Khadka v. Holder

FOR PUBLICATION
UNITED STATES COURT OF APPEALS
FOR THE NINTH CIRCUIT

KHAGENDRA KHADKA, 
Petitioner, No. 05-75726
v.
 Agency No.
A096-152-897
ERIC H. HOLDER JR., Attorney
General, OPINION
Respondent.

On Petition for Review of an Order of the
Board of Immigration Appeals

Argued and Submitted
March 8, 2010—San Francisco, California

Filed August 18, 2010

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

12125
12128 KHADKA v. HOLDER

COUNSEL

Robert B. Jobe, Law Office of Robert B. Jobe, San Francisco,
California, 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.

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 pres-
ented 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, how-
ever, that the IJ’s adverse credibility finding was supported by
 KHADKA v. HOLDER 12129
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 sub-
mitted a large amount of documentation of his service in the
Nepali police force and UN mission in Iraq, as well as affida-
vits 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
1
The government has not challenged whether Khadka would be legally
entitled to asylum if the IJ had found his allegations to be true, and we
need not reach that question here.
12130 KHADKA v. HOLDER
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 Sep-
tember 30, 2002 edition of the Tarun, it did not include the
article submitted by Khadka. Printed in its place was an arti-
cle 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 ques-
tioned 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 manage-
ment of its circulation. The editor wanted to get a better sense
of the paper’s market, which required a way to differentiate
 KHADKA v. HOLDER 12131
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 cop-
ies 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 submit-
ted.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) summa-
rily affirmed. In Khadka’s petition for review, he challenges
only the IJ’s adverse credibility finding and finding of frivo-
lousness.

II

Because the BIA affirmed the IJ’s decision without opin-
ion, we review the IJ’s decision as the final agency determina-
tion. 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 credibil-
ity determination, and will only exercise our power to grant
a petition for review when the evidence “ ‘compel[s] a con-
2
The IJ’s adverse credibility determination was based on approximately
seven additional findings, none of which was supported by the evidence,
and which, by and large, the government does not defend.
12132 KHADKA v. HOLDER
trary 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 find-
ing is supported by substantial evidence and goes to the heart
of the claims of persecution, we are bound to accept the nega-
tive 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.”).

[1] Substantial evidence supports the IJ’s adverse credibil-
ity determination. Brault testified about an elaborate scheme,
involving the publisher of a newspaper associated with Khad-
ka’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 veri-
fied.4 The alleged fabrication was a specific, cogent reason for
the IJ to find Khadka incredible. The article was about Khad-
ka’s role fighting Maoist insurgents, their subsequent threats,
3
Khadka argues that the assumption that Khadka’s brother-in-law
orchestrated the printing of the paper was “speculation and conjecture.”
We read the IJ’s consideration of the brother-in-law’s political stature
instead as supporting the plausibility of the government’s explanation of
what happened, rather than a loosely-supported opinion as to how it
occurred.
4
Khadka argues that he was “denied a reasonable opportunity to”
respond directly to the IJ’s concerns. See Singh v. Gonzales, 403 F.3d
1081, 1085 (9th Cir. 2005). We disagree. Khadka was put on notice as to
what Brault’s testimony would consist of by a previously-submitted affi-
davit. Khadka did not request a continuance or otherwise indicate that he
needed additional time to respond to the government’s evolving argument
about the article. One day of the merits hearing was held for the sole pur-
pose of discussing the article, and Khadka was given the opportunity to
cross examine the government’s expert witness and call his own. The IJ
was not required to inform Khadka, at the close of evidence, that he still
doubted the authenticity of the article.
 KHADKA v. HOLDER 12133
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 tech-
nically fraudulent, as both parties agree it was actually printed
by the publisher of the Tarun, it was presented to the immi-
gration court under false pretenses. These false pretenses cast
a sufficient pall on the asylum claim that, given our deferen-
tial standard of review, the other evidence that Khadka sub-
mitted 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 publica-
tion. On appeal, while challenging the finding that he misrep-
resented the article’s history, Khadka still does not claim that
he was misled to believe that the article was ever circulated.
This is sufficient under our case law. See Yeimane-Berhe v.
Ashcroft, 393 F.3d 907, 911 (9th Cir. 2004) (holding that an
adverse credibility finding based only on the submission of a
counterfeit medical document was not supported by the record
where there was “no evidence indicating that she knew the
document was fraudulent’ ”); see also Corovic v. Mukasey,
519 F.3d 90, 97-98 (2d. Cir. 2008) (where applicant disputes
knowledge of fraud, IJ must “evaluate” whether applicant
“had reason to know that the documents submitted were
fraudulent”).

