Joshim Uddin v. Attorney General United States ( 2017 )

PRECEDENTIAL
UNITED STATES COURT OF APPEALS
FOR THE THIRD CIRCUIT COURT OF APPEALS
_____________
No. 17-1056
____________
JOSHIM UDDIN,
Petitioner
v.
ATTORNEY GENERAL UNITED STATES OF AMERICA,
Respondent
On Petition for Review of an Order of the
Board of Immigration Appeals
(Agency No.: A208-059-346)
Immigration Judge: Honorable Alan Vomacka
Argued July 13, 2017
Before: GREENAWAY, JR., SHWARTZ, and RENDELL,
Circuit Judges
(Opinion filed: September 25, 2017)
Visuvanathan Rudrakumaran, Esquire (Argued)
Law Office of Visuvanathan Rudrakumaran
875 Avenue of the Americas
Suite 906
New York, NY 10001
Counsel for Petitioner
Daniel I. Smulow (Argued)
United States Department of Justice
Office of Immigration Litigation
P. O. Box 878
Ben Franklin Station
Washington, DE 20044
Counsel for Respondent
OPINION
2
RENDELL, Circuit Judge:
The Board of Immigration Appeals (“Board”) found
that Joshim Uddin, a citizen and native of Bangladesh, was
ineligible for withholding of removal because he was a
member of the Bangladesh National Party (“BNP”), a major
political party in his homeland. According to the Board, the
BNP qualified as a Tier III terrorist organization under the
Immigration and Naturalization Act (“INA”), 8 U.S.C. §
1182(a)(3)(B)(vi)(III). Thus, Uddin’s membership in the BNP
rendered him ineligible for relief.
While we will deny the petition for review challenging
the Board’s ruling dismissing Uddin’s Convention Against
Torture (“CAT”) claim, we will grant the petition in part and
remand on his withholding of removal claim. The Board has
pointed to terrorist acts by BNP members. But it did not find
that BNP leadership authorized any of the terrorist activity
committed by party members. Today, we join the reasoning
of the Seventh Circuit and the Board in many of its own
opinions by holding as follows: unless the agency finds that
party leaders authorized terrorist activity committed by its
members, an entity such as the BNP cannot be deemed a Tier
III terrorist organization.
I. Statutory Background
The so-called “terrorism bar” precludes aliens who are
members of “terrorist organizations” from seeking several
3
forms of relief, including withholding of removal. See 8
U.S.C. §§ 1182(a)(3)(B)(i), (vi); 1227(a)(4)(B);
1158(b)(2)(A)(v); 1231(b)(3)(B)(iv).
The INA, in turn, establishes three different kinds of
terrorist organizations.
Tier I terrorist organizations are officially listed
groups designated by the Secretary of State. 8 U.S.C. §§
1182(a)(3)(B)(vi)(I) & 1189. Such groups are maintained on
an official register, and are thus easily identifiable to
immigration authorities.
Tier II terrorist organizations are groups that have
engaged in terrorist activity, and are designated by the
Secretary of State in consultation with or upon the request of
the Attorney General or the Secretary of Homeland Security,
for purposes of immigration exclusion. 8 U.S.C. §
1182(a)(3)(B)(vi)(II). Such groups are maintained on an
official register, and are thus also easily identifiable to
immigration authorities.
Tier III terrorist organizations, the groups at issue in
this case, are groups “of two or more individuals, whether
organized or not, which engage[] in, or [have] a subgroup
which engages in,” terrorist activity. 8 U.S.C. §
1182(a)(3)(B)(vi)(III). Terrorist activity is defined broadly by
the statute as conduct “unlawful under the laws of the place
where it is committed (or which, if it had been committed in
the United States, would be unlawful under the laws of the
United States or any State)” and which involves one of
several enumerated actions, including the “highjacking or
sabotage of any conveyance,” “an assassination,” use of any
4
“biological agent, chemical agent, or nuclear weapon or
device, or [ ] explosive, firearm, or other weapon or
dangerous device (other than for mere personal monetary
gain), with intent to endanger, directly or indirectly, the safety
of one or more individuals or to cause substantial damage to
property,” or a “threat, attempt, or conspiracy to” commit
such acts. 8 U.S.C. § 1182(a)(3)(B)(iii).
