Sami Khan v. Eric Holder, Jr. ( 2014 )

In the
United States Court of Appeals
For the Seventh Circuit
Nos. 13-2106 & 13-3385
SAMI ULLAH KHAN,
Petitioner,
v.
ERIC H. HOLDER, JR.,
Attorney General of the United States,
Respondent.
Petitions for Review of Decisions
of the Board of Immigration Appeals.
No. A098-157-095
ARGUED NOVEMBER 7, 2013 — DECIDED SEPTEMBER 4, 2014
Before BAUER, MANION, and SYKES, Circuit Judges.
SYKES, Circuit Judge. Sami Ullah Khan seeks review of a
decision of the Board of Immigration Appeals (“BIA”) apply-
ing the “terrorism bar,” 8 U.S.C. § 1182(a)(3)(B)(i)(I), a broad
barrier to admissibility into the United States. Underneath the
surface is an important legal question about the proper
2 Nos. 13-2106 & 13-3385
interpretation of an exception to the bar, but we can’t reach it
because it wasn’t properly preserved for review.
Khan is a Mohajir, which means that his parents were
immigrants into Pakistan when it was partitioned from the
British Indian Empire in 1947. Some Mohajirs formed a
political party—the Mohajir Qaumi Movement—in response to
perceived repression by nonimmigrant locals. Khan joined in
1992 when he was 14 or 15 years old. He distributed flyers,
attended meetings, and recruited people to the cause. The
group became increasingly violent, however, and many
Mohajirs, including Khan, left to join a new, supposedly more
peaceful group called MQM-Haqiqi. But this party too resorted
to violence, so Khan eventually left it as well.
Khan’s switch had made him a target, and he was repeat-
edly attacked by members of the first party, including beatings
and death threats. On two occasions he was kidnapped and
tortured. He eventually fled to the United States on a visitor
visa, and when it expired, he asked for asylum and other forms
of relief from removal. While his case was pending, he married
a United States citizen, making him eligible for permanent
residency through his marriage.
The government opposed Khan’s admission to the United
States, arguing that he was ineligible for having engaged in
terrorist activity by supporting both factions of the Mohajir
Qaumi Movement. An immigration judge (“IJ”) accepted the
government’s position and the BIA affirmed. Khan petitioned
for review, raising many issues, but he failed to preserve the
strongest argument he had, which centers on whether he knew
Nos. 13-2106 & 13-3385 3
that the MQM factions authorized terrorism during the time he
was a member. Accordingly, we deny the petition for review.
I. Background
A portion of the Immigration and Nationality Act provides
that any alien who has “engaged in a terrorist activity” is
ineligible for admission into the United States. 8 U.S.C.
§ 1182(a)(3)(B)(i)(I). Terrorist activity is defined expansively to
include “commit[ting] an act that the actor knows, or reason-
ably should know, affords material support” to a terrorist
organization. Id. § 1182(a)(3)(B)(iv)(VI). The knowledge
requirement only applies to the actor’s awareness that he is
providing material support. The knowledge required with
respect to a group’s status as a terrorist organization depends
on how it’s categorized. Terrorist organizations are divided
into three tiers: Tier 1 and 2 organizations are determined by
the Secretary of State and published in the Federal Register,
while Tier 3 organizations are any others that engage in
terrorist activities. Id. § 1182(a)(3)(B)(vi).1 If an alien gave
1
Tier 1 organizations are determined by the Secretary of State in accordance
with 8 U.S.C. § 1189. See 8 U.S.C. § 1182(a)(3)(B)(vi)(I). For a list, see Foreign
Terrorist Organizations, U.S. DEP’T OF STATE, http://www.state.gov/j/ct/rls/
other/des/123085.htm (last visited Sept. 4, 2014). Tier 2 organizations are
determined “by the Secretary of State in consultation with or upon the
request of the Attorney General or the Secretary of Homeland Security.” See
8 U.S.C. § 1182(a)(3)(B)(vi)(II). For a list, see Terrorist Exclusion List, U.S.
DEP’T OF STATE, http://www.state.gov/j/ct/rls/other/des/123086.htm (last
visited Sept. 4, 2014). (Although the page is dated December 29, 2004, it
(continued...)
4 Nos. 13-2106 & 13-3385
material support to a Tier 1 or Tier 2 organization, he is barred
from entry regardless of whether he knew it was a terrorist
organization. Compare id. § 1182(a)(3)(B)(iv)(VI)(cc) with (dd).
However, if a group is in Tier 3, the alien has an opportunity
to “demonstrate by clear and convincing evidence that [he] did
not know, and should not reasonably have known, that the
o r g a n i z a t i o n wa s a t e r r o r i s t o r g a n i z a t i o n . ”
§ 1182(a)(3)(B)(iv)(VI)(dd). This is known as the “knowledge
exception” to the material support bar we just described.
