Yusupov v. Atty Gen USA ( 2008 )

Opinions of the United
2008 Decisions States Court of Appeals
for the Third Circuit
3-27-2008
Yusupov v. Atty Gen USA
Precedential or Non-Precedential: Precedential
Docket No. 05-4232
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PRECEDENTIAL
UNITED STATES COURT OF APPEALS
FOR THE THIRD CIRCUIT
Nos. 05-4232 & 05-5411
BEKHZOD BAKHTIYAROVICH YUSUPOV
Petitioner
v.
ATTORNEY GENERAL OF THE UNITED STATES
Respondent
On Petition for Review of an Order of
The Board of Immigration Appeals
Immigration Judge: Honorable Walter A. Durling
(No. A79-729-905)
No. 06-3160
ISMOIL SAMADOV
Petitioner
v.
ATTORNEY GENERAL OF THE UNITED STATES
Respondent
On Petition for Review of an Order of
The Board of Immigration Appeals
Immigration Judge: Honorable Grace A. Sease
(No. A79-729-711)
Argued April 16, 2007
Before: McKEE and AMBRO, Circuit Judges
ACKERMAN,* District Judge
(Opinion filed: March 27, 2008)
Lawrence H. Rudnick, Esquire (Argued)
Steel, Rudnick & Ruben
1608 Walnut Street, Suite 1500
Philadelphia, PA 19103
*
Honorable Harold A. Ackerman, Senior United States
District Judge for the District of New Jersey, sitting by
designation.
2
Counsel for Petitioner,
Bekhzod Bakhtiyarovich Yusupov
Paul A. Engelmayer, Esquire
Bassina Farbenblum, Esquire (Argued)
Wilmer Cutler Pickering Hale & Dorr
399 Park Avenue, 30th Floor
New York, NY 10022
Counsel for Petitioner,
Ismoil Samadov
Peter D. Keisler
Assistant Attorney General, Civil Division
Michael P. Lindemann
Assistant Director
Jonathan Potter, Esquire (Argued)
United States Department of Justice
Office of Immigration Litigation
P.O. Box 878
Ben Franklin Station
Washington, DC 20044
Counsel for Respondent
OPINION OF THE COURT
3
AMBRO, Circuit Judge
An alien unlawfully in this country may have his removal
blocked under certain circumstances. One is withholding of
removal under Immigration and Nationality Act (INA)
§ 241(b)(3)(A), 8 U.S.C. § 1231(b)(3)(A), which prohibits
removal if the Attorney General believes that the alien’s life or
freedom would be threatened in the country of removal.1
Eligibility for withholding of removal is erased, however, if
“there are reasonable grounds to believe that the alien is a
danger to the security of the United States.” INA
§ 241(b)(3)(B)(iv), 8 U.S.C. § 1231(b)(3)(B)(iv). In this case
we consider the Attorney General’s interpretation of that
1
This provision was added to the INA by the Refugee Act of
1980, Pub. L. No. 96-212, 94 Stat. 102. See INS v. Aguirre-
Aguirre, 526 U.S. 415, 419 (1999). It is sometimes referred to
as mandatory withholding.
Regulations implementing the INA and the United
Nations Convention Against Torture and Other Cruel, Inhuman
or Degrading Treatment or Punishment (CAT) also provide for
withholding of removal. See 8 C.F.R. § 208.16(c). Like
withholding of removal under the INA, withholding of removal
under the CAT is unavailable to an alien to whom the national
security exception applies. Id. § 208.16(d)(2). Because the
question before us is the applicability of that exception, we need
not distinguish here between withholding of removal under the
CAT and the INA. Instead, we simply refer to that relief under
either the INA or the CAT as “withholding of removal.”
4
exception (commonly referred to as the national security
exception).
In In re A– H–, 23 I. & N. Dec. 774, 788 (2005), the
Attorney General construed the exception as referring to “any
nontrivial level of danger” or “any nontrivial degree of risk.”
He further interpreted the provision to establish a “reasonable
person standard,” which he deemed to be “satisfied if there is
information that would permit a reasonable person to believe
that the alien may pose a danger to the national security.” Id. at
789.
The Board of Immigration Appeals (BIA or the Board)
relied on this interpretation 2 in the decisions under review here.3
2
The current national security exception includes the phrase
“reasonable grounds to believe,” which differs from the phrase
“reasonable grounds for regarding” that was at issue in In re
A–H–. See 23 I. & N. Dec. at 787 (referring to “former section
243(h)(2)(D) of the Act”). The BIA treated these two
formulations as identical for the purposes of these cases. No
party argues that the formulations differ in a substantive way
and we see no reason to treat them differently. See also infra
Section IV.B.2 (discussing comparable language in the United
States’ international obligations toward refugees).
3
Yusupov’s case was heard by the U.S. Immigration Judge
(IJ) Walter A. Durling. Samadov’s case was heard by IJ Grace
A. Sease.
5
It affirmed the determination that petitioners, two aliens from
Uzkbekistan, were entitled to deferral of removal under the CAT
because they faced likely persecution or torture if returned to
that country.4 It also concluded that the national security
exception barred petitioners from withholding of removal.
Petitioners argue that we should reject the Attorney
General’s interpretation of the national security exception. For
Each IJ denied the respective asylum applications but
granted deferral of removal (defined below). Judge Durling and
Judge Sease differed in their holdings regarding the national
security exception. Judge Durling held that Yusupov was
entitled to mandatory withholding of removal. Judge Sease held
that Samadov was barred from withholding of removal by the
national security exception.
4
The more limited remedy of deferral of removal under the
CAT is unaffected by the national security exception. 8 C.F.R.
§ 208.17(a). An alien is entitled to deferral of removal if he is
“more likely than not to be tortured” in the country of removal.
Id. Deferral of removal will end upon a change in country
conditions that makes it no longer more likely than not that the
petitioner would be tortured in the country of removal. Id.
§ 208.17(d). The Attorney General also may terminate deferral
of removal upon receipt of diplomatic assurances, forwarded by
the Secretary of State, that the alien would not be tortured upon
removal. Id. § 208.17(f).
For a history of the United States’ adoption of the CAT,
see Silva-Rengifo v. Att’y Gen., 473 F.3d 58, 64 (3d Cir. 2007).
6
the exception to apply, they believe the danger must be current,
it must be “serious” or “grave,” and that this must be established
by at least a probable cause standard.5 The Attorney General
responds that his interpretation of the exception is entitled to
deference under the principles announced in Chevron, U.S.A.,
Inc. v. Natural Resources Defense Council, Inc., 467 U.S. 837
(1984).
We agree with the Attorney General on all points save
one. The challenged interpretation ignores clear congressional
intent to the extent that, instead of following the statutory
language 6 and asking whether an alien “is a danger to the
5
See infra Section IV.A.1 (discussing probable cause
standard).
6
The statute specifies four enumerated exceptions, preceded
by an additional exception in its lead-in paragraph. The full text
for the exceptions reads as follows:
(3) Restriction on removal to a country where alien’s life
or freedom would be threatened
(A) In general
Notwithstanding paragraphs (1) and (2)
[governing countries to which aliens ordered
removed may be deported], the Attorney General
may not remove an alien to a country if the
Attorney General decides that the alien’s life or
freedom would be threatened in that country
7
because of the alien’s race, religion, nationality,
membership in a particular social group, or
political opinion.
