Ayvaz v. Holder , 564 F. App'x 625 ( 2014 )

12-4302
Ayvaz v. Holder
BIA
Balasquide, IJ
A097 517 245
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 7th day of May, two thousand fourteen.
5
6 PRESENT:
7 JOSÉ A. CABRANES,
8 GERARD E. LYNCH,
9 CHRISTOPHER F. DRONEY,
10 Circuit Judges.
11 _____________________________________
12
13 TARIK AYVAZ,
14 Petitioner,
15 12-4302
16 v. NAC
17
18 ERIC H. HOLDER, JR., UNITED STATES
19 ATTORNEY GENERAL,
20 Respondent.
21 _____________________________________
22
23 FOR PETITIONER: Joshua Bardavid, New York, New York.
24
25 FOR RESPONDENT: Stuart F. Delery, Assistant Attorney
26 General; Ethan B. Kanter, Deputy
27 Chief, National Security Unit;
28 Jeffrey L. Menkin, Senior Counsel
29 for National Security, Office of
30 Immigration Litigation, Civil
31 Division, United States Department
32 of Justice, Washington, D.C.
1 UPON DUE CONSIDERATION of this petition for review of a
2 Board of Immigration Appeals (“BIA”) decision, it is hereby
3 ORDERED, ADJUDGED, AND DECREED that the petition for review
4 is GRANTED in part and DENIED in part.
5 Petitioner, Tarik Ayvaz, a native and citizen of
6 Turkey, seeks review of an October 12, 2012, decision of the
7 BIA affirming the February 14, 2011, decision of an
8 Immigration Judge (“IJ”), denying a continuance,
9 pretermitting his asylum application, and denying his
10 applications for withholding of removal and relief under the
11 Convention Against Torture (“CAT”). In re Tarik Ayvaz, No.
12 A097 517 245 (B.I.A. Oct. 12, 2012), aff’g No. A097 517 245
13 (Immig. Ct. N.Y. City Feb. 14, 2011). We assume the
14 parties’ familiarity with the underlying facts and
15 procedural history of the case.
16 We review the decision of the IJ as supplemented by the
17 BIA. See Yan Chen v. Gonzales, 417 F.3d 268, 271 (2d Cir.
18 2005). The applicable standards of review are well
19 established. See 8 U.S.C. § 1252(b)(4)(B); Yanqin Weng v.
20 Holder, 562 F.3d 510, 513 (2d Cir. 2009). Because Ayvaz
21 does not challenge the agency’s pretermission of his asylum
22 application, we review only Ayvaz’s arguments regarding the
23 denial of his motion for a continuance, withholding of
24 removal, and deferral of removal under the CAT.
2
1 I. Withholding of Removal
2 Ayvaz argues that his provision of one meal to members
3 of the Kurdistan Worker’s Party (“PKK”) does not trigger the
4 terrorist activity bar to withholding of removal because his
5 support was immaterial and involuntary. Aliens who have
6 “engaged in a terrorist activity” are statutorily ineligible
7 for withholding of removal under both 8 U.S.C. § 1231(b)(3)
8 and the CAT. See 8 U.S.C. §§ 1231(b)(3)(B)(iv),
9 1227(a)(4)(B) (withholding under § 1231(b)(3)); 8 C.F.R.
10 § 1208.16(d)(2) (withholding under the CAT). This Court,
11 however, retains jurisdiction to consider constitutional
12 claims and questions of law regarding the agency’s
13 application of that statutory bar. See 8 U.S.C.
14 §§ 1158(b)(2)(D), 1252(a)(2)(D). Whether the terrorist
15 activity bar encompasses minimal aid or aid given under
16 duress raises questions of law subject to our review. See
17 Rosario v. Holder, 627 F.3d 58, 61 (2d Cir. 2010).
18 A. Material Support Provided
19 Terrorist activity includes, among other conduct,
20 committing an act that “the actor knows, or reasonably
21 should know, affords material support” to a designated
22 terrorist organization. 8 U.S.C. § 1182(a)(3)(B)(iv)(VI).
3
1 “Material support” includes providing “a safe house,
2 transportation, communications, . . . material financial
3 benefit, false documentation or identification, weapons [],
4 explosives, or training . . . .” Id. The BIA has never
5 held that de minimis aid is support that is “material” under
6 the terrorist activity bar. In In re S-K-, 23 I. & N. Dec.
7 936 (BIA 2006), the BIA noted the lack of “any legislative
8 history which indicates a limitation on the definition of
9 the term ‘material support’” and observed that “Congress has
10 not expressly indicated its intent to provide an exception
11 for contributions which are de minimis,” but ultimately
12 declined to reach the issue. Id. at 943, 945.
