Pheap Sor v. Atty Gen USA ( 2005 )

Opinions of the United
2005 Decisions States Court of Appeals
for the Third Circuit
10-27-2005
Pheap Sor v. Atty Gen USA
Precedential or Non-Precedential: Non-Precedential
Docket No. 04-3241
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NOT PRECEDENTIAL
IN THE UNITED STATES COURT
OF APPEALS
FOR THE THIRD CIRCUIT
NO. 04-3241
PHEAP SOR,
Petitioner
v.
ATTORNEY GENERAL OF THE UNITED STATES,
Respondent
On Petition for Review of an Order of the Board of Immigration Appeals
No. A95-841-726
Submitted Pursuant to Third Circuit LAR 34.1(a)
October 19, 2005
BEFORE: SMITH, STAPLETON and NYGAARD, Circuit Judges
(Opinion Filed October 27, 2005 )
OPINION OF THE COURT
STAPLETON, Circuit Judge:
Appellant Pheap Sor, a woman from Cambodia, appeals the denial of her
applications for asylum and withholding of removal. After a hearing, the IJ found that
Sor had “intentionally fabricated her entire case.” App. at 18. He further concluded that,
assuming her story to be credible, she was not entitled to relief because she had “engaged
in terrorist activity.” App. at 16. The BIA upheld the IJ’s decision. While it expressly
did not defer to the IJ’s credibility determination, it agreed that Sor had engaged in
terrorist activity:
The respondent testified that she recruited for the Cambodian Freedom Fighters
(CFF), that she knew the CFF’s mission was to overthrow the Cambodian
government, using violence if necessary, and that in December 2000, the CFF
attacked a Cambodian government installation with a grenade, thus incurring
casualties. Although the United States Department of State has not officially
designated the CFF as a foreign terrorist organization, the respondent remains
inadmissible . . . because she engaged in terrorist activity.
App. at 22 (internal citations omitted). It is undisputed that the State Department has not
designated the CFF to be a terrorist organization.
Both asylum and withholding of removal are not available to aliens who have
engaged in terrorist activities as defined in the statutory scheme. See 8 U.S.C. §
1158(b)(2)(A)(v) (finding aliens ineligible for asylum if they fall under certain portions of
§ 1182(a)(3)(B) – the statutory provision defining terrorist activities); 8 U.S.C. §
1231(b)(3)(B)(iv) (refusing to allow withholding of removal to aliens if there are
“reasonable grounds” to believe that the alien is “a danger to the security of the United
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States” and specifically referring to § 1227(a)(4)(B) which states that the definition
includes any alien described under § 1182(a)(3)(B) – the statutory provision defining
terrorist activities).
Section 212(a)(3)(B)(i)(I) of the INA provides that “[a]ny alien who (I) has
engaged in terrorist activity . . . is inadmissible.” 8 U.S.C. § 1182(a)(3)(B)(i)(I). In this
context, “engage in terrorist activity” includes:
to solicit any individual . . . (cc) for membership in a terrorist organization
described in clause (vi)(III) unless the solicitor can demonstrate that he did
not know, and should not reasonably have known, that the solicitation
would further the organization’s terrorist activity . . .
8 U.S.C. § 1182(a)(3)(B)(iv)(V)(cc). Clause (vi)(III) defines a “terrorist organization” as
“a group of two or more individuals, whether organized or not, which engages in the
activities described in subclause (I), (II), or (III) of clause (iv).” 8 U.S.C. §
1182(a)(3)(B)(vi)(III).1 This refers back to clause (iv) which defines “engage in a
terrorist activity” to include:
(I) to commit or to incite to commit, under circumstances indicating an
intention to cause death or serious bodily injury, a terrorist activity; [or]
(II) to prepare or plan a terrorist activity . . .
8 U.S.C. § 1182(a)(3)(B)(vi)(I)-(II). In this context, “terrorist activity” means, among
other things:
any activity which is unlawful under the laws of the place where it is
1
It is worth noting here that it is clause (vi)(II), not (vi)(III), that refers to the
designation of an organization as a terrorist organization by the Secretary of State. See 8
U.S.C. § 1182(a)(3)(B)(vi)(II).
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committed . . . and which involves . . . (V) The use of any . . . (b) 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.
8 U.S.C. § 1182(a)(3)(B)(iii)(V)(b).
“Engag[ing] in terrorist activity” under these statutory provisions clearly includes
the conduct that Sor admitted to at her hearing. She admitted that she solicited
individuals to become members of an organization (the CFF), see 8 U.S.C. §
1182(a)(3)(B)(iv)(V)(cc), that she knew was engaged in certain illegal activities (the
attack on the government), see 8 U.S.C. § 1182(a)(3)(B)(vi)(III), including the planning
and committing of, see 8 U.S.C. § 1182(a)(3)(B)(vi)(I)-(II), illegal activities which
involve the use of explosive devices (grenades) with intent to endanger the safety of one
or more individuals or to cause substantial property damage. See 8 U.S.C. §
1182(a)(3)(B)(iii)(V)(a). She has thus admitted each of the elements of “engag[ing] in
terrorist activity.” In addition, the evidence indicates that she has an ongoing relationship
with CFF. She receives monthly financial payments from the group and testified that her
application for asylum was prepared by a person she identified as the president of the CFF
in the United States. It follows that the decision of the BIA was supported by substantial
evidence.
We have upheld a similar determination by the BIA where the petitioner admitted
to much less involvement in militant activities. In Singh-Kaur v. Ashcroft, 385 F.3d 293(3d Cir. 2004), we found that an alien who admitted only to providing food and shelter to
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a group of militant Sikhs who opposed the Indian government was properly found to have
provided “material support” to those “engaged in terrorist activities.” Id. at 299–301.
Sor was not denied due process of law as she contends. In immigration
adjudications, the Due Process Clause mandates that:
An alien: (1) is entitled to factfinding based on a record produced before the
decisionmaker and disclosed to him or her; (2) must be allowed to make
arguments on his or her own behalf; and (3) has the right to an
individualized determination of his or her interests.
Abudlai v. Ashcroft, 239 F.3d 542, 549 (3d Cir. 2001) (internal quotations omitted). As to
the conduct of the decisionmaker, an alien is only constitutionally entitled to a
decisionmaker who “actually consider[s] the evidence and argument that a party presents”
so that the decisionmaker does not “act as a mere rubber stamp.” Id. at 549-50 (citing
Marincas v. Lewis, 92 F.3d 195 (3d Cir. 1996)).
Sor was able to develop a record and make arguments supporting the relief which
she sought. The decision rendered was tailored to her testimony and her situation. While
she purports to find the IJ’s opinion logically inconsistent when it finds her not credible
and then credits her testimony that she is a terrorist, the provision of alternative grounds
for decision hardly constitutes a due process violation. Moreover, we review the BIA’s
opinion in this instance, not the decision of the immigration judge. Abudlai, 239 F.3d at
548-49. The BIA’s opinion considered the evidence and arguments in her case and did
not act as a mere rubber stamp. Sor’s due process rights were not violated.
The petition for review will be denied.
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