(B) Exception
Subparagraph (A) does not apply to an alien
deportable under section 1227(a)(4)(D) of this
title [stating that any alien who “[p]articipated in
Nazi persecution, genocide, or the commission of
any act of torture or extrajudicial killing” is
deportable] or if the Attorney General decides
that–
(i) the alien ordered, incited, assisted, or
otherwise participated in the persecution of
an individual because of the individual’s
race, religion, nationality, membership in
a particular social group, or political
opinion;
(ii) the alien, having been convicted by a
final judgment of a particularly serious
crime[,] is a danger to the community of
the United States;
(iii) there are serious reasons to believe
that the alien committed a serious
nonpolitical crime outside the United
States before the alien arrived in the
United States; or
(iv) there are reasonable grounds to
believe that the alien is a danger to the
security of the United States.
8
security of the United States,” it inquires whether an alien “may
pose a danger to the national security” (emphasis added).
Because we cannot discern from the record whether this error in
the Attorney General’s interpretation led to a result contrary to
the intent of Congress in petitioners’ cases, we remand for
application of the correct standard.
I. Factual Background
For purposes of clause (ii), an alien who has been
convicted of an aggravated felony (or felonies) for
which the alien has been sentenced to an
aggregate term of imprisonment of at least 5 years
shall be considered to have committed a
particularly serious crime. The previous sentence
shall not preclude the Attorney General from
determining that, notwithstanding the length of
sentence imposed, an alien has been convicted of
a particularly serious crime. For purposes of
clause (iv), an alien who is described in section
1227(a)(4)(B) of this title [governing “terrorist
activities”] shall be considered to be an alien
with respect to whom there are reasonable
grounds for regarding as a danger to the security
of the United States.
INA § 241(b)(3), 8 U.S.C. § 1231(b)(3) (emphases added).
9
Petitioners Bekhzod Bakhtiyarovich Yusupov and Ismoil
Samadov are Uzbek nationals. They claim to be “independent
Muslims” who attended the mosque of Imam Obidkhon
Nazarov, whose followers, they assert, have been subject to
continued persecution by the Uzbek government. Yusupov and
Samadov stated that they left Uzbekistan to pursue educational
opportunities in America but refused to return to their former
country for fear of persecution.
Petitioners entered the United States separately in 1999
on F-1 student visas to learn English. With the exception of a
four-week course in English attended by Samadov, petitioners
did not attend educational institutions. Instead, despite lacking
permission to work, they both found employment in
Philadelphia, living together in a house with other Uzbek
nationals, including Erkinjon Zakirov.
In 2002, agents from the Federal Bureau of Investigation
(FBI) visited Yusupov and Samadov at their home. The agents
asked questions about criminal charges asserted by the Uzbek
government and received permission from them to search the
house and the shared household computer. The FBI found no
evidence of criminal activity on the premises, but took the
computer for further analysis. A search of its hard drive
revealed the following in the internet cache:
• a video-clip of a speech by Osama bin
Laden in December 2001;
10
• a video-clip of a speech by Chechen
militant Shamil Basayev;
• a video clip from November 2001,
including a view of what appear to be
Afghan fighters;
• video-clips of what appear to be attacks on
Russian troops and vehicles;
• a publicly available state map showing
locations of Pennsylvania State Police
facilities; and
• an e-mail sent to Zakirov that read as
follows:
Your exit from there might bring some
difficulties to the things we are taking
care of here. Therefore, if you do not
have very strong difficulties, for you to
stay where you are and work for Islam is
also a big jihad.7
7
As petitioners acknowledge, jihad is commonly understood
to mean “holy war.” However, they have presented evidence
that it can have alternative meanings, including “from an inward
spiritual struggle to attain perfect faith to an outward material
11
Following the FBI’s visit, Samadov was detained by the
Immigration and Naturalization Service (INS) (predecessor to
the Department of Homeland Security (DHS)) and served with
a “notice to appear” for overstaying his visa. He was released
on bond on the basis that he posed no danger to the community,
the terms of which he followed.
In 2003, Yusupov moved to Virginia purportedly to get
a higher-paying job. He worked as a school bus driver for a
private Muslim grade school, where he was given access to a
small storeroom with a mattress and an internet-enabled
computer. He also obtained a job at a factory, falsely claiming
to be a U.S. citizen on a federal Employment Eligibility
Verification Form I–9. The Bureau of Immigration & Customs
Enforcement (BICE) of DHS arrested him for making a false
statement on a federal form, and seized a computer and his
duffel bag from the school storeroom. BICE found some film
containing pictures of the New York skyline and an intersection
near the historic Fulton Ferry in the Brooklyn area of New York
City, as well as cached pictures from the internet of violent
activities in Central Asia. Yusupov pled guilty to making a false
statement on the form and was sentenced to payment of a $100
struggle to promote justice and the Islamic social system.” Brief
of Samadov 50 (citing Encyclopedia of Politics and Religion
425–26 (Robert Wuthnow ed., 1998)). The weight, if any, that
this evidence deserves and its relevance to petitioners’ cases are
questions for remand.
12
special assessment and probation. BICE also detained him and
he entered removal proceedings.
In 2004, Samadov was detained again after the Uzbek
government sent a notice of criminal charges8 along with an
extradition request9 for him, Yusupov, and Zakirov.10
8
Samadov testified at the IJ hearing that when FBI agents
came to his house in June 2002 they informed him that the
Uzbek Government had sent an earlier notice of criminal
charges.
9
The request specified that the criminal charges were brought
under Article 244 of the Uzbek Criminal Code for alleged
participation in “forbidden organizations.” In response to the
IJ’s request, the U.S. State Department wrote a letter explaining
that the Uzbek government has used its Criminal Code against
political opponents for non-terrorism-related activities. In
addition, Samadov testified that one of the four or five short-
term boarders who had stayed with Yusupov and him in
2000—a person whose surname was Oripjanov—was also a
follower of Imam Nazarov. Samadov stated that Oripjanov was
arrested and tortured when he returned to Uzbekistan, and that
he was forced to sign false accusations against Samadov, his
other roommates, and other independent Muslims. Samadov
claimed that Oripjanov initially offered to testify on Samadov’s
behalf but subsequently withdrew that offer.
10
Zakirov was granted withholding of removal from the
United States in 2004. See In re Zakirov, No. A 79-729-712, at
13
II. Removal Proceedings and Appeals to the BIA
A. Yusupov
Yusupov conceded that he was removable for violating
the terms of his student visa, but applied for asylum,
withholding of removal, and CAT relief. The IJ denied the
asylum application as untimely. But he made a positive
credibility determination, and concluded that Yusupov had
established, on the basis of his support for Imam Nazarov, a
clear probability of persecution sufficient for meeting the
standard for withholding of removal.
The IJ also found that there were no reasonable grounds
to believe that Yusupov was a danger to U.S. national security
because he had engaged in no violent activities nor had he
shown a propensity for doing so in several years of residence
here, there was nothing to suggest that he espoused violence, the
extradition request was likely a tool of persecution, and the
3 (BIA Dec. Sept. 21, 2004) (finding a “lack of persuasive
evidence that the respondent is a militant, terrorist, or an
extremist” and “a clear probability of persecution and torture
upon [Zakirov’s] return to Uzbekistan”). When asked at oral
argument about Zakirov’s whereabouts, given DHS Special
Agent Mark W. Olexa’s testimony that Zakirov “fled” to
Canada, Samadov’s counsel stated that he had not “fled to
Canada” but instead “went to Canada” openly.
