F. H.-T. v. Eric Holder, Jr. ( 2013 )

In the
United States Court of Appeals
For the Seventh Circuit
No. 12-2471
FH-T,
Petitioner,
v.
E RIC H. H OLDER, JR., Attorney General
of the United States,
Respondent.
Petition for Review of an Order of the
Board of Immigration Appeals.
No. 12-2471
A RGUED A PRIL 18, 2013—D ECIDED JULY 23, 2013
Before B AUER, F LAUM, and SYKES, Circuit Judges.
F LAUM, Circuit Judge. Petitioner FH-T appeals from
the decision of the Board of Immigration Appeals
affirming the Immigration Judge’s removal order. Peti-
tioner’s applications for asylum and withholding of
removal were denied on the basis that he had provided
material support to the Eritrean People’s Liberation
Front (“EPLF”), which the Board and Immigration Judge
2 No. 12-2471
classified as a “Tier III” terrorist organization. See 8 U.S.C.
§ 1182(a)(3)(B)(vi)(III). The Board did not decide whether
Petitioner would be eligible for asylum “but for”
the material support bar, finding it unnecessary to reach
FH-T’s arguments challenging the denial of his political
persecution claim on the merits. On appeal, Petitioner
argues that the Board should have found him eligible
for the “knowledge exemption” to the material support
for terrorism bar because he did not know that the
EPLF was involved in the unlawful use of force, as com-
pared to the lawful use of force as part of a war of inde-
pendence. Because Petitioner did not exhaust this argu-
ment before the Board, this claim cannot succeed.
Petitioner next claims that because the Board did not
consider the merits of his asylum claim, he is ineligible
for a terrorism bar waiver under current Department of
Homeland Security (“DHS”) policy, effectively nullifying
a statutory right to waiver consideration. He further
suggests that government procedures for adjudicating
waivers are “legally flawed” because the process lacks
coordination among various agencies: in most cases, the
Board issues a final removal order before a waiver deter-
mination has been issued by DHS. FH-T contends that
this bifurcated system frustrates Congress’s provision
for judicial review of exemption determinations in the
context of a petition for review of final removal orders.
For the following reasons, we deny the petition.
No. 12-2471 3
I. Background
A. Factual Background
FH-T joined the EPLF when he was approximately
fifteen years old in 1982, while Eritrea and Ethiopia were
in the midst of a war that would last thirty years. By
way of background, in 1950 the United Nations General
Assembly voted to merge Eritrea with Ethiopia as
an autonomous federated unit, with Eritrea under Ethio-
pian sovereignty. Ethiopia abolished the federation unilat-
erally in 1962, annexing Eritrea and triggering the onset
of the war. FH-T’s asylum application suggests that he
was motivated to join the EPLF by “youthful emotions” as
well as the “prevailing war and politics.” He quickly
regretted this decision and attempted to return home
after two days, though the EPLF refused to let
him leave. He served in the EPLF for the next nine
years, working in communications and as a small car
and truck driver in Sudan, along the border of the
southern region of Eritrea. His responsibilities primarily
involved transporting food and clothing as a driver and
transferring calls, as well as relaying requests for truck
parts. He did not transport weapons.
In 1991, the EPLF defeated the Ethiopian army,
achieving Eritrean independence. In 1994, the EPLF
dissolved itself and transformed into a mass political
party, the People’s Front for Democracy and Justice
(“PFDJ”), which remains Eritrea’s only political party.
The PFDJ maintains a compulsory labor program
referred to as the “National Service” under which all
Eritrean citizens must work for the government. While
4 No. 12-2471
conscription is supposed to last for eighteen months, in
practice the Eritrean government frequently does not
release National Service workers after their term is com-
pleted and requires them to remain in the Service indefi-
nitely. Conscription workers labor under poor condi-
tions and are paid meager wages. When the war ended,
FH-T was employed as a transportation supervisor at a
government-owned company. Many of the people with
whom Petitioner worked were government conscripts.
