Khan v. Holder ( 2014 )

13-1135
Khan v. Holder
BIA
Hom, IJ
A074 973 934
UNITED STATES COURT OF APPEALS
FOR THE SECOND CIRCUIT
SUMMARY ORDER
RULINGS BY SUMMARY ORDER DO NOT HAVE PRECEDENTIAL EFFECT. CITATION TO A SUMMARY ORDER
FILED ON OR AFTER JANUARY 1, 2007, IS PERMITTED AND IS GOVERNED BY FEDERAL RULE OF
APPELLATE PROCEDURE 32.1 AND THIS COURT’S LOCAL RULE 32.1.1. WHEN CITING A SUMMARY ORDER
IN A DOCUMENT FILED WITH THIS COURT, A PARTY MUST CITE EITHER THE FEDERAL APPENDIX OR AN
ELECTRONIC DATABASE (WITH THE NOTATION “SUMMARY ORDER”). A PARTY CITING A SUMMARY
ORDER MUST SERVE A COPY OF IT ON ANY PARTY NOT REPRESENTED BY COUNSEL.
1 At a stated term of the United States Court of Appeals
2 for the Second Circuit, held at the Thurgood Marshall United
3 States Courthouse, 40 Foley Square, in the City of New York,
4 on the 13th day of March, two thousand fourteen.
5
6 PRESENT:
7 GUIDO CALABRESI,
8 JOSÉ A. CABRANES,
9 ROBERT D. SACK,
10 Circuit Judges.
11 _____________________________________
12
13 MUHHAMAD ARSHAD KHAN,
14 Petitioner,
15 13-1135
16 v. NAC
17
18 ERIC H. HOLDER, JR., UNITED STATES
19 ATTORNEY GENERAL,
20 Respondent.
21 _____________________________________
22
23 FOR PETITIONER: Amy Nussbaum Gell, New York, N.Y.
24
25 FOR RESPONDENT: Stuart F. Delery, Assistant Attorney
26 General; Michael P. Lindemann,
27 Chief, National Security Unit; Lyle
28 D. Jentzer, Senior Counsel for
29 National Security, Office of
1 Immigration Litigation, Civil
2 Division, United States Department
3 of Justice, Washington, D.C.
4
5 UPON DUE CONSIDERATION of this petition for review of a
6 Board of Immigration Appeals (“BIA”) decision, it is hereby
7 ORDERED, ADJUDGED, AND DECREED that the petition for review
8 is DENIED.
9 Petitioner, Muhammad Arshad Khan, a native and citizen
10 of Pakistan, seeks review of a February 27, 2013, decision
11 of the BIA denying his motion to reopen and remand and
12 affirming the July 25, 2011, decision of Immigration Judge
13 (“IJ”) Sandy K. Hom, denying his application for asylum,
14 withholding of removal, and relief under the Convention
15 Against Torture (“CAT”). In re Muhammad Arshad Khan, No.
16 A074 973 934 (B.I.A. Feb. 27, 2013), aff’g No. A074 973 934
17 (Immig. Ct. N.Y. City July 25, 2011). We assume the
18 parties’ familiarity with the underlying facts and
19 procedural history of the case.
20 Under the circumstances of this case, we have reviewed
21 the decision of the IJ as modified and supplemented by the
22 BIA. See Xue Hong Yang v. U.S. Dep’t of Justice, 426 F.3d
23 520, 522 (2d Cir. 2005); Yan Chen v. Gonzales, 417 F.3d 268,
24 271 (2d Cir. 2005). The applicable standards of review are
2
1 well-established. See 8 U.S.C. § 1252(b)(4)(B); Yanqin Weng
2 v. Holder, 562 F.3d 510, 513 (2d Cir. 2009). Because Khan
3 does not challenge the agency’s denial of his motion to
4 reopen, and the BIA did not excuse his failure to exhaust
5 any challenge to the denial of CAT relief, we have reviewed
6 only the denial of asylum and withholding of exclusion. See
7 Waldron v. INS, 17 F.3d 511, 515 n.7 (2d Cir. 1993).
8 Khan argues that his material support of the Jammu and
9 Kashmi Liberation Front (“JKLF”) should not trigger the
10 terrorist activity bar to asylum because he did not
11 knowingly provide support and the JKLF did not engage in
12 terrorist activity. This Court, however, retains
13 jurisdiction to consider only constitutional claims and
14 questions of law regarding the agency’s application of that
15 statutory bar. See 8 U.S.C. §§ 1158(b)(2)(D),
16 1252(a)(2)(D). To the extent Khan challenges the agency’s
17 factual finding that he knew that the JKLF engaged in
18 terrorist activity and that he knowingly provided it
19 material support, his arguments are unreviewable. See Xiao
20 Ji Chen v. U.S. Dep’t of Justice, 471 F.3d 315, 329 (2d Cir.
21 2006). We are also unable to review his argument that the
22 Government was required to consider his eligibility for a
3
1 discretionary waiver given to applicants who provided
2 material support under duress because it is unexhausted. A
3 petitioner must raise to the BIA the specific issues he
4 later raises in this Court. Lin Zhong v. U.S. Dep’t of
5 Justice, 480 F.3d 104, 119-20 (2d Cir. 2007). However,
6 whether the JKLF’s activities constitute “terrorist
7 activities” under the Immigration and Nationality Act
8 (“INA”) presents a question of law subject to our review.