There is no official register of Tier III organizations;
instead, groups are adjudicated as Tier III organizations on a
case-by-case basis.
A. Assessing Tier III Status
There is relatively little guidance from Courts of
Appeals as to how to determine whether an organization is a
Tier III terrorist group. But, from a procedural standpoint,
departmental regulations set forth a burden-shifting structure
for adjudicating such cases. First, the Government must
introduce evidence “indicat[ing]” that a group qualifies as a
Tier III terrorist organization. Then, the burden shifts to the
applicant to prove “by a preponderance of the evidence” that
the bar does not apply. 8 C.F.R. § 1208.16(d)(2).
If an alien is deemed a member of a Tier III
organization, then he can avoid the terrorism bar if he can
“demonstrate by clear and convincing evidence that [he] did
not know, and should not reasonably have known, that the
organization was a terrorist organization.” 8 U.S.C. §
1182(a)(3)(B)(i)(VI).
II. Factual Background
5
A. Events in Bangladesh
The BNP, led by Khaleda Zia since 1984, is one of
Bangladesh’s two major political parties; the other is the
Awami League (AL). Both groups have been in and out of
power over the past several decades: From 2001 to 2006, the
BNP was in power. From approximately 2006-2008, a
military-backed government ruled the country to oversee free
and fair elections. In late 2008, the AL won a decisive victory
to lead the country. In January 2014, the most recent election,
the AL maintained its hold on power, despite significant
protests and demonstrations by the BNP as to the election’s
fairness.
Uddin joined the BNP in February 2008, when the
group was no longer in power. Soon after, he was promoted
to general secretary for his district. In this position, he
distributed posters and recruited college students.
Uddin claims that on several occasions, members of
the AL persecuted him on account of his political beliefs.
First, he asserts that on December 1, 2008, ten members of
the AL approached him while he was hanging BNP posters
with colleagues. When he refused to stop hanging posters, the
AL members allegedly beat him, resulting in injuries to his
face that a doctor treated with stitches.
Second, he claims that in March 2009, AL members
broke his leg with a hockey stick. 1 Third, Uddin asserted that
AL members threatened to kill him in October 2009 if he did
1
A doctor’s statement, prepared in May 2016 for Uddin’s
immigration litigation, supports the contention that Uddin’s
ankle was broken with a hockey stick in 2009.
6
not stop working for the BNP, and that AL members
threatened him again in November and March 2010.
Finally, Uddin alleged that on July 15, 2011, between
ten and fifteen AL members broke into to his home and
burned it down. Uddin had escaped through the back door. In
October 2011, Uddin fled Bangladesh.
B. Events in the United States
After traveling through more than a half-dozen
countries, Uddin entered the United States illegally in 2013.
He eventually settled in Brooklyn, New York. In 2015, he
attended “about one or two” meetings of BNP members in the
United States. AR 155.
Later in 2015, Uddin was arrested in New Jersey for
charges that were eventually dismissed in state court,
including selling untaxed cigarettes and possession of
marijuana, drug paraphernalia, and a weapon (brass
knuckles). After he posted bail, immigration officers arrested
him on January 28, 2016, and served him with a Notice to
Appear charging him with removability under 8 U.S.C. §
1182(a)(6)(A)(i) (alien present in United States without
having been admitted or paroled by an immigration officer).