14
cached web-files pertained to world events near his home region
that were of general interest and have become generally
available to the public in recent years. In re Yusupov, No. A 79-
729-905, at 5–8 (IJ Dec. Nov. 19, 2004). Accordingly, the IJ
granted Yusupov’s application for withholding of removal.
DHS appealed to the BIA, which dismissed Yusupov’s
appeal from the denial of asylum and reversed the IJ’s
determination that there were no reasonable grounds to believe
that Yusupov was a danger to our Nation’s security, thus making
him ineligible for withholding of removal.11 The Board
emphasized that “the level of danger required under the statute
need not be particularly high,” and that DHS’s evidence sufficed
to meet this “relatively low burden of establishing ‘reasonable
grounds,’” namely: (1) the Uzbek extradition request and an
Interpol warrant with allegations that Yusupov conspired with
others to use violence, (2) the FBI’s discovery of cached video
files of speeches by bin Laden and others as well as of bombings
in Chechnya, (3) the “jihad” e-mail sent to Yusupov’s roommate
Zakirov, (4) the fact that Yusupov entered the United States on
11
In doing so, the Board employed the Attorney General’s
interpretation of the national security exception: “the reasonable
grounds standard ‘is satisfied if there is information that would
permit a reasonable person to believe that the alien may pose a
danger’ to the security of this country.” In re Yusupov, No. A
79-729-905, at 2 (BIA Dec. Aug. 26, 2005) (emphasis added)
(quoting In re A–H–, 23 I. & N. Dec. at 789).
15
a student visa but never attended school, and (5) Yusupov’s
2003 conviction for making a false statement on a federal form.
In re Yusupov, No. A 79-729-905, at 2–3 (BIA Dec. Aug. 26,
2005). Nevertheless, the BIA agreed with the IJ’s determination
that Yusupov would face persecution and/or torture upon return
to Uzbekistan, and thus granted the more limited remedy of
deferral of removal under the CAT.12
12
At oral argument, counsel for the Government represented
that, until the Uzbek regime changes, the Attorney General
would not accept any assurances that it will not torture
petitioners. He also represented that, although unable to bind
the State Department, the Attorney General was seeking a third
country that would agree to take Yusupov and Samadov and was
willing to discuss assurances from such countries for the safety
of both petitioners. Samadov’s counsel noted, in response, that
litigation positions are not binding on the Attorney General,
particularly if he is replaced. Indeed, the Attorney General has
been replaced between the time of oral argument and the
issuance of this decision.
So far as we understand, the Government has been unable
to find a safe third country for either of the petitioners. See
Yusupov v. Lowe, No. 06-1804, slip op. at 8 (M.D. Pa. Jan. 12,
2007). Reviewing Yusupov’s habeas petition, the District Court
ruled that Yusupov was entitled to immediate release, subject to
the conditions of BICE-supervision, because the Government
had detained him beyond the statutorily permitted 90-day period
without establishing that the alien’s removal would be effected
in the reasonably foreseeable future and without establishing
16
B. Samadov
Samadov also conceded removability and applied for
asylum, withholding of removal, and CAT relief. The IJ denied
his application for asylum as untimely, but granted withholding
of removal under the INA on the basis of the finding that
Samadov’s testimony was “extremely credible” that, if removed
to Uzbekistan, he would face persecution on account of his
beliefs as an independent Muslim. The BIA affirmed in July
2004.
DHS moved the BIA to reopen in September 2004 on the
ground that it had obtained new evidence that had been
previously unavailable—namely, the e-mail mentioning “jihad”
found during the 2002 FBI search of the computer’s hard drive
and an Interpol search warrant based on Uzbek criminal charges
that “special circumstances” existed to justify continued
detention. See 8 U.S.C. § 1231(a)(1)(A) (giving the Attorney
General 90 days to remove an alien after a removal order); id.
§ 1231(a)(3), (6) (permitting aliens to be held in continued
detention or released under continued supervision at the end of
the initial 90-day period); Zadvydas v. Davis, 533 U.S. 678, 689
(2001) (prohibiting indefinite detention and limiting “an alien’s
post-removal-period detention to a period reasonably necessary
to bring about that alien’s removal”); 8 C.F.R. § 241.13(b)(2)(i),
(c), (e)(6), (g) (mandating special review procedures and the
release of the alien in the absence of “special circumstances”
justifying continued detention).
17
in connection with bombings in Uzbekistan in March and April
2004. DHS later acknowledged that the “jihad” e-mail was
addressed to Zakirov rather than Samadov and that it had no
evidence connecting Samadov to the Uzbek bombings, which
occurred while he was in the United States. But the BIA already
had reopened and remanded the case to the IJ.
On remand, Samadov testified that he had not viewed the
video clips (and now points to Yusupov’s credited testimony
that he, Yusupov, had viewed the clips), never engaged in
violent activities, and that Islam condemns violence. In
response to a question whether he had sent money to followers
of Imam Nazarov, Samadov answered that he had sent
approximately $200 to Uzbekistan in charitable donations. He
said that he could not recall whether he had wired additional
money for charity, but that if he did it would have been to his
brother. At a later hearing, Samadov conceded that he had sent
$3,000 to his brother, but asserted that he had not mentioned this
sum previously because it was a repayment of a debt rather than
the type of charitable donation about which he was asked. The
IJ made an adverse credibility determination on the basis of this
exchange.
The IJ denied Samadov’s second application for asylum
as untimely. She concluded that Samadov was ineligible for
withholding of removal because the national security exception
applied. The basis for the finding stemmed from (1) the
computer files found on the hard drive of the computer in
18
Samadov’s residence, (2) his lack of candor concerning the
money sent to Uzbekistan, and (3) opening his house to Uzbek
nationals, one of whom received an e-mail mentioning “jihad.”
In re Samadov, No. A 79-729-711 at 11 (IJ Dec. Aug. 2, 2005).
“At the very least,” the IJ stated, Samadov “provided material
support to an individual whom he knew or should have known
had committed or intended to commit terrorist activity.” Id.
(citation omitted). Nevertheless, the IJ granted deferral of
removal under the CAT on the ground that Samadov faced likely
persecution upon return. Both parties appealed to the
BIA—Samadov appealing the denial of asylum and withholding
of removal, and DHS appealing the grant of deferral of removal.
The BIA dismissed both appeals. It agreed that Samadov
was ineligible for withholding of removal because “there is
sufficient evidence that would permit a reasonable person to
believe that the respondent may pose a danger to the Nation’s
defense, foreign relations, or economic interests.” In re
Samadov, No. A 79-729-711, at 2 (BIA Dec. May 24, 2006).
