Anwar Haddam v. Eric Holder, Jr., No. 12-1729 (4th Cir. 2013)

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UNPUBLISHED UNITED STATES COURT OF APPEALS FOR THE FOURTH CIRCUIT No. 12-1729 ANWAR HADDAM, Petitioner, v. ERIC H. HOLDER, JR., Attorney General, Respondent. -------------------------INTERNATIONAL REFUGEE LAW PROFESSOR SUSAN BENESCH, PRACTITIONERS AND CLINICIANS; Amici Supporting Petitioner. On Petition for Review of an Order of the Board of Immigration Appeals. Argued: September 18, 2013 Decided: December 4, 2013 Before GREGORY and THACKER, Circuit Judges, and HAMILTON, Senior Circuit Judge. Petition denied in part, granted in part, and case remanded by unpublished opinion. Judge Gregory wrote the opinion, in which Judge Thacker and Senior Judge Hamilton joined. ARGUED: Rene Kathawala, ORRICK, HERRINGTON & SUTCLIFFE, LLP, New York, New York, for Petitioner. Christopher C. Fuller, UNITED STATES DEPARTMENT OF JUSTICE, Washington, D.C., for Respondent. ON BRIEF: Susan M. Akram, BOSTON UNIVERSITY SCHOOL OF LAW, Boston, Massachusetts; Malea Kiblan, KIBLAN & BATTLES, McLean, Virginia, for Petitioner. Stuart F. Delery, Principal Deputy Assistant Attorney General, Michael P. Lindemann, Chair, National Security Unit, Office of Immigration Litigation, UNITED STATES DEPARTMENT OF JUSTICE, Washington, D.C., for Respondent. Mark W. Danis, Alexei Klestoff, MORRISON & FOERSTER LLP, San Francisco, California, for Amicus Professor Susan Benesch. Steven H. Schulman, Washington, D.C., L. Rachel Lerman, Amit Kurlekar, Saurish Bhattacharjee, AKIN GUMP STRAUSS HAUER & FELD LLP, Los Angeles, California, for Amicus International Refugee Law Practitioners and Clinicians. Unpublished opinions are not binding precedent in this circuit. 2 GREGORY, Circuit Judge: Anwar Haddam is an Algerian national and an exiled leader of the Islamic Salvation Front party ( FIS ). When Algeria was gripped by a military coup in 1992, Mr. Haddam fled to the United States to seek asylum. After a labyrinth of administrative hearings, the Attorney General denied asylum as a matter of discretion. In addition, the Attorney General formulated a new test to determine whether, in spite of not qualifying for asylum, Mr. Haddam qualified for withholding of removal under the Immigration and Nationality Act ( INA ). 8 U.S.C. § 1253(h) (1994) 1; Matter of A-H-, 23 I. & N. Dec. 774 (A.G. 2005). We conclude that the Attorney General s new test is not a permissible construction of the INA under step two of Chevron. Council, See Chevron U.S.A. Inc. v. Natural Resources Defense Inc., 467 U.S. 837, 842 (1984). However, we also conclude that the Attorney General did not abuse his discretion in denying Mr. Haddam asylum. Accordingly, we deny the petition for review as to the Attorney General s denial of asylum but we remand the matter to the Board of Immigration Appeals ( BIA ) to 1 Note that all cites to the INA are to the 1994 version of the law. We apply the version of the INA in effect at the time of Haddam s asylum application. See Matter of A-H-, 23 I. & N. Dec. at 777, n.3. 3 determine whether Mr. Haddam qualifies for withholding of removal. I. Mr. Haddam is a nuclear physicist by training who turned to politics after a career in engineering. He was elected to Algeria s parliament in the first round of 1991 elections as a member of the FIS. These were the first free elections that the authoritarian regime had allowed in Algeria, and the FIS won them in a rout. In response to the FIS victory, the military seized power and canceled the second round of elections. military then began violent crackdowns against the FIS. The Facing the threat of torture or death, Mr. Haddam and his family fled Algeria. He entered the United States in 1992 to apply for asylum. Meanwhile, violent. the struggle in Algeria turned increasingly Government crackdowns spawned guerilla groups such as Groupe Islamique Mr. Haddam s target the entry into journalists, civilians. Arme the (GIA). United In the States, intellectuals, years the tourists, GIA following began and to other A murky relationship existed between the GIA and Mr. Haddam s FIS. The groups merged for several years to form a united front after Mr. Haddam s exile, but the groups then split after the GIA executed several FIS members. 