C. IJ Proceedings
At his hearing before an Immigration Judge, Uddin
conceded his removability as charged. But he filed a
defensive application for asylum, withholding of removal,
and CAT protection. Eventually he conceded, through
counsel, that he was ineligible for asylum because his
7
application was untimely, and that he did not qualify for an
exception to the one-year deadline set forth in 8 U.S.C. §
1158(a)(2)(B). 2 But Uddin maintained that he was eligible for
withholding of removal and CAT protection. He argued that
because of his affiliation with the BNP, he would face
persecution if returned to Bangladesh on account of his
political beliefs.
The IJ denied Uddin’s application for relief. 3 He found
that Uddin was ineligible for withholding of removal because
he was a knowing member of a Tier III terrorist organization,
the BNP. The IJ found “abundant [record] evidence from
reliable sources that the BNP has used violence for political
purposes in the past.” AR 71.
Describing that “abundant” evidence, the IJ first
quoted a Congressional Research Services report on
Bangladesh saying that “[p]olitical violence has long been
part of the political landscape in Bangladesh.” AR 71. He
further noted that Uddin’s own evidence stated that former
2
Uddin has not appealed the denial of his asylum claim.
3
The IJ made a “mixed” credibility finding. He found Uddin
“credible as to his support for the BNP, but not reliable or
credible as to specific alleged events that form the basis for
his claim of past persecution and fear or persecution.” AR 63.
The IJ observed that Uddin “testified in a manner which tends
to indicate he had memorized [his] narrative.” AR 62.
Further, Uddin apparently misstated significant facts about
political elections in Bangladesh during the time he was
supposedly an active party member. The IJ also noted
shortcomings in Uddin’s corroborating evidence: most of it
was prepared for his immigration litigation.
8
opposition parties were “quick to take revenge on their
outgoing rivals . . . often in the form of violent attacks.” Id.(emphases omitted).
Next, the IJ relied on a report stating that while in
power from 2001 to 2006, the BNP “was criticized for its
tacit support of radical Islamic groups,” which were
reportedly behind bomb blasts in 2005. AR 72. Then, the IJ
cited evidence that the BNP had created the Rapid Action
Battalion (“RAB”) while in power, which it used as an
extrajudicial “death squad” during its last term in office. AR
72. 4
Finally, and most importantly, the IJ found evidence
that BNP activists resorted to “massive violence including the
torching of dozens of polling centers” during the 2013-2014
election cycle. AR 72 (citation omitted). The IJ emphasized
that the BNP’s leader, Khaleda Zia, had “announced the party
would hold a series of general strikes and traffic blockades
halting transport links to the capital.” 5 AR 73. During these
strikes, according to an “authoritative” report by the NGO
Human Rights Watch, “opposition party workers” (i) burned
a truck driver’s wife and baby alive by “fail[ing] to allow
enough time for [them] to escape the vehicle;” (ii) killed four
4
After the BNP left power, it did not maintain control of the
RAB. Currently, the AL controls the RAB.
5
The Human Rights Watch Report attributed strike violence
to “opposition activists,” AR 301, rather than to the BNP
specifically. But the IJ believed that there was evidence to
conclude “opposition activists” meant the BNP, since the
BNP was the “largest party in the opposition coalition.” AR
75.
9
people by throwing a bomb onto a bus they were riding; (iii)
badly burned a thirteen-year-old boy by torching the bus he
worked on; and (iv) injured a seven-year-old’s hand, legs, and
abdomen by throwing a bomb in front of him. AR 73. 6 The IJ
also discussed opposition supporters’ “leaving homemade
grenades on the streets, wrapped in colorful paper, which
were picked up by children.” AR 73. Opposition workers also
purportedly attacked polling centers to hamper voter turnout
in the 2014 election. Because the BNP “used violence for
political purposes to an extent that constitutes engaging in
terrorist activity,” the IJ found that the party was a Tier III
terrorist organization. AR 75 (emphasis omitted).
Turning to the CAT claim, the IJ found that Uddin was
ineligible for relief because he “failed to establish a
probability of torture, given weaknesses in his credibility and
corroborating evidence.” AR 77.