Declining to state conclusively whether it agreed with the IJ
“that the material support [to terrorism] bar is satisfied by the
facts of this case,” the BIA held that Samadov was ineligible for
withholding of removal because the Attorney General stated that
“‘reasonable grounds’ exist where there is ‘information that
would permit a reasonable person to believe that the alien may
pose a danger to the national security.’” Id. (citing In re A–H–,
23 I. & N. Dec. at 788) (emphasis added). It based this decision
on the following evidence: (1) the 2003 extradition request, (2)
19
the 2004 Interpol notice, (3) the aforementioned video-clips
from the computer in Samadov’s house, (4) a DHS
Memorandum of Investigation describing the contents of those
videos, (5) the Pennsylvania State Police map taken from the
computer in Samdov’s residence, (6) the “jihad” e-mail to
Zakirov, and (7) DHS Special Agent Mark W. Olexa’s
testimony that Zakirov later “fled” to Canada. Id. at 2–3.
Nevertheless, the BIA upheld the IJ’s grant of deferral of
removal because “[t]he record is replete with documentary
evidence . . . which supports the finding that it is more likely
than not that [Samadov], an Independent Muslim, would be
subjected to torture if removed to Uzbekistan.” Id. at 3.
C. Petitions for Review
Yusupov and Samadov now petition us for review.13
13
Samadov was represented superbly by counsel acting pro
bono. The Court expresses its appreciation for the outstanding
efforts of Paul A. Engelmeyer and Bassina Farbenblum (the
latter argued Samadov’s case) in the New York office of the
Wilmer Cutler Pickering Hale and Dorr law firm. (Not only did
they represent Samadov; they also submitted an amicus curiae
brief in Yusupov’s case on behalf of the Harvard Immigration
and Refugee Clinic and others.)
While Yusupov’s counsel – Lawrence H. Rudnick of the
Steel, Rudnick & Ruben law firm in Philadelphia – is not
technically providing pro bono services, we understand that he
is accepting a substantially discounted fee. That action, and his
20
They argue that the BIA erred in applying the Attorney
General’s interpretation of the national security exception.
Petitioners contend that this interpretation is unreasonable, and
thus not entitled to Chevron deference, because it is inconsistent
with the plain meaning of the statute and its statutory context,
and is contrary to United States treaty obligations.14
III. Jurisdiction & Standards of Review
A. Jurisdiction
We have jurisdiction to review the Board’s final orders
of removal under INA § 242(a)(1), 8 U.S.C. § 1252(a)(1). See
Sukwanputra v. Gonzales, 434 F.3d 627, 631 (3d Cir. 2006).15
adroit advocacy, are much appreciated as well.
14
Samadov does not argue, as he had done previously, that he
is entitled to remain in this country because of his marriage to a
United States citizen. Thus we do not address this issue.
15
We have concluded previously that 8 U.S.C.
§ 1252(a)(2)(B)(ii) does not strip us of jurisdiction to review the
Attorney General’s determinations pertaining to the mandatory
withholding of removal provision and the “serious crime” and
“danger to community” exception of the INA because Congress
did not “specif[y]” discretion in the Attorney General. See
Alaka v. Att’y Gen., 456 F.3d 88, 96–97 & n.14 (3d Cir. 2006)
(analyzing 8 U.S.C. § 1231(b)(3)(B)(ii)). That logic applies
21
An order of removal becomes final upon, inter alia, “a
determination by the [BIA] affirming such order.” 8 U.S.C.
§ 1101(a)(47)(B)(i). The Supreme Court has specified that
administrative orders are final when they mark the
“consummation” of the agency’s decision-making process, and
when “rights or obligations have been determined” or when
“legal consequences will flow” from the decision. Bennett v.
Spear, 520 U.S. 154, 177–78 (1997).
“[O]rdinarily a remand to an administrative agency is not
a final order” for purposes of “appellate jurisdiction.” Dir.,
Office of Workers’ Comp. Programs v. Brodka, 643 F.2d 159,
161 (3d Cir. 1981). But several of our sister circuit courts of
appeals have concluded that an order is final for jurisdictional
purposes when a removability determination has been made that
is no longer appealable to the BIA, regardless whether a formal
order of removal has been entered—see, e.g., Lazo v. Gonzales,
462 F.3d 53, 54 (2d Cir. 2006) (“[T]he statutory requirement of
an order of removal is satisfied when—as here—the IJ either
orders removal or concludes that an alien is removable.”
(emphasis in original)); Solano-Chicas v. Gonzales, 440 F.3d
1050, 1053–54 (8th Cir. 2006) (holding that BIA reversal of IJ’s
cancellation of removal created a final order of removal); Nreka
equally to the national security exception, a fact demonstrated by
our exercising jurisdiction in McAllister v. Att’y Gen., 444 F.3d
178, 189 (3d Cir. 2006) (reviewing application of national
security exception).
22
v. Att’y Gen., 408 F.3d 1361, 1367 (11th Cir. 2005) (asserting
jurisdiction over a BIA determination denying asylum without
an express final order of removal because denial of asylum is so
closely tied to removal)—and even if the BIA has remanded for
limited further proceedings. See, e.g., Saldarriaga v. Gonzales,
402 F.3d 461, 466 n.2 (4th Cir. 2005) (finding jurisdiction when
voluntary departure motion still pending before IJ); Del Pilar v.
Att’y Gen., 326 F.3d 1154, 1156–57 (11th Cir. 2003) (finding
jurisdiction where country of removal at issue before IJ);
Castrejon-Garcia v. INS, 60 F.3d 1359, 1361–62 (9th Cir. 1995)
(holding that a BIA order reversing an IJ’s decision to grant
suspension of removal and remanding “for a determination of
voluntary departure in lieu of deportation” was a final order of
removal, as nothing was pending before the BIA and “the
petitioner had no reason or basis for appealing the [IJ’s] decision
in his favor”).
We agree with these decisions and conclude that we have
jurisdiction 16 over these petitions. The BIA affirmed the IJ’s
16
The BIA had jurisdiction to review the appeals from the IJ’s
decisions in the removal proceedings under 8 C.F.R. § 3.2
(amended as 8 C.F.R. § 1003.1(b)(3) (effective April 1, 2005)).
The change in regulations is not significant to our review of the
cases.
The Attorney General correctly notes that we lack
jurisdiction over Samadov’s petition to the extent that Samadov
argues that the IJ and the BIA erred in failing to find that he
23
denial of each asylum application as untimely, vacated the
decision to grant withholding of removal (for Yusupov), denied
withholding of removal (for Samadov), and upheld the decisions
to grant the limited remedy under the CAT of deferral of
removal (for both).
The BIA remanded both cases to the IJ pursuant to 8
C.F.R. § 1003.1(d)(6) 17 “for the purpose of allowing [DHS] the
opportunity to complete or update identity, law enforcement, or
security investigations or examinations, and further proceedings,
if necessary, and for the entry of an order as provided by 8
C.F.R. § 1003.47(h).” 18 These administrative matters do not
qualified for an exception to the one-year limit for filing for
asylum. See Sukwanputra, 434 F.3d at 633–34.
17
This section requires the Board to update identity,
background checks, and other security investigations before
issuing a decision granting protection from removal, 8 C.F.R.
§ 1003.1(d)(6)(i)(A), and allows the Board to “determine the
best means to facilitate the final disposition of the case,”
including through a remand, id. § 1003.1(d)(6)(ii).
18
Section 1003.47(h) requires IJs to consider, on remand, “the
results of the identity, law enforcement, or security
investigations or examinations,” and “[i]f new information is
presented, [allows them to] hold a further hearing if necessary
to consider any legal or factual issues, including issues relating
to credibility, if relevant,” and “then [to] enter an order granting
24
affect the controlling removal determination. Accordingly, the
BIA determinations here are final within the meaning of the
INA, and we have jurisdiction to review them.19
or denying the immigration relief sought.”
