(B)(iv).” The IJ further held that he would also deny
Malkandi relief as a matter of discretion based on Malkandi’s
“personal efforts” that the IJ found posed a danger to national
security.
Having found Malkandi statutorily ineligible for relief, the
IJ denied Malkandi’s applications and ordered him removed
to Iraq. Malkandi’s wife and two children also applied for
asylum, which the IJ independently reviewed and granted.
Because of Malkandi’s statutory ineligibility, the IJ also
denied Malkandi’s potential derivative status from the grant
of asylum to his family members.
The BIA upheld the IJ’s adverse credibility finding and
concluded that the evidence was “sufficient to support a find-
ing that there are reasonable grounds for regarding [Malkandi]
as a danger to the security of the United States, and he is
therefore statutorily ineligible for asylum and withholding of
removal.”3 The “decision that an alien has not established eli-
gibility for asylum or withholding of removal is reviewed for
substantial evidence.” Zehatye v. Gonzales, 453 F.3d 1182,
1184-85 (9th Cir. 2006). Under the substantial evidence stan-
dard, “administrative findings of fact are conclusive unless
any reasonable adjudicator would be compelled to conclude
to the contrary.” 8 U.S.C. § 1252(b)(4)(B). Thus, we must
uphold the IJ’s determination if it is supported by reasonable,
substantial, and probative evidence in the record. INS v. Elias-
Zacarias, 502 U.S. 478, 481 (1992); Valderrama v. INS, 260
F.3d 1083, 1085 (9th Cir. 2001) (per curiam) (adverse credi-
bility determinations reviewed for substantial evidence).
II. DISCUSSION
As the parties have acknowledged, the core facts that form
3
Because the BIA concluded that Malkandi is statutorily ineligible for
asylum and withholding of removal, it did not address denial of asylum
as a matter of discretion or on a derivative basis.
13284 MALKANDI v. MUKASEY
the basis for the government’s suspicion of Malkandi are not
in dispute. What is hotly disputed is the interpretation of these
events—one alarming and one innocuous—and some of the
details surrounding these facts. Malkandi claims that these
random loose pieces do not combine to form a complete pic-
ture proving that he poses a danger to the security of the
United States, and that there is a perfectly innocent explana-
tion of his actions, namely, that he was doing a favor for an
acquaintance. More pointedly, Malkandi notes that the gov-
ernment has presented no evidence demonstrating that Mal-
kandi knew with whom he was dealing, or to what ultimate
end. The government counters that the BIA got it right: sub-
stantial evidence supports the conclusion that there are rea-
sonable grounds to regard Malkandi as posing a danger to
national security. The evidence reveals, the government
claims, that Malkandi served as a travel facilitator for an al
Qaeda operative and Malkandi’s story of a chance meeting of
Bawareth in a shopping center and casual participation in the
clinic scheme strains credulity.
A. THE NATIONAL SECURITY EXCEPTION TO ELIGIBILITY FOR
ASYLUM AND WITHHOLDING FROM REMOVAL
1. The BIA applied the appropriate burden of proof
Before addressing the merits, we first consider the appro-
priate burden of proof with respect to the national security
finding. Malkandi argues that the BIA applied the wrong stan-
dard (“sufficient suspicion”) to its determination. We review
de novo the question of burden of proof. Taisho Marine &
Fire Ins. Co., Ltd. v. M/V Sea-Land Endurance, 815 F.2d
1270 (9th Cir. 1987).
[1] Under the relevant statutes, an alien is statutorily ineli-
gible for asylum and barred from withholding of removal if
there are “reasonable grounds for regarding the alien as a dan-
ger to national security.” INA § 208(b)(2)(A)(iv), 8 U.S.C.
§ 1158(b)(2)(A)(iv); INA § 241(b)(3)(B)(iv), 8 U.S.C.
MALKANDI v. MUKASEY 13285
§ 1231(b)(3)(B)(iv). Likewise, CAT relief is unavailable if an
applicant “falls within Section 241(b)(3)(B).” Bellout, 363
F.3d at 978 (“if the alien is barred from withholding of
removal under § 1231(b)(3)(B)(iv), he is also barred from
withholding of removal under CAT.”). That bar to relief
stands unless the applicant can show by a “preponderance of
the evidence that such grounds do not apply.” 8 C.F.R.