D. Board Proceedings
6
Analyzing whether Uddin had proved that he did not, or
should not have known, that the BNP was a terrorist
organization, the IJ opined that before Uddin joined, the BNP
used political violence, and created the RAB. While he was
active, the party took no “known action to abandon its history
of violence.” AR 75. After he joined, BNP activists resorted
to massive violence including torching polling centers. Based
on this history, notwithstanding Uddin’s sworn testimony that
he did not know about BNP members’ violent acts, the IJ
found that Uddin “could not have joined the BNP and served
as a publicity officer without being aware of [its] history [of
violence].” AR 76.
10
Uddin appealed to the Board, which dismissed his
claim. To start, the Board noted that Uddin had not
“meaningfully challenged” the IJ’s decision denying his
request for protection under CAT. AR 3 n.1. He did not
mention the IJ’s denial of CAT protection in his Notice of
Appeal, and made only two passing references to CAT
protection in his brief to the Board. Thus, the Board
“deem[ed] [the] claim waived on appeal.” Id.Next, the Board agreed with the IJ that Uddin was
ineligible for withholding of removal as a member of a Tier
III terrorist organization. The Board highlighted Uddin’s
admitted membership in the BNP, and his continued support
for the organization even after he entered the United States.
The Board also found that the record reflected
“abundant evidence” that the BNP had used violence for
political purposes in the past, including its creation of the
RAB which it employed as a “death squad” while in power.
AR 4. It noted the “deadly results of the campaign to disrupt
the Bengali election in January 2014.” AR 4. The Board
further emphasized that the BNP leader “publicly announced
a plan to obstruct the 2014 election by strikes, boycotts, and
blockades.” AR. 4. And, like the IJ, the Board stated that
“party officers” employed forms of violence which resulted in
death and serious injury. 7 AR 4.
7
The Board noted that it did not address the IJ’s
determination regarding credibility, because it had found that
the terrorism bar applied.
11
III. Analysis 8
A. CAT Claim
Uddin urges that the Board erred in refusing to review
his CAT claim. We disagree. In his Notice of Appeal, Uddin
did not mention the CAT claim. And he made only passing
reference to CAT twice in his brief the Board. 9 Because he
provided the Board no way to identify his grievance with the
IJ’s CAT ruling, the Board dismissed the claim.
We review such dismissals for abuse of discretion: the
Board, in its discretion, may determine “when to summarily
dismiss an appeal for lack of specificity and when the BIA is
sufficiently appraised of the appealable issues to entertain the
appeal.” Lin v. Att’y Gen., 543 F.3d 114, 124 (3d Cir. 2008);
8 C.F.R. § 1003.1(d)(2)(i) (stating that the Board “may
summarily dismiss any appeal or portion of any appeal . . .
[that] fails to specify the reasons for the appeal . . . .”); see
also 8 C.F.R. § 1003.3(b) (an alien “must specifically identify
the findings of fact, the conclusions of law, or both that are
being challenged” to avoid summary dismissal). Here, it is
clear that the Board did not abuse its discretion in dismissing
Uddin’s undefined CAT claim: Uddin provided the Board no
basis for ruling on his vague objection to the IJ’s CAT denial.
8
We have jurisdiction pursuant to 8 U.S.C. § 1252. The
Board’s jurisdiction arose under 8 C.F.R. §§ 1003.1(b)(3) &
1240.15.
9
Uddin simply stated twice that the IJ “summarily dismissed
[Uddin’s] claim under the [CAT] with little to no analysis
given to the claim.” AR 10 & 14.
12
On appeal, Uddin seems to argue that the Board found
his claim “waived,” and not “summarily dismissed,” and that
thus we do not review for abuse of discretion. We disagree.
