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112102ag Holder UNITED STATES COURT APPEALS FOR THE SECOND CIRCUIT August Term, 2013 (Argued: August 20, 2013 Decided: February 20, 2014) Docket No. 112102ag RAMAZAN AY, Petitioner, v.17 ERIC HOLDER, JR., UNITED STATES ATTORNEY GENERAL, Respondent. WESLEY, HALL, AND CARNEY, Circuit Judges. Petitioner Ramazan seeks review Board Immigration Appeals (BIA) decision finding him ineligible for asylum and withholding removal based its finding that provided material support, within the meaning U.S.C. 1182(a)(3)(B)(iv)(VI), terrorist group. The relevant part section 1182 instructs that commit[ting] act that the actor knows, reasonably should know, affords material support terrorist organization constitutes engag[ing] terrorist activity. Any alien who has engaged terrorist activity inadmissible under U.S.C. 1182(a)(3)(B)(i)(I), subject only certain narrow statutory exceptions. argues that: (1) the material support bar created these provisions does not apply individuals who provided such support under duress; (2) the support that provided was not material; and (3) entitled deferral removal under the Convention Against Torture (CAT). Ays petition for review GRANTED part, permit the BIA make precedential ruling whether duress exception the material support bar implicit the statute, and DENIED part, Ays other claims. JOHN VANDENBERG (M. Umar Rahman, the brief), Hogan Vandenberg LLC, Bala Cynwyd, PA, for Ramazan Ay. AARON PETTY (Tony West, Assistant Attorney General, Ethan Kanter, Senior Litigation Counsel, the brief), Office Immigration Litigation, Civil Division, Washington, D.C., for Eric Holder, Jr., United States Attorney General. PER CURIAM: Petitioner Ramazan Ay, Kurdish ethnic and native and citizen Turkey, seeks review April 26, 2011 decision the BIA affirming the April 13, 2009 decision Immigration Judge (IJ) denying him asylum, withholding removal, and protection under the Convention Against Torture (CAT). Ramazan Ay, No. A089 203 937 (B.I.A. Apr. 26, 2011), affg No. A089 203 937 (Immig. Ct. N.Y. City Apr. 13, 2009). assume the parties familiarity with the underlying facts and procedural history this case. Because the BIA opinion briefly adopted and affirmed the decision the IJ, consider both the oral decision the and the BIAs opinion together. SecaidaRosales INS, 331 F.3d 297, 305 (2d Cir. 2003). The agencys administrative findings fact are conclusive unless any reasonable adjudicator would compelled conclude the contrary, and decision that alien not eligible for admission the United States is conclusive unless manifestly contrary law. U.S.C. 1252(b)(4)(B), (C). review novo questions law and the [BIAs] application law undisputed fact. Bah Mukasey, 529 F.3d 99, 110 (2d Cir. 2008). Asylum and Withholding Removal Ays challenges the agencys denial asylum and withholding removal, grant the petition. find error the agencys factual conclusion that provided material support terrorist organization. remand, however, permit the BIA address precedential decision whether the Immigration and Nationality Act (the Act) should construed include duress exception the admissibility barcommonly called the material support barthat the Act otherwise establishes for those who have provided material support terrorist organization. provisions that together comprise the material support bar, the Act defines engag[ing] terrorist activity include providing material support terrorist organizations individuals. U.S.C. 1182(a)(3)(B)(iv)(VI), (a)(3)(B)(i)(I). Ays removal proceedings, the concluded that four five occasions gave food and, on least one occasion, clothing, individuals whom knew, had reason know, members Kurdish terrorist groups, possibly including the Kurdistan Workers Party (PKK)a designated terrorist organization. Dec. 1415. These actions, the found, constituted providing material support terrorist organization within the meaning the Act and rendered inadmissible. Id. brief order single member, the BIA adopted the IJs factual findings and legal conclusions and found statutorily ineligible for asylum and withholding removal. BIA Dec. also observed that may eligible for exemption [from the bar] from the Secretary the Department Homeland Security the ground that any support provided was given only under duress. Id. advised, however, that whether such relief warranted outside the scope the Boards jurisdiction these removal proceedings. Id. challenges both the agencys factual finding that knowingly provided material support terrorists, and its legal conclusion regarding his inadmissibility. First, argues that the record does not support the IJs finding that knew that the armed men whom gave food and water were terrorists. Second, contends that the material support bar does not apply him because, insofar provided any support terrorist, acted under duress. Our Court has not yet addressed whether, proposes, the Acts material support bar subject duress exception. Review the Agencys Factual Findings The found Ays testimony his knowledge the identity the men who demanded (and whom gave) food several occasions, including during July 2000 incident, subjectively genuine, and overall credible. Dec. 10. Ays testimony about the identity and allegiance the men was variable, however, reflecting Ays uncertainty and speculation. For example, one point, testified that thought the men might connected with the Turkish government, perhaps Turkish intelligence officers. Dec. also testified, however, that thought they might Kurdish terrorists associated with the PKK. Id. his asylum application, described them terrorists. Id. this setting, defer the IJs conclusion, adopted the BIA, that knew should have known the groups were terrorist organizations. Dec. 11; see U.S.C. 1252(b)(4)(B) ([A]dministrative findings fact are conclusive unless any reasonable adjudicator would compelled conclude the contrary.). Substantial evidence supported the agencys finding. Possible Duress Exception the Material Support Bar With regard the applicable law, argues that even gave food clothing individuals whom should have known terrorists, the material support bar should not apply him because provided those supplies not voluntarily, but under duress. This argument presents important question statutory interpretation that our Court has not yet addressed. The BIA, for its part, appears not have yet ruled this question precedential opinion fully discussing the arguments for and against construing the Act include such exception. Negusie Holder, the Supreme Court addressed whether similar provisionthe bar asylum for aliens who participated the persecution others, U.S.C. 1158(b)(2)(A)(I)contained duress exception. 555 U.S. 511, 51718 (2009). Discussing the ambiguity created the Acts silence the question voluntariness, the Court determined that Congresss silence [was] not conclusive. Id. 518. After identifying analytical error the BIAs analysis that had prevented [the agency] from full consideration the statutory question, id. 521, the Supreme Court remanded the matter the agency for full consideration the statutory question the first instance, id. 524. Ays case presents very similar circumstances. Like the provision addressed Negusie, the plain language the material support bar inconclusive whether duress exception implicit its terms; the statute silent the question. addition, here, Negusie, the BIAs decision provides analysis the statutory question; rather, appears presume that there duress exception. The agency merely implies that somehow obtaining discretionary relief Ays sole remedy for the otherwise harsh result. BIA Dec. (Ay may eligible for exemption from the Secretary the Department Homeland Security that basis). The possible availability discretionary waiver, however, does little enlighten the reasoning behind the agencys apparent view that the statute does not implicitly contain exception the bar for those who credibly testify that they provided minimal material support, and did only under duress. Ays case, the BIAs nonprecedential, unpublished decision, issued single member, did not afford definitive interpretation the material support statute. See Rotimi Gonzales, 473 F.3d 55, 5758 (2d Cir. 2007). these circumstances, remand this case for the BIA address the [statutory question] the first instance light its own expertise. Negusie, 555 U.S. 517 (quoting INS Orlando Ventura, 537 U.S. 12, 1617 (2002) (per curiam)); see also Rotimi, 473 F.3d 5758. Remand especially appropriate this case because the frequency with which this issue arises, and the grave consequences that applying the material support bar carries for many applicants for relief. See Liu U.S. Dept Justice, 455 F.3d 106, 11617 (2d Cir. 2006) (enumerating reasons for remand agency for interpretation and clarification). The government contends that remand unnecessary because (it asserts) the BIA has issued precedential decision interpreting the material support bar. Govt Br. 3334; see Matter SK, Dec. 936 (BIA 2006). Although the BIAs opinion Matter SKaddresses various aspects the material support bar, does not address the possible existence duress exception implicit the statutea distinct question undoubted importance. Further, although other circuit courts may have chosen defer nonprecedential BIA decisions considering the issue, e.g., Annachamy Holder, 733 F.3d 254 (9th Cir. 2013); Alturo U.S. Atty Gen., 716 F.3d 1310 (11th Cir. 2013) (per curiam); Barahona Holder, 691 F.3d 349 (4th Cir. 2012), not here, preferring receive the benefit first the agencys carefully considered views. See Rotimi, 473 F.3d (declining afford Chevron deference singlemember nonprecedential decision the BIA). The Government has also argued that concerns about interpreting the statute foreclose duress exception are misplaced because the existence avenue for relief from literal application the material support bar: mentioned the BIA its ruling Ays appeal, exemption (also termed waiver) can administratively granted the Secretary State the Secretary Homeland Security.1 Govt Br. 27; U.S.C. 1182(d)(3)(B)(i). Current law vests these officials with discretion, sole [and] unreviewable, waive application the material support bar, provided the alien has not voluntarily and knowingly supported terrorist activities. U.S.C. The exemption process also requires consultation with other government officials. The Secretary State may exempt applicant only after consulting with the Attorney General and the Secretary Homeland Security, and the Secretary Homeland Security may only after consulting with the Secretary State and the Attorney General. See U.S.C. 1182(d)(3)(B)(i). 1182(d)(3)(B)(i). the Court Appeals for the Ninth Circuit has observed, this delegation [the waiver] authority reflects Congress[s] determination that executive branch officials are position judge the characteristics particular groups engaging terrorist activities, perhaps taking into account whether the groups have practice forcing innocent civilians support their causes under threat force. Annachamy, 733 F.3d 262 (citation omitted). oral argument the case bar, however, the Government was unable identify any published process for seeking such waiver. has subsequently called the Courts attention certain publiclyavailable information about intraagency waiver procedures and statistics suggesting that the process fact utilized, but nothing, still, suggestive application process. operation, the relief that waiver offers appears limited. For all these reasons, grant the petition challenging denial asylum and withholding removal, and remand the BIA for its careful consideration whether the statute should construed contain duress exception the material support bar. II. Convention Against Torture deny Ays petition, however, insofar challenges the agencys denial CAT relief. Even assuming, for purposes asylum and withholding removal, that the law includes duress exception the material support bar, the agency did not err finding that had failed establish his eligibility under CAT for withholding deferral removal. did not demonstrate that more likely than not that would targeted the Turkish government upon return that country, that any harm would suffer would rise the level torture within the meaning the statute. See C.F.R. 1208.16(c)(3) (withholding), 1208.17(a) (deferral); see Khouzam Ashcroft, 361 F.3d 161, 168 (2d Cir. 2004) (discussing CAT relief standards). testified that was kicked, punched, and slapped after being arrested Turkish security forces, but also acknowledged that did not require medical treatment result. Since the abuse that did endure did not involve the infliction severe pain suffering, C.F.R. 1208.18(a)(1), the was not unreasonable concluding that did not suffer torture the past. See Pierre Gonzales, 502 F.3d 109, 11516 (2d Cir. 2007). addition, the reasonably found that although was harmed, did not establish that would face future torture the hands the Turkish security forces. Ays evidence that the government had, the put it, asked about him, Dec. lacked detail and fell well short demonstrating that the government has continuing interest questioning Ay, let alone torturing him. Conclusion For the foregoing reasons, the petition for review GRANTED part and DENIED part. The cause REMANDED the BIA for its reasoned consideration whether the bar asylum and withholding removal that the Act raises applies aliens, who (as alleges) have provided material support terrorists only under duress. The BIA may also usefully address this context what level support material for purposes the statutory bar.