III

[2] Pursuant to 8 U.S.C. § 1158(d)(6), “an alien [that] has
knowingly made a frivolous application for asylum . . . shall
12134 KHADKA v. HOLDER
be permanently ineligible for any benefits under [the INA].”
As explained in Department of Homeland Security regula-
tions, section 1158(d)(6) requires the Board or IJ to make a
specific finding that an alien “deliberately fabricated” a “ma-
terial element[ ]” of the application. 8 C.F.R. § 208.20; see
also In re Y-L, 24 I. & N. Dec. 151, 162 n.1 (BIA 2007) (“In
light of the regulatory requirement that there be evidence of
a deliberate fabrication of a material element of a claim, the
term ‘fraudulent’ may be more appropriate than the term
‘frivolous’ when applied to a questionable asylum applica-
tion.”). The IJ or Board must also give the alien “sufficient
opportunity to account for any discrepancies or implausible
aspects of the claim.” 8 C.F.R. § 208.20.

We review a determination that an applicant knowingly
made a frivolous application for asylum for compliance with
a procedural framework outlined by the BIA. See Ahir v.
Mukasey, 527 F.3d 912, 917 (9th Cir. 2008) (adopting frame-
work from Y-L, supra, 24 I. & N. Dec. 151).

First, an asylum applicant must have notice of the
consequences of filing a frivolous application. Sec-
ond, the IJ or Board must make specific findings that
the applicant knowingly filed a frivolous application.
Third, those findings must be supported by a prepon-
derance of the evidence. Finally, the applicant must
be given sufficient opportunity to account for any
discrepancies or implausibilities in his application.

Id. (internal citations omitted). Whether a fabrication was of
material elements is a mixed question of fact and law. Y-L, 24
I. & N. Dec. at 159. Whether the IJ properly applied the regu-
latory framework is a question of law. Id.

[3] As is clear from these requirements, “ ‘a finding of
frivolousness does not flow automatically from an adverse
credibility determination.’ ” Liu v. U.S. Dep’t of Justice, 455
F.3d 106, 113 (2d Cir. 2006) (quoting Muhanna v. Gonzales,
 KHADKA v. HOLDER 12135
399 F.3d 582, 589 (3d Cir. 2005)). For an IJ to make a frivo-
lousness finding, he or she must be convinced that the appli-
cant deliberately fabricated a material element, while an
adverse credibility determination merely requires an omis-
sion, inconsistency, or discrepancy relating to a material ele-
ment (the heart of the asylum claim). Compare 8 C.F.R.
§ 208.20, with Li, 378 F.3d at 962. Additionally, the govern-
ment must prove that it is more likely than not that the appli-
cant filed a frivolous asylum application, whereas a negative
credibility determination need only be supported by substan-
tial evidence, which might consist of as little as one specific
and cogent reason. Compare Ahir, 527 F.3d at 917, with Li,
378 F.3d at 962, 964; see also Baria v. Reno, 94 F.3d 1335,
1340 (9th Cir. 1996) (“ ‘Substantial evidence’ means more
than a mere scintilla but less than a preponderance . . . .”).5
Our sister circuits and the BIA have explained that these two
differences are due in part to the “severe consequences” that
flow from a frivolousness finding. See Muhanna, 399 F.3d at
589 (discussing “material element” requirement); Yang, 496
F.3d at 274 (same); Y-L, 24 I. & N. Dec. at 157 (discussing
evidentiary standard).

In this case, the IJ made a specific finding that Khadka
knowingly filed a frivolous application.

The evidence demonstrates that the respondent’s
statement regarding his alleged special service in the
police and army, [where he] encountered terrorists
activities against the Maoist insurgents is false, and
5
Although we recognize that the Sixth Circuit held that one fabricated
newspaper article was sufficient to support a frivolousness finding, we do
not consider the opinion to be persuasive, as it predates Y-L and was based
on the lower substantial evidence standard. See Selami v. Gonzales, 423
F.3d 621, 626-27 (6th Cir. 2005). The fact that the Selami court required
the frivolousness finding to be based on direct evidence, and that BIA and
this circuit permit such a finding to be based on circumstantial evidence,
is irrelevant to the unquestionable proposition that substantial evidence is
a lower evidentiary standard than a preponderance of the evidence.
12136 KHADKA v. HOLDER
his statements regarding specific encounters with the
Maoists is also false. He knew that these statements
were false. His own employment history shows no
such special service or encounters with the Maoists.
He claimed that he was threatened by the Maoists
and he reported the threats to his superiors at the
police department, but they have no record of any
such threats [or] any knowledge of any threats or any
knowledge that the respondent had any problems
with the Maoists whatsoever.