§ 1208.16(d)(2).
[2] The question then is what standard we use to bench-
mark “reasonable grounds.” The BIA’s decision relies heavily
on the Attorney General’s interpretation of the national secur-
ity bar in Matter of A-H-, which equated the standard with
“reasonable cause; sufficient cause; reasonable grounds”
under the probable cause standard. Matter of A-H-, 23 I. & N.
Dec. 774, 789 (2005). In Matter of A-H-, the Attorney Gen-
eral looked back to the First Circuit’s decision in Adams v.
Baker, 909 F.2d 643, 649 (1st Cir. 1990), in which the court
held that the statutory reference to “reasonable” grounds “im-
plies the use of a reasonable person standard.” Matter of A-H-
, 23 I. & N. Dec. at 788. This approach, the Attorney General
concluded, was “consistent with the BIA’s reliance on ‘proba-
ble cause’ cases.” Id. The Attorney General faulted the BIA,
however, for equating probable cause with a preponderance of
the evidence standard, explaining that “ ‘reasonable grounds
for regarding’ is substantially less stringent than preponder-
ance of the evidence.” Id. at 789. Instead, he concluded, “[t]he
‘reasonable grounds for regarding’ standard is satisfied if
there is information that would permit a reasonable person to
believe that the alien may pose a danger to the national securi-
ty” Id. (emphasis added).
[3] The Third Circuit has since upheld, under the Chevron
doctrine, the Attorney General’s invocation of the probable
cause standard. See Yusupov v. Ashcroft, 518 F.3d 185, 200
(3d Cir. 2008); see generally Chevron U.S.A. Inc. v. Natural
Res. Def. Council, Inc., 467 U.S. 837 (1984). While the Third
Circuit in Yusupov resolved that equating the “reasonable
13286 MALKANDI v. MUKASEY
grounds” standard to one “akin to probable cause in criminal
cases” is “reasonable,” and thus “a permissible construction
of the statute,”4 it took issue with the “may pose” language of
the Attorney General’s interpretation. 518 F.3d at 201.
According to the Third Circuit, this view “accords with nei-
ther the plain wording nor the ordinary meaning of the statu-
tory text, which does not refer to belief in a mere possibility.”
Id. The court clarified that “is” and the subjunctive form
“would” “connote a more certain determination than that the
alien ‘might’ or ‘could’ be a danger.” Id. (citing INS v. Stevic,
467 U.S. 407, 422 (1984) (“The section [‘would be threat-
ened’] literally provides for withholding of deportation only
if the alien’s life or freedom ‘would’ be threatened in the
country to which he would be deported; it does not require
withholding if the alien ‘might’ or ‘could’ be subject to perse-
cution.”)).
The court went on to explain that
we must take the statute to mean what it says: “is”
indicates that Congress intended this exception to
apply to individuals who (under a reasonable belief
standard) actually pose a danger to U.S. security. It
did not intend this exception to cover aliens who
conceivably could be such a danger or have the abil-
ity to pose such a danger (a category nearly anyone
can fit).
Id. The bottom line in Yusupov, which we adopt, is that “rea-
sonable” grounds should be evaluated against a reasonable
person, probable cause standard and the alien must “actually”
pose a “serious danger” to United States security.
4
Yusupov also upheld the Attorney General’s modification of the word
“danger” with the word “serious,” holding that “serious,” just like the
Attorney General’s chosen phrase, “nontrivial level of a danger,” while
redundant, is “not unreasonable, even if this turns out to reflect an excess
of caution to ensure that immigration judges do not consider nontrivial
dangers” in applying the exception. Yusupov, 518 F.3d at 202-204.
MALKANDI v. MUKASEY 13287
[4] As in Yusupov, the question remains whether the BIA
applied the appropriate burden to Malkandi’s case. We con-
clude that it did. After a lengthy discussion, the BIA reiterated
that the IJ “found that, based on the respondent’s activities,
there were reasonable grounds to conclude that the respondent
is a danger to the security of the United States, a bar to asy-
lum and withholding of removal” (emphasis added). The BIA
then quotes the IJ’s opinion, which also utilizes the appropri-
ate, affirmative “is” language rather than the incorrect “may
pose” standard.
[5] Malkandi seizes upon a single passing reference to “suf-
ficient suspicion” and makes much of the difference separat-
ing belief and suspicion. But his argument takes this phrase
out of context. The reference to “sufficient suspicion” came
in response to Malkandi’s objections to the IJ’s reliance on
certain pieces of evidence. In response, the BIA stated, “[w]e
agree with the Immigration Judge’s conclusion that the evi-
dence raised a sufficient suspicion that the respondent should
be regarded as a danger to the security of the United States.”
The opinion does not rest on that standard nor does it tie the
evidence to that standard. Rather, the BIA cited Matter of R-
S-H-, 23 I. & N. Dec. 629, 640 (BIA 2003), in which the
Attorney General addressed this evidentiary issue and opined
that information from an ongoing federal investigation and the
respondent’s ties to a terrorist organization were sufficient to
“ ‘trigger concerns about the respondent and to establish ‘rea-
sonable grounds’ under the Act.’ ” After addressing these evi-
dentiary issues, the BIA then extensively quoted the Attorney
General’s explication of the “reasonable grounds for regard-
ing” standard in Matter of A-H-, that we have approved.
[6] Malkandi overlooks the fact that in reaching its conclu-
sion, the BIA cited and discussed the appropriate standard of
review and the relevant case law, elaborated its meaning and
related the standard to a probable cause burden. Unlike in
Yusupov, we are confident that the BIA viewed the evidence
in the proper light because of its explicit reliance on the clear
13288 MALKANDI v. MUKASEY
wording in the IJ’s opinion. Taken in context, we conclude
that the Board had the correct standard well in mind in arriv-
ing at its decision.
2. Substantial evidence supports the finding that there
are reasonable grounds for regarding Malkandi as
a danger to the security of the United States
[7] The government’s determination that there are reason-
able grounds to regard Malkandi as a danger to national secur-
ity stems from Malkandi’s documented connection with al
Qaeda and his role in facilitating medical documentation for
Khallad (Salah Mohammed). The constellation of undisputed
facts connects the dots between Khallad from the Middle
East, Bawareth—a Yemeni go-between in Washington State
—Malkandi, a facilitator in the Seattle suburb of Bothell,
Washington, and a medical clinic near Seattle. The documen-
tation, names, location, and timing are far too compelling to
be written off as chance or coincidence.
During an interrogation, a confessed al Qaeda operative,
Khallad, named his U.S. contact to be a man named Barzan—
Malkandi’s nickname. Khallad, who lost a leg during the
Afghanistan conflict, matched perfectly the profile of the indi-
vidual whom Malkandi admitted to helping get an appoint-
ment at NovaCare, a medical clinic located in Bellevue,
Washington, which is near Bothell, the final destination listed
on Khallad’s visa application. Malkandi admitted not only to
allowing Bawareth to use his name and address to secure the
NovaCare appointment, but also to following up with Nova-
Care to confirm the appointment. He also acknowledged
receiving a call from somewhere in the Middle East from
someone who asked to speak with Barzan regarding the
NovaCare appointment. As bizarre as this subterfuge may
seem, it is nonetheless internally consistent; Malkandi admits
to all of the actions the government claims Barzan took.
Though Malkandi may object that Barzan is a common Kurd-
ish nickname, it is still his own name, no matter how much
MALKANDI v. MUKASEY 13289
he wanted to distance himself when the agents pointed out the
excerpt from the 9/11 Report fingering Barzan as Khallad’s
U.S. contact.
The government’s account also coheres with what Agent
Marks testified to be al Qaeda’s standard operating procedure
for arranging their operatives’ travel. He explained that
[n]ormally, the al Qaeda organization is going to
have a very small group of people, a handful, usually
two or three, who are going to actually handle the
documents, points of contact, travel, in order to ful-
fill the safe and secure movement of operatives
around the world . . . . As far as contacts, they want
somebody that they can trust on the other end.