While the Board may not have used the magic words
“summarily dismiss,” it was clearly unable to address Uddin’s
claim because it could not discern Uddin’s grievance with the
IJ’s CAT ruling, and it dismissed the claim on those
grounds. 10 Even when pressed at oral argument, Uddin’s
attorney was unable to articulate the basis of his objection to
the IJ’s CAT analysis. 11
Uddin additionally argues that by challenging the IJ’s
adverse credibility finding, he implicitly challenged the CAT
ruling, since the IJ’s CAT ruling had discussed the adverse
credibility finding. We do not agree that there was a clear line
connecting a challenge to the IJ’s credibility analysis to the
IJ’s CAT analysis, such that the Board should have divined
Uddin’s argument. In Lin, the petitioner made a somewhat
similar argument to the effect that when one issue implicates
another in the case, raising one of the issues puts the Board on
notice as to the other. 543 F.3d at 122. We rejected that
argument and do not credit it here. The Board had no way of
10
At oral argument, Uddin’s attorney seems to have conceded
that the Board in fact “summarily dismissed” the CAT claim,
but then later argued that the Board had instead found the
claim “waived.”
11
In his brief before us, Uddin stated that his reference to the
CAT claim in his brief before the Board is “sufficient for
exhaustion.” Brief at 11. But exhaustion, which implicates
our jurisdiction, Lin, 543 F.3d at 120, is not at issue here.
Instead, we are assessing whether the Board properly
summarily dismissed the CAT claim.
13
knowing that, by challenging the adverse credibility finding,
Uddin was challenging the IJ’s CAT ruling. Thus, Uddin’s
CAT claim fails.
B. Withholding of Removal
(i) Standard of Review
We review the legal determination of whether a group
falls within the definition of an undesignated terrorist
organization de novo. Findings of fact underlying this
determination are reviewed to determine if they are supported
by substantial evidence, meaning that we will “uphold the
agency’s determination unless the evidence would compel
any reasonable fact finder to reach a contrary result.” Sesay v.
Att’y Gen., 787 F.3d 215, 220 (3d Cir. 2015) (quoting
Gonazalez-Posadas v. Att’y Gen., 781 F.3d 677, 684 n.5 (3d
Cir. 2015)). When, as here, the “BIA’s opinion directly states
that the BIA is deferring to the IJ, or invokes specific aspects
of the IJ’s analysis and factfinding in support of the BIA’s
conclusions,” we review both decisions. Oliva-Ramos v. Att’y
Gen., 694 F.3d 259, 270 (3d Cir. 2012) (quoting Voci v.
Gonzales, 409 F.3d 607, 613 (3d Cir. 2005)).
(ii) Analysis
As discussed, the Board found that Uddin was
ineligible for withholding of relief because he was a member
of a Tier III terrorist organization. But while the IJ and Board
pointed to evidence of terrorist activity committed by
14
members of the BNP, 12 it did not, as it has in many of its
rulings, discuss whether the specified terrorist acts were
12
Although there is evidence in the record as to terrorist
activity by BNP members from 2013-2015, the record is less
clear as to terrorist acts committed by BNP members between
2008 and 2011, when Uddin was a member in Bangladesh.
Pressed at oral argument as to what evidence of terrorist acts
were in the record while Uddin was in Bangladesh, counsel
directed us to a single page from a report by the Immigration
and Refugee Board of Canada. AR 237.
That report states that one source consulted reported
“135 individuals having been killed and 11,532 persons
having been injured due to political violence between January
and December 2011.” But the report immediately notes
thereafter: “Corroborating Information could not be found
among the sources consulted . . .” AR 237 (emphasis added).
Further, as the Government’s counsel conceded, the report
does not attribute the political violence referenced to the
BNP. That this was the most damning evidence the
Government could cite at argument from a 734-page record
makes us question the BNP’s status a terrorist organization
during the years 2008-2011. But because Uddin continued his
active membership in the BNP even after he arrived in the
United States, we also look to the BNP’s actions from 2011-
2015.