4 Throughout his exile, Mr. Haddam has been a leader of the FIS, serving in the party s delegation to Europe and the United States. There is evidence that Appellant played a role in the merger between the FIS and GIA from abroad, but this evidence is disputed. my In testimony, Mr. Haddam said that with the help of leadership (indiscernible), within one movement. this as evidence [the GIA (J.A. 610 11). that the and FIS] joined and The government points to merger occurred because of Mr. Haddam s leadership, but Mr. Haddam points to the broader context of the testimony to argue that my leadership refers to Appellant s superiors. back home ). of news In addition, Mr. Haddam was interviewed for dozens articles interviews, (J.A. 609) (referring to my leaders when and asked scholarly about past publications. violent acts In in these Algeria, Mr. Haddam gives verbal approval of the murder of civilians who either backed the military coup or aided the Algerian military by instructing soldiers on methods of torture. As a result of these ties between the FIS and GIA, as well as Mr. Haddam s statements supporting or refusing to disavow violence, the Attorney General denied Mr. Haddam asylum as a matter of discretion. Matter of A-H-, 23 I. & N. Dec. at 783; Immigration and Nationality Act, 8 U.S.C. § 1158(a). However, the Attorney General remanded to the BIA to determine whether Mr. Haddam qualified for withholding of removal. 5 Under the INA, even individuals deportation who upon persecution. a do not qualify showing that 8 U.S.C. § 1253(h)(1). for they asylum face a can avoid threat of In turn, this benefit of withholding of deportation does not apply to any individual who ordered, incited, assisted, or otherwise participated in the persecution opinion. of 8 determined any person U.S.C. whether on account § 1253(h)(2). Mr. Haddam of Thus, qualified . . . it under political remained the to be persecutor bar, as this subsection is known. To aid this determination, the Attorney General formulated a new definition of the persecutor bar based on Mr. Haddam s case. Under the new rule, an individual who is the leader of a political group that has ties with an armed group is denied withholding if there exists evidence indicating that the leader was instrumental in creating and sustaining . . . ties between the political movement and the armed group and was aware of the atrocities committed by the armed group. & N. Dec. at 785. of the Attorney Matter of A-H-, 23 I. Appellant now challenges the permissibility General s interpretation of the INA and formulation of the persecutor bar inquiry. II. We review de novo whether the Attorney General s definition is a permissible interpretation of the INA. 6 See Li Fang Lin v. Mukasey, 517 F.3d 685, 691 92 (4th Cir. 2008). We accord Chevron deference to the Attorney General s interpretation of the INA. See Negusie v. Holder, 555 U.S. 511, 516 (2009); Yi Ni v. Holder, 613 F.3d 415, 423 (2010). First, we ask whether Congress has directly spoken to the precise question at issue. Chevron, 467 U.S. at 842. If not, we ask whether the Attorney General s interpretation is a permissible construction of the statute. Id. at 843. The question before us involves interpretation of the term ordered, incited, assisted or otherwise participated in . . . persecution Specifically, of we any ask person. whether this 8 U.S.C. definition § 1253(h)(2). can include an individual who meets the following criteria: 1) He is the leader of a political group that has ties to an armed group; 2) He was instrumental in creating and sustaining the ties between the political movement and the armed group; and 3) He was aware of the atrocities committed by the armed group. Matter of A-H-, 23 I. & N. Dec. at 785. 2 2 The Attorney General created two more categories of evidence that could disqualify a political leader from withholding of removal. Id. Under the second category, the persecutor bar applies if there is evidence that [a leader] used his profile and position of influence to make public statements that encouraged . . . atrocities. Category three excludes a leader when there is evidence that he made (Continued) 7 Here, relying on the plain language of the persecutor bar and guidance from our sister circuits, we conclude that the Attorney General s definition is an impermissible interpretation of the INA. While the terms assisted and otherwise participated lack mathematical precision, these terms indicate active involvement. cases where there As such, the persecutor bar only applies in is a causal nexus between behavior and instances of persecution. the applicant s The Attorney General s definition does away with this nexus requirement, and for this reason, it is impermissible under the INA. A. Turning to step one of Chevron, we conclude that the language of the persecutor bar does not unambiguously resolve the question before us. Application of the persecutor bar is often a difficult line-drawing problem[]. Reno, 258 F.3d 806, 813 (8th Cir. 2001). See Hernandez v. Persecutor bar cases are difficult because the level of involvement in an act of persecution is a question of degree, and both sides will often be able to advance reasonable arguments. 