19
Another opinion filed today at first glance may give a
reader the impression that it and our opinion are at odds on this
jurisdictional point. Vakker v. Attorney General, Case No. 06-
1949, __ F.3d __ (3d Cir. March 14, 2008), involved an alien
who prevailed before the BIA, successfully claiming that he was
entitled to withholding of removal. The BIA subsequently
remanded for a background check. That background check
could have affected his eligibility for withholding of removal.
For example, it could have revealed that he was a member of a
terrorist organization and thus barred from withholding of
removal by the national security exception. Thus the BIA’s
order granting withholding of removal in Vakker was not final
prior to the completion of the background check, and
jurisdiction was lacking.
Our case, on the other hand, involves two aliens who the
BIA concluded were barred from withholding of removal.
Nothing in their background checks could affect that
determination. Nor could the background checks affect
Yusupov’s and Samadov’s eligibility for deferral of removal.
Deferral of removal may be withdrawn only if new evidence
indicates that it no longer is more likely than not that an alien
will be tortured in the country of removal. See 8 C.F.R.
§ 208.17(d). Discovery of a negative fact in the alien’s
background (e.g., that he has committed aggravated felonies or
25
B. Standards of Review
We uphold the BIA’s determinations if they are
“‘supported by reasonable, substantial, and probative evidence
on the record considered as a whole.’” Li v. Att’y Gen., 400 F.3d
157, 162 (3d Cir. 2005) (quoting INS v. Elias-Zacarias, 502
U.S. 478, 481 (1992)). We review the IJ’s factual findings
under this same substantial evidence standard where, as here,
“‘the BIA directs us to the opinion and decision of the IJ who
originally assessed [the] application.’” Shah v. Att’y Gen., 446
F.3d 429, 434 (3d Cir. 2006) (quoting Dia v. Ashcroft, 353 F.3d
228, 240 (3d Cir. 2003) (en banc)).
We exercise de novo review over constitutional claims or
questions of law and the application of law to facts. 8 U.S.C.
§ 1252(a)(2)(D); Alaka, 456 F.3d at 94 n.8, 102; Kamara v.
Att’y Gen., 420 F.3d 202, 210–11 (3d Cir. 2005).
that he has joined a terrorist organization) would not alter his
eligibility for deferral of removal. In fact, the relevant
regulation presumes that an alien receiving deferral of removal
still “is subject to the provisions for mandatory denial of
withholding of removal.” Id. at § 208.17(a). Accordingly, the
BIA’s orders in these cases provided a final adjudication of the
substantive rights of Yusupov and Samadov. We consequently
have jurisdiction.
26
“The judiciary is the final authority on issues of statutory
construction and must reject administrative constructions which
are contrary to clear congressional intent.” Chevron, 467 U.S. at
843 n.9. However, “judicial deference to the Executive Branch
is especially appropriate in the immigration context where
officials ‘exercise especially sensitive political functions that
implicate questions of foreign relations.’” Aguirre-Aguirre, 526
U.S. at 425 (quoting INS v. Abudu, 485 U.S. 94, 110 (1988)).
The Supreme Court has explained that “[i]t is clear that
principles of Chevron deference are applicable” to the INA
because that statute charges the Attorney General with the
administration and enforcement of the statute, makes controlling
the determinations and rulings of the Attorney General with
respect to all questions of law, and confers decisionmaking
authority on the Attorney General with respect to an alien’s
entitlement to withholding of removal. Id. at 424–25 (quoting
8 U.S.C. §§ 1103(a)(1), 1253(h)). We also “afford Chevron
deference to the BIA’s reasonable interpretations of statutes
which it is charged with administering.” Kamara, 420 F.3d at
211 (citing Aguirre-Aguirre, 526 U.S. at 424, and Chevron, 467
U.S. at 842); see also Tineo v. Aschcroft, 350 F.3d 382, 396 (3d
Cir. 2003) (“There is also no longer any question that the BIA
should be accorded Chevron deference for its interpretations of
the immigration laws.”); Gao v. Ashcroft, 299 F.3d 266, 271 (3d
Cir. 2002) (explaining that BIA interpretations of the INA are
entitled to Chevron deference because the Attorney General
vested the BIA with power to exercise the discretion conferred
on him by law). Thus we turn to how Chevron affects this case.
27
Chevron deference involves a two-step inquiry. At step
one, the court must determine “whether Congress has directly
spoken to the precise question at issue” and “unambiguously
expressed [its] intent.” Chevron, 467 U.S. at 842–43. If so, the
inquiry ends, as both the agency and the court must give effect
to the plain language of the statute. Id. at 843 n.9 (“If a court,
employing traditional tools of statutory construction, ascertains
that Congress had an intention on the precise question at issue,
that intention is the law and must be given effect.”).
When “the statute is silent or ambiguous with respect to
the specific issue,” the court proceeds to step two, where it
inquires whether the agency’s “answer is based on a permissible
construction of the statute.” Id. at 843. “If a statute is
ambiguous [or silent], and if the implementing agency’s
construction is reasonable, Chevron requires a federal court to
accept the agency’s construction of the statute, even if the
agency’s reading differs from what the court believes is the best
statutory interpretation.” Nat’l Cable & Telecomms. Ass’n v.
Brand X Internet Servs., 545 U.S. 967, 980 (2005) (citing
Chevron, 467 U.S. at 843–44 & n.11).
IV. Analysis
Having concluded that we have jurisdiction and
determined the standards for review, we turn to the national
security exception to mandatory withholding. We consider the
interpretation of two portions of the exception: “reasonable
28
grounds to believe,” and “is a danger to the security of the
United States.” For the sake of clarity, we perform the Chevron
analysis separately for each challenged portion of the Attorney
General’s interpretation of the national security exception. See,
e.g., Sec’y of Labor, Mine Safety, & Health Admin. v. Nat’l
Cement Co. of Cal., 494 F.3d 1066, 1073 (D.C. Cir. 2007)
(taking a similar approach by analyzing separately under
Chevron step one the terms “private” and “appurtenant to” in the
statutory definition of “coal or other mine”). In so doing, we
adhere to the instruction that in “ascertaining whether the
agency’s interpretation is a permissible construction of the
language, a court must look to the structure and language of the
statute as a whole.” National R.R. Passenger Corp. v. Boston &
Maine Corp., 503 U.S. 407, 417 (1992).
A. “Reasonable grounds to believe”
1. Chevron Step One
Yusupov argues that Congress’ use of the phrase
“reasonable grounds to believe” demonstrates its clear intent to
incorporate a probable cause 20 standard borrowed from criminal
20
Black’s Law Dictionary defines “probable cause” in the
criminal law context as “[a] reasonable ground to suspect that a
person has committed or is committing a crime or that a place
contains specific items connected with a crime.” Black’s Law
Dictionary 1239 (8th ed. 2004). It explains that “[u]nder the
29
law into the national security exception. However, it is not clear
that we should read this phrase through the lens of criminal law.
