Rayamajhi v. Whitaker, No. 16-70534 (9th Cir. 2019)
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Petitioner, a citizen of Nepal, sought review of the BIA's denial of his application for asylum and withholding of removal under the material support terrorist bar. Petitioner fled Nepal because a terrorist organization was torturing and threatening him repeatedly. Shortly before leaving Nepal, he gave the equivalent of $50 US dollars to a member of the terrorist organization, because the terrorist demanded the money and petitioner was fearful of what might happen to him if he did not comply.
The Ninth Circuit held that it lacked jurisdiction to consider petitioner's duress argument and dismissed the petition in part. The panel denied the petition in part and held that the INA's material support bar contained no implied exception for de minimis aid in the form of funds. Therefore, substantial evidence supported the IJ's finding that petitioner gave material support to a terrorist organization and he was therefore ineligible for asylum and withholding of removal.
Court Description: Immigration. The panel dismissed in part and denied in part a petition for review of Board of Immigration Appeals’ denial of asylum and withholding of removal to a citizen of Nepal under the material support terrorist bar. The panel held that petitioner’s argument for a duress exception to the material support bar is foreclosed by Annachamy v. Holder, 733 F.3d 254 (9th Cir. 2013), overruled in part on other grounds by Abdisalan v. Holder, 774 F.3d 517 (9th Cir. 2015) (en banc), and therefore does not constitute a colorable legal or constitutional question providing jurisdiction over the otherwise unreviewable material support determination. The panel held that there is no de minimis funds exception to the material support bar. The panel explained that the plain text of the statute, 8 U.S.C. § 1182(a)(3)(B)(iv)(VI), states that funds knowingly given to a terrorist organization are material support, regardless of the amount given. The panel further held that even if the statute is ambiguous on this point, the Board’s interpretation in In re A-C-M-, 27 I. & N. Dec. 303 (B.I.A. 2018), that there is no de minimis exception, was based on a permissible construction of the statute, and therefore is entitled to Chevron deference. RAYAMAJHI V. WHITAKER 3 The panel held that because petitioner admitted that he gave about $50 to someone whom he knew was a member of the Maoists, a designated terrorist organization at that time, substantial evidence supported the Board’s determination that he gave material support to a terrorist organization, rendering him ineligible for asylum and withholding of removal. Concurring in part and concurring in the judgment, Judge Bennett disagreed with the majority that the plain text of the statute unambiguously excludes de minimis funds from the definition of material support, but agreed with the majority that the Board’s interpretation of the statute in In re A-C-M- was permissible, and therefore entitled to Chevron deference.
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