555 U.S. at 517 18. See, e.g., Negusie, In Negusie, the Supreme Court considered statements that appear to have condoned the persecution without publicly and specifically disassociating himself and his movement from the acts of persecution. Id. These two categories are not at issue in this appeal. 8 whether the persecutor bar reaches individuals who participated in persecution but only because they were coerced. Because there was substance to both [parties ] contentions, the Court concluded that the statute has an ambiguity. Id. at 517. Here, as in Negusie, we are confronted with a difficult question about the outer limits of the persecutor bar, and given the line-drawing nature of the analysis, there is substance to both parties contentions. As such, we conclude that the statute does not settle the precise question before us. Moving Attorney to step General s two definition reading of the INA. definition stems language. of with from the is we conclude nonetheless an that the impermissible Our rejection of the Attorney General s the plain Participating involvement Chevron, in meaning of persecution persecution. In the statutory implies common actual parlance, one cannot participate in an event retroactively. Cf. United States v. 2011) Papagno, context of a ordinarily begun ). 639 be F.3d 1093, criminal 1099 (D.C.Cir. restitution participating in law that something that in one has in cannot not yet Similarly, assist means giving aid or support. American Heritage Dictionary 80 (1976). assist (noting persecution persecution. if one s actions One cannot ordinarily do not further the As the Supreme Court has noted in interpreting the persecutor bar, to assist or to participate in an activity, an 9 individual must take some part in an activity, or help it to occur. Negusie, 555 U.S. at 544 (quoting Reves v. Ernst & Young, 507 U.S. 170, 178 79 (1993)) (emphasis in original). The Recall Attorney that under General s the rule strains Attorney these General s definitions. construction, an individual could be barred from relief if, as a leader of a political group, he forges ties with an armed group that commits or has committed atrocities, with awareness of these atrocities. Matter of A-H-, 23 I. & N. Dec. at 785. The definition does not make a distinction based on the timing of the atrocities. Thus, under the Attorney General s construction, the persecutor bar could apply even if the atrocities occurred years before the individual forged ties with the armed group. It could apply if the atrocities occurred before the individual was even born. For these reasons, every circuit court that has interpreted the persecutor bar in the INA both before and after the Attorney General s decision concluded persecutor actions and bar an is a that actual causal a necessary nexus instance of between element the persecution. of the individual s See, e.g., Higuit v. Gonzales, 433 F.3d 417, 421 (4th Cir. 2006) ( [A] distinction must persecution and be made between inconsequential genuine assistance association with in the persecutors. ); Diaz-Zanatta v. Holder, 558 F.3d 450, 455 (6th Cir. 2009) ( [T]here must have 10 been some nexus between the alien s actions and the persecution. ); Chen v. U.S. Atty. Gen., 513 F.3d 1255, 1259 (11th Cir. 2008) (conduct cannot be merely indirect, peripheral and inconsequential association but rather active, direct and integral to the underlying persecution ); Castaneda-Castillo v. Gonzales, 488 F.3d 17, 20 (1st Cir. 2007) (holding that scienter the and term illicit persecution motivation strongly and implies requires both prior or contemporaneous knowledge of the persecution); Xu Sheng Gao v. U.S. Atty. Gen., assistance 500 [w]here consequences for F.3d the the 93, 99 conduct victims, (2d was Cir. 2007) and [w]here not active the (finding had direct conduct was tangential...and passive in nature ); Alvarado v. Gonzales, 449 F.3d 915, 927 28 assistance and inadequate); (9th noting Singh v. Cir. that 2006) mere Gonzales, (requiring membership 417 F.3d in 736, material a 739 group (7th is Cir. 2005) ( [A] distinction must be made between genuine assistance . . . and inconsequential association. ); Hernandez v. Reno, 258 F.3d 806, 814 (8th Cir. 2001) (noting that individuals will not necessarily persecutory unanimity be held group across