Hussain, Mohammad v. Mukasey, Michael B. ( 2008 )

In the
United States Court of Appeals
For the Seventh Circuit
____________
Nos. 07-3688, 07-3832
MOHAMMAD AZAM HUSSAIN,
Petitioner,
v.
MICHAEL B. MUKASEY, Attorney General
of the United States,
Respondent.
____________
Petition to Review an Order of the
Board of Immigration Appeals.
No. A70-921-157.
____________
ARGUED FEBRUARY 13, 2008—DECIDED MARCH 6, 2008
____________
Before CUDAHY, POSNER, and EVANS, Circuit Judges.
POSNER, Circuit Judge. Mohammad Azam Hussain has
petitioned us to review an order that he be removed from
the United States. We recently decided a related case, in
which he had sought habeas corpus relief against his
detention pending the completion of the removal pro-
ceedings, 510 F.3d 739 (7th Cir. 2007), and our opinion
in that case provides additional background concerning
the government’s protracted efforts to remove Hussain.
He had come to this country from Pakistan, his native
land, in 1994, and five years later had become a lawful
2 Nos. 07-3688, 07-3832
permanent resident. But in September 2004 he was ar-
rested and charged with having committed immigration
fraud by means of false documents that had enabled him
to enter and remain in the United States; other misrepre-
sentations were charged as well. He was convicted in
June 2005 and sentenced to nine months in prison, time
served. The following month he was placed in detention
in an immigration facility and removal proceedings
were begun. His removal hearing was spread over sev-
eral days between December 2005 and May 2006, when
the immigration judge took the matter under advisement.
He meanwhile had appealed his criminal conviction to
us, for although he had served his sentence, a reversal of
the conviction would help him resist removal. In October
2006, while the appeal was pending, the government
agreed to vacate the judgment and dismiss the indict-
ment in lieu of turning over classified Brady material to
the defense.
In May of last year the immigration judge ordered
Hussain removed. The judge ruled that Hussain had
gained entry to the United States by fraud and was
barred from seeking asylum (for which he had applied
during the removal proceeding) by having been a member
of a terrorist organization, namely the Mohajir Qaumi
Movement-Haqiqi (MQM-H). Mohajirs are Muslim refu-
gees from India who have settled in Pakistan. See Yaroslav
Trofimov, “Pakistan’s Embattled Leader Embraces Maver-
ick Partner,” Wall St. J., Dec. 5, 2007, p. A1. The “embattled
leader” referred to in this article is of course President
Musharraf—himself a Mohajir—and the “maverick
partner” is MQM—the Mohajir Qaumi Movement,
though probably not the branch to which Hussain be-
longed, MQM-H.
Nos. 07-3688, 07-3832 3
But while finding that Hussain was removable, the
immigration judge also found that he was entitled to
relief under the Convention Against Torture because if
returned to Pakistan he would be likely to be tortured.
Thus the removal order was contingent. In October the
Board affirmed the order and remanded the case for the
entry of a final order of removal after completion of
the background investigation that is required as a con-
dition of release when a removable alien is allowed to
remain in this country by reason of the Convention Against
Torture or the refusal of any country to accept him. 8 C.F.R.
§ 1003.47. The immigration judge entered the final order
on November 6, ordering Hussain removed but staying
removal until and unless he could be removed without
his removal’s precipitating a violation of the Conven-
tion Against Torture. It is that order, which is admin-
istratively final, that Hussain now asks us to vacate. The
government appealed the immigration judge’s ruling
that Hussain was entitled to deferral of removal by virtue
of the Convention Against Torture to the Board of Immi-
gration Appeals; the Board has now affirmed the ruling.
An alien is removable if he obtained entry into the United
States by fraud. 8 U.S.C. § 1182(a)(6)(C)(i). Hussain ob-
tained entry by showing immigration officers, upon his
arrival in the United States, two documents that he had
bought from a Pakistani official, one purporting to parole
him into the United States on the basis of a pending
application for asylum, the other purporting to authorize
him to work in the United States. Both were spurious.
Later, in a petition for naturalization, he omitted his
membership in MQM, and in two loan applications he
falsely represented himself to be a U.S. citizen. He testified
in his removal proceeding that these were innocent mis-
4 Nos. 07-3688, 07-3832
takes, but the immigration judge was not required to
believe him. For example, Hussain testified that he knew
no English when he came to the United States, but his
wife testified that when she first met him, two months
after his arrival, they spoke only in English because
she didn’t know Urdu. Hussain’s lawyer appears not to
understand the limitations of judicial review of admin-
istrative decisions. He says that a federal agent’s “impre-
cise recollection of these hearsay documents is not par-
ticularly probative.” Perhaps not; but that is not the
standard. The evidence was conflicting, and the immi-
gration judge was entitled to credit the government’s
evidence.
The immigration judge and the Board also ruled that
Hussain is removable by reason of having “engaged in a
terrorist activity.” 8 U.S.C. §§ 1158(b)(2)(A)(v),
1182(a)(3)(B)(i)(I). Since we have just held that he is
removable because of having entered the United States
through fraud, it might seem superfluous for us to dis-
cuss the alternative ground. It is not. Even after being
ordered removed, an alien can pursue remedies that
may enable him to stay. One is an appeal to the Conven-
tion Against Torture, and Hussain as we know has suc-
cessfully appealed to it, and that might seem to make an
invocation of other post-removal remedies academic
even if the finding of removability on grounds of fraud
does not. Again, not so. The Convention Against Torture
provides less secure protection against removal than
other remedies that Hussain might want to invoke, and
not only because a change in country conditions that
lifted the threat of torture would allow him to be removed.
8 C.F.R. § 1208.17(b)(iv). The government wants to try to
obtain what we assume would be reliable diplomatic
Nos. 07-3688, 07-3832 5
assurances from the government of Pakistan that Hussain
will not be tortured if he is returned there. If that attempt
succeeds, he will be returned, § 208.17(f), and if it fails
the government intends to explore the possibility that
India, or some other country in which Hussain would not
be in danger of being tortured, will accept him; and if
this happens, he will be sent to that country.
§§ 208.17(b)(2), 208.18(c). In contrast, if he can obtain
cancellation of the order of removal, or asylum, or a
fraud waiver, then he probably can remain in the United
States permanently. 8 U.S.C. § 1229b(b)(1) (cancellation
of removal); §§ 1158, 1159(b) (asylum); §§ 1255(a),
1227(a)(1)(H) (fraud waiver); 8 C.F.R. § 245.1(a) (same).
But two of these remedies are barred (though, in a few
instances, with narrow exceptions, e.g., 8 U.S.C.
§ 1158(b)(2)(A)(v)) to an alien found to have engaged in
terrorist activity: see 8 U.S.C. § 1229b(c)(4) (cancellation
of removal), § 1158(b)(2)(A)(v) (asylum). The fraud
waiver, in contrast, is not inapplicable to terrorists, but
that cannot help someone found to have been a terrorist,
since that is an independent basis for removal to which
a fraud waiver is irrelevant.
Although Hussain was found removable for engaging
in terrorist activity, it was not a ground stated in the
charge that initiated the removal proceeding against
him, and so, he argues, it cannot be the basis for barring
him from seeking cancellation of removal. But all that the
statutory bar requires is that the alien be removable on
grounds of terrorism. 8 U.S.C. § 1229b(c)(4). That makes
sense because one purpose of the terrorism statute is to
bar forms of post-removal relief to aliens who have been
ordered removed on a lesser ground, such as fraudulent
entry. As held in such cases as Salviejo-Fernandez v. Gonza-
6 Nos. 07-3688, 07-3832
les, 455 F.3d 1063, 1065-66 (9th Cir. 2006), and Brown v.
Ashcroft, 360 F.3d 346, 352-53 (2d Cir. 2004), that purpose
does not require that involvement in terrorism be the
stated ground of removal.
Since the finding that Hussain engaged in terrorist
activity has consequences for him, we must soldier on
and consider his challenge to that alternative ground of
removability. He argues that the provision for removability
on grounds of terrorism, 8 U.S.C. § 1182(a)(3)(B), is ambig-
uous and unless interpreted narrowly would precipitate
a serious constitutional issue of fair notice, as in such
cases as Humanitarian Law Project v. Reno, 205 F.3d 1130,
1137-38 (9th Cir. 2000), and Humanitarian Law Project v.
Mukasey, 509 F.3d 1122, 1133-35 (9th Cir. 2007), though
none of those cases involves that provision. The provision
defines a terrorist organization as “a group of two or more
individuals, whether organized or not, which engages in,
or has a subgroup which engages in,” certain designated
activities, 8 U.S.C. § 1182(a)(3)(B)(vi)(III), including an
illegal use of explosives, firearms, or other dangerous
devices “with intent to endanger, directly or indirectly,
the safety of one or more individuals or to cause sub-
stantial damage to property.” § 1182(a)(3)(B)(iii)(V)(b).
A person who recruits or solicits funds for a terrorist
organization so defined—or indeed “commit[s] an act that
the actor knows, or reasonably should know, affords
material support [to a terrorist organization], in-
cluding . . . funds . . . or other material financial benefit”—
“is deemed to have engaged in terrorist activity,”unless
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.”
§§ 1182(a)(3)(B)(iv)(IV)(cc), (V)(cc), (VI)(dd).
Nos. 07-3688, 07-3832 7
These definitions are broad, but they are not vague.
McAllister v. Attorney General of the United States, 444
F.3d 178, 186-87 (3d Cir. 2006); United States v. Hammoud,
381 F.3d 316, 330-31 (4th Cir. 2004), remanded on other
grounds, 543 U.S. 1097 (2005). Hussain complains that
they stretch the term “terrorist.” They do. Terrorism as
used in common speech refers to the use of violence for
political ends. But the statutory definition of “terrorist
organization” is broad enough to encompass a pair of
kidnappers. See 8 U.S.C. § 1182(a)(3)(B)(iii)(II). Some-
one who sold the kidnappers a gun and rope, unless he
could prove he had no reason to know they were kid-
nappers, would be “engaged in terrorist activity.”
The statutory deformation of the ordinary meaning
of “terrorist” would be a problem if people were allowed
to rely, in determining their legal obligations, on the name
of a statute without bothering to read the body of the
statute. They are not. E.g., Brotherhood of R.R. Trainmen v.
Baltimore & Ohio R.R. Co., 331 U.S. 519, 527-29 (1947); United
States v. Krilich, 159 F.3d 1020, 1028 (7th Cir. 1998); United
States ex. rel. Thistlethwaite v. Dowty Woodville Polymer,
Ltd., 110 F.3d 861, 866 (2d Cir. 1997). So it is irrelevant
that MQM-H seems not to have a political agenda, but
rather to be engaged in a kind of jurisdictional dispute
with MQM-A over which group shall represent Pakistan’s
Mohajirs. It is likewise irrelevant that MQM-H does not
appear to harbor any hostile designs against the United
States; the statute does not require that the terrorist organi-
zation be a threat to us.
The statute may go too far, but that is not the business
of the courts. Yet an ambiguity may seem to lurk in the
definition of a terrorist organization as an organization
that “engages in” a specified activity. What if an organiza-
8 Nos. 07-3688, 07-3832
tion contained people who resorted to violence without
the organization’s sanction; would the organization be
“engaged in” that violence? That is a question about
authorization. If an activity is not authorized, ratified,
or otherwise approved or condoned by the organization,
then the organization is not the actor. NAACP v. Claiborne
Hardware Co., 458 U.S. 886, 930-32 (1982). 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 autho-
rized to do so by his employer. E.g., United States v. Potter,
463 F.3d 9, 25-26 (1st Cir. 2006); Tippecanoe Beverages, Inc.
v. S.A. El Aguila Brewing Co., 833 F.2d 633, 637 (7th Cir.
1987); Restatement (Second) of Agency § 212 (1958). But that
does not mean that the employer “engaged in” the em-
ployee’s act. An organization is not a terrorist organiza-
tion 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.
Hussain recruited for MQM-H and solicited funds for
it as well; the questions are whether the organization is a
terrorist organization and if so whether Hussain has
proved by clear and convincing evidence that he was
unaware of the violent acts in which it engaged in its
struggle with MQM-A. He argues futilely that nothing
he did contributed to those acts; MQM-H engaged in
nonviolent as well as violent activities and his work was
only with the former. That is irrelevant. If you provide
material support to a terrorist organization, you are
engaged in terrorist activity even if your support is con-
Nos. 07-3688, 07-3832 9
fined to the nonterrorist activities of the organization.