* * *
The Mohajir Qaumi Movement first became a political
party in the mid 1980s and quickly rose to prominence in
Pakistani politics. It formed an early coalition with the domi-
nant political party, but the relationship soured, leading to
conflict and often violent confrontations. In 1992 the military
initiated “Operation Clean-up” aimed at purging the City of
Karachi of terrorists, though many Mohajirs viewed it as a
disguised attempt to suppress the Mohajir Qaumi Movement.
See Operation Clean-up, WIKIPEDIA, http://en.wikipedia.org/
wiki/Operation_Clean-up (last visited Sept. 4, 2014). Around
the same time, disagreements between the movement’s leaders
led to the formation of an offshoot faction. The new group
1
(...continued)
reflects the removal of the Communist Party of Nepal from the list in 2012.)
There is no formal list of Tier 3 terrorist organizations. See FH-T v. Holder,
723 F.3d 833, 839 n.2 (7th Cir. 2013). Immigration courts can decide on a
case-by-case basis whether a group fits the definition. See FH-T v. Holder,
743 F.3d 1077, 1079 (7th Cir. 2014) (Wood, C.J., dissenting from the denial
of rehearing en banc).
Nos. 13-2106 & 13-3385 5
called itself MQM-Haqiqi, or “the real Mohajir Qaumi Move-
ment.” (The original party became known as “MQM-A.” From
this point forward, we will also use this name to refer to the
party before the split. We will occasionally use “MQM” to refer
to both factions.) The military supported the new group in an
effort to undermine MQM-A. See Farhat Haq, Rise of the MQM
in Pakistan: Politics of Ethnic Mobilization, 35 ASIAN SURV. 990,
1001 (1995), available at http://www.jstor.org/stable/265723.
During the military’s clean-up operation, which continued
until 1994, MQM-H campaigned to convince party activists
that MQM-A had become a terrorist organization. Id. Ever
since the division of MQM into these two factions, members of
both groups have frequently violently clashed. See U.S. DEP’T
OF STATE, U.S. DEPARTMENT OF STATE COUNTRY REPORT ON
HUMAN RIGHTS PRACTICES 1994–PAKISTAN (Jan. 30, 1995),
available at http://www.refworld.org/docid/3ae6aa7c14.html
(noting that “people were killed almost daily in fighting among
factions of the MQM”). Because of this violence, MQM-H has
been identified as a Tier 3 terrorist organization. See Hussain v.
Mukasey, 518 F.3d 534 (7th Cir. 2008) (upholding the BIA’s
finding that MQM-H’s activities in the early 1990s qualify it as
a terrorist organization).
* * *
Khan joined MQM-A in 1992 when he was 14 or 15 years
old.2 He believed, like many in his neighborhood, that the
2
The only witnesses who testified at Khan’s removal hearing were Kahn
himself and three of his relatives. The government presented 30-some
(continued...)
6 Nos. 13-2106 & 13-3385
organization existed to fight for the rights of Mohajirs and to
improve their education and employment opportunities. He
was also upset by the injustice of the military’s clean-up
operation. Khan distributed flyers and signs, attended meet-
ings, and recruited others in his neighborhood. Over time,
however, Khan became aware of increasing violence by
members of the party. In his words, MQM activists started
engaging in “anti-state, anti-social, and anti-people activities.”
Gangsters and criminals “took control of the party and the
streets.” When he saw that “[MQM-A] leaders were aware of
what was going on but remained silent,” he realized that “the
entire mission, cause and objective of the party was changed.”
Khan says that this “came as a shock/surprise to Mohajirs and
their supporters, including me,” and that he viewed it as a
“betrayal[] of the Mohajir cause.”
In 1994 Khan, like many Mohajirs, left to join MQM-H, the
offshoot faction. The new leaders “assured [Mohajirs] that the
party will fight for their just cause,” so Khan joined “with the
strong belief and firm consideration that the [MQM-H] leaders
are trusted leaders of Mohajirs and their cause to defend
Mohajir’s struggle is legitimate.” Khan’s work with MQM-H
remained largely the same; he posted signs and flyers,
2
(...continued)
articles and reports on both of the MQM factions and the conditions in
Karachi. The IJ noted that the reports were “largely consistent with [Khan’s]
account.” The IJ did not find that Khan lacked credibility, and the govern-
ment has never argued that Khan or his relatives lied or misrepresented his
past. Therefore, we assume, like everyone else appears to, that his account
is both truthful and accurate.
Nos. 13-2106 & 13-3385 7
recruited others, attended meetings, staffed the local office in
the evenings, and organized grocery requests for those in need.