13 The cases cited by the BIA are factually
14 distinguishable. In Singh-Kaur v. Ashcroft, 385 F.3d 293,
15 294-95 (3d Cir. 2004), and Haile v. Holder, 658 F.3d 1122,
16 1129 (9th Cir. 2011), the Third and Ninth Circuits
17 considered, respectively, the organized and repeated efforts
18 to provide overnight shelter and provisions, and the
19 communication of intelligence, collection of funds, and
20 provision of food. In contrast, the agency here found that
21 Ayvaz provided one meal in his home to seven members of a
22 terrorist organization.
23
4
1 Although both the Third and Ninth Circuits deferred to
2 the BIA’s materiality findings, they did so without
3 determining whether deference was warranted. The BIA’s
4 interpretation of an ambiguous INA provision is entitled to
5 deference under Chevron U.S.A., Inc. v. Natural Resources
6 Defense Council, Inc., 467 U.S. 837 (1984). Because the
7 term “material” is ambiguous and the BIA did not address
8 whether the single meal Ayvaz provided qualified as material
9 support, remand is appropriate for further clarification in
10 a precedential decision. See Rotimi v. Gonzales, 473 F.3d
11 55, 57(2d Cir. 2007) (remanding for the BIA to issue a
12 precedential interpretation of an ambiguous statute).
13 B. Duress Exception
14 Ayvaz also asserts that his aid to the PKK was
15 involuntary, and argues that the material support bar
16 contains an implicit duress exception. We have recently
17 remanded the same issue to the BIA in Ay v. Holder. See
18 2014 U.S. App. LEXIS 3346 (2d Cir. Feb. 20, 2014). For the
19 same reasons we stated in that decision, we remand to the
20 BIA to “address the matter in the first instance in light of
21 its own expertise.” Negusie v. Holder, 555 U.S. 511, 517
22 (2009)(quoting INS v. Orlando Ventura, 537 U.S. 12, 16-17
23 (2002) (per curiam)).
5
1 II. Continuance Motion
2 We deny the petition as to Ayvaz’s challenge to the
3 denial of a second continuance to pursue his application for
4 a discretionary duress waiver. Immigration judges have the
5 authority to grant continuances “for good cause shown,” 8
6 C.F.R. § 1003.29, and “are accorded wide latitude in
7 calendar management,” Morgan v. Gonzales, 445 F.3d 549, 551
8 (2d Cir. 2006). Accordingly, we review the agency’s
9 decision to deny the continuance for abuse of discretion.
10 Singh v. U.S. Dep’t of Homeland Sec., 526 F.3d 72, 80-81 (2d
11 Cir. 2008); Morgan, 445 F.3d at 551.
12 Here, the IJ granted two continuances over four months
13 so that Ayvaz could pursue his discretionary application,
14 and reasonably declined to provide an additional continuance
15 as he had warned Ayvaz that no additional continuances would
16 be granted and Ayvaz did not indicate when the application
17 would be adjudicated. See Morgan, 445 F.3d at 551.
18 III. CAT Relief
19 The agency did not err in finding that Ayvaz did not
20 establish eligibility for deferral of removal under the CAT
21 because he did not demonstrate that it is more likely than
22 not that he would be targeted by the Turkish government or
6
1 that any harm he would suffer would rise to the level of
2 torture. See 8 C.F.R. §§ 1208.16(c), 1208.17(a); Khouzam v.
3 Ashcroft, 361 F.3d 161, 168 (2d Cir. 2004).
4 The 2008 State Department Human Rights Report notes
5 that the Turkish government arrests members of illegal
6 organizations and that its security forces have, with
7 impunity, subjected detainees to torture. However, the
8 agency reasonably found that Ayvaz’s fear of torture based
9 on his suspected PKK activity was undermined by his ability
10 to remain in Istanbul for two years and depart Turkey using
11 his passport without incident. See 8 C.F.R.
12 §§ 1208.16(c)(3)(ii) (requiring evidence that applicant is
13 likely to be tortured), 1208.17(a) (providing that deferral
14 is conditioned upon eligibility for CAT relief under
15 § 1208.16(c)(3)). Because the agency’s finding also
16 precludes success on a claim for withholding of removal
17 under the CAT, we decline to remand for consideration of
18 that relief, even if Ayvaz is found not subject to the
19 terrorist activity bar.
20 For the foregoing reasons, the petition for review is
21 GRANTED in part and DENIED in part. Any pending request for
22 oral argument in this petition is DENIED in accordance with
7
1 Federal Rule of Appellate Procedure 34(a)(2), and Second
2 Circuit Local Rule 34.1(b).
3 FOR THE COURT:
4 Catherine O’Hagan Wolfe, Clerk
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