responsible absent circuits a for showing springs any of from involvement culpability). the clear with a This statutory language. An individual cannot incite an act that has already occurred. An individual cannot assist an act without having any effect on the act. 11 In Singh the Seventh Circuit required a nexus between an individual s actions and the persecution in question. at 739. The asylum applicant in Singh was part of a Punjabi police force accused of committing persecution. is 417 F.3d vital, the Seventh Circuit concluded, A causal nexus because the police force served legitimate law enforcement purposes and did not exclusively engage in . . . persecution. Id. As such, membership in the police force alone was not enough to support application of the persecutor bar absent evidence applicant actively assisted in persecution. Id. that the By extension, if membership in a group accused of atrocities is not enough, then membership in a group with ties to a terrorist group is also not enough. F.3d at 739. See Diaz-Zanatta, 558 F.3d at 456; Singh, 417 Like the Punjabi police force, Mr. Haddam s FIS is a political party with legitimate purposes. ties with a membership in terrorist the FIS group would at not one be Even if the FIS had point, enough to Mr. Haddam s show that he actively persecuted or assisted in persecuting others. Similarly, in Castaneda-Castillo, the First Circuit required more than incidental involvement with persecution. that case, which was decided after the Attorney In General s opinion, the petitioner was part of a police patrol outside a village where a brutal massacre occurred, but the petitioner claimed no knowledge of the massacre. 12 488 F.3d at 19. The First Circuit found that the persecutor bar cannot encompass actions taken without any knowledge of the specific persecution in question. the Id. at 22. Board s sense. own Dictionary definitions, as well as precedent, bear this out. So does common Id. at 20. Thus, the determinative question in persecutor bar cases is whether the individual s instances of persecution. actions have a causal nexus with As the case law suggests, factors that aid this determination include intent, knowledge, and the timing of the individual s alleged assistance. An individual who took actions with no prior or contemporaneous knowledge of persecution is unlikely to have the requisite causal nexus. Castaneda-Castillo, 488 F.3d at 20 21. See Scienter and intent can aid the BIA in separating a bona fide torturer from the bus driver who unwittingly ferries massacre. Id. at 20. Timing is a helpful indicator as well. In cases, certain level of after-the-fact assistance. Examples a killer behavior include to the might an site rise of to individual a the who knowingly burns evidence of a massacre or helps a murderer evade being discovered. occurs years after See id. However, if the alleged assistance persecution, it is less likely that the behavior could be described as assisting the overall scheme that drives the persecution. 13 While no Court of Appeals has done away with the nexus requirement, the Third Circuit arguably came close to adopting the Attorney General s view in United States v. Koreh, 59 F.3d 431 (3d Cir. 1995). In Koreh, the applicant was a newspaper editor in Hungary before World War II whose newspaper published dozens of anti-Semitic articles. Id at 435. The Hungarian government, which was also anti-Semitic, licensed Koreh to open his newspaper and gave him direction on what kinds of articles they thought were useful. Id. The court ruled against Koreh because it concluded that publishing propaganda could be counted as assisting persecution others to murder. Id. others, found the court insofar as the propaganda incited While Koreh did not directly persecute a link between the propaganda Koreh published and the wave of persecution that Jewish Hungarians faced. However, even in Koreh, the court refused to apply the persecutor bar without a showing that the persecution occurred after Koreh s newspaper was published. after the fact would not qualify. on Mr. Haddam s after-the-fact Id. Writings published In contrast, the BIA relied language support for previous acts of persecution. that signaled some Thus, even Koreh does not go as far as the Attorney General s definition, since the Koreh court would not apply the persecutor bar to mere approval of past events. 