Congress was free to write a standard without considering our
criminal law jurisprudence. The statutory context does not
indicate that Congress clearly intended to incorporate criminal
law standards. For example, immediately before the national
security exception, the statute prohibits withholding of removal
if “there are serious reasons to believe that the alien committed
a serious nonpolitical crime outside the United States.” INA
§ 241(b)(3)(B)(iii), 8 U.S.C. § 1231(b)(3)(B)(iii). The “serious
reasons” standard does not map clearly to any criminal law
criterion. This suggests that the statute creates a series of
standards that may share surface similarities with those of
criminal law, but that need not be reduced to criminal law
equivalents.21
Fourth Amendment, probable cause – which amounts to more
than a bare suspicion but less than evidence that would justify
a conviction – must be shown before an arrest warrant or search
warrant may be issued.” Id. It identifies as synonyms the terms
“reasonable cause; sufficient cause; reasonable grounds;
reasonable excuse.” Id. (italics removed). (Black’s also defines
“probable cause” in the torts context as “[a] reasonable belief in
the existence of facts on which a claim is based and in the legal
validity of the claim itself.” Id.)
21
It is true that the BIA adopted what appears to be a probable
cause standard in analyzing the similar language of INA
§ 212(a)(3)(B)(i)(II) (prohibiting entry into the United States if
30
More simply, if Congress wished to ensure the
incorporation of a probable cause standard, it could have done
so explicitly. In that event, we would assume that, because
Congress used a term of art, it intended to incorporate the
requirements imposed by the jurisprudence regarding that term.
See McDermott Int’l, Inc. v. Wilander, 498 U.S. 337, 342
(1991); Morrissette v. United States, 342 U.S. 246, 263 (1952).
Absent explicit use of a term of art, we hesitate to make
comparable assumptions.
Accordingly, we are unpersuaded that the phrase
“reasonable grounds to believe,” which is not defined in the
INA, is unambiguous. As petitioners note, there are strong
arguments that it means “probable cause,” including the fact that
Black’s Law Dictionary defines “reasonable grounds” as
equivalent to “probable cause.” See Black’s Law Dictionary,
supra note 20, at 1239. However, just as a term with multiple
definitions may be unambiguous in context, see Brown v.
Gardner, 513 U.S. 115, 118 (1994), the existence of a single
definition in Black’s Law Dictionary does not preclude a term
the Attorney General, a consular officer, or the DHS Secretary
“knows, or has reasonable ground to believe, [that an alien] is
engaged in or is likely to engage after entry in any terrorist
activity”). See In re U–H–, 23 I. & N. Dec. 355, 356 (BIA
2002). However, this is not equivalent to a court concluding
that Congress clearly intended to adopt a probable cause
standard.
31
from being ambiguous in context. Because of the ambiguity we
perceive, we pass to the second step of the Chevron analysis as
to that term—whether the Attorney General’s interpretation is
reasonable.
2. Chevron Step Two
The Attorney General22 began the interpretation of
“reasonable grounds for regarding” by agreeing with the
conclusion of the First Circuit Court of Appeals in Adams v.
Baker, 909 F.2d 643, 649 (1st Cir. 1990), that the statutory
reference to “reasonable” grounds “implies the use of a
reasonable person standard.” In re A–H–, 23 I. & N. Dec. at
788. This, the Attorney General concluded, was “consistent
with the BIA’s reliance on ‘probable cause’ cases.” Id. He
faulted the BIA, however, for equating probable cause with a
preponderance of the evidence standard, explaining that
“‘reasonable grounds for regarding’ is substantially less
stringent than preponderance of the evidence.” Id. at 789.
Instead, the Attorney General concluded, “[t]he ‘reasonable
grounds for regarding’ standard is satisfied if there is
information that would permit a reasonable person to believe
22
The Attorney General overruled the decision of the BIA in
In re A–H– after that case was referred to him by the Acting
Commissioner of the INS. See 8 C.F.R. § 3.1(h)(1)(iii) (now
amended as 8 C.F.R. § 1003.1(h)(1)(iii) to reflect creation of
DHS).
32
that the alien may pose a danger to the national security.” Id.
In this context, the Attorney General appears implicitly
to have adopted a “probable cause” standard from criminal law,
a fact acknowledged in the responses to these petitions. Atty
Gen.’s Br. in Samadov 27 (“The Attorney General . . . held that
the term ‘reasonable grounds’ . . . was akin to the standard
required for probable cause.”); Atty Gen.’s Br. in Yusupov 22
(same). Indeed, the Attorney General appears to have assumed
that “probable cause” and “reasonable grounds” are
synonymous. We focus our analysis on the resulting interpretive
standard adopted by the Attorney General.23
We know of no basis for doubting the reasonableness of
the Attorney General’s interpretation of “reasonable grounds for
regarding” as being satisfied “if there is information that would
23
Accordingly, we do not attempt to discern whether another
standard, such as the “reasonable suspicion” test articulated in
Terry v. Ohio, 392 U.S. 1 (1968), would be more appropriate.
We note that the Attorney General did not discuss Terry in In re
A–H–. Any suggestion (including the suggestion made by
government counsel at oral argument and, somewhat obliquely,
in its briefing) that we should adopt that standard would be a
litigation position entitled to no deference. See Bowen v.
Georgetown Univ. Hosp., 488 U.S. 204, 212 (1988) (explaining
that courts should not defer “to agency litigating positions that
are wholly unsupported by regulations, rulings, or administrative
practice”).
33
permit a reasonable person to believe.” Although we conclude
that the statutory language does not demonstrate a clear
congressional intent to adopt a probable cause standard, the
Attorney General’s adoption of a standard akin to probable
cause in criminal cases is also reasonable, and thus “a
permissible construction of the statute.” See Chevron, 467 U.S.
at 843–44 & n.11.
The Attorney General also decided in In re A–H– that
“[t]he information relied on to support the ‘reasonable grounds’
determination need not meet standards for admissibility of
evidence in court proceedings.” A–H–, 23 I. & N. Dec. at 789.
We reject the contention that this was unreasonable, as nothing
in the statute requires that the information to be considered must
be admissible under the Federal Rules of Evidence. In so doing,
we agree with the First Circuit Court of Appeals in recognizing
that the immigration context is different from that of a
courtroom. See Adams, 909 F.2d at 649. Petitioners fail to
point to anything in the INA that incorporates the Rules of
Evidence. Rather, the INA imposes an implicit requirement that
the evidence be reliable enough to allow a reasonable person to
decide that the alien poses a national security risk. The Attorney
General thus is reasonable to interpret the national security
exception as allowing the consideration of any evidence that is
“not ‘intrinsically suspect.’” 24 See A–H–, 23 I. & N. Dec. at 790
24
Because we do not reach the merits of Samadov’s case, we
need not consider his argument that the Attorney General’s
34
(quoting Adams, 909 F.2d at 649).
Because the Attorney General’s interpretations of the
ambiguous phrase “reasonable grounds to believe,” and the type
of evidence allowable in making that determination, are
reasonable, we defer to them under Chevron.
B. “Is a danger to the security of the United
States”
We turn to the Attorney General’s interpretation of the
phrase “is a danger to the security of the United States.” The
ordinary meaning of “danger” is “peril”; “exposure to harm,
loss, pain, or other negative result”; “cause of peril”; or
“menace.” Black’s Law Dictionary, supra note 20, at 421.