Organizations that the statute, and indeed in this instance
common parlance, describes as terrorist organizations,
such as Hamas in Gaza and Hezbollah in Lebanon,
often operate on two tracks: a violent one and a peaceful
one (electioneering, charity, provision of social services). If
you give money (or raise money to be given) for the
teaching of arithmetic to children in an elementary
school run by Hamas, you are providing material sup-
port to a terrorist organization even though you are not
providing direct support to any terrorist acts. Singh-Kaur
v. Ashcroft, 385 F.3d 293, 299-300 (3d Cir. 2004); Humanitar-
ian Law Project v. Gonzales, 380 F. Supp. 2d 1134, 1137 (C.D.
Cal 2005). As the Board of Immigration Appeals pointed
out in In re S-K-, 23 I.&N. Dec. 936, 944 (BIA 2006), “Espe-
cially where assistance as fungible as money is concerned,
[requiring] such a link would not be in keeping with the
purpose of the material support provision, as it would
enable a terrorist organization to solicit funds for
an ostensibly benign purpose, and then transfer other
equivalent funds in its possession to promote its terrorist
activities.”
Hussain was active in MQM-H between 1991 and 1996,
two years after he came to the United States. In Pakistan he
was a high-level official of the organization, in charge of a
region in which there were 100,000 Mohajirs, of whom
2,000 belonged to his organization and thus were under
his command. During that period members of the organ-
ization committed a number of acts of armed violence
against members of the rival MQM-A, and MQM-H did
not criticize, or make efforts to curb, that violence; an
inference that it was authorized is inescapable. “Violence
between the two rival factions [MQM-H and MQM-A] is
10 Nos. 07-3688, 07-3832
one of the main reasons Pakistani security forces have
been called upon to restore law and order in Karachi
numerous times since 1992. Members of both organizations
are often involved in fights over territory within Karachi.
Other MQM-H targets include other ethnic militants and
government forces. For the most part, MQM-H actions
are limited to small, but frequent, armed attacks or arsons.
Often these attacks are committed to avenge the death of
MQM-H members at the hands of rival factions such
as MQM-A.” Memorial Institute for the Prevention of
Terrorism, “MIPT Terrorism Knowledge Base,”
www.tkb.org/Home.jsp (visited Feb. 14, 2008); see also
“Rangers Arrest Three MQM-H Activists,” Daily Times,
p. 1 (Aug. 5, 2004), www.dailytimes.com.pk/
default.asp?page=story_5-8-2004_pg1_3 (visited Feb. 19,
2008); Minorities at Risk Project, University of Maryland,
“Assessment for Mohajirs in Pakistan” (2004), www.
cidcm.umd.edu/mar/assessment.asp?groupId=77007
(visited Feb. 19, 2008); Mike Tolson, “Reaping the Whirl-
wind: Karachi’s Descent into Hell,” Houston Chronicle,
Nov. 8, 1998, p. 2. The fact that the violence was not
formally authorized and had no clear political aim is
irrelevant. And the acts of violence (including almost
daily killings in 1993 and 1994, while Hussain was still an
MQM-H official in Pakistan) were so frequent that Hussain
could not have failed to learn about them—indeed, he
admitted he knew about them— and to learn that they had
not been denounced by the organization’s leadership,
of which he was a part.
Hussain makes a couple of procedural objections to the
removal proceeding, but they have no merit and we
will not burden this opinion with a discussion of them.
The Board’s conclusion that Hussain is removable both
for fraud and for material support of terrorism must be
Nos. 07-3688, 07-3832 11
sustained. But we note that Hussain has been in custody
for more than two and a half years and that since he cannot
at present be removed from the United States because of
the Board’s ruling on the Convention Against Torture,
the six-month presumptive limitation on detaining an
alien if he has been ordered removed but the order
cannot be executed without violating the Convention
now begins to run. Zadvydas v. Davis, 533 U.S. 678 (2001);
Hussain v. Mukasey, supra, 510 F.3d at 742-43.
The petition for review is
DENIED.
USCA-02-C-0072—3-6-08