Adriano de Almeida Viegas v. Eric Holder, Jr. , 699 F.3d 798 ( 2012 )

PUBLISHED
UNITED STATES COURT OF APPEALS
FOR THE FOURTH CIRCUIT
ADRIANO DE ALMEIDA VIEGAS, 
Petitioner,
v.
 No. 11-1689
ERIC H. HOLDER, JR., Attorney
General,
Respondent.

On Petition for Review of an Order
of the Board of Immigration Appeals.
Argued: September 19, 2012
Decided: November 19, 2012
Before MOTZ, KING, and WYNN, Circuit Judges.
Petition denied by published opinion. Judge Wynn wrote the
opinion, in which Judge Motz and Judge King concurred.
2 VIEGAS v. HOLDER
COUNSEL
ARGUED: Ragan Naresh, KIRKLAND & ELLIS, LLP,
Washington, D.C., for Petitioner. Jeffrey Lawrence Menkin,
UNITED STATES DEPARTMENT OF JUSTICE, Washing-
ton, D.C., for Respondent. ON BRIEF: Ritu Kelotra, KIRK-
LAND & ELLIS, LLP, Washington, D.C., for Petitioner.
Tony West, Assistant Attorney General, Civil Division, Ethan
B. Kanter, Senior Litigation Counsel, Office of Immigration
Litigation, UNITED STATES DEPARTMENT OF JUSTICE,
Washington, D.C., for Respondent.
OPINION
WYNN, Circuit Judge:
Adriano de Almeida Viegas, a native and citizen of the
Republic of Angola, seeks review of an order by the Board of
Immigration Appeals ("BIA") denying his petition to obtain
relief from removal under the Immigration and Nationality
Act ("INA"). Specifically, the BIA, in adopting and supple-
menting the decision of the Immigration Judge, denied Viegas
asylum and withholding of removal under the INA because he
was a member of, and provided material support to, a terrorist
organization. On appeal, Viegas argues the BIA and the
Immigration Judge erred in finding that the organization to
which he belonged, the Front for the Liberation of the
Enclave of Cabinda ("FLEC"), is a terrorist organization. Vie-
gas also contends his contributions to the FLEC—paying
monthly dues and hanging posters—do not qualify as "mate-
rial" support. For the reasons discussed below, we deny Vie-
gas’s petition for review.
I.
A.
In February 2005, Viegas entered the United States with a
fraudulent French passport. A few months later, he filed an
VIEGAS v. HOLDER 3
application for asylum, claiming it was not safe for him to
return home to Angola. Viegas’s application was referred to
Immigration Court.
In the asylum proceeding, Viegas stated he was born in
Cabinda, an Angolan exclave. Cabinda has suffered from
secessionist conflict since 1975. Viegas testified that in 1999,
he became a card-carrying member of the FLEC, an organiza-
tion dedicated to Cabindan independence from Angola.
Between 1999 and 2003, he paid a monthly membership fee
of fifty Angolan kwanzas to his FLEC contact, Bonga Bonga.
Viegas testified that Bonga Bonga supplied him with posters
and fliers advocating for Cabindan independence, which Vie-
gas hung on "the walls." J.A. 206. Viegas stated that he did
not interact with any other members of the FLEC.
Viegas further testified that in 2003, he participated in a
peaceful protest against the Angolan government.1 At the pro-
test, he was arrested and subsequently imprisoned, interro-
gated, and beaten by Angolan government officials. Viegas
stated that he was released from custody in December of
2004. Two months later, he left Angola for the United States.
The Department of Homeland Security ("Homeland Secur-
ity") argued that Viegas was ineligible for asylum or with-
holding of removal under the INA, which bars aliens who are
members of terrorist organizations or who have engaged in
terrorist activity, including providing material support to ter-
rorist organizations ("Material Support Bar"), from receiving
various forms of relief from removal. 8 U.S.C.
§ 1182(a)(3)(B)(i)(V)-(VI); id. § 1182(a)(3)(B)(i)(I); id.
§ 1182(a)(3)(B)(iv). Homeland Security argued that the FLEC
is a terrorist organization, submitting reports from the State
Department and international organizations including
1
It does not appear that the FLEC was involved in the protest, but after
Viegas was arrested, the Angolan government questioned him about his
involvement with the FLEC.
4 VIEGAS v. HOLDER
Amnesty International and Integrated Regional Information
Networks describing the FLEC’s human rights abuses. When
asked about the reports, Viegas testified that he was "vaguely"
aware of military clashes between FLEC factions and the
Angolan government and of attacks on civilians by FLEC fac-
tions. J.A. 249–50. Viegas stated that the FLEC is not a single
organization but a political movement comprised of indepen-
dent factions. He attributed the violence to only "part of
FLEC," stating "FLEC is a peaceful organization." J.A. 252.
Viegas denied knowing about the activities of the specific fac-
tion to which he belonged.
B.
The Immigration Judge found Viegas’s testimony credible
but determined that he is ineligible for asylum and withhold-
ing of removal. Specifically, the Immigration Judge con-
cluded that the INA’s Material Support Bar applies because
Viegas paid dues to the FLEC and hung FLEC posters. The
Immigration Judge also concluded that the mandatory bar for
membership in a terrorist organization applies because Viegas
was a member of the FLEC. Nevertheless, the Immigration
Judge granted Viegas’s request for deferral of removal under
the Convention Against Torture, 8 C.F.R. § 1208.17.
On appeal to the BIA from the Immigration Judge’s order,
Viegas argued that neither the membership nor the material
support bar applies to him because he belonged to an indepen-
dent, peaceful faction of the FLEC, not a terrorist organiza-
tion. Viegas also argued that the Material Support Bar does
not apply to him because his participation in the FLEC was
de minimis.
Rejecting Viegas’s arguments, the BIA found that the
Immigration Judge correctly determined that Homeland
Security met its initial burden to show that the FLEC qualifies
as a terrorist organization and that Viegas was unable to pro-
vide countervailing evidence about a separate faction. The
VIEGAS v. HOLDER 5
BIA also found that Viegas’s activities "aided the FLEC in
continuing its fight against the Angolan government" such
that they constituted material support for terrorism. J.A. 15.
The BIA stated, "[W]here a group mandated an amount as a
membership fee, we would not classify it as de minimis." J.A.
15. The BIA noted that although Viegas may have intended
to engage only in nonviolent political advocacy, the agency
"do[es] not consider the applicant’s intent in a determination
of whether support is material." J.A. 15. Ultimately, the BIA
dismissed Viegas’s appeal.2 Viegas now petitions this Court
for review.
II.
When "the BIA has adopted and supplemented [the Immi-
gration Judge]’s decision, . . . we review both rulings and
accord them appropriate deference." Cervantes v. Holder, 597
F.3d 229, 232 (4th Cir. 2010). We review factual findings for
substantial evidence, which exists unless the record would
compel any reasonable adjudicator to conclude the contrary.
Djadjou v. Holder, 662 F.3d 265, 273 (4th Cir. 2011); see
also 8 U.S.C. § 1252(b)(4)(C) (stating that "a decision that an
alien is not eligible for admission to the United States is con-
clusive unless manifestly contrary to law"). We generally lack
jurisdiction to review factual findings underlying a denial of
asylum under a terrorism bar. 8 U.S.C. § 1158(b)(2)(D). How-
ever, under the REAL ID Act, 8 U.S.C. § 1252(a)(2)(D), we
may review all constitutional claims and questions of law,
which we review de novo, but BIA interpretations of the INA
are "entitled to deference and must be accepted if reasonable."
Hui Zheng v. Holder, 562 F.3d 647, 651 (4th Cir. 2009)
(internal quotations and citations omitted).
2
Because Viegas was granted deferral of removal under the Convention
Against Torture, the BIA remanded Viegas’s case to the Immigration
Judge to complete the identity, law enforcement, or security examinations
required under 8 C.F.R. § 1003.1(d)(6).
6 VIEGAS v. HOLDER
III.
A.
In his petition, Viegas first contends that the BIA and the
Immigration Judge erred in finding that Homeland Security
met its burden to show the FLEC qualifies as a terrorist orga-
nization. The Immigration Judge credited Viegas’s assertion
that the FLEC contains many factions, some more violent
than others. Although Viegas concedes membership in a fac-
tion, Viegas failed to set forth evidence identifying the spe-
cific faction to which he belonged.
Viegas argues the BIA erred by placing the burden of proof
on him to identify the FLEC faction to which he belonged.