In 2005 and 2006, Petitioner repeatedly expressed
concerns about abuses of the National Service program by
the PFDJ. When he received no response, he elevated
his complaints to a high-ranking member of the PFDJ.
This individual threatened FH-T with incarceration
if he continued to voice opposition to the National Ser-
vice. In June of 2006, Eritrean “Internal Security” officials
arrested two of Petitioner’s supervisors at the government-
owned company. A month or so later on July 15, 2006,
Petitioner was also arrested by two Internal Security
officers.
FH-T was imprisoned in a military prison camp for
approximately five months. The conditions were deplor-
able; inmates were housed in shipping containers
without proper sanitation, ventilation, or insulation
from weather conditions. Petitioner became ill and lost
thirty pounds while in prison. Internal Security officers
repeatedly interrogated him, accusing him of belonging
to an anti-Government group. FH-T denied involvement
in any such group. Nevertheless, interrogators pre-
sented him with a file detailing his complaints re-
No. 12-2471 5
garding the National Service and questioned his audacity
in challenging the government. He was eventually re-
leased, having never been charged with or convicted of
any crime. Upon release, FH-T was required to report to
his office at the government-owned transportation com-
pany every day, however he was not permitted to per-
form any work and was not paid for his time. He also
remained under surveillance by Internal Security, was
regularly interrogated, and received threats upon his
life. When he “believed the government was about to
kill him for political disobedience,” he fled Eritrea and
made his way to the United States, where he filed for
asylum. FH-T’s father and sister were arrested when
he fled the country.
B. Procedural Background
An Immigration Judge denied FH-T’s applications for
asylum and withholding of removal under 8 U.S.C. §§ 1158and 1231(b)(3) and ordered removal.1 The denial was
based upon alternative findings that (1) FH-T lacked
credibility, (2) FH-T failed to prove his eligibility for
asylum on the merits, and (3) FH-T was statutorily ineligi-
ble for having provided material support to the EPLF,
which the Immigration Judge classified as a Tier III ter-
rorist organization. With respect to credibility, the Immi-
gration Judge disbelieved that Petitioner was ignorant
1
The Immigration Judge granted Petitioner deferral of
removal under the Convention Against Torture, which the
government has not appealed.
6 No. 12-2471
of the EPLF’s violent and “well-known terrorist activi-
ties” between 1982 and 1991, such as the EPLF’s attacks
on United Nations relief convoys, a large-scale 1982
attack on Asmara, and assassinations of Eritrean civil-
ians. While FH-T testified to being present at monthly
EPLF “political indoctrination” meetings where he was
informed of its current actions, he nevertheless stated
that he was ignorant of many such events because
he did not personally witness them. Based on
these equivocations, the Immigration Judge determined
that FH-T was not credible.
The Immigration Judge also found FH-T ineligible
for asylum and withholding of removal on the basis that
his claimed persecution was not on account of a
statutorily protected ground. FH-T asserted that he
had been persecuted by the Eritrean government for
complaining about working conditions and low pay in
the National Service, however the Immigration Judge
determined that FH-T’s “complaints about treatment of
members of the National Service within the scope of his
employment with the government of Eritrea did not
qualify as an expression of a political opinion for
asylum purposes.” The Immigration Judge further rea-
soned that the fact that FH-T’s father and sister were
arrested following his departure from Eritrea failed
to establish a well-founded fear that he would be perse-
cuted upon his return because those arrests were tied to
his previous internal complaints regarding the National
Service. Because he could not establish asylum eligi-
bility, the Immigration Judge reasoned that “it necessarily
follows that the respondent has failed to satisfy the
No. 12-2471 7
more stringent probability of persecution standard re-
quired for withholding of removal.”
