Malkandi v. Mukasey
| Decision Date | 19 September 2008 |
| Docket Number | No. 06-73491.,06-73491. |
| Parties | Sam MALKANDI, a.k.a. Sarbarz Abulgani Mohammad, Petitioner-Appellant, v. Michael B. MUKASEY, Attorney General, Respondent-Appellee. |
| Court | U.S. Court of Appeals — Ninth Circuit |
Frederic C. Tausend and Shaakirrah R. Sanders, Kirkpatrick & Lockhart Preston Gates Ellis, LLP, Seattle, WA, for the petitioner-appellant.
Peter D. Keisler, Assistant Attorney General, Michael P. Lindemann, Assistant Director, William C. Peachey, Senior Litigation Counsel, Office of Immigration Litigation, Washington, D.C., for the respondent-appellee.
On Petition for Review of an Order of the Board of Immigration Appeals. Agency No. A75-043-854.
Before: STEPHEN REINHARDT, A. WALLACE TASHIMA, and M. MARGARET McKEOWN, Circuit Judges.
This case focuses on the interplay between credibility findings 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 naturalization 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 documentation 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 architect 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") and ultimately undermines Malkandi's arguments that the evidence "compels us" to accept his innocuous explanations for his association with Khallad. Malkandi's lack of credibility, coupled with concrete evidence about his associations, convinced 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) (); see also INS v. Elias-Zacarias, 502 U.S. 478, 481 n. 1, 112 S.Ct. 812, 117 L.Ed.2d 38 (1992). Adverse credibility determinations are reviewed under the same substantial evidence standard as findings of fact. See Gui v. INS, 280 F.3d 1217, 1225 (9th Cir.2002). Because substantial evidence supports the BIA's credibility determination, and Malkandi has not met his burden to defeat the national security finding, Malkandi's petition for relief is denied.
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, 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 cassette tapes to communicate with family members and friends, who can be heard on the tapes referring to him by his nickname, Barzan. While in Pakistan, Malkandi met Mali, his current 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 presented the UNHCR with a more dramatic and sympathetic version 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 naturalization proceedings in the United States.
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 educating 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 soldiers 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. Malkandi 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.
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, Malkandi 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 misrepresentation. Malkandi was granted lawful permanent residency 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 correct any of his prior misrepresentations.
At some point while Malkandi's naturalization application was pending, burgeoning evidence appeared to implicate connections between him and al Qaeda. Two FBI agents made an 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 operation. 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,...
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