14 Further, the Koreh case involved application of a different statute, the Displaced Persons Act of 1948 (the DPA ) 3, which uses different language and which Supreme Court suggests can be misleading in the INA context. problematic statutes as a differ tool in to key interpret language. the The INA DPA precedent The DPA is because bars the from two relief individuals who advocated or assisted in the persecution of any person because of race, religion, or national origin. 227 (emphasis added). 64 Stat. The INA s persecutor bar omits the word advocate, limiting its reach only to those individuals who assist, incite, persecution. order, or otherwise participate in the It is unclear that the Koreh court would have applied the persecutor bar to a propagandist absent language that reaches those who advocate persecution. In light of this, it is unsurprising that the Supreme Court has cautioned against using case law on the DPA s persecutor bar to aid interpretation of the INA s persecutor bar. See Negusie, 555 U.S. at 520 (noting that persecutor bars in the DPA and INA serve different statutory purposes). Unlike in the DPA context, the persecutor bar in the INA applies to individuals who have established that they would likely be persecuted if sent back to 3 Pub. L. No. 80-774, ch. 647, 62 Stat. 1009 (1948) as amended by the Act of June 16, 1950, ch. 262, 64 Stat. 219. 15 their native country. purpose of immigrants the DPA, affected Xu Sheng Gao, 500 F.3d at 98. meanwhile, by World was War without regard to immigration quotas. to II make to it enter The easier this for country Negusie, 555 U.S. at 518. Accordingly, there exist reasons to be careful in applying the persecutor bar in the INA context that are inapplicable to DPA cases, because someone denied under the DPA s persecutor bar would not be returning to a country where she faces persecution herself. Thus, the Attorney General misplaces his reliance on authority that not only provides limited support as a general matter but also involves a different statute with different language and a different purpose. In sum, the BIA s order denying withholding of removal was error because it relied on an interpretation of the INA that is impermissible under step two of Chevron. INA excludes the Attorney The language of the General s unanimity across circuits reflects this. definition, and the We therefore remand to the BIA to decide whether, using a permissible interpretation of the INA, § 1253(h)(2). Mr. Haddam qualifies for withholding under We emphasize that the INA s persecutor bar does not apply absent evidence that an individual took active steps to assist or participate in a specific act of persecution. Mere verbal approval of an act after the fact is not enough, nor is 16 mere membership in a group with ties to a terrorist organization. 4 III. Although we reverse the BIA s decision to deny withholding of removal, we affirm the decision to deny Mr. Haddam asylum as a matter of discretion. discretion to refugees. Dankum 2007). grant Under the INA, the Attorney General has asylum v. Gonzales, individuals 495 F.3d of cases where the who 113, This discretion is not a blank check. 547 F.3d 504, 506 (2008). class to qualify 115 (4th as Cir. Zuh v. Mukasey, Nonetheless, there exists a small Attorney General can exercise his discretion to deny asylum, even if the withholding remedy also applies. Id. at 509; see Koujinski v. Keisler, 505 F.3d 534, 543 (6th Cir. 2007). with armed groups For example, an individual s involvement might justify a discretionary denial of asylum, even if the individual s involvement is not so severe that he qualifies as a persecutor for purposes of the withholding analysis. 4 Because our conclusion stems from the language of the statute, we need not reach Mr. Haddam s argument that the Attorney General s definition is impermissible under international law and the First Amendment. 17 This is precisely the situation before us. The Attorney General has discretion to deny asylum in extreme cases where there is evidence involvement does persecution. which of involvement not rise to in the terrorism, level of even if participation in In contrast to issues of statutory interpretation, remain the province § 1252(b)(4) (2012), discretionary asylum our of the review decisions judiciary, of is the more 8 Attorney limited. U.S.C. General s We may substitute our own judgment for the Attorney General s. 547 F.3d at 514. decisions such not Zuh, As such, though we must correct the BIA s when they rest on impermissible statutory interpretations, we will not second-guess the Attorney General s discretionary asylum discretion. In this decision case, unless we it conclude was an abuse that the of Attorney General s decision was within the bounds of his discretion. In making the discretionary asylum decision, the