Finally, the Immigration Judge determined that even
if FH-T were found to have suffered past persecution
and/or a well-founded fear of future persecution, he
would still be statutorily barred from relief for having
given material support to a terrorist organization, citing
Petitioner’s nine years of service in the EPLF. The Im-
migration Judge determined that the EPLF satisfied
the definition of a Tier III terrorist organization under
8 U.S.C. § 1182(a)(3)(B)(vi)(III) and further concluded
that FH-T had not met his burden of showing by clear
and convincing evidence that he did not know the
group was a terrorist organization.
The Board affirmed the Immigration Judge’s decision
that FH-T was barred from receiving asylum and withhold-
ing of removal because he provided material support to a
Tier III terrorist organization. FH-T had argued before
the Board that the Immigration Judge erred by: (1) failing
to consider his imputed political opinion theory of
asylum; (2) finding that his complaints regarding the
National Service amounted to mere whistle-blowing;
(3) finding his denial of knowledge that the EPLF
engaged in terrorist activity not to be credible; and
(4) applying the material support bar because the
support he provided to the EPLF was not “material.” The
Board rejected these challenges. The Board agreed with
the Immigration Judge’s determination that FH-T had
not satisfied his burden of proving lack of knowledge
that the EPLF was a terrorist organization, because
8 No. 12-2471
while Petitioner denied being aware of the EPLF’s acts
of violence, he often equivocated, relying on the fact that
he did not personally witness the events. The Board
also relied upon FH-T’s testimony indicating that he
had been present at monthly political indoctrinations
where current events were discussed and FH-T “only
heard that they [the EPLF] were attacking the civilian
trucks or killing civilians.” (Tr. At 195, 201-03). These
equivocations, combined with the fact that FH-T served
in the EPLF for nine years, led to the Board’s conclu-
sion that the Immigration Judge did not clearly err in
finding that FH-T had not established with clear and
convincing evidence that he did not know or should not
have reasonably known that the EPLF was engaged in
terrorist activities. The Board did not reach FH-T’s argu-
ments challenging the denial of his political persecution
claim on the merits because it determined that the
material support bar rendered him ineligible for
asylum and withholding of removal. FH-T now appeals,
challenging the Board’s conclusion that he does not
qualify for the knowledge exemption to the material
support for terrorism bar, the Board’s decision not to
adjudicate the merits of his claim, and the process by
which the government adjudicates waivers. For the
following reasons, we deny FH-T’s petition.
II. Discussion
“Where . . . the Board relies on the findings of the
[Immigration Judge] but adds its own analysis, we
review the IJ’s decision as supplemented by the Board’s
No. 12-2471 9
additional reasoning.” Yi Xian Chen v. Holder, 705 F.3d
624, 628 (7th Cir. 2013) (internal citation omitted). We
review agency findings of fact for “substantial evidence”
and may reverse the Immigration Judge’s determinations
“only if we determine that the evidence compels a dif-
ferent result.” Abraham v. Holder, 647 F.3d 626, 632 (7th
Cir. 2011) (emphasis added) (citing Balogun v. Ashcroft,
374 F.3d 492, 498 (7th Cir. 2004). We review the Board’s
legal conclusions de novo, Orejuela v. Gonzales, 423 F.3d
666, 671 (7th Cir. 2005) (internal citation omitted),
“ow[ing] the Board deference in its interpretation of the
[Immigration and Nationality Act] ,” Duron-Ortiz v.
Holder, 698 F.3d 523, 526 (7th Cir. 2012) (internal citation
omitted). “We are not at liberty to overturn the Board’s
determination simply because we would have decided
the case differently.” Bueso-Avila v. Holder, 663 F.3d 934,
937 (7th Cir. 2011) (quoting Jamal-Daoud v. Gonzales,
403 F.3d 918, 922 (7th Cir. 2005)).
A. The Board’s Analysis of 8 U.S.C. § 1158(b)(2)(A)(v)
An individual is barred from asylum and withholding
of removal if he has provided material support to a
Tier III terrorist organization, unless he can demonstrate
that he “did not know, and should not reasonably have
known, that the organization was a terrorist organization.”