9 Shi Ji Ge v. Holder, 588 F.3d 90, 94-95 (2d Cir. 2009).
10 Because Khan applied for asylum prior to April 1, 1997,
11 the agency was required to apply the INA as amended by the
12 Anti-terrorist and Effective Death Penalty Act, but prior to
13 the amendments made by the Illegal Immigration Reform and
14 Immigrant Responsibility Act (“IIRIRA”). See 8 C.F.R.
15 § 1208.13(c)(2)(i)(F). Unlike its successor, the pre-IIRIRA
16 statute provided that terrorist activity abroad did not bar
17 a grant of asylum if “there are no reasonable grounds to
18 believe that the individual is a danger to the security of
19 the United States.” However, the agency erroneously applied
20 the IIRIRA-amended INA to Khan’s application. The agency
21 therefore did not consider whether the exception under 8
22 C.F.R. § 1208.13(c)(2)(i)(F) applied. However, we do not
4
1 consider Khan’s argument that remand is warranted because it
2 is unexhausted. See Lin Zhong, 480 F.3d at 119-20.
3 Khan also argues that the agency incorrectly designated
4 JKLF as a terrorist organization. Remand to reconsider that
5 designation is unnecessary, however, because, for the
6 reasons set forth below, under the prior version of the INA,
7 Khan was barred from relief based on his support of the
8 JKLF. See Alam v. Gonzales, 438 F.3d 184, 187-88 (2d Cir.
9 2006) (the Court is “not required to remand where there is
10 no realistic possibility that, absent the errors, the IJ or
11 BIA would have reached a different conclusion”).
12 Former section 212(a)(3)(B) of the INA provided, in
13 relevant part, that an alien is inadmissible if he has
14 “engaged in terrorist activity.” INA § 212(a)(3)(B)(i)(I)
15 (1996). “Engag[ing]” in terrorist activity included
16 providing “material support to any individual, organization,
17 or government in conducting a terrorist activity at any
18 time, including . . . a safe house, transportation,
19 communications, funds, false identification, weapons,
20 explosives, or training, to any individual the actor knows
21 or has reason to believe has committed or plans to commit a
22 terrorist activity.” Id. § 212(a)(3)(B)(iii). This
23 definition, while less detailed than its later iteration,
5
1 encompasses the support the agency found Khan provided the
2 JKLF. Compare id. (defining engagement to include material
3 support of any organization conducting terrorist activity),
4 with INA § 212(a)(3)(B)(iii)(1997) (distinguishing between
5 the types of terrorist organizations). Moreover, the agency
6 reasonably found that the JKLF conducted a “terrorist
7 activity.” “Terrorist activity” was defined as “any
8 activity which is unlawful under the laws of the place where
9 it is committed . . . and which involves any of the
10 following:”
11 . . .
12 (II) The seizing or detaining, and threatening to kill,
13 injure, or continue to detain, another individual in
14 order to compel a third person (including a
15 governmental organization) to do or abstain from doing
16 any act as an explicit or implicit condition for the
17 release of the individual seized or detained.
18 . . .
19 (V) The use of any--
20 (a) biological agent, chemical agent, or nuclear
21 weapon or device, or
22 (b) explosive or firearm (other than for mere
23 personal monetary gain),
24 with intent to endanger, directly or indirectly,
25 the safety of one or more individuals or to cause
26 substantial damage to property.
27 (VI) A threat, attempt, or conspiracy to do any of the
28 foregoing.
29
30 INA § 212(a)(3)(B)(ii) (1996). According to the declaration
31 and testimony of Khan’s expert witnesses and various other
32 sources, the Pakistani government discontinued its support
6
1 of the JKLF in the 1990s. Various news articles also assign
2 responsibility for thousands of death in India to the JKLF’s
3 1990 insurgency there, during which it used arms, bombs, and
4 kidnappings against Indian nationals to achieve its goal of
5 Kashmiri independence. In light of the deaths incontestably
6 caused by the JFLK’s illegal use of firearms and bombs and
7 ransom schemes, the agency reasonably found that the JKLF
8 had conducted terrorist activities. See id.
9 § 212(A)(3)(B)(ii)(II),(V).
10 For the foregoing reasons, the petition for review is
11 DENIED. As we have completed our review, any stay of
12 removal that the Court previously granted in this petition
13 is VACATED, and any pending motion for a stay of removal in
14 this petition is DISMISSED as moot. Any pending request for
15 oral argument in this petition is DENIED in accordance with
16 Federal Rule of Appellate Procedure 34(a)(2), and Second
17 Circuit Local Rule 34.1(b).
18 FOR THE COURT:
19 Catherine O’Hagan Wolfe, Clerk
20
7