Attorney General must weigh all relevant evidence under the totality of the circumstances before denying asylum. Relevant positive factors include an Zuh, 547 F.3d at 507. applicant s [f]amily, business, community and employment ties to the United States, [e]vidence of good character, community, and evidence of value severe or past service to persecution the and/or well-founded fear of future persecution, including consideration of other relief granted. Id. 18 at 511. Relevant negative factors include evidence that indicates bad character or undesirability for permanent residence and an actual adverse credibility finding by the [Immigration Judge]. Id. in qualify this case, an individual would otherwise When, as as a refugee, discretionary denials of asylum are exceedingly rare and are generally based on egregious conduct by the applicant. Id. (quoting Huang v. I.N.S., 436 F.3d 89, 98 (2d Cir. 2006)). Here, the Attorney General did not abuse his discretion. To the contrary, the Attorney General addressed the relevant positive and negative factors in a well-reasoned Matter of A-H-, 23 I. & N. Dec. at 780 83. side, Mr. Haddam has family in the United opinion. On the positive States, three children who are United States citizens. including Id. at 783. Additionally, Mr. Haddam has qualified for protection under the Convention Against Torture, further weighing in his favor. However, as the Attorney General s opinion details, there is evidence that Mr. Haddam had links to armed groups in Algeria who used violence in combating sometimes targeting civilians. the Algerian government, Likewise, the record is replete with examples where Mr. Haddam approved of this violence, even if his approval participation. did not rise to the level of actual The Attorney General concluded that these links and statements strongly weigh against a discretionary grant of asylum. Id. at 782. Because the Attorney General looked to 19 the totality of the circumstances and balanced the relevant negative and positive factors, his opinion was not an abuse of discretion. See, e.g., Kouljinski v. Keisler, 505 F.3d 534, 541 43 (6th Cir. 2007). We also arguments. find unpersuasive Mr. Haddam s Fifth Amendment Mr. Haddam argues that the Immigration Judges, BIA, and Attorney General denied him due process when they relied on faulty evidence and refused to force the government to disclose favorable evidence. These arguments are unavailing. Mr. Haddam must show that there was a defect in his proceedings and that he experienced prejudice as a result of the defect. See, e.g., Garza-Moreno v. Gonzales, 489 F.3d 239, 241 42 (6th Cir. 2007). The Federal Rules of Evidence do not apply to immigration proceedings, though immigration judges cannot rely on unreliable evidence. Anim v. Mukasey, 535 F.3d 243, 256 57 (4th Cir. 2008). Here, the Attorney General relied on a series of newspaper articles and foreign policy publications Mr. Haddam supported violence. articles lack reliability. as evidence that Mr. Haddam argues that these We disagree, finding that the articles that the Attorney General relied on are sufficiently trustworthy. While the articles, like most journalism, contain layers of hearsay, the articles that the Attorney General cites include articles from the British 20 Broadcasting Corporation, Amnesty International, and Human Rights Watch. The articles are not inherently suspicious or problematic, and even if a handful of articles are relatively less reliable, the Attorney General relied on dozens of reports to reach his conclusion. One bad apple will not spoil the bunch. The allegedly favorable evidence not given to Mr. Haddam consists of statements during telephone conversations made by Mr. Haddam himself. At best, this evidence would show that Mr. Haddam had limited contact with the FIS or GIA. does not rebut the basis for the However, this Attorney General s discretionary denial of asylum, since this denial was based on Mr. Haddam s testimony as well as news reports showing that Mr. Haddam had links to both groups. As such, even if the withholding of exculpatory evidence violates Due Process in this setting, which we do not decide, Mr. Haddam would be unable to show prejudice from the alleged defect. IV. For the foregoing reasons, we deny the petition for review in part and we grant the petition in part and remand the case to the BIA to decide whether there is a strong enough nexus between 21 Mr. Haddam s behavior and actual instances of persecution that would warrant application of the persecutor bar. PETITION DENIED IN PART, GRANTED IN PART, AND CASE REMANDED 22