Here, the Attorney General reasons: “Read as a whole . . . the
phrase ‘danger to the security of the United States’ is best
understood to mean a risk to the Nation’s defense, foreign
decision to follow Adams violates the Fifth Amendment’s Due
Process Clause. We have explained that, in the removal context,
“whether an individual’s constitutional rights are violated turns
on whether the evidence considered by the BIA is reliable and
trustworthy.” Ezeagwuna v. Ashcroft, 325 F.3d 396, 405 (3d
Cir. 2003). The Attorney General’s refusal to consider evidence
that is “intrinsically suspect” may appear to defeat a due process
claim. However, because we do not consider the evidence in
this case, we do not rule definitively on this issue.
35
relations, or economic interests.” Accord In re A–H–, 23 I. & N.
Dec. at 788. This interpretation follows the definition of
“national security” used for a separate section of the INA. See
INA § 219(d)(2), 8 U.S.C. § 1189(d)(2) (defining “national
security,” for the purposes of that section, as “the national
defense, foreign relations, or economic interests of the United
States”).
We are not asked to determine the contours of risk to our
Nation’s defense, foreign relations, or economic interests.
Instead, applying the Chevron analysis, we consider petitioners’
arguments that, for the national security exception to apply, (1)
it is incorrect for the Attorney General to conclude that an alien
may pose a risk to national security, and (2) any danger to
national security must be “serious” and not just “non-trivial.”
1. “Is a danger” versus “may pose a
danger”
Although we defer to the Attorney General’s
interpretation of the phrases “reasonable grounds to believe” and
(as discussed below) “danger to the security of the United
States,” we do not defer to his reading of “is a danger.” “Is”
does not mean “may,” as suggested by the Attorney General’s
formulation that the national security exception “is satisfied if
there is information that would permit a reasonable person to
believe that the alien may pose a danger to the national
security.” In re A–H–, 23 I. & N. Dec. at 789 (emphasis
36
added). This interpretation accords with neither the plain
wording nor the ordinary meaning of the statutory text, which
does not refer to belief in a mere possibility. In other words,
“is”—and its subjunctive form “would”—connote a more
certain determination than that “the alien ‘might’ or ‘could’ be”
a danger for the national security exception to apply. See INS v.
Stevic, 467 U.S. 407, 422 (1984) (“The section [‘would be
threatened’] literally provides for withholding of deportation
only if the alien’s life or freedom ‘would’ be threatened in the
country to which he would be deported; it does not require
withholding if the alien ‘might’ or ‘could’ be subject to
persecution.”).
Instead, we must take the statute to mean what it says:
“is” indicates that Congress intended this exception to apply to
individuals who (under a reasonable belief standard) actually
pose a danger to U.S. security. It did not intend this exception
to cover aliens who conceivably could be such a danger or have
the ability to pose such a danger (a category nearly anyone can
fit).25 Accordingly, the Attorney General’s interpretation of “is
a danger” as “may pose a danger” fails at the first step of the
Chevron analysis.
The introduction of “may” in the statement of the
25
As noted below, courts in other countries also have
interpreted the national security exception to require a serious
danger that is actual, not theoretical.
37
standard in In re A–H– perhaps is no more than an unintentional
and inartful articulation on the part of the Attorney General.
Indeed, in remanding the case, the Attorney General directed the
BIA to inquire whether “the evidence would support a
reasonable belief that respondent poses a danger to our national
security interests.” In re A–H–, 23 I. & N. Dec. at 790 (emphasis
added). However, as discussed below, the BIA quoted the
former, incorrect phrasing in petitioners’ cases. Thus we cannot
conclude that the error of In re A–H– reflects nothing more than
the specific posture of that case and that it could not have
affected petitioners.
Nor do we agree with an argument that we may affirm
nonetheless on this point because, even if it recited an incorrect
standard, the BIA applied the correct standard—i.e., it inquired
whether each petitioner “is” a danger to the security of the
United States. We agree that we should ask whether the correct
standard was applied in petitioners’ cases. See Lavira v. Att’y
Gen., 478 F.3d 158, 165 (3d Cir. 2007). However, we disagree
that the application of a correct standard can be discerned from
the record before us. In Yusupov’s proceedings, the BIA stated
that the IJ determined that “the government failed to meet the
threshold for establishing that an alien poses a national security
risk” before itself concluding that “the record contains
information that would lead a reasonable person to believe that
the respondent may pose a danger to national security.” In re
Yusupov, No. A 79-729-905 (BIA Dec. Aug. 26, 2005)
(emphases added). Similarly, in the Samadov proceedings, the
38
BIA noted that the IJ had found “the requisite ‘reasonable
grounds to believe that the alien is a danger to the security of the
United States’” before affirming on the basis that the record
contained “sufficient evidence that the respondent may pose a
danger to [national security].” In re Samadov, No. A 79-729-
711 (BIA Dec. May 24, 2006) (emphases added). These
differences may not have affected the result in either case, but
we cannot assume this to be true. Given the important interests
at stake and the BIA’s expertise, we conclude that it would be
most appropriate to remand these cases to that body for review
under the correct standard.26
2. Whether “danger to the security of the
United States” Requires the Modifier
“serious”
Petitioners argue that an alien threatens the security of the
United States only if the danger is “serious.” Although they do
not make that claim within the Chevron framework, we consider
26
We thus make no comment on the sufficiency of the
evidence for a determination that Yusupov and Samadov are
subject to the national security exception to mandatory
withholding. In so refraining, we follow the rule laid down by
the Supreme Court in INS v. Ventura, 537 U.S. 12, 16 (2002)
(per curiam). Accord Silva-Rengifo, 473 F.3d at 71 (remanding
the case after clarifying the proper legal standard, thus allowing
the BIA to apply the correct standard in the first instance).
39
it in terms of that analysis, asking whether the Attorney
General’s interpretation of the statutory language is entitled to
deference. We conclude that we should defer.
To repeat, at the first step of the Chevron analysis we ask
whether the statute announces a clear congressional intent as to
the meaning of the phrase “danger to the security of the United
States.” Petitioners argue that the legislative history of U.S.
adoption of refugee protections and an international consensus
compel the conclusion that Congress clearly intended for a
national security danger to be “serious” for an exception to
mandatory withholding of removal to apply.
The national security exception was passed as part of the
Refugee Act of 1980, Pub. L. No. 96-212, 94 Stat. 102. See
Aguirre-Aguirre, 526 U.S. at 419–20. It grew out of the United
Nations Convention Relating to the Status of Refugees. 189
U.N.T.S. 150 (July 28, 1951) (the 1951 U.N. Convention).
Section 203(e) of the Refugee Act amended existing law on the
withholding of removal, “basically conforming it to the
language of Article 33 of the United Nations Protocol [Relating
to the Status of Refugees, Jan. 31, 1967, [19] U.S.T. 6223,
T.I.A.S. No. 6577]” (the 1967 U.N. Protocol). Stevic, 467 U.S.
at 421.27 The main provision of the 1967 U.N. Protocol is
27
The 1967 U.N. Protocol “bound parties to comply with the
substantive provisions of Articles 2 through 34 of the [the 1951
U.N. Convention].” Stevic, 467 U.S. at 416. The United States
40
Article 33.1—the so-called “nonrefoulement” obligation.28 It
provides that a contracting country must not expel or return a
refugee to a country where his “life or freedom would be
threatened on account of his race, religion, nationality,
membership [in] a particular social group or political opinion.”