See 8 U.S.C. §§ 1158(b)(2)(A)(v); 1182(a)(3)(B)(iv)(VI)(dd),
(vi)(III). The immigration statutes delineate three tiers
of terrorist organizations: Tiers I and II are designated as
terrorist organizations by the Department of Homeland
10 No. 12-2471
Security and the Department of State, respectively. A
Tier III terrorist organization, by contrast, is broadly
defined as a “group of two or more individuals, whether
organized or not, which engages in, or has a subgroup
which engages in, the activities described in subclauses (I)
through (IV), 8 U.S.C. § 1182(a)(3)(B)(vi)(iii)2 .” The “ac-
tivities” referenced therein concern “terrorist activity,”
meaning “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 involves conduct such as assassination,
violent attacks upon an internationally protected person,
sabotage, and high-jacking. 8 U.S.C. § 1182(a)(3)(B)(iii).
Under the so-called “knowledge exemption,” the
material support bar applies only if FH-T knew or rea-
sonably should have known that the EPLF was engaged
in an activity that is either unlawful where it took place
or would be unlawful in the United States. See 8
U.S.C. §§ 1158(b)(2)(A)(v); 1182(a)(3)(B)(iv)(VI), (vi)(III).
On appeal, FH-T advances a nuanced argument chal-
lenging the Board’s conclusion that he does not qualify
for the knowledge exemption to the material support
bar: He argues that he has consistently claimed ignorance
of any unlawful activity committed by the EPLF,
while simultaneously acknowledging his awareness of
“lawful” violence undertaken by the EPLF as part of a
2
Unlike Tiers I and II, the Government does not maintain
a formal list of organizations falling under Tier III.
No. 12-2471 11
struggle for independence. Accordingly, Petitioner does
not dispute that he was aware of the fighting between
Eritrean and Ethiopian forces during the war, but
contends that he understood the EPLF to be operating as
a pseudo-government engaged in a legitimate war of
independence. Nevertheless, he claims that he has con-
sistently denied having any knowledge of any unlawful
(terrorist) activities, such as attacks on civilians com-
mitted by the EPLF during the time he was affiliated
with the group. His ignorance of such unlawful violence,
FH-T continues, is corroborated by a letter from his
friend and the testimony of Eritrean country expert
Trisha Hepner, who explained that a high level of secrecy
was associated with the EPLF’s military actions and
combat strategy.
Petitioner argues that the Board’s opinion glossed
over the significant distinction between his knowledge
of the EPLF’s lawful violent activities as compared to its
unlawful ones, and its failure to adequately address
such a critical component of his claim is grounds for a
remand. Champion v. Holder, 626 F.3d 952, 957 (7th Cir.
2012) (“Finding that the BIA erred by failing to consider
the impact of Yomi’s potential deportation, we remand
this matter in order for the BIA to address this critical
component of the hardship analysis.”). Further, as a
matter of policy, Petitioner contends that Congress did
not intend to impose “strict liability” on asylum-seekers
so as to render them ineligible for asylum on the basis
of any support for armed independence movements
against dictatorial regimes. In advancing this argument,
Petitioner urges that wars of independence are lawful
12 No. 12-2471
under international law, Eritrean law, and the laws of
the United States.
The language of the statute suggests that the relevant
analysis for purposes of the knowledge exemption is
whether the activity of which FH-T was aware 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).”
8 U.S.C. § 1182(a)(3)(B)(iii). While acknowledging that it
is an open question whether a court ought to examine
the law of the newly independent nation or the laws of
the oppressor nation (in assessing an action’s lawfulness
“under the laws of the place where it is committed”),
Petitioner submits that Eritrea is the relevant “law of the
place” for purposes of the inquiry surrounding the
legality of the EPLF’s activity. The Eritrean Constitution,
Petitioner suggests, unsurprisingly recognizes the EPLF’s
wartime activities as lawful. See Eri. Const. pmbl. (express-
ing “[e]ternal [g]ratitude to the scores of thousands of
our martyrs who sacrificed their lives for the causes of
our rights and independence, during the long and
heroic revolutionary struggle for liberation.”).3
3
In addition, Petitioner argues that even if Ethiopia is the “law
of the place” for purposes of the knowledge exemption to the
material support bar, it “is not clear that the EPLF’s actions
would be considered unlawful in se.” (Petitioner’s Br. at 21).