The misrepresented newspaper article was icing on the cake:
Khadka “knew” his asylum claim was fabricated, “and yet he
submitted his claim along with a newspaper article from his
party’s partisan press, . . . which is a special edition that was
printed specifically to support [the] asylum claim.”

Because Khadka’s asylum application rests on interactions
with Maoists (both as a Striking Commander and thereafter
and therefore as an extorted and threatened asylum seeker), if
supported by the record, this would constitute a fabrication of
a material element of his claim. But the finding is not sup-
ported. The government submitted a copy of Khadka’s
employment records that clearly indicates that he was a Dep-
uty Superintendent of the Nepal Police who was assigned at
one point to an anti-terrorist unit, deployed as a striking unit
commander in both Chitawan and Pythan provinces, and
twice placed in a standby group for a U.N. Peace Keeping Mis-
sion.6 Khadka specifically testified that he had not reported
6
The government focuses on discrepancies between dates on translated
employment records presented by Khadka and translated employment
records presented by the government. As is clear from other documents on
the record, Nepal uses a different calendar system than the United States.
As far as we are able to discern from the translated documents, Nepalese
and Gregorian dates are approximately fifty-six years, eight months, and
two weeks apart, though the exact difference varies from month to month
and year to year. Moreover, Nepalese uses non-Arabic numerals, making
 KHADKA v. HOLDER 12137
any of the threats to his superiors, so it is no wonder that they
were unaware of any.7

[4] Fabrication of material evidence does not necessarily
constitute fabrication of a material element. Compare Black’s
Law Dictionary 638 (9th ed. 2009) (defining “material evi-
dence” as “[e]vidence having some logical connection with
the facts of consequence or the issues”), with id. at 597 (9th
ed. 2009) (defining “element” as “[a] constituent part of a
claim that must be proved for the claim to succeed”). The
Tarun article was not the only evidence Khadka submitted to
support his claim that he was threatened by Maoists for his
activities as a Nepalese police officer. The record in this case

conversion and translation from a Nepalese date even more difficult to do
without error. Nor does the government explain why Khadka might have
fabricated dates nearly identical to those in government submitted docu-
ments. Given this, it is difficult to see how discrepancies of one day to one
week, or even in one case three years, between translated documents sub-
mitted by each party, could possibly constitute more than the barest evi-
dence of fraud. This is all the more true here, where Khadka presented a
copy of the original Nepalese employment records and the government
presented only a translation.
7
In making his adverse credibility determination, the IJ also concluded
that Khadka lied about his encounters with Maoists because Brault had not
found any newspaper accounts to confirm any police-Maoist encounters
on June 15, 1998 and July 5, 1999. In her dissent, Judge Hall also focuses
on the U.S. embassy’s lack of evidence of any Maoist encounters on these
dates. It is understandable why, based on the translation of the Tarun arti-
cle, Brault, the IJ, and Judge Hall assumed that Khadka claimed to have
encountered Maoists on those dates. (Translation: “He had played special
role as a striking commander and made great loss to Maoist in Chitwan
and Pyuthan district on June 15, 1998 and July 05,1999, when he was
Police Inspector.”). Without knowing the grammatical structure of written
Nepalese, it is only possible to speculate why the dates do not appear next
to the words that they modify. But it is clear from his employment history
and testimony, if not from the article itself, that those were the dates
Khadka had been deployed as a Striking Commander. Thus, Brault’s
inability to find specific encounters on those dates is not relevant to the
question of whether or not Khadka manufactured his claim.
12138 KHADKA v. HOLDER
is replete with Nepalese and United Nations employment
records, affidavits of friends and family about Maoist threats,
and general newspaper articles about Maoists that support the
plausibility of Khadka’s claim. While these documents do not
impact our analysis of the IJ’s adverse credibility determina-
tion, they undermine the IJ’s frivolousness finding, which
must be based on evidence indicating that a material element
of the claim was actually false.

