Ay v. Holder, No. 11-2102 (2d Cir. 2014)

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Petitioner, a Kurdish ethnic and citizen of Turkey, sought review of the BIA's order affirming the IJ's denial of asylum, withholding of removal, and protection under the Convention Against Torture (CAT). The IJ concluded that on at least four or five occasions, petitioner gave food and, on at least one occasion, clothing, to individuals whom petitioner knew, or had reason to know, to be members of Kurdish terrorist groups. The BIA adopted the IJ's findings and legal conclusions. The court found no error in the agency's factual conclusion that petitioner provided material support to a terrorist organization. However, the court remanded in order to allow the BIA to address a precedential issue: whether the Immigration and Nationality Act, 8 U.S.C. 1182(a)(3)(B)(iv)(VI), should be construed to include a duress exception to the admissibility bar that the Act otherwise established for those who have provided material support to a terrorist organization. Accordingly, the court granted in part, denied in part, and remanded for further proceedings.

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11 2102 ag Ay v. Holder 1 2 3 4 5 6 7 8 9 10 11 12 13 14 15 16 17 18 19 20 21 22 23 24 UNITED STATES COURT OF APPEALS FOR THE SECOND CIRCUIT August Term, 2013 (Argued: August 20, 2013 Decided: February 20, 2014) Docket No. 11 2102 ag RAMAZAN AY, Petitioner, v. ERIC H. HOLDER, JR., UNITED STATES ATTORNEY GENERAL, Respondent. B e f o r e: WESLEY, HALL, AND CARNEY, Circuit Judges. 25 26 27 28 29 30 Petitioner Ramazan Ay seeks review of a Board of Immigration Appeals ( BIA ) decision finding him ineligible for asylum and withholding of removal based on its finding that he provided material support, within the meaning of 8 U.S.C. § 1182(a)(3)(B)(iv)(VI), to a terrorist group. The relevant part of section 1182 instructs that commit[ting] an act that the actor knows, or reasonably 1 2 3 4 5 6 7 8 9 10 11 12 13 14 should know, affords material support . . . to a terrorist organization constitutes engag[ing] in a terrorist activity. Any alien who has engaged in a terrorist activity is inadmissible under 8 U.S.C. § 1182(a)(3)(B)(i)(I), subject only to certain narrow statutory exceptions. Ay argues that: (1) the material support bar created by these provisions does not apply to individuals who provided such support under duress; (2) the support that he provided was not material ; and (3) he is entitled to deferral of removal under the Convention Against Torture ( CAT ). Ay s petition for review is GRANTED in part, to permit the BIA to make a precedential ruling on whether a duress exception to the material support bar is implicit in the statute, and DENIED in part, as to Ay s other claims. 15 16 17 18 19 AARON R. PETTY (Tony West, Assistant Attorney General, Ethan B. Kanter, Senior Litigation Counsel, on the brief), Office of Immigration Litigation, Civil Division, Washington, D.C., for Eric H. Holder, Jr., United States Attorney General. 20 W. JOHN VANDENBERG (M. Umar Rahman, on the brief), Hogan & Vandenberg LLC, Bala Cynwyd, PA, for Ramazan Ay. PER CURIAM: 21 Petitioner Ramazan Ay, a Kurdish ethnic and a native and citizen of 22 Turkey, seeks review of an April 26, 2011 decision of the BIA affirming the April 23 13, 2009 decision of an Immigration Judge ( IJ ) denying him asylum, 24 withholding of removal, and protection under the Convention Against Torture 25 ( CAT ). In re Ramazan Ay, No. A089 203 937 (B.I.A. Apr. 26, 2011), aff g No. A089 26 203 937 (Immig. Ct. N.Y. City Apr. 13, 2009). We assume the parties familiarity 27 with the underlying facts and procedural history in this case. 2 Because the BIA opinion briefly adopted and affirmed the decision of the IJ, 1 2 we consider both the oral decision of the IJ and the BIA s opinion together. 3 Secaida Rosales v. INS, 331 F.3d 297, 305 (2d Cir. 2003). The agency s 4 administrative findings of fact are conclusive unless any reasonable adjudicator 5 would be compelled to conclude to the contrary, and a decision that an alien is 6 not eligible for admission to the United States is conclusive unless manifestly 7 contrary to law. 8 U.S.C. § 1252(b)(4)(B), (C). We review de novo questions of 8 law and the [BIA s] application of law to undisputed fact. Bah v. Mukasey, 529 9 F.3d 99, 110 (2d Cir. 2008). 