Ethiopia’s most recent constitution (relevant because the
language of the statute is in the present tense, see 8 U.S.C.
§ 1182(a)(3)(B)(iii)), states that “[e]very Nation, Nationality
(continued...)
No. 12-2471 13
Further, Petitioner argues that the EPLF activities of
which he was aware do not violate United States law. To
this end, FH-T concedes that “it violates the law to con-
spire or aim to overthrow the government of the United
States,” 18 U.S.C. §§ 2384, 2385, but argues that this
comparison is an improper analogue. Instead, Petitioner
urges us to imagine a foreign oppressor operating a non-
democratic government, noting that our domestic law
did not bar our own independence movement against
Britain. FH-T also refers us to the Guarantee Clause,
U.S. Const., Art. IV, § 4, which promises a republican
form of government and requires the federal govern-
ment to protect against invasion and domestic violence.
Id. Amicus adds that congressional intent, as expressed
via the Immigration and Nationality Act’s broad defini-
tion of refugees, see 8 U.S.C. § 1101(a)(42), is at odds
with the notion of excluding a large swath of asylum-
seekers on the basis of their involvement with an inde-
pendence movement.4
3
(...continued)
and People in Ethiopia has an unconditional right to self-
determination, including the right to secession.” Eth. Const.
art. 39, pt. 1 (1995).
4
Other courts have encountered various versions of this
argument. The Ninth Circuit, for instance, has explained that
“there may be an exception to the definition of ‘terrorist
activity’ where ‘the law of the country in question incorporates
international law such that the conduct in question is no
longer ‘unlawful’ under the country’s domestic law.’ ”
(continued...)
14 No. 12-2471
We need not decide whether the violent activity Peti-
tioner knew about was lawful in the place where it was
committed or would be lawful in the United States,
however, because FH-T did not exhaust this “lawful
violence” argument before the Board. We have explained
that “an 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.” Issaq v. Holder, 617 F.3d
962, 968 (7th Cir. 2010) (citing 8 U.S.C. § 1252(d)(1)) (other
4
(...continued)
Annachamy v. Holder, 686 F.3d 729, 734 n.4 (9th Cir. 2012) (citing
Khan v. Holder, 584 F.3d 773, 781 (9th Cir. 2009)). Because
the petitioner in Annachamy failed to provide “any evidence
that Sri Lanka has incorporated such international law,” the
Ninth Circuit declined the petitioner’s invitation to remand.
Id.; see also Khan, 584 F.3d at 781 (“An action would be
lawful within the meaning of § 1182(a)(3)(B)(iii) if the law of
the country in question incorporates international law such
that the conduct in question is no longer ‘unlawful’ under the
country’s domestic law, but Khan has made no argument that
that is the case here.”); cf. McAllister v. Att’y Gen., 444 F.3d 178,
187 (3d Cir. 2006). In the present case, while Petitioner argues
on appeal that international law recognizes that the use of
force during hostilities in wars of independence can be
lawful, like the unsuccessful petitioner in Annachamy, he has
not articulated a claim that Eritrea has incorporated such inter-
national law authorizing the use of force in independence
movements. Regardless, for the reasons stated, FH-T did
not exhaust this claim before the Board and his argument
cannot succeed.
No. 12-2471 15
citation omitted). This rule is not jurisdictional, but rather
is a “case-processing rule that limits the arguments avail-
able to an alien in this court when those arguments have
not been raised properly at the agency level.” Id. The
exhaustion requirement is meant to provide “the Board an
opportunity to apply its specialized knowledge and
experience to the matter” as well as “provide[] the peