Khadka v. Eric H. Holder Jr

• Decision Date: 18 August 2010
• Docket Number: No. 05-75726.,05-75726.
• Citation: 618 F.3d 996
• Parties: Khagendra KHADKA, Petitioner,v.Eric H. HOLDER Jr., Attorney General, Respondent.
• Court: U.S. Court of Appeals — Ninth Circuit

618 F.3d 996

Khagendra 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.

COPYRIGHT MATERIAL OMITTED

Robert B. Jobe, Law Office of Robert B. Jobe, San Francisco, CA, for the petitioner.

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.

On Petition for Review of an Order of the Board of Immigration Appeals. Agency No. A096-152-897.

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 the petitioner had filed a frivolous petition. Under the circumstances presented by this case, when the possibility of such a finding was not raised by the government or by the IJ, we conclude that the frivolous finding must be set aside. We conclude, however, that the IJ's adverse credibility finding was supported by substantial evidence. We therefore deny the petition in part and grant it in part.

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 stated 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 article. 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 eleven years. Brault also testified that Khadka's brother-in-law Bal Bdr. K.C., is a leading member of the D Faction and was a minister in the Nepalese government in September 2002. Brault opined that the outside the valley version was likely printed by the publisher of the Tarun, “possibly because of political influence,” but never circulated.

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 second, 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 negative 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) (“[W]hether 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 involving the publisher of a newspaper associated with Khadka's brother-in-law's political party, to print a non-circulating issue and plant a copy at the National Press Archives.³ The only explanation that Adams provided the IJ on rebuttal was, in turn, given to him by the implicated publisher and never verified.⁴ The alleged fabrication was a specific, cogent reason for the IJ to find Khadka incredible. The article was about Khadka's role fighting Maoist insurgents, their subsequent threats, and the impact of the threats on him and his family. Although the article was by no means the only evidence of his asylum claim, and while it corroborated the other evidence rather than revealing “inconsistencies,” it undeniably went to the claim's heart. See Li, 378 F.3d at 964. Even if the article was not technically fraudulent, as both parties agree it was actually printed by the publisher of the Tarun, it was presented to the immigration court under false pretenses. These false pretenses cast a sufficient pall on the asylum claim that, given our deferential standard of review, the other evidence that Khadka submitted to the court does not compel us to grant the petition.

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...