When questioned as to whether he believed Malkandi was an
al Qaeda travel facilitator, Special Agent Marks replied, “All
the evidence that we have collected points to the fact that he
was going to assist Khallad bin Attash into the United States
and facilitate his stay here, yes.”
[8] With this considerable evidence, the government has
more than met its burden to establish “reasonable grounds” to
determine that Malkandi is a danger to national security.
Under the statute, however, this finding is not inviolate. The
burden then shifts to Malkandi to demonstrate by a prepon-
derance of the evidence that the national security grounds do
not apply. See 8 C.F.R. § 1208.16(d)(2) (“If the evidence indi-
cates the applicability of one or more of the grounds for
denial of withholding enumerated in the Act, the applicant
shall have the burden of proving by a preponderance of the
evidence that such grounds do not apply.”).
[9] In Malkandi’s case, this burden is more than an uphill
battle because he offers up no substantive evidence, only
arguments to recast the meaning of the government’s evi-
dence. These explanations, however, are not compelling in
13290 MALKANDI v. MUKASEY
light of Malkandi’s lack of credibility. It is inescapable that
Malkandi’s history of misrepresentations about his past and
continued evasion of the truth casts a shadow over his present
story. Though it cannot be overlooked that these statements
were made initially in furtherance of his refugee status, he
nonetheless spun quite a tale and continued to do so for a long
time. Given his history, it is no surprise that the BIA dis-
counted his improbable story of a chance meeting and a will-
ingness to follow-up with a medical appointment for a perfect
stranger. A pattern of misrepresentation has developed that
cannot be ignored.
In response to the government’s specific allegations, Mal-
kandi points to several gaps in the government’s evidence,
which in the final analysis amount to no more than a skeptic’s
gloss on an otherwise coherent and reliable narrative. Mal-
kandi first argues that some of the documents relied on by the
government were not part of the administrative record. He
then he points out that Salah Mohammed’s visa application
lists only “Bothell, WA,” and not Malkandi’s specific street
address. Finally, Malkandi argues that the IJ and BIA improp-
erly relied on the NovaCare letter.
[10] Malkandi complains that the underlying documenta-
tion from the 9/11 Report was not in the administrative
record, thus undermining the evidence establishing his con-
nections to Khallad. The 9/11 Report, which was akin to an
expert report, was commissioned by Congress. The 9/11
Commission reviewed more than 2.5 millions pages of docu-
ments, interviewed more than 1,200 individuals, held 19 days
of hearings and took public testimony from 160 witnesses. 9/
11 Report at xv. Malkandi was confronted with specific evi-
dence in the report and had fair notice of the evidence that
linked him to terrorists. Nothing required the IJ to compel the
introduction of the massive underlying documentation. We
first note that immigration proceedings are “not bound by
strict rules of evidence.” Espinoza v. INS, 45 F3d 308, 310
(9th Cir. 1995) (citing Baliza v. INS, 498 F.2d 919, 921 (9th
MALKANDI v. MUKASEY 13291
Cir. 1974); cf. Gu v. Gonzales, 454 F.3d 1014, 1021 (9th Cir.
2006) (holding that hearsay evidence is admissible if it is pro-
bative and its admission is fundamentally fair.) And, even in
a traditional civil trial context where the evidentiary rules are
in play, Federal Rule of Evidence 702 provides that “the facts
or data need not be admissible in evidence in order for the
opinion or inference to be admitted.” In light of the circum-
stances here, reference to the 9/11 Report was not fundamen-
tally unfair, was not “intrinsically suspect,” and nothing
compelled the introduction of the underlying documentation.
See Matter of A-H. 231 I. & N. Dec. at 789 (holding that evi-
dence that is not “intrinsically suspect” may be relied upon to
find reasonable grounds to believe someone is a threat to
national security).