Viegas correctly points out that Homeland Security had to
present evidence indicating that the membership bar or the
material support bar applied. If Homeland Security met this
evidentiary burden, however, the burden properly shifted to
Viegas to prove that the INA’s bars did not apply to him. See
8 C.F.R. § 1208.13(c); id. § 1208.16(d)(2). Because both the
membership and material support bars require that there be a
terrorist organization, our first task is to determine whether
Homeland Security’s evidence satisfied the legal standard for
a terrorist organization.
The INA defines a "terrorist organization" as a group so
designated by the Secretary of State or an undesignated group
("Tier III") that "engages in, or has a subgroup which engages
in" terrorist activity. 8 U.S.C. § 1182(a)(3)(B)(vi)(III). The
INA defines "terrorist activity" as
any activity which is 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 any of following:
VIEGAS v. HOLDER 7
(I) The hijacking or sabotage of any conveyance
(including an aircraft, vessel, or vehicle).
(II) The seizing or detaining, and threatening to kill,
injure, or continue to detain, another individual in
order to compel a third person (including a govern-
mental organization) to do or abstain from doing any
act as an explicit or implicit condition for the release
of the individual seized or detained.
(III) A violent attack upon an internationally pro-
tected person (as defined in section 1116(b) (4) of
Title 18) or upon the liberty of such a person.
(IV) An assassination.
(V) The use of any –
(a) biological agent, chemical agent, or
nuclear weapon or device, or
(b) explosive, firearm or other weapon or
dangerous device (other than for mere per-
sonal monetary gain), with intent to endan-
ger, directly or indirectly, the safety of one
or more individuals or to cause substantial
damage to property.
(VI) A threat, attempt, or conspiracy to do any of the
foregoing.
Id. § 1182(a)(3)(B)(iii).
Here, it is undisputed that at the time of Viegas’s member-
ship, many FLEC factions engaged in violence against the
Angolan government and civilians and destroyed government
property. Nonetheless, Viegas argues that because the FLEC
is comprised of factions, it cannot be considered a terrorist
8 VIEGAS v. HOLDER
organization as a whole. But even Viegas’s own expert testi-
fied that "Cabindans . . . rarely distinguished between FLEC
factions, rather they attributed most activities in support of
independence to a generalized FLEC." J.A. 655. Further,
Homeland Security’s submissions "indicate ‘that most, if not
all, of the FLEC factions include military wings [that]
engaged in violence. . . .’" J.A. 17.
This evidence sufficiently establishes that Homeland Secur-
ity met its initial burden to show that the FLEC qualifies as
a terrorist organization. Further, there is no dispute that Vie-
gas was a member of at least some component of the FLEC.
This is sufficient to meet Homeland Security’s burden to pre-
sent evidence indicating that Viegas was a member of a ter-
rorist organization. Therefore, the burden shifted to Viegas to
establish that the INA’s bars did not apply to him because he
belonged to a separate, nonviolent organization. See 8 C.F.R.
§ 1208.13(c); id. § 1208.16(d)(2). Accordingly, we find no
error in how the BIA or the Immigration Judge assigned the
burden of proof.
B.
Viegas also argues that the BIA erred in finding that Viegas
knew or should have known the FLEC faction to which he
belonged was a terrorist organization. For Tier III (unde-
signated) terrorist organizations, the Material Support Bar
does not apply if the alien "can demonstrate by clear and con-
vincing evidence that [he] did not know, and should not rea-
sonably have known, that the organization was a terrorist
organization." 8 U.S.C. § 1182(a)(3)(B)(iv)(VI)(dd).
At the asylum proceeding, Viegas testified "[I]f the FLEC
is a violent organization or not, I cannot tell you. I . . . never
heard. I was – I am against violence." J.A. 206. Viegas repeat-
edly stated that he knew nothing about his faction’s activities.
Viegas and his expert testified that fear of the Angolan gov-
VIEGAS v. HOLDER 9
ernment prevents Cabindans from openly discussing the
FLEC.
Viegas’s lack of information about his faction’s activities,
however justified, does not provide a reasonable basis for
believing they were peaceful. Although this lack of informa-
tion may support Viegas’s contention that he did not actually
know his faction was a terrorist organization, other evidence
supports finding that he reasonably should have known.
Indeed, the record shows a person in Viegas’s position would
know—and Viegas did know—that FLEC factions frequently
engaged in unlawful violence. For example, Viegas’s expert
testified it was common knowledge among Cabindans that the
FLEC engaged in military operations against the Angolan
government, destroyed government property, and kidnapped
government contractors and foreign oil workers for ransom.
