FOR PUBLICATION

UNITED STATES COURT OF APPEALS

FOR THE NINTH CIRCUIT

SAM MALKANDI, a.k.a. Sarbarz 

Abulgani Mohammad, No. 06-73491 Petitioner-Appellant,

Agency No.

v.  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
COUNSEL

Frederic C. Tausend and Shaakirrah R. Sanders, Kirkpatrick

& Lockhart Preston Gates Ellis, LLP, Seattle, Washington, for

the petitioner-appellant. 

13274 MALKANDI v. MUKASEY
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. 

OPINION

McKeown, Circuit Judge: 

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”)

MALKANDI v. MUKASEY 13275
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)

(holding that under 8 U.S.C. § 1252(b)(4)(B), the BIA’s findings 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 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. 

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,

13276 MALKANDI v. MUKASEY
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 v. MUKASEY 13277
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. 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, 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

13278 MALKANDI v. MUKASEY
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, Malkandi relayed the price quoted to him by NovaCare and the telephone caller said it was “very expensive.”

1Salah Mohammed, a.k.a., Khallad, lost his leg in Afghanistan participating in the battle against the Northern Alliance. 

MALKANDI v. MUKASEY 13279
According to Malkandi, the caller referred to him as “Barzan.” 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 Terrorism 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 Mohammed bin Yousaf (a.k.a. “Khallad”

2

), an al Qaeda operative

who directed the attacks on the American embassies in Nairobi, 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 identifiable 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 “Intelligence report, interrogation of Khallad, Aug. 20, 2003). 

2The 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 interrogations of Khallad, who was captured in 2003 and remains in U.S. custody. 

13280 MALKANDI v. MUKASEY
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. Apparently, 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 attorney, 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 determination. 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 November 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 withMALKANDI v. MUKASEY 13281
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) (exception to CAT withholding); see also Bellout v. Ashcroft, 363

F.3d 975, 979 (9th Cir. 2004) (“an alien is ineligible for asylum 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 removable for terrorist activity. Either ground will support the IJ’s

denial of asylum.”). This finding was based on the IJ’s reading 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

13282 MALKANDI v. MUKASEY
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 finding 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 eligibility 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 standard, “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. EliasZacarias, 502 U.S. 478, 481 (1992); Valderrama v. INS, 260

F.3d 1083, 1085 (9th Cir. 2001) (per curiam) (adverse credibility determinations reviewed for substantial evidence). 

II. DISCUSSION

As the parties have acknowledged, the core facts that form

3Because 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. 

MALKANDI v. MUKASEY 13283
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 picture proving that he poses a danger to the security of the

United States, and that there is a perfectly innocent explanation of his actions, namely, that he was doing a favor for an

acquaintance. More pointedly, Malkandi notes that the government has presented no evidence demonstrating that Malkandi knew with whom he was dealing, or to what ultimate

end. The government counters that the BIA got it right: substantial evidence supports the conclusion that there are reasonable 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 appropriate burden of proof with respect to the national security

finding. Malkandi argues that the BIA applied the wrong standard (“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 ineligible for asylum and barred from withholding of removal if

there are “reasonable grounds for regarding the alien as a danger 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.

13284 MALKANDI v. MUKASEY
§ 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 benchmark “reasonable grounds.” The BIA’s decision relies heavily

on the Attorney General’s interpretation of the national security 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 General 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 “implies 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 ‘probable 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 preponderance 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 security” 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

MALKANDI v. MUKASEY 13285
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 neither the plain wording nor the ordinary meaning of the statutory 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 threatened’] 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 persecution.”)). 

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 ability to pose such a danger (a category nearly anyone

can fit). 

Id. The bottom line in Yusupov, which we adopt, is that “reasonable” grounds should be evaluated against a reasonable

person, probable cause standard and the alien must “actually”

pose a “serious danger” to United States security. 

4Yusupov 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. 

13286 MALKANDI v. MUKASEY
[4] As in Yusupov, the question remains whether the BIA

applied the appropriate burden to Malkandi’s case. We conclude 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 asylum and withholding of removal” (emphasis added). The BIA

then quotes the IJ’s opinion, which also utilizes the appropriate, affirmative “is” language rather than the incorrect “may

pose” standard. 

[5] Malkandi seizes upon a single passing reference to “sufficient suspicion” and makes much of the difference separating 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 evidence 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 RS-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 ‘reasonable grounds’ under the Act.’ ” After addressing these evidentiary issues, the BIA then extensively quoted the Attorney

General’s explication of the “reasonable grounds for regarding” standard in Matter of A-H-, that we have approved. 

[6] Malkandi overlooks the fact that in reaching its conclusion, 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

MALKANDI v. MUKASEY 13287
wording in the IJ’s opinion. Taken in context, we conclude

that the Board had the correct standard well in mind in arriving 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 reasonable grounds to regard Malkandi as a danger to national security 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 documentation, 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 individual whom Malkandi admitted to helping get an appointment 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 NovaCare 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 Kurdish nickname, it is still his own name, no matter how much

13288 MALKANDI v. MUKASEY
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 fulfill 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 preponderance of the evidence that the national security grounds do

not apply. See 8 C.F.R. § 1208.16(d)(2) (“If the evidence indicates 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 evidence. These explanations, however, are not compelling in

MALKANDI v. MUKASEY 13289
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 discounted his improbable story of a chance meeting and a willingness 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, Malkandi 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. Malkandi 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 improperly relied on the NovaCare letter. 

[10] Malkandi complains that the underlying documentation from the 9/11 Report was not in the administrative

record, thus undermining the evidence establishing his connections 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 documents, 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 evidence 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

13290 MALKANDI v. MUKASEY
Cir. 1974); cf. Gu v. Gonzales, 454 F.3d 1014, 1021 (9th Cir.

2006) (holding that hearsay evidence is admissible if it is probative 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 circumstances here, reference to the 9/11 Report was not fundamentally 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 evidence 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 conclusion that the address in Salah Mohammed’s visa application 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 Mohammed 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 connection between Malkandi and Salah Mohammed—the letter

was addressed to the home of Sarbarz Mohammad, Malkandi’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 eviMALKANDI v. MUKASEY 13291
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 demeanor with investigating officers and while testifying. Ultimately, 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 credibility, an IJ should “[c]onsider the totality of the circumstances, 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 consistency 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 falsehoods in such statements, without regard to whether

an inconsistency, inaccuracy, or falsehood goes to

the heart of the applicant’s claim, or any other relevant factor. 

13292 MALKANDI v. MUKASEY
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. Ashcroft, 328 F.3d 593, 595 (9th Cir. 2003). Once this criterion

is met, we accord the credibility determination special deference. 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) (internal 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 Malkandi’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 forthcoming 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 intelligence community’s knowledge of his links to al Qaeda. 

MALKANDI v. MUKASEY 13293
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 testimony, at several points in his testimony about Khallad, Malkandi 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. Specifically, he claimed not to recognize the name Salah Mohammed, 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 testimony stood in sharp contrast to his demeanor in other aspects

of his testimony. 

[15] All in all, the story Malkandi told explaining his participation 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 evidence. 

On appeal, Malkandi fails to dig himself out of this evidentiary hole, for which he has no one but himself to blame. He

argues that the BIA’s adverse credibility finding was not supported by “substantial evidence,” raising five specific objections: (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 support 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 religious conversions. In sum, Malkandi claims the BIA failed to

consider the totality of the circumstances and the factors enumerated in 8 U.S.C. § 1158(b)(1)(B)(iii). It is Malkandi, how13294 MALKANDI v. MUKASEY
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 documentation, 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 Khallad 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 characterization of his testimony regarding Khallad and the NovaCare 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. Ashcroft, 353 F.3d 679, 686 (9th Cir. 2003) (holding that an IJ’s

MALKANDI v. MUKASEY 13295
demeanor-based negative credibility finding must specifically

and cogently refer to the noncredible aspects of the applicant’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 underscores 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 witnesses. 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 backwards. The petitioner in Cheema was not deemed credible

5Cheema involved the applications of a husband, Harpal Singh Cheema,

and his wife, Rajwinder Kaur. The “petitioner” referred to here is Kaur,

the wife. 

13296 MALKANDI v. MUKASEY
because the government’s evidence provided only tenuous

connections to terrorism; rather, the government’s tenuous

evidence was insufficient in part because the petitioner credibly provided an innocent explanation. To infer, as Malkandi

asks us to do, that Malkandi is credible because the government 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 Malkandi 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 credibility analysis, they are surely not significant enough to defeat

the adverse credibility finding.

III. CONCLUSION

Ultimately, Malkandi’s argument does nothing to undermine the substantial evidence presented against him. He simply 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

MALKANDI v. MUKASEY 13297
“[t]hese factors are sufficient to support a finding that there

are reasonable grounds for regarding the respondent as a danger 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.

13298 MALKANDI v. MUKASEY