As to Malkandi’s other arguments, the 9/11 Report’s con-
clusion that the address in Salah Mohammed’s visa applica-
tion referred to Barzan’s address, despite the lack of a specific
street address, was not unreasonable. For the Yemeni to pick
Bothell, Washington, out of an entire country of thousands of
possible locations is precise enough, particularly in light of
the other evidence linking the clinic letter to Salah Moham-
med at Malkandi’s address, and Khallad’s naming his contact
as Barzan, Malkandi’s nickname.
[11] Malkandi tries to downplay the NovaCare letter on the
ground that nothing really happened; he claims he never sent
the letter anywhere and points out that Salah Mohammed did
not keep the appointment. That all may be true, but it
obscures what did happen and the documentation of the con-
nection between Malkandi and Salah Mohammed—the letter
was addressed to the home of Sarbarz Mohammad, Mal-
kandi’s given name, and the affixed sticky-note confirmed
that Salah Mohammed needed the letter as proof of the
appointment in order to satisfy immigration requirements.
This letter was Salah Mohammed’s key to the United States,
whether or not it was ultimately submitted in support of his
visa. Apart from challenging these perceived gaps in the evi-
13292 MALKANDI v. MUKASEY
dence, Malkandi’s effort to overcome the national security
finding is, at bottom, a challenge to the adverse credibility
finding. We next turn to the basis for that finding.
B. SUBSTANTIAL EVIDENCE SUPPORTS THE ADVERSE
CREDIBILITY DETERMINATION
Malkandi’s credibility was at issue on multiple fronts—the
saga he wove about his flight from Iraq, the improbability of
his relationship with Bawareth, the inconsistencies in his story
about making medical arrangements for Khallad, the inherent
implausibility of that entire tale, as well as his evasive demea-
nor with investigating officers and while testifying. Ulti-
mately, his credibility serves as a backdrop for evaluating the
national security charge. Malkandi’s “consistent falsehoods
presented under oath,” in the words of the BIA, were his
undoing as the BIA discredited his portrayal of himself as an
“innocent participant.”
Under the REAL ID Act, in determining a petitioner’s cred-
ibility, an IJ should “[c]onsider the totality of the circum-
stances, and all relevant factors,” which may be based on:
the demeanor, candor, or responsiveness of the
applicant or witness, the inherent plausibility of the
applicant’s or witness’s account, the consistency
between the applicant’s or witness’s written and oral
statements (whenever made and whether or not
under oath, and considering the circumstances under
which the statements were made), the internal con-
sistency of each such statement, the consistency of
such statements with other evidence of record
(including the reports of the Department of State on
country conditions), and any inaccuracies or false-
hoods in such statements, without regard to whether
an inconsistency, inaccuracy, or falsehood goes to
the heart of the applicant’s claim, or any other rele-
vant factor.
MALKANDI v. MUKASEY 13293
8 U.S.C. § 1158(b)(1)(B)(iii), as amended by § 101(a)(3) of
the REAL ID Act, Pub. L. No. 109-13, 119 Stat. 231, 303
(2005).
[12] The IJ must provide “specific and cogent reasons” in
support of an adverse credibility determination. He v. Ash-
croft, 328 F.3d 593, 595 (9th Cir. 2003). Once this criterion
is met, we accord the credibility determination special defer-
ence. See Malhi v. INS, 336 F.3d 989, 993 (9th Cir. 2003).
Under the substantial evidence standard, we may reverse a
BIA credibility determination only if the evidence that the
petitioner presented was “so compelling that no reasonable
factfinder could find that [the petitioner] was not credible.”
Farah v. Ashcroft, 348 F.3d 1153, 1156 (9th Cir. 2003) (inter-
nal quotation marks omitted). “Where . . . the BIA has
reviewed the IJ’s decision and incorporated portions of it as
its own, we treat the incorporated parts of the IJ’s decision as
the BIA’s.” Molina-Estrada v. INS, 293 F.3d 1089, 1093 (9th
Cir. 2002).
[13] Malkandi was caught in a lie of significant magnitude;
he does not contest that he completely fabricated virtually his
entire past in his statements to the UNHCR. Nor does he deny
that he repeatedly passed up opportunities to correct these
misstatements. The BIA was negatively impressed by Mal-
kandi’s subsequent perpetuation of these lies at each stage of
the naturalization process.