[5] The IJ also erred by not informing Khadka that he was
considering making a frivolousness finding or otherwise giv-
ing Khadka sufficient opportunity to account for any of the
alleged discrepancies and implausibilities in the record other
than those few that supported the government’s suspicions
that the newspaper article was fabricated. See Ahir, 527 F.3d
at 917. Had he done so, Khadka would have had the opportu-
nity to demonstrate why the petition was not frivolous.

The BIA has clearly contemplated that someone—either
the IJ or the government—would raise the issue of fabrica-
tion. See Y-L, 24 I. & N. Dec. at 159-60 (“[I]t would be a
good practice for an Immigration Judge . . . to bring this con-
cern to the attention of the applicant prior to the conclusion
of proceedings[, though i]n some cases, the Government may
raise the issue of frivolousness . . . .“). Although it was clear
in this case that the IJ was suspicious of the authenticity of the
newspaper article, it was not until he read his ruling that
Khadka was informed that the IJ did not believe that Khadka
had ever confronted or been threatened by Maoists. The IJ did
not even hint that he was going to reject all of Khadka’s docu-
mentary evidence. Even if the IJ does not have to inform the
applicant that he is considering a frivolousness finding in so
many words, where it is not otherwise obvious from the
record, he needs to indicate that he questions material aspects
of the claim. Cf. Ye v. Dep’t of Homeland Security, 446 F.3d
289, 295-96 (2d Cir. 2006) (finding that for purposes of an
adverse credibility determination the respondent need not be
 KHADKA v. HOLDER 12139
afforded an opportunity to respond to self-evident inconsis-
tencies).

[6] The IJ’s mistakes in this case highlight the importance
of such a warning. With so many of the “facts” underlying the
IJ’s adverse credibility and frivolousness findings unsup-
ported by the record, it almost certainly would have made a
difference to permit Khadka and his attorney to respond to the
IJ’s concerns. At the very least, Khadka could have attempted
to authenticate the supporting documents he presented to the
court—many of which came from impartial sources—through
some method other than his own testimony.

[7] Given proper warning, an asylum applicant may be
able to rebut an allegation that he filed a frivolous asylum
application without actually convincing a finder of fact that he
had not presented fabricated evidence. Because Khadka only
was warned that the IJ questioned the authenticity of a single
document, “[w]e do not find that . . . the respondent should
necessarily have anticipated [the IJ’s] finding and provided
explanations.” Y-L, 24 I. & N. Dec. at 160; see also Yang v.
Gonzales, 496 F.3d 268, 278 (2nd Cir. 2007) (remanding to
BIA in part because “the IJ did not inform the petitioner that
she was considering a frivolousness finding during the course
of the proceedings”).

IV

[8] The IJ’s adverse credibility determination was sup-
ported by substantial evidence. However, because the IJ’s
finding that Khadka filed a frivolous asylum application is not
supported by a preponderance of the evidence, and because
the IJ’s application of the frivolous asylum application bar
was procedurally unsound, we grant Khadka’s petition in part
and reverse the IJ’s application of the bar. We remand for fur-
ther proceedings consistent with this opinion.

GRANTED IN PART; DENIED IN PART;
REMANDED.
12140 KHADKA v. HOLDER
HALL, Circuit Judge, concurring in part and dissenting in
part:

I agree with the majority that the IJ’s adverse credibility
finding was supported by substantial evidence. I dissent, how-
ever, from Section III of the majority opinion, because the IJ
properly found that Khadka submitted a frivolous asylum
application.

I.

Khadka seeks asylum on the grounds that Maoists in Nepal
have threatened him and his family in retaliation for his victo-
ries combating Maoist rebels. His asylum application traces
Maoist animosity towards him to encounters on June 15, 1998
and July 5, 1999 in the Chitwan and Pyuthan districts, in
which Khadka, serving as a striking commander, defeated and
killed a number of Maoists. Khadka’s primary corroborating
evidence for these incidents was an article purportedly pub-
lished in the Tarun newspaper, which reported both these two
incidents and the resulting threats to his life. He submitted
additional letters from family and friends documenting threats
lodged at them by Maoists, but these letters do not identify
any specific incidents of Maoist counter-insurgency apart
from the June 15, 1998 and July 5, 1999 incidents.

Khadka signed a Form I-589 asylum application, which
indicated that the knowing submission of a frivolous asylum
application would render him permanently ineligible for relief
under the Immigration and Nationality Act. On the same
page, Khadka’s attorney signed a certification that he had read
the application to Khadka in his native language.

On September 30, 2003, the government submitted evi-
dence to the immigration court—including an affidavit from
Steven F. Brault, Chief of the Consulate Section of the U.S.
Embassy in Kathmandu—indicating that the Tarun article had
been fabricated. On October 10, 2003, the IJ granted Khadka
 KHADKA v. HOLDER 12141
a continuance of his merits hearing so that his counsel could
conduct his own investigation into the origins of the Tarun
article. On April 22, 2004, the IJ devoted an entire day’s hear-
ing to the authenticity of the Tarun article, including testi-
mony from both Brault and Khadka’s own expert witness. As
the majority sets forth in detail, Brault’s testimony demon-
strated that the Tarun article had been published in a special
version of the newspaper for the sole purpose of assisting
Khadka’s asylum claim. The majority makes only passing ref-
erence, however to Brault’s testimony that the reported June
15, 1998 and July 5, 1999 Maoists incidents never happened.
Brault testified that the U.S. Embassy maintains a comprehen-
sive database of Maoist incidents in Nepal and that there was
no evidence of any run-in between police forces and Maoists
on or around June 15, 1998 or July 5, 1999. He testified that
during the period of 1996-2001, there were very few incidents
with Maoist insurgents and that every Maoist incident would
have been reported in one of the newspapers used to construct
the database. The IJ found, based in large part on Brault’s tes-
timony, that Khadka was not credible and had submitted a
frivolous asylum application.

II.

Under 8 U.S.C. § 1158(d)(6), if an asylum applicant know-
ingly files a frivolous application, he or she is permanently
ineligible for immigration benefits. “[A]n asylum application
is frivolous if any of its material elements is deliberately fab-
ricated.” 8 C.F.R. § 1208.20. Under the four-part test we
adopted in Ahir v. Mukasey, 527 F.3d 912, 917 (9th Cir.
2008), the majority concludes that the IJ’s frivolousness find-
ing was inadequate because (1) Khadka was given insufficient
notice that the IJ was considering a frivolousness finding, and
(2) fabrication of material evidence—here, the Tarun article—
does not necessarily constitute fabrication of a material ele-
ment of an asylum application. I disagree on both counts.
12142 KHADKA v. HOLDER
A.

Khadka had sufficient notice of the consequences of filing
a frivolous asylum application and was well aware that the
authenticity of the Tarun article was at issue. Khadka’s Form
I-589 asylum application warned that he would be perma-
nently barred from relief under the INA if he filed a frivolous
application, and Khadka’s attorney signed a certification that
Khadka had been read his application in his native language.

The Tenth Circuit has explicitly held that the Form I-589
warning is sufficient notice of the consequences of a frivolous
application. Ribas v. Mukasey, 545 F.3d 922, 929-30 (10th
Cir. 2008). As Ribas acknowledges, the governing statute
seems to require only written notice of the consequences of a
frivolous application. See 8 U.S.C. 1158(d)(4)(A) (At the time
of filing an application for asylum, the Attorney General shall
. . . advise the alien . . . of the consequences . . . of knowingly
filing a frivolous application for asylum); 8 U.S.C.
1158(d)(6)(If the Attorney General determines that an alien
has knowingly made a frivolous application for asylum and
the alien has received the notice under paragraph (4)(A), the
alien shall be permanently ineligible for any benefits under
this chapter) (emphasis added). Although the BIA has stated
that it is a “good practice for an Immigration Judge who
believes that an applicant may have submitted a frivolous
application to bring this concern to the attention of the appli-
cant prior to the conclusion of the proceedings,” In re Y-L, 24
I. & N. Dec. 151, 159-60, the BIA did not state, nor have we,
that an oral, as opposed to written, advisement is absolutely
necessary. See id. at 160 n.3 (“There may be situations in
which the deliberate falsification of material aspect of the asy-
lum claim is so clear on the record that a formal request for
an explanation would be a needless exercise.”).1
1
The Ahir decision acknowledged that the warning in Form I-589 might
provide sufficient notice of the consequences of filing a frivolous applica-
tion, but it did not decide the issue. 527 F.3d at 917-18.
 KHADKA v. HOLDER 12143
Khadka had ample opportunity to address the authenticity
of the Tarun article, including the underlying “facts” it
reported. The IJ granted the parties a series of continuances
to investigate the article and obtain expert witnesses, and an
entire day’s hearing was devoted solely to the topic. At the
hearing, there was no indication that Khadka was denied any
opportunity to fully develop the testimony of either the gov-
ernment’s or his own expert. Khadka was aware that there
were serious doubts regarding the veracity and authenticity of
the Tarun article, had notice of the serious consequences of
submitting false evidence, and both parties dedicated substan-
tial time and resources to the genesis of the disputed article.