But over time Khan began to realize that MQM-H was also
engaging in violence. “In the beginning they were doing good
things, but later on, gradually, they started doing the same
things as [MQM-A].” So in 1997 Khan significantly scaled back
his involvement. “As soon as I came to know that these both
groups are getting violent, and when they are clashing, I
stopped working for them, and I stopped attending their
meetings and kept myself aloof from them.” He did not cut off
his ties entirely, though. He explained: “I had to slow down my
activities, but because I was staying in that locality and that
street[,] … they used to ask me to go with them and work for
them.” When asked whether he worked for MQM-H, even
after becoming aware of fighting between the factions, Khan
responded: “I used to support them, but I never … worked for
them or interfered with their work or what they were doing.”
He clarified what he meant by support: “What I mean is that in
our street, since everybody was from [MQM-H], they used to
meet us and ask questions about us. So, I have to express
myself as a supporter, that yes, I am. But I really slowed down
my work and didn’t do anything for them.” The government
specifically questioned him about his attendance at meetings,
and Khan admitted that for the next three years he still
attended meetings when asked to. “I had to attend the meeting
when their higher-ups of the party used to come … and call
everybody or call me for attending the meeting.”3
3
There is a discrepancy between Khan’s testimony at trial and his written
(continued...)
8 Nos. 13-2106 & 13-3385
Khan’s switch in 1994 had turned the wrath of MQM-A
against him. He testified that MQM-A members began hunting
down MQM-H activists and either killing or torturing them.
“Threats to punish and kill starting pouring in against my
family and me.” One of Khan’s cousins was shot and killed. In
the summer of 1999, six MQM-A members, armed with guns,
knives, iron rods, and hockey sticks, broke into the MQM-H
office during a meeting. They dragged Khan out into the street
and beat him. He was thrown into the bed of a pickup truck,
driven to an MQM-A torture cell, and beaten for two days
before he was released.
The scene worsened in the fall of 1999 when Pervez
Musharraf seized control of the country by military coup. The
previous government had supported and protected MQM-H,
but the new government favored MQM-A. With their protec-
tion gone, the attacks against MQM-H intensified. In early 2000
Khan was seriously injured during a raid of the local MQM-H
office. MQM-A then began targeting his family and firing shots
3
(...continued)
personal statement. In the latter, after recounting his kidnapping in 1999 (an
event we will describe momentarily), Khan says, “I continued my work as
a member of Haqiqi for the cause of Mohajir’s rights despite what
happened to me.” And when relating another attack in 2000, he begins with,
“I was busy doing my work in the office with my fellow party members.”
There may not be any inconsistency—by “work” Khan may have meant
attending meetings or going along to the office when asked. There may also
be a language or translation problem; Khan had a friend draft his personal
statement for him. In any event, neither the IJ nor the BIA discussed the
discrepancy or made any specific finding as to the scope of Khan’s work
after 1997.
Nos. 13-2106 & 13-3385 9
at his house. “My life became miserable, … my house was
attacked several times[,] and my family members were
threatened.” “I was forced to run from one place to another to
save my life. As they looked for me, I could not go to my
house, attend school or even go to mosque for prayers. I was
forced into hiding for fear of my life and was literally cut off
from the society, my family and all the near and dear ones.”
Khan fled Pakistan briefly in 2000, spending a few months
in London and a few more in the United States. He returned to
Karachi in January 2001 to attend to his sick mother and to
keep his job at an airline. He stayed at his uncle’s house to
remain hidden, only visiting his family secretly at night. Even
so, MQM-H found out that he had returned. As a result he
“had to attend two or three more meetings, because … they
have a hold over that entire area, and I had no other option.”
This may have alerted MQM-A to his return; in any event, they
too caught up with him.
As he was walking home one night with his brother and
father, three MQM-A henchmen pulled up in a taxi and
jumped out. They grabbed Khan by the hair, put a gun to his
head, and threw him into the taxi. His brother and father
screamed for help, but to no avail. Khan was blindfolded and
taken to a room where he was beaten for two days. His captors
bashed his head into the walls and told him never to associate
with MQM-H and to leave the area. He was released when his
father paid a 200,000 rupee ransom (approximately $3,400).
Khan had only been back for a month.
After recovering from his injuries, Khan fled again, this
time directly to the United States on a temporary visa. He
10 Nos. 13-2106 & 13-3385
hoped to return to Pakistan once the situation improved, but
from Khan’s perspective it deteriorated; Musharraf won the
general election in 2002 and remained in power. MQM-H
supporters continued to be captured, tortured, and killed, so
Khan decided to seek asylum.
In September of 2002, the United States initiated a program
that required thousands of men from mostly Islamic countries
to register with immigration services by being fingerprinted,
photographed, and interrogated. See Cam Simpson & Flynn
McRoberts, U.S. Ends Muslim Registry, CHI. TRIBUNE, Dec. 2,
2003, http://www.chicagotribune.com/news/watchdog/chi-
0312020136dec02,0,134285.story. Fearing that he would be
deported to Pakistan and killed, Khan moved to Canada in
early 2003, a couple of months before the registration deadline
for Pakistanis. He sought asylum there instead, but then
withdrew his application when he went back to Pakistan to be
with his mother, who had fallen ill again. Six months later he
returned to the United States on a visitor visa and has been
here ever since.