We note, however, that evidence of RAB’s violence
conduct that predated Uddin’s membership in the BNP is not
relevant to the determination of the BNP’s Tier III status
while he was a member. The BNP has not controlled the RAB
since approximately two years before Uddin even joined the
party. In fact, the Human Rights Watch Report states that
since the BNP has been a minority party, the government has
15
actually authorized. Today, we hold that absent such a finding
regarding authorization by a group’s leaders, Tier III status
cannot be assigned to a group. We will thus remand for the
Board to address this issue.
We find support for our ruling in the statutory text, the
Board’s own rulings and those of the Seventh Circuit, and
common sense. To start, the relevant statute defines a Tier III
terrorist organization as a “group of two or more individuals”
that engages in terrorist activity, or a group that “has a
subgroup” that engages in terrorist activity. 8 U.S.C. §
1182(a)(3)(B)(vi)(III) (emphases added). Had the statute
stated that a Tier III terrorist organization is “a group whose
members engage in terrorist activity,” then a group’s Tier III
designation could be based on the individual actions of its
members, regardless of authorization. But the text speaks to
concerted actions of a group, not uncoordinated activities by
individual members: an organization receives Tier III status
only if a group itself engages in terrorist activity. A rule that
there must be evidence of authorization from party leaders is
most faithful to that statutory text.
Second, the rule we announce mirrors the Board’s own
reasoning in the mine-run of its cases involving the BNP’s
status as a Tier III organization. In fact, in some cases where
IJs did not make a finding as to BNP leaders’ authorization of
allegedly terrorist acts, the Board found error in the IJs’
omissions, and remanded to the IJs to take up that very
question of authorization. In such cases, the Board bolstered
used the RAB to conduct numerous extra-judicial killings of
BNP members. Thus, for purposes of the BNP’s status as a
terrorist organization, the RAB’s conduct cannot be ascribed
to that group during the time period relevant to Uddin’s case.
16
its reasoning by referencing Seventh Circuit opinions
suggesting that some finding on authorization is necessary to
assign a group Tier III status. See Khan v. Holder, 766 F.3d
689, 699 (7th Cir. 2014) (“An entire organization does not
automatically become a terrorist organization just because
some members of the group commit terrorist acts. The
question is one of authorization.”); Hussain v. Mukasey, 518
F.3d 534, 538 (7th Cir. 2008) (“An organization is not a
terrorist organization just because one of its members
commits an act of armed violence without direct or indirect
authorization . . . .”).
Third, requiring a finding of authorization simply
formalizes common sense notions as to what a terrorist
organization is. If a single member of the Democratic or
Republican Party committed a terrorist act, we would not
impute terrorist status to the entire group, absent some
showing that party leadership authorized the act. So too here,
it cannot be that the acts of any single member of the BNP
can transform the organization into a terrorist group. 13 Judge
Posner explained why this is so in Hussain:
If an activity is not authorized, ratified, or otherwise
approved or condoned by the organization, then the
13
Violent outbreaks by both BNP and AL members seem to
color the political landscape of Bangladesh leading up to
elections. The BNP and AL are the two major political parties
in that country, and dominate political life there. Thus,
following the Board’s reasoning in this case which suggests
that both parties qualify as terrorist organizations, it appears
that a large swath of Bengali aliens who are members of these
parties would be ineligible for most forms of immigration
relief. This gives us pause.
17
organization is not the actor. It may be liable under the
principles of agency law, even criminally liable, for a
harm done by one of its employees or other agents, as
when an employee commits a tort within the course of
his employment although not authorized to do so by
his employer. But that does not mean that the
employer “engaged in” the employee’s act. An
organization is not a terrorist organization just because
one of its members commits an act of armed violence
without direct or indirect authorization, even if his
objective was to advance the organization’s goals,
though the organization might be held liable to the
victim of his violent act.