B.

The majority alternatively argues that Khadka’s submission
of a fabricated newspaper article was insufficient evidence to
support a frivolousness finding. Although the Tarun article is
material evidence of persecution, the majority concludes that
Khadka did not falsify a material element of his asylum appli-
cation, given the existence of other corroborating evidence.

The majority provides thin support for distinguishing
between “material evidence” and a “material element,” and
case law does not seem to require such parsing. In Selami v.
Gonzales, 423 F.3d F.3d 621, 626 (6th Cir. 2005), the Sixth
Circuit upheld a finding of frivolousness based upon the sub-
mission of fraudulent newspaper article, reasoning that the
article “was submitted by Selami to corroborate the core ele-
ments of his asylum claim.”2 Even though there may have
2
The majority summarily rejects the Selami decision because it predates
the BIA’s decision in Y-L and was based on a lower substantial evidence
standard. Maj. Op. at 12135 n.5. I disagree with this reasoning. Our deci-
sion in Ahir specifically addressed the Sixth Circuit’s decision in Selami.
The Ahir panel noted that prior to Y-L other circuits upheld frivolousness
findings only if an applicant had submitted fraudulent extrinsic evidence
or made an explicit admission of untruthfulness. 527 F.3d at 918. The
12144 KHADKA v. HOLDER
been other evidence to support Selami’s asylum application,
the newspaper article went to the heart of his claim and there-
fore its fabrication was a fabrication of a “material element.”
Similarly here, Khadka argues that Maoists have targeted him
and his family as a result of his counter-insurgency successes,
and he introduced the Tarun article specifically to corroborate
this story. Khadka’s submission of a fraudulent newspaper
article to corroborate a core element of his claim is sufficient
to support a frivolousness finding.

The majority also overstates the significance of the remain-
der of Khadka’s documentary evidence. Although the record
is “replete with Nepalese and United Nations employment
records” indicating that Khadka was assigned to anti-terrorist
units, Maj. Op. at 12138, the fact that he may have held these
positions does not demonstrate that he actually had any signif-
icant interactions with Maoist rebels. The “affidavits of
friends and family about Maoist threats,” id.; do broadly
declare Maoists’ desire for retribution against Khadka as well
as the purported subjective fears of Khadka’s family mem-
bers, but they similarly lack any persuasive basis for conclud-
ing that Khadka had ever in fact “made great loss” against the
insurgents as set forth in the Tarun article.3 The many “gen-

panel held, however, that the Y-L test did not require such a stringent
showing, and that a frivolousness finding could be based on both direct
and circumstantial evidence. Id. Although the Sixth Circuit in Selami
stated that “the IJ’s finding was supported by substantial evidence,” 423
F.3d at 626, it actually imposed a evidentiary standard that was more strin-
gent that the standard adopted in Y-L and Ahir.
3
Khadka’s wife submitted a letter mentioning the June 15, 1998, and the
July 5, 1999, incidents, but she specifically references the Tarun article,
substantially undermining her credibility. Perhaps the strongest documen-
tary evidence is an “appraisal” letter directed to Nepalese police headquar-
ters, relating Khadka’s “effective role in order to control the activities of
the Maoists in this district.” Although the article mentions the arrest of a
single Maoist and obtaining some “good intelligence,” there is nothing in
the article specifying any major combat efforts led by Khadka.
 KHADKA v. HOLDER 12145
eral newspaper articles about Maoists,” id., also fail to persua-
sively support a particularized fear of persecution.

Given the lack of any other documentary evidence of par-
ticular encounters with Maoists, it is hard to imagine how the
Tarun article could be more central to Khadka’s asylum appli-
cation. If the fabrication of the Tarun article is insufficient to
support a frivolousness finding, it is difficult to imagine how
pervasively and egregiously false an asylum application
would need to be in order to satisfy the majority’s standard.

III.

For the foregoing reasons, I dissent in part from the major-
ity opinion.