Khan’s visa expired in February of 2004, so the following
August he applied for asylum. (He claimed that MQM-A was
still searching for him. While Khan was in Canada, some
MQM-A members went to his family’s house, looted it, and
killed the family dog.) Khan’s application alerted the govern-
ment to his expired visa, so he was served with a notice to
appear. He conceded his removability but also requested
asylum, withholding of removal under 8 U.S.C. § 1231(b)(3)(A),
and withholding or deferral of removal under the United
Nations Convention Against Torture, see 8 C.F.R. § 208.16(c).
Nos. 13-2106 & 13-3385 11
The case was delayed several years for a variety of reasons, one
of which was that Khan’s father, a witness in his case, had to
return to Pakistan to free Khan’s cousin who had been kid-
napped and tortured by Afghan terrorists. In 2008 Khan
married a United States citizen, so he also sought adjustment
of status via marriage.
The government opposed Khan’s requests for relief from
removal, arguing that he was inadmissible for having provided
material support to a terrorist organization.
On December 8, 2010, a final hearing was held on Khan’s
requests for relief, and in early 2011 they were denied. The IJ
found that Khan had given material support to MQM-H,
barring any form of relief except for deferral of removal under
the Convention Against Torture. The judge denied that
protection because Khan did not claim he would be tortured by
the Pakistani government, but only by MQM members. The
BIA affirmed, adopting and supplementing the IJ’s opinion.
(Confusingly, the Board refers to Khan’s support of both
MQM-A and MQM-H, even though the IJ had relied exclu-
sively on Khan’s participation in MQM-H.) Khan petitioned
this court for review. While his petition was pending, he also
filed a motion to reconsider, which the BIA denied, and he filed
a separate petition from that order. Having already heard oral
argument on the first petition, we consolidated the cases for
decision and concluded that oral argument was unnecessary
for the second. See FED. R. APP. P. 34(a)(2)(C).
12 Nos. 13-2106 & 13-3385
II. Discussion
We have jurisdiction to review final orders of removal
under 8 U.S.C. § 1252(a). “Where the Board has adopted the
decision of the immigration judge and added its own reason-
ing, we review both decisions.” Ruiz-Cabrera v. Holder, 748 F.3d
754, 757 (7th Cir. 2014). Our review of factual findings is
governed by the deferential substantial-evidence standard,
under which the BIA’s decision “must be upheld if supported
by reasonable, substantial, and probative evidence on the
record considered as a whole.” Weiping Chen v. Holder, 744 F.3d
527, 532 (7th Cir. 2014) (quoting INS v. Elias-Zacarias, 502 U.S.
478, 481 (1992)4); FH-T v. Holder, 723 F.3d 833, 838 (7th Cir.
2013). We will overturn “only if the record compels a contrary
result.” Ruiz-Cabrera, 748 F.3d at 757; 8 U.S.C. § 1252(b)(4)(B).
“Legal [issues] are reviewed de novo, with deference to the
agency if the issue involves an ambiguous section of the
[immigration statutes] or an interpretation of agency
4
Elias-Zacarias itself was quoting 8 U.S.C. § 1105a(a)(4), which was
subsequently repealed and replaced with 8 U.S.C. § 1252(b)(4)(B). Although
the standard there sounds even more deferential—“administrative findings
of fact are conclusive unless any reasonable adjudicator would be com-
pelled to conclude to the contrary”—every circuit court considering the
statutory change has held that the standard did not change. See Sou v.
Gonzales, 450 F.3d 1, 6 n.12 (1st Cir. 2006); Xiao Ji Chen v. Gonzales, 434 F.3d
144, 157 (2d Cir. 2006); Dia v. Ashcroft, 353 F.3d 228, 247–48 & nn.17–18 (3d
Cir. 2003) (en banc); Akhtar v. Gonzales, 406 F.3d 399, 404 (6th Cir. 2005);
Menendez-Donis v. Ashcroft, 360 F.3d 915, 917–19 (8th Cir. 2004). We too have
treated them as the same, though without much discussion. See Weiping
Chen v. Holder, 744 F.3d 527, 532 (7th Cir. 2014) (quoting both Elias-Zacarias
and § 1252(b)(4)(B)).
Nos. 13-2106 & 13-3385 13
regulations.” Cruz-Moyaho v. Holder, 703 F.3d 991, 997 (7th Cir.
2012) (internal quotation marks omitted).
We also have jurisdiction to review the BIA’s denial of
Khan’s motion to reconsider, see Kucana v. Holder, 558 U.S. 233(2010), but our standard of review is even more deferential.
“Motions to reconsider ask the BIA to reexamine its earlier
decision in light of additional legal arguments, a change of law,
or an argument that was overlooked,” Mungongo v. Gonzales,
479 F.3d 531, 534 (7th Cir. 2007) (internal quotation marks
omitted), often “rehash[ing] arguments that should have been
presented the first time around,” Patel v. Ashcroft, 378 F.3d 610,
612 (7th Cir 2004). “Yet motions to reconsider … are not
replays of the main event.” Rehman v. Gonzales, 441 F.3d 506,
508 (7th Cir. 2006). We review only for abuse of discretion and
will uphold the BIA’s decision unless it “was made without a
rational explanation, inexplicably departed from established
policies, or rested on an impermissible basis such as invidious
discrimination against a particular race or group.” Victor v.
Holder, 616 F.3d 705, 708 (7th Cir. 2010) (internal quotation
marks omitted).
* * *
Khan’s primary argument is that he was never given an
opportunity to prove that he didn’t know MQM-H was a
terrorist organization. He received a hearing, of course, but he
believes he should have gotten two. He claims that the hearing
had to be bifurcated—the IJ first needed to find that he gave
material support to a terrorist organization and then conduct
a second hearing on the knowledge exception.
14 Nos. 13-2106 & 13-3385
There are two problems with this argument and both are
fatal to it. First, Khan failed to raise it in his appeal to the
Board. FH-T, 723 F.3d at 841 (“[A]n alien must exhaust all
administrative remedies available to the alien as of right, …
and this includes the obligation first to present to the Board
any arguments that lie within its power to address.” (internal
quotation marks omitted)). Khan responds that the exhaustion
requirement is not a jurisdictional rule, and that’s true, see id.,
but it still “limits the arguments available to an alien,” id.
(quoting Issaq v. Holder, 617 F.3d 962, 968 (7th Cir. 2010)). The
exhaustion requirement exists to “provid[e] the Board an
opportunity to apply its specialized knowledge and experience
to the matter, which provides us with reasoning to review.”
Minghai Tian v. Holder, 745 F.3d 822, 826 (7th Cir. 2014) (inter-
nal quotation marks omitted).
Second, Khan doesn’t have any legal authority for a right
to a bifurcated hearing. His only citation is to American
Academy of Religion v. Napolitano, 573 F.3d 115 (2d Cir. 2009),
but that case is not helpful to him. There the government
denied a visa to an Islamic scholar based on the material
support bar. American Academy involved a challenge to that
denial, the details of which are somewhat complicated and
ultimately irrelevant here. The bottom line is that the Second
Circuit remanded the case because there was nothing in the
record indicating that the applicant was given “a meaningful
opportunity to negate knowledge.” Id. at 132. Khan empha-
sizes the following passage:
The existence of the opportunity for the visa
applicant to prove that he lacked actual or
Nos. 13-2106 & 13-3385 15
constructive knowledge that the recipient of his
funds was a terrorist organization implies that,
before a decision on the visa application is made,
the alien must be confronted with the allegation
that he knew he had supported a terrorist orga-
nization. Otherwise, he has no way of under-
standing what it is that he must show he did not
know or should not have known.
Id. at 131–32. But this passage does not support Khan’s position
because Khan was presented with “the allegation that he knew
he had supported a terrorist organization.” The government
made clear long before Khan’s final hearing on December 8,
2010, that it recommended his removal based on his participa-
tion in MQM. As Khan acknowledges, the government took
this position as early as 2008. The parties also discussed the
terrorism bar during a status conference on September 13,
giving Khan ample warning before he actually had to present
evidence on December 8.
Furthermore, Khan’s lawyer was warned that there would
only be one evidentiary hearing. At the September 13 confer-
ence, he insisted that any evidentiary hearing should be
bifurcated, but the IJ disagreed. If that wasn’t enough, the IJ
reiterated during the final hearing that it was the whole
shebang: “[Judge]: I’m not bifurcating, counsel. I mean, we’re
going for everything. [Khan’s lawyer]: Yeah, I understand that,
Judge.” Khan’s argument that he never had a chance to contest
his knowledge is meritless.
In his petition for review of the denial of his motion to
reconsider, Khan makes a slightly different argument about the
16 Nos. 13-2106 & 13-3385
adequacy of his hearing. He argues that the IJ signaled that the
December 8 hearing would be limited to Khan’s admissibility
vis-à-vis the terrorism bar, so he was not prepared—and thus
did not have an opportunity—to present evidence on his many
claims for relief (asylum, withholding of removal, etc.). The
record is not entirely clear in this regard, but it does not matter.
Khan concedes that the terrorism bar, if it applies, blocks all of
his requested forms of relief except for deferral under the
Convention Against Torture (which we’ll discuss momen-
tarily). And the government had provisionally approved
Khan’s I-130 application for adjustment of status through
marriage, so if the terrorism bar did not apply, his other
requested forms of relief were irrelevant. The IJ, the govern-
ment, and Khan’s counsel all agreed on these points at the
September 13 conference, so the evidentiary hearing on
December 8 was understandably focused on the terrorism bar.
Even if Khan’s counsel was given the impression that the
hearing was confined to this topic, there is no error because
addressing most of his other arguments for relief would have
been a waste of time.
That still leaves deferral, the only other topic for which
evidence would have been logically relevant. But the IJ
reminded Khan’s counsel on both September 13 and
December 8 that he needed to make a case for that relief.
Khan’s lawyer responded specifically that he “would rest with
the [deferral] claim on the record” and “would not ask any
questions … other than resting with the application itself.”
Therefore, we reject Khan’s arguments that his hearing was
somehow inadequate.
Nos. 13-2106 & 13-3385 17
Most of his remaining arguments can be disposed of fairly
quickly. First, Khan argues that none of the ways in which he
supported MQM-A or MQM-H were “material.” The statute
says that “material support” includes “a safe house, transporta-
tion, communications, funds, transfer of funds or other
material financial benefit, false documentation or identification,
weapons (including chemical, biological, or radiological
weapons), explosives, or training.” § 1182(a)(3)(B)(iv)(VI).
Khan didn’t provide any of these things, but the list is not
exhaustive, see id. (“an act that … affords material support,
including a safe house … ” (emphasis added)); Singh-Kaur v.
Ashcroft, 385 F.3d 293, 298–99 (3d Cir. 2004), and as the IJ noted,
Khan “distributed flyers, posted signs, looked after the local
office, and recruited individuals in his neighborhood to attend
the organization’s meeting”—and he did so for multiple years.
Recruiting by itself meets the statutory definition of “engaging
in terrorist activity,” § 1182(a)(3)(B)(iv)(V)(cc), so surely years
of recruiting also counts as material support, see also Hussain,
518 F.3d at 538 (upholding a removal order based on
§ 1182(a)(3)(B) where an individual had “recruited for MQM-H
and solicited funds for it as well”). Courts have found less
significant support to be sufficiently material. See, e.g., Singh-
Kaur, 385 F.3d at 298–99 (providing food and setting up
shelter); In re S-K-, 23 I. & N. Dec. 936, 945 & n.13 (B.I.A. 2006)
($685 in donations).
Khan also argues that his participation was immaterial
because it only related to the groups’ peaceful political activi-
ties, but we rejected this argument in Hussain. 518 F.3d at 538(“If you provide material support to a terrorist organization,
you are engaged in terrorist activity even if your support is
18 Nos. 13-2106 & 13-3385
confined to the nonterrorist activities of the organization.”). We
find no error in the BIA’s conclusion that Khan provided
material support to MQM-A and MQM-H.
Khan’s next contention is that he was improperly denied
deferral of removal under the Convention Against Torture, the
only relief not precluded by the terrorism bar. So-called “CAT
deferral” requires evidence that the alien will be tortured by the
government or with its acquiescence. 8 C.F.R. §§ 1208.16(c)(3),
1208.17(a), 1208.18(a)(1); e.g., Bitsin v. Holder, 719 F.3d 619,
630–31 (7th Cir. 2013); Ishitiaq v. Holder, 578 F.3d 712, 718 n.3
(7th Cir. 2009); Pavlyk v. Gonzales, 469 F.3d 1082, 1090 (7th Cir.
2006). But Khan’s lawyer essentially conceded that Khan was
not in danger of torture by the Pakistani government. When
the IJ reminded him that he needed to present a case for
deferral, he responded: “We’ve never alleged that the govern-
ment of Pakistan has tortured the respondent, kidnapped him,
or done any harm to him whatsoever. It’s a group that the
government would be unable to control.”
Khan asserts that the IJ and the BIA failed to consider
several reports about conditions in Pakistan. The IJ, however,
explicitly mentioned these reports in the list of exhibits he
considered, and the BIA adopted his decision. Furthermore,
the reports that Khan identifies contain only a few oblique and
summary references to the government’s ability to control
violent clashes between the MQM groups—saying, for exam-
ple, that “[t]he Pakistani state is often either unable or unwill-
ing to protect its citizens from the violent MQM factions.” That
is not enough to establish that Khan is likely to be tortured by
Nos. 13-2106 & 13-3385 19
or with the acquiescence of the Pakistani government. We see
no error here either.
Khan also spends three sentences in his second petition
arguing that the IJ should have indefinitely continued his
proceedings while he sought a waiver under 8 U.S.C.
§ 1182(d)(3)(B) (allowing the Secretary of State or the Secretary
of Homeland Security to grant a waiver of the terrorism bar in
certain circumstances). To the extent that this can be character-
ized as a developed argument, it is foreclosed by FH-T.
723 F.3d at 847–48.
That brings us to Khan’s final argument, his best one. In his
petition for review of the BIA’s denial of his motion to recon-
sider, Khan argues that the immigration agency erred by
assuming that “knowledge of kidnapping and violence [is] per
se sufficient to preclude an individual from invoking the
[knowledge] exception.” There may be something to this
argument. Though we ultimately can’t reach it, it’s worth
pointing out the problem.