[14] But these distant falsehoods were not the principal
basis for the credibility ruling. Malkandi was far from forth-
coming with government agents regarding his connections to
Khallad: he initially denied knowledge of the NovaCare letter
in his first meeting with the FBI, repeated similar denials
when he was questioned by other members of the Special
Task Force, and only gave some ground when the agents
forced him to read in the 9/11 Report the extent of the intelli-
gence community’s knowledge of his links to al Qaeda.
13294 MALKANDI v. MUKASEY
Even once Malkandi moved past this absolute denial, his
testimony before the IJ provided ample reasons to doubt his
candor. The IJ found that, unlike other aspects of his testi-
mony, at several points in his testimony about Khallad, Mal-
kandi stated that he did not understand a question or did not
know or could not recall particular pieces of information,
even though the events at issue were far more recent than the
long-past events he remembered with greater clarity. Specifi-
cally, he claimed not to recognize the name Salah Moham-
med, the names of the people at NovaCare with whom he
spoke, or the fact that he had received the NovaCare letter or
other emails apparently sent by Khallad and later obtained by
the FBI through a search of Malkandi’s computer. The IJ
observed that his demeanor during this portion of his testi-
mony stood in sharp contrast to his demeanor in other aspects
of his testimony.
[15] All in all, the story Malkandi told explaining his par-
ticipation in the efforts to enable Khallad to enter the country
was highly implausible. Under all the above circumstances,
the IJ’s credibility findings are supported by substantial evi-
dence.
On appeal, Malkandi fails to dig himself out of this eviden-
tiary hole, for which he has no one but himself to blame. He
argues that the BIA’s adverse credibility finding was not sup-
ported by “substantial evidence,” raising five specific objec-
tions: (1) the BIA failed to consider the circumstances under
which Malkandi provided the UNHCR with falsehoods; (2)
the BIA failed to consider the corroborating evidence in sup-
port of his testimony about his knowledge of Khallad and the
NovaCare letter; (3) the BIA mischaracterized his testimony
as “evasive;” (4) the BIA showed excessive deference to the
government witnesses in arriving at its determination; and (5)
the BIA did not have support for discrediting sequential reli-
gious conversions. In sum, Malkandi claims the BIA failed to
consider the totality of the circumstances and the factors enu-
merated in 8 U.S.C. § 1158(b)(1)(B)(iii). It is Malkandi, how-
MALKANDI v. MUKASEY 13295
ever, who is overlooking the totality of the evidence, as he
quibbles instead with minor details that fail to undermine the
BIA’s credibility finding. Although under the REAL ID Act
credibility findings no longer need to go “to the heart of the
applicant’s claim,” 8 U.S.C. § 1158(b)(1)(B)(iii), the key
bases for the adverse credibility finding in this case are central
to Malkandi’s application.
[16] As to the first issue, the BIA’s opinion briefly
acknowledged that Malkandi testified that he had been told
that he would not qualify for refugee status with the UNHCR
had he told the truth about his past. The BIA did not ignore
this point. Nonetheless, the BIA fairly focused on the fact that
Malkandi continued the representations long past this initial
point of claimed necessity or utility.
[17] Malkandi also claims the BIA ignored corroborative
evidence by inconsistently drawing upon the supporting docu-
mentation, relying only on those aspects that were supportive
of the government’s case while overlooking other portions
that support Malkandi’s view. Specifically, Malkandi claims
that three pieces of corroborative evidence—elements of the
9/11 Report itself, his wife’s testimony, and evidence from
NovaCare—support his contention that his contact with Khal-
lad was quite limited. The BIA considered all of this evidence
but none of it changed the reality of Malkandi’s contact with
Khallad. These other bits of information do not conclusively
undermine the government’s allegations of Malkandi’s role
nor do they negate the specific findings of lack of credibility.
At best, this merely puts a different spin on identical facts.