Viegas admitted that he had heard reports of violence attri-
buted to the FLEC. He testified he distrusted those reports
because they came from government-controlled media
sources, but he did not testify that he believed all FLEC fac-
tions were peaceful.
Given that Viegas admitted to hearing reports about the
FLEC’s violent activities, his personal opposition to violence
and lack of specific information about his faction’s methods
are unavailing. Even if we were to accept Viegas’s contention
that he did not know he belonged to a terrorist organization,
substantial evidence indicates that Viegas reasonably should
have known that the organization he belonged to engaged in
terrorist activities.
C.
Next Viegas contends that even if the FLEC is a terrorist
organization, the BIA erred in concluding that his activities
constituted material support under the INA. The INA defines
engaging in terrorist activity to include acts the alien "knows,
or reasonably should know, afford[ ] material support" to a
10 VIEGAS v. HOLDER
terrorist organization. 8 U.S.C. § 1182(a)(3)(B)(iv)(VI). "Ma-
terial support" includes "communications, funds, transfer of
funds or other material financial benefit. . . ." Id.There is no question that the type of activity in which Vie-
gas engaged comes within the statutory definition of material
support. The issue is whether Viegas’s activities qualify as
"material." Viegas argues that the BIA abused its discretion in
diverging from an earlier unpublished decision defining "ma-
terial support," Matter of L-H- (B.I.A. July 10, 2009). In Mat-
ter of L-H-, the BIA defined "material support" as conduct
that advances terrorism. Viegas contends that his activities
cannot qualify under Matter of L-H- because they were insig-
nificant and not the type of support that advances terrorism.
We disagree.
We first note that because Matter of L-H- is unpublished,
neither the BIA nor this Court is bound by the decision. See,
e.g., Matter of Echeverria, 25 I. & N. Dec. 512, 519 (B.I.A.
2011) (stating that unpublished decisions by the BIA "are not
binding precedent"). Moreover, Viegas’s conduct is distin-
guishable from the alien’s in that case. Matter of L-H-
involved a single exchange of a small amount of food and
money, which the BIA deemed insufficient to constitute mate-
rial support for terrorism. Here, every month for four years,
Viegas voluntarily paid dues and hung posters for the FLEC.
As the BIA concluded, the sum of Viegas’s dues "was suffi-
ciently substantial standing alone to have some effect on the
ability of the FLEC to accomplish its goals." J.A. 15. Accord-
ingly, we reject Viegas’s argument that the BIA’s material
support finding was arbitrary and capricious.
D.
Finally, Viegas argues that the mandatory bar for member-
ship in a terrorist organization should not apply because he is
no longer a member of the FLEC. In affirming the Immigra-
tion Judge’s application of the bar for membership in a terror-
VIEGAS v. HOLDER 11
ist organization, the BIA determined "that the evidence
indicates that [Viegas] is a member of" the FLEC and that
Viegas provided "no persuasive arguments to support his con-
tention" that he is no longer a member. J.A. 14, 17. The Immi-
gration Judge, however, found only that Viegas "was a
member of [the FLEC]." J.A. 139 (emphasis added). The
membership bar applies to any alien who "is a member of a
terrorist organization." 8 U.S.C. § 1182(a)(3)(B)(i)(V)
(emphasis added). By its plain language, the bar does not
apply to aliens who are no longer members of terrorist organiza-
tions.3 Although an Immigration Judge might infer current
membership from past membership, 75 No. 8 Interpreter
Releases 294, 297 (Mar. 2, 1998), here, nothing in the Immi-
gration Judge’s order indicates that he discredited Viegas’s
testimony that he is no longer a member of the FLEC. None-
theless, the Material Support Bar is an independently suffi-
cient ground for denying Viegas relief. Therefore, any error
on this issue is harmless. Tassi v. Holder, 660 F.3d 710, 725
(4th Cir. 2011) (stating error notwithstanding, this Court may
"permit a BIA decision to stand if the legal and factual infir-
mities ‘clearly had no bearing on the . . . substance of the
decision reached’") (internal citations omitted).
IV.
In sum, we conclude that the BIA did not err in deeming
Viegas statutorily ineligible for asylum and withholding of
removal under the INA’s Material Support Bar. We therefore
deny Viegas’s petition for review.
PETITION DENIED
3
8 U.S.C. § 1182(a)(3)(F) excludes admission of aliens who have been
associated with terrorist organizations and intend to engage in activities
that could endanger the welfare, safety, or security of the United States.