An entire organization does not automatically become a
terrorist organization just because some members of the group
commit terrorist acts. The question is one of authorization. We
made this point in Hussain. 518 F.3d at 538 (“An organization
is not a terrorist organization just because one of its members
commits an act of armed violence without direct or indirect
authorization, even if his objective was to advance the
organization’s goals.”). But if an organization does not become
a terrorist organization until it authorizes terrorist acts, then a
person may not know whether he is supporting a terrorist
organization until he knows which acts are authorized. Even
20 Nos. 13-2106 & 13-3385
if someone is aware of violent acts by some members of his
group, that does not necessarily mean that he knew or should
have known that the acts were backed by the leaders. This is
especially so in diffuse political parties in poor countries. And
even if an organization actually does sanction terrorist acts,
that does not automatically mean that all of its members will
be aware that authorization has been given. A leader in an
otherwise peaceable group might secretly authorize some
branch to commit atrocities but leave the majority of its
members oblivious.
The IJ and BIA seem to have assumed that Khan’s aware-
ness of some violence by members of the MQM factions
automatically precluded him from showing that he didn’t
know he was supporting a terrorist organization. Both relied
almost exclusively on Khan’s own testimony to rule out the
knowledge exception. But we are unable to find anything in
Khan’s testimony that clearly indicates that he was aware of
group-sanctioned violence for any significant period of time
during his involvement. If anything, his testimony shows the
opposite. After all, Khan left MQM precisely because of its
violence. Twice. The government’s position is that he did not
leave soon enough, but this means that the timing of Khan’s
awareness and withdrawal from involvement becomes critical.
Although the IJ and BIA agreed with the government’s
position, neither made any specific findings on this more
nuanced point.
With respect to Khan’s time with MQM-A—which, recall,
only the BIA discussed, and even then it’s not clear how this
affected the knowledge exception—the agency wrote:
Nos. 13-2106 & 13-3385 21
[Khan] acknowledged that he knew [MQM-A]
began to commit acts of torture, killing, kidnap-
ping, and rape during the time he was a member
of that organization, and that such acts were
reported in the media. (Exh. 5, Tab A, at 6–7;
Tr. at 242–43). These actions constitute terrorist
activity. … [Khan’s] objection to such conduct is
the reason he decided to join the MQM-H when
the factions split.
In his personal statement (this is the Exhibit 5 referenced by the
BIA), Khan does explain that the leadership of MQM-A turned
the party toward “killings, tortures, harassments, kidnappings
for ransom money, rapes, … and all sorts of criminal activi-
ties.” But this statement must be understood in context: Kahn
was explaining why he left the group. He also explains that
“[t]he involvement of [MQM-A] in criminal activities men-
tioned earlier came as a shock/surprise to Mohajirs and their
supporters, including me.” And later: “Because I … was fed up
with the criminal attitude and policies of [MQM-A], I …
decided to leave the party.” Khan’s testimony on the stand was
consistent. Nothing he said establishes any significant overlap
between Khan’s awareness that MQM-A authorized terrorist
activities and his involvement with the group. That may
explain why the IJ limited his findings to Khan’s time with
MQM-H.
With respect to Khan’s involvement with MQM-H and the
timing of his awareness that it too had become violent, the IJ
wrote: “[Khan] testified that he ‘gradually’ became aware that
the MQM-H was engaging in violent acts but continued to
22 Nos. 13-2106 & 13-3385
support it for several years. As such, he has not met his burden
to show that he falls within the exception.” The BIA was
similarly nonspecific on this point: “Even [after Khan left
MQM-A for MQM-H], however, [he] concedes he was aware
of killings being perpetrated by both factions.” The IJ didn’t
cite to the record, but his finding that Khan “gradually”
became aware of violence may have come from the following
exchange:
[Government]: So, sir, if I understand you
correctly, then you knew that MQM-H was also
perpetrating violence, is that correct?
[Khan]: In the beginning they were doing
good things, but later on, gradually, they started
doing the same things as [MQM-A].
But this question and answer was immediately preceded by
Khan’s specific testimony that he curtailed his involvement as
soon as he fully appreciated the scope of the violence:
[Government]: And you were aware of this
ongoing violence between these two groups, is
that correct?
[Khan]: As soon as I came to know that these
both groups are getting violent, and when they
were clashing, I stopped working for them, and
I stopped attending their meetings and kept
myself aloof from them.
A few questions later, the government even asked explicitly
about the timing of his involvement and awareness:
Nos. 13-2106 & 13-3385 23
[Government]: Okay, so, did you still work
for them and participate with the MQM-H even
after you were aware of the fighting between
[MQM-A] and MQM-H?
[Khan]: I used to [express my support for]
them, but I never … worked for them or inter-
fered with their work or what they were doing.
Khan further clarified that in addition to expressing support
for MQM-H when asked, he also attended meetings when
MQM-H members called on him. This more limited involve-
ment lasted for another three or four years and may have been
the basis of the IJ’s finding that he “continued to support
[MQM-H] for several years,” even after recognizing its
violence.
The government relies on Khan’s attendance at meetings to
support its argument that he didn’t leave MQM-H soon
enough. Of course, Khan also testified that he “had to attend”
because “they have a hold over that entire area, and I had no
other option,” and it’s an open question whether there is a
duress exception to the material support bar. See Ay v. Holder,
743 F.3d 317, 320–21 (2d Cir. 2014). It’s doubtful that attending
meetings, without more, constitutes “material support” for a
terrorist organization. Khan obviously can’t argue that he
didn’t provide any material support to MQM at any time, but
his involvement might be characterized as “immaterial” after
he realized that the group condoned violence.5
5
That is, unless Khan continued his more significant work for MQM-H
(continued...)
24 Nos. 13-2106 & 13-3385
The IJ also found that Khan should have known that MQM-H
was a terrorist organization even if he didn’t. But this finding
also seems to rest on the assumption that mere knowledge of
violence by members of an organization is enough: “The
evidence in the record shows that the MQM-H committed
violent political acts in 1994 and 1995, the years during which
[Khan] claims he was most active in the party.” The govern-
ment defends this finding by pointing to Hussain, where we
said that MQM-H’s violent acts “were so frequent that Hussain
could not have failed to learn about them,” and that “an
inference that [the violence] was authorized is inescapable.”
518 F.3d at 539. The same is true of Khan, the government
argues, because he “lived in the same city at the same time and
was a member of the same organization.” True, Khan must
have been aware of violence by members of MQM-H—and he
admits that he was—but he may not have recognized that it
was a group-sanctioned phenomenon.
And there is an important difference between Hussain and
Khan: Hussain 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,” id., while Khan “distributed flyers … and
sometimes … looked after the local office.” Hussain could not
plausibly argue that he was unaware of what MQM-H was
authorizing because he was in charge. Khan, on the other hand,
was about as low as one could be in the organization. At the
5
(...continued)
even after 1997, as his personal statement may imply. See supra note 3. But
the immigration courts would need to make a finding on this to rely on it.
Nos. 13-2106 & 13-3385 25
time Khan was involved with MQM, Karachi had a population
equivalent to that of New York City today, covered a much
larger area, and was far less developed, see Demographics of
Karachi, W IKIPEDI A, http://en.wikipedia.org/wiki/
Demographics_of_Karachi (last visited Sept. 4, 2014); Karachi,
WIKIPEDIA, http://en.wikipedia.org/wiki/Karachi (last visited
Sept. 4, 2014)—so it’s plausible that Khan’s awareness was
limited by the events occurring in his immediate vicinity. And
recall that by at least one historian’s account, MQM-H leaders
were running a campaign to convince low-level members that
MQM-A was the terrorist faction of the movement. See Farhat
Haq, supra, at 1001. It’s hardly surprising that they could
convince a teenager.
In the end, however, we can’t resolve the more precise
knowledge question because Khan failed to exhaust the
argument before the Board. See FH-T, 723 F.3d at 841. Khan’s
brief suggests that he raised this issue in the following two
sentences in his motion to reconsider: “The Board concluded
that the respondent provided ‘material support’ only by the
respondent acknowledging ‘he knew the MQM began to
commit acts of torture, killing, and rape during the time he was
a member.’ This finding by the Board does not accurately
depict the respondent’s testimony.” These two short sentences
do not clearly articulate the argument now raised on review;
they were certainly not enough to notify the BIA of the
embedded legal issue about the proper interpretation of the
knowledge exception. Nor did Khan make the argument in his
initial appeal to the BIA. Khan’s lawyer did argue that Khan’s
testimony “shows that [he] did not reasonably know that the
organization was a terrorist organization.” But the theory
26 Nos. 13-2106 & 13-3385
advanced was that Khan couldn’t possibly have known that
MQM-H was a terrorist organization because his involvement
preceded the enactment of the statutory section defining Tier 3
terrorist organizations. The Board rejected that argument, and
Khan does not repeat it here.
The exhaustion requirement is not just an empty formality;
it exists in part to prevent error by appellate courts. We’ve
identified the more nuanced knowledge question here in order
to flag it for future cases, but we might have missed something.
In any event, the issue should be addressed by the BIA in the
first instance. Had Khan made this argument to the Board, it
could have “appl[ied] its specialized knowledge and experi-
ence to the matter.” Id. (internal quotation marks omitted). On
the present record, labeling Khan a terrorist to prevent him
from remaining in the United States with his American citizen
wife is troubling, but we cannot ignore the exhaustion require-
ment, especially not for an argument raised for the first time on
a petition for review from a motion to reconsider, where our
deference to the BIA is at its peak.
For the foregoing reasons, we DENY the petitions for
review.