[18] Similarly, Malkandi’s challenge to the BIA’s charac-
terization of his testimony regarding Khallad and the Nova-
Care letter as “evasive,” obscures a broader view of the
evidence. This determination was not based on one furtive
glance or vague conclusion but rather on detailed findings
supported by concrete examples. See Arulampalam v. Ash-
croft, 353 F.3d 679, 686 (9th Cir. 2003) (holding that an IJ’s
13296 MALKANDI v. MUKASEY
demeanor-based negative credibility finding must specifically
and cogently refer to the noncredible aspects of the appli-
cant’s demeanor). As noted, the IJ observed and documented
a distinct contrast between Malkandi’s testimony on this point
and his other testimony. Other evidence in the record under-
scores that this evasiveness was not limited to Malkandi’s
time on the witness stand, but had been a constant theme
throughout Malkandi’s interactions with the government
agents.
[19] We also cannot agree with Malkandi’s view that the
BIA showed excessive deference to the government’s wit-
nesses. Any such deference is not reflected in the record.
Pointing to several gaps and statements made by the agents
that he claims are unsupported by the record, Malkandi cites
two cases, Matter of Al-Jailani, No. A7336983, 2004 WL
1739163 (BIA June 28, 2004) (unpublished) and Cheema, that
resulted in favorable outcomes for the petitioners. Matter of
Al-Jailani is hardly illuminating as it involved an unpublished
bond decision, not an appeal reviewing a final order of
removal.
Malkandi also posits that the terrorism connections to Kaur,5
the female petitioner in Cheema, were just as tenuous as those
alleged here. But unlike Malkandi, Kaur was found to be
credible so we had little difficulty reversing the BIA’s finding
that she was a danger to national security because she had
donated money on one or two occasions to Sikh widows and
orphans through organizations that the government suspected
of being tied to Sikh militants. See Cheema, 383 F.3d at 856-
57.
Malkandi’s reliance on Cheema gets things precisely back-
wards. The petitioner in Cheema was not deemed credible
5
Cheema involved the applications of a husband, Harpal Singh Cheema,
and his wife, Rajwinder Kaur. The “petitioner” referred to here is Kaur,
the wife.
MALKANDI v. MUKASEY 13297
because the government’s evidence provided only tenuous
connections to terrorism; rather, the government’s tenuous
evidence was insufficient in part because the petitioner credi-
bly provided an innocent explanation. To infer, as Malkandi
asks us to do, that Malkandi is credible because the govern-
ment has not produced a smoking gun would be circular.
[20] Finally, the BIA states in passing, “[w]e also note the
respondent’s allegiances and religious convictions appear to
shift depending on his circumstances.” The fact is that Mal-
kandi has had a dynamic personal religious evolution (from
Muslim to Baha’i to Mormon), but there is little evidence to
support the BIA’s doubts on this basis. This statement, which
was made without further discussion, however, can hardly
upend a credibility determination.
Whatever slight failings Malkani may perceive in the credi-
bility analysis, they are surely not significant enough to defeat
the adverse credibility finding.
III. CONCLUSION
Ultimately, Malkandi’s argument does nothing to under-
mine the substantial evidence presented against him. He sim-
ply retells the story with the same evidence but with a
different theme and plot. Malkandi’s burden is neither as low,
nor is the government’s burden quite as high, as Malkandi
suggests.
The government had to show that there were “reasonable
grounds,” i.e., grounds akin to probable cause, for believing
that Malkandi posed a danger to the United States. The IJ’s
adverse credibility finding, which was supported by multiple,
substantial references in the record, coupled with concrete
evidence of Malkandi’s contacts with terrorists led the IJ to
find Malkandi removable. After careful analysis of the IJ’s
findings, the BIA wrote that the IJ “considered appropriate
factors” in weighing the national security finding and that
13298 MALKANDI v. MUKASEY
“[t]hese factors are sufficient to support a finding that there
are reasonable grounds for regarding the respondent as a dan-
ger to the security of the United States.” For judicial review,
reversal of the BIA’s determination is warranted only if “any
reasonable adjudicator would be compelled to conclude to the
contrary.” Tawadrus, 364 F.3d at 1102 (quoting 8 U.S.C.
§ 1252(b)(4)(B)). Because the evidence does not compel such
a conclusion, the petition for review is DENIED.