10 11 I. Asylum and Withholding of Removal As to Ay s challenges to the agency s denial of asylum and withholding of 12 removal, we grant the petition. We find no error in the agency s factual 13 conclusion that Ay provided material support to a terrorist organization. We 14 remand, however, to permit the BIA to address in a precedential decision whether 15 the Immigration and Nationality Act (the Act ) should be construed to include a 16 duress exception to the admissibility bar commonly called the material support 17 bar that the Act otherwise establishes for those who have provided material 18 support to a terrorist organization. 3 1 In provisions that together comprise the material support bar, the Act 2 defines engag[ing] in a terrorist activity to include providing material 3 support to terrorist organizations or individuals. 8 U.S.C. § 1182(a)(3)(B)(iv)(VI), 4 (a)(3)(B)(i)(I). In Ay s removal proceedings, the IJ concluded that on four or five 5 occasions Ay gave food and, on at least one occasion, clothing, to individuals 6 whom Ay knew, or had reason to know, to be members of Kurdish terrorist 7 groups, possibly including the Kurdistan Workers Party ( PKK ) a designated 8 terrorist organization. IJ Dec. at 14 15. These actions, the IJ found, constituted 9 providing material support to a terrorist organization within the meaning of the 10 11 Act and rendered Ay inadmissible. Id. In a brief order by a single member, the BIA adopted the IJ s factual 12 findings and legal conclusions and found Ay statutorily ineligible for asylum 13 and withholding of removal. BIA Dec. at 2. It also observed that Ay may be 14 eligible for an exemption [from the bar] from the Secretary of the Department of 15 Homeland Security on the ground that any support he provided was given only 16 under duress. Id. It advised, however, that whether such relief is warranted is 17 outside the scope of the Board s jurisdiction in these removal proceedings. Id. 4 1 Ay challenges both the agency s factual finding that he knowingly provided 2 material support to terrorists, and its legal conclusion regarding his 3 inadmissibility. First, he argues that the record does not support the IJ s finding 4 that he knew that the armed men to whom he gave food and water were 5 terrorists. Second, he contends that the material support bar does not apply to 6 him because, insofar as he provided any support to a terrorist, he acted under 7 duress. Our Court has not yet addressed whether, as Ay proposes, the Act s 8 material support bar is subject to a duress exception. 9 10 A. Review of the Agency s Factual Findings The IJ found Ay s testimony as to his knowledge of the identity of the men 11 who demanded (and to whom he gave) food on several occasions, including 12 during a July 2000 incident, to be subjectively genuine, and overall . . . 13 credible. IJ Dec. at 9, 10. Ay s testimony about the identity and allegiance of the 14 men was variable, however, reflecting Ay s uncertainty and speculation. For 15 example, at one point, Ay testified that he thought the men might be connected 16 with the Turkish government, perhaps Turkish intelligence officers. IJ Dec. at 6. 17 He also testified, however, that he thought they might be Kurdish terrorists 18 associated with the PKK. Id. In his asylum application, he described them as 19 terrorists. Id. 5 1 In this setting, we defer to the IJ s conclusion, adopted by the BIA, that Ay 2 knew or should have known the groups were terrorist organizations. IJ Dec. at 3 11; see 8 U.S.C. § 1252(b)(4)(B) ( [A]dministrative findings of fact are conclusive 4 unless any reasonable adjudicator would be compelled to conclude to the 5 contrary. ). Substantial evidence supported the agency s finding. 6 B. Possible Duress Exception to the Material Support Bar 7 With regard to the applicable law, Ay argues that even if he gave food or 8 clothing to individuals whom he should have known to be terrorists, the material 9 support bar should not apply to him because he provided those supplies not 10 voluntarily, but under duress. This argument presents an important question of 11 statutory interpretation that our Court has not yet addressed. The BIA, for its part, 12 appears not to have yet ruled on this question in a precedential opinion fully 13 discussing the arguments for and against construing the Act to include such an 14 exception. 