Article 33.2 provides an exception to that rule when “there are
reasonable grounds for regarding [the refugee] as a danger to the
security of the country in which he is.”
Foreign courts 29 and international law scholars 30 appear
is not a signatory to the 1951 U.N. Convention. Id. n.9.
28
For a detailed explanation of the term “refouler,” see Sale
v. Haitian Centers Council, Inc., 509 U.S. 155, 180–82 &
nn.37–40 (1993).
29
Foreign courts uniformly have read the national security
exception (in equivalent wording) to require reasonable belief
in a danger that is serious and actual. See Zaoui v. Attorney
General, [2005] 1 N.Z.L.R. 690, ¶ 135–36 (C.A.) (interpreting
the phrase “danger to the security of New Zealand”); Suresh v.
Canada (Minister of Citizenship & Immigration), [2002] 1
S.C. 3, ¶ 90, 92 (interpreting the phrase “danger to the
security of Canada”); NSH v. Sec’y of State, (1998) Imm. A.R.
389, 395 (Eng. C.A.) (interpreting the phrase “danger to the
security of the country”).
30
International law scholars agree (unanimously so far as we
can tell) that Article 33.2 carves out a limited exception to
41
to be unanimous in viewing the Article 33.2 exception as
referring to a serious danger. The legislative history31 of the
Refugee Act of 1980 makes clear that Congress intended to
protect refugees to the fullest extent of our Nation’s
mandatory withholding, and that the “danger” sufficient to
threaten national security encompasses only serious acts. See,
e.g., James C. Hathaway, The Rights of Refugees Under
International Law 346 (2005); Sir Elihu Lauterpacht & Daniel
Bethlehem, The Scope & Content of the Principle of Non-
Refoulement, ¶¶ 170, 191 (UNHCR 2001); Atle Grahl-Madsen,
Commentary on the Refugee Convention 1951, 236 (UNHCR
1963) (that “danger” encompasses “acts of a rather serious
nature”); Paul Weis, The Refugee Convention, 1951: The
Travaux Preparatoires Analysed with a Commentary 342-43
(1995).
It is worth noting that the Supreme Court has cited
Grahl-Madsen and Lauterpacht as authoritative. See, e.g., INS
v. Cardoza-Fonseca, 480 U.S. 421, 440 n.24 (1987) (Grahl-
Madsen); Alfred Dunhill of London, Inc. v. Cuba, 425 U.S. 682,
710 n.3 (1976) (Lauterpacht); id. at 728 n.14 (Marshall, J.,
dissenting) (Lauterpacht).
31
We recognize that courts often look to legislative history
because it can be a useful aid to statutory construction, and to
international law to the extent that it has been incorporated into
our law. See Cardoza-Fonseca, 480 U.S. at 432–33 & n.12.
42
international obligations.32 Indeed, petitioners appear to be
correct that Congress intended to allow exceptions to our
nonrefoulement obligations only in a narrow set of
circumstances.
32
“The principal motivation for the enactment of the Refugee
Act of 1980 was a desire to revise and regularize the procedures
governing the admission of refugees into the United States,”
Stevic, 467 U.S. at 425, and to make “U.S. statutory law clearly
reflect[] our legal obligations under international agreements.”
Id. at 426 n.20 (internal quotation marks omitted); see also
Haitian Centers Council, 509 U.S. at 178 (pointing out that the
“history of the 1980 Act does disclose a general intent to
conform our law to Article 33 of the Convention”); Cardoza-
Fonseca, 480 U.S. at 436 (noting that “one of Congress’ primary
purposes was to bring United States refugee law into
conformance with” the 1967 U.N. Protocol); Marincas v. Lewis,
92 F.3d 195, 198 (3d Cir. 1996) (“[T]he Refugee Act was
enacted to fulfill our treaty obligations under the [1967] U.N.
Protocol for the benefit of aliens . . . who claim to be fleeing
persecution in their homelands.”).
The adoption of essentially identical language to that
contained in Article 33 of the 1967 U.N. Protocol is important
because it is one of the strongest indicators that Congress
intended to incorporate the understanding of the Protocol
developed under international law into the U.S. statutory
scheme. See Haitian Centers Council, 509 U.S. at 180 & n.36;
Cardoza-Fonseca, 480 U.S. at 429, 432, 437.
43
However, petitioners’ argument ignores that “danger to
the security of the United States” includes an inherent
seriousness requirement. It does not easily accord acceptable
gradations, as almost any “danger” to U.S. security is serious.
Congress did not announce a clear intent that the danger to U.S.
security be “serious” because such a modifier likely would be
redundant. As we understand their argument, petitioners in
effect ask us to hold that Congress clearly intended that the
national security exception only apply to individuals who pose
a severely serious danger to our Nation. We cannot grant such
a request, as it would be illogical for us to hold that Congress
clearly intended for an alien to be non-removable if he poses
only a moderate danger to national security.
Congress was obviously silent as to any modifier for
“danger.” Thus we proceed to step two in our Chevron analysis.
See Chevron, 467 U.S. at 843 (directing reviewing court to pass
to step two if the statute is “silent or ambiguous with respect to
the specific issue”). Accordingly, the only remaining question
in these petitions for review 33 is whether the Attorney General
33
Future cases may challenge the Attorney General’s
interpretation of what constitutes “the security of the United
States.” For example, we can imagine questions arising as to
whether certain financial crimes might rise to the level of
implicating the economic interests aspect of national security.
That is not the question before us here, however, as the basic
allegation about petitioners is, in effect, that they support illegal
44
interpreted the national security exception reasonably in
concluding that it applied to any “nontrivial level of danger” or
“nontrivial degree of risk” 34 to U.S. security. See A–H–, 23 I. &
N. Dec. at 788. Like a “seriousness” requirement, the modifier
“non-trivial” likely is redundant.35 In this context, the Attorney
General was not unreasonable, even if this turns out to reflect an
excess of caution, to ensure that immigration judges do not
consider trivial dangers in applying the national security
exception. Accordingly, we defer to the Attorney General’s
terrorist groups who aim to commit violent acts against the
United States.
34
“Danger” inherently requires a heightened level of risk.
“Risk” can be used synonymously with “probability,” without
giving an indication of likelihood. In contrast, “risk” is used in
common legal parlance to indicate a heightened likelihood that
an event may occur. For example, while there is a possibility
that any criminal defendant will flee, a court will not consider a
defendant a “flight risk” unless there is a heightened possibility
of such flight. The distinction between “danger” and “risk” is
not at issue in this case, but we have no doubt that the Attorney
General uses “risk” as synonymous with “danger.”
35
We recognize that the Attorney General defined
“nontrivial” dangers or risks in distinction to those that are
“serious,” “significant,” or “grave.” See id. However, we note
that the distinction between “serious” and “nontrivial” may be
one without a difference, and in any event appears to have no
practical effect.
45
interpretation.
V. Conclusion
Per the principles of Chevron, we defer to most of the
Attorney General’s interpretation of the national security
exception to mandatory withholding of removal. We defer to
his interpretation of the reasonableness and danger requirements
in that exception. However, his interpretation conflicts with the
intent of Congress by altering the requirement that an alien “is”
a danger to national security to one where an alien “may pose”
a danger to national security. Because we cannot discern from
the record whether the results in petitioners’ cases were affected
by this misinterpretation, we remand for application of the
correct legal standard.
46