518 F.3d at 538 (citations omitted).
Further, today’s ruling should help provide the Board a
principled method of adjudicating Tier III cases, an area of
law with little guidance from the Courts of Appeals. This
dearth of precedential opinions has resulted in highly
inconsistent results regarding the BNP’s status as a terrorist
organization: our preliminary research in preparation for oral
argument turned up several Board rulings concluding that the
BNP was not in fact a terrorist organization. These
conclusions were in stark contrast to the Board’s finding in
Uddin’s case.
Faced with these contradictory opinions, in advance of
oral argument we asked the Government to submit all Board
opinions from 2015-2017 addressing the terrorism bar as it
applies to the BNP. (Those opinions are not all publicly
available.) The Government’s submission—fifty-four
18
opinions in total—did not bolster our confidence in the
Board’s adjudication of these cases.
In six of the opinions, the Board agreed with the IJ that
the BNP qualified as a terrorist organization based on the
record in that case. But in at least ten, the Board concluded
that the BNP was not a terrorist organization. In at least five
cases, the Government did not challenge the IJ’s
determination that the BNP is not a terrorist organization.
And in one case, the Board reversed its own prior
determination, finding that that “the Board’s last decision
incorrectly affirmed the Immigration Judge’s finding that the
BNP is a Tier III terrorist organization.” Many of the cases
discussed the BNP’s terrorist status during the same time
periods, reaching radically different results.
We recognize that the Board’s decisions are
unpublished, and thus lack precedential value. We also note
the Government’s argument that the BNP’s status as an
undesignated terrorist organization is a “case-specific”
determination based on the facts presented. That said,
something is amiss where, time and time again, the Board
finds the BNP is a terrorist organization one day, and reaches
the exact opposite conclusion the next.
Even more concerning, the IJ in this case stated that he
was “aware of no BIA or circuit court decision to date which
has considered whether the BNP constitutes a terrorist
organization.” AR 68. At the time the IJ ruled, there were
several such decisions, and now there are dozens. When
asked at oral argument whether the IJ could access
unpublished Board decisions regarding BNP’s terrorist status,
19
the Government’s Attorney responded that he did not know.
This is a troubling state of affairs.
Still, the rule we announce today does not always
require that the Government produce conclusive proof that
the leader(s) of a group explicitly sign off on each individual
terrorist act at issue. Instead, as the Board itself has opined in
several cases, “[e]vidence of authorization may be direct or
circumstantial, and authorization may be reasonably inferred
from, among other things, the fact that most of an
organization’s members commit terrorist activity or from a
failure of a group’s leadership to condemn or curtail its
members’ terrorist acts.” Addendum at 6. As we have stated,
what constitutes a Tier III terrorist organization is adjudicated
on a case-by-case basis. Accordingly, what constitutes
authorization under the rule we announce today must also be
determined case-by-case. Whether words, acts, or silences
amount to authorization must depend on context, including,
but not limited to, the structure of the organization, the
relationship between the organization and its members, and
the information each has about the other. As long as the
agency finds as a matter of fact that the allegedly terroristic
acts were authorized by party leaders, we review that
determination for substantial evidence.
Because neither the IJ nor the Board in this case
addressed whether the terrorist activity was authorized by
party leadership, 14 we will grant the petition on the
14
Both the IJ and the Board made scattered comments
suggesting that authorization might have been an element of
their findings. But, unlike in other BIA cases, neither
explicitly addressed the issue of authorization. Nor do they
20
withholding of removal claim and remand. On remand, the
Board should determine whether the BNP’s leadership has
authorized its members to engage in the referenced terrorist
activity.
IV. Conclusion
The INA contemplates that we afford some deference
to the Board’s expertise in matters of immigration. But when
the Board’s inconsistency leaves us guessing as to its actual
position on a matter, we think it merits a closer look. The
question of authorization is, as the Board itself has found, a
necessary part of the Tier III inquiry. Thus, we will grant the
petition and remand on the withholding claim. On the CAT
claim, we will deny the petition.
affirmatively establish that BNP leaders authorized the
actions that were terroristic.
21