15 In Negusie v. Holder, the Supreme Court addressed whether a similar 16 provision the bar to asylum for aliens who participated in the persecution of 17 others, 8 U.S.C. § 1158(b)(2)(A)(I) contained a duress exception. 555 U.S. 511, 18 517 18 (2009). Discussing the ambiguity created by the Act s silence on the 6 1 question of voluntariness, the Court determined that Congress s silence [was] not 2 conclusive. Id. at 518. After identifying an analytical error in the BIA s analysis 3 that had prevented [the agency] from a full consideration of the statutory 4 question, id. at 521, the Supreme Court remanded the matter to the agency for 5 full consideration of the statutory question in the first instance, id. at 524. 6 Ay s case presents very similar circumstances. Like the provision 7 addressed in Negusie, the plain language of the material support bar is 8 inconclusive as to whether a duress exception is implicit in its terms; the statute is 9 silent on the question. In addition, here, as in Negusie, the BIA s decision provides 10 no analysis of the statutory question; rather, it appears to presume that there is no 11 duress exception. The agency merely implies that somehow obtaining 12 discretionary relief is Ay s sole remedy for the otherwise harsh result. BIA Dec. at 13 2 (Ay may be eligible for an exemption from the Secretary of the Department of 14 Homeland Security on that basis ). The possible availability of a discretionary 15 waiver, however, does little to enlighten us as to the reasoning behind the 16 agency s apparent view that the statute does not implicitly contain an exception to 17 the bar for those who credibly testify that they provided minimal material 18 support, and did so only under duress. In Ay s case, the BIA s non precedential, 7 1 unpublished decision, issued by a single member, did not afford a definitive 2 interpretation of the material support statute. See Rotimi v. Gonzales, 473 F.3d 55, 3 57 58 (2d Cir. 2007). 4 In these circumstances, we remand this case for the BIA to address the 5 [statutory question] in the first instance in light of its own expertise. Negusie, 6 555 U.S. at 517 (quoting INS v. Orlando Ventura, 537 U.S. 12, 16 17 (2002) (per 7 curiam)); see also Rotimi, 473 F.3d at 57 58. Remand is especially appropriate in this 8 case because of the frequency with which this issue arises, and the grave 9 consequences that applying the material support bar carries for many applicants 10 for relief. See Liu v. U.S. Dep t of Justice, 455 F.3d 106, 116 17 (2d Cir. 2006) 11 (enumerating reasons for remand to agency for interpretation and clarification). 12 The government contends that remand is unnecessary because (it asserts) 13 the BIA has issued a precedential decision interpreting the material support bar. 14 Gov t Br. at 33 34; see Matter of S K , 23 I. & N. Dec. 936 (BIA 2006). Although the 15 BIA s opinion in Matter of S K addresses various aspects of the material support 16 bar, it does not address the possible existence of a duress exception implicit in the 17 statute a distinct question of undoubted importance. Further, although other 18 circuit courts may have chosen to defer to non precedential BIA decisions 8 1 considering the issue, e.g., Annachamy v. Holder, 733 F.3d 254 (9th Cir. 2013); Alturo 2 v. U.S. Att y Gen., 716 F.3d 1310 (11th Cir. 2013) (per curiam); Barahona v. Holder, 3 691 F.3d 349 (4th Cir. 2012), we do not do so here, preferring to receive the benefit 4 first of the agency s carefully considered views. See Rotimi, 473 F.3d at 57 5 (declining to afford Chevron deference to single member non precedential decision 6 of the BIA). 7 The Government has also argued that concerns about interpreting the 8 statute to foreclose a duress exception are misplaced because of the existence of 9 an avenue for relief from literal application of the material support bar: as 10 mentioned by the BIA in its ruling on Ay s appeal, an exemption (also termed a 11 waiver) can be administratively granted by the Secretary of State or by the 12 Secretary of Homeland Security.1 Gov t Br. at 27; 8 U.S.C. § 1182(d)(3)(B)(i). 13 Current law vests these officials with discretion, sole [and] unreviewable, to 14 waive application of the material support bar, provided the alien has not 15 voluntarily and knowingly supported terrorist activities. 8 U.S.C. 1 The exemption process also requires consultation with other government officials. The Secretary of State may exempt an applicant only after consulting with the Attorney General and the Secretary of Homeland Security, and the Secretary of Homeland Security may do so only after consulting with the Secretary of State and the Attorney General. See 8 U.S.C. § 1182(d)(3)(B)(i). 9 1 § 1182(d)(3)(B)(i). As the Court of Appeals for the Ninth Circuit has observed, 2 this delegation of [the waiver] authority . . . reflects Congress[ s] determination 3 that executive branch officials are in a position to judge the characteristics of 4 particular groups engaging in terrorist activities, perhaps taking into account 5 whether the groups have a practice of forcing innocent civilians to support their 6 causes under threat of force. Annachamy, 733 F.3d at 262 (citation omitted). 7 At oral argument in the case at bar, however, the Government was unable 8 to identify any published process for seeking such a waiver. It has subsequently 9 called the Court s attention to certain publicly available information about intra 10 agency waiver procedures and statistics suggesting that the process is in fact 11 utilized, but nothing, still, suggestive of an application process. In operation, the 12 relief that waiver offers appears to be limited. 13 For all these reasons, we grant the petition challenging denial of asylum 14 and withholding of removal, and remand to the BIA for its careful consideration 15 of a whether the statute should be construed to contain a duress exception to 16 the material support bar. 10 1 2 II. Convention Against Torture We deny Ay s petition, however, insofar as he challenges the agency s 3 denial of CAT relief. Even assuming, for purposes of asylum and withholding of 4 removal, that the law includes a duress exception to the material support bar, the 5 agency did not err in finding that Ay had failed to establish his eligibility under 6 CAT for withholding or deferral of removal. Ay did not demonstrate that it is 7 more likely than not that he would be targeted by the Turkish government upon 8 return to that country, or that any harm he would suffer would rise to the level of 9 torture within the meaning of the statute. See 8 C.F.R. §§ 1208.16(c)(3) 10 (withholding), 1208.17(a) (deferral); see Khouzam v. Ashcroft, 361 F.3d 161, 168 (2d 11 Cir. 2004) (discussing CAT relief standards). 12 Ay testified that he was kicked, punched, and slapped after being arrested 13 by Turkish security forces, but also acknowledged that he did not require medical 14 treatment as a result. Since the abuse that he did endure did not involve the 15 infliction of severe pain or suffering, 8 C.F.R. § 1208.18(a)(1), the IJ was not 16 unreasonable in concluding that Ay did not suffer torture in the past. See Pierre v. 17 Gonzales, 502 F.3d 109, 115 16 (2d Cir. 2007). In addition, the IJ reasonably found 18 that although Ay was harmed, Ay did not establish that he would face future 11 1 torture at the hands of the Turkish security forces. Ay s evidence that the 2 government had, as the IJ put it, asked about him, IJ Dec. at 5, lacked detail and 3 fell well short of demonstrating that the government has a continuing interest in 4 questioning Ay, let alone torturing him. 5 Conclusion 6 For the foregoing reasons, the petition for review is GRANTED in part and 7 DENIED in part. The cause is REMANDED to the BIA for its reasoned 8 consideration of whether the bar to asylum and withholding of removal that the 9 Act raises applies to aliens, who (as Ay alleges) have provided material support to 10 terrorists only under duress. The BIA may also usefully address in this context 11 what level of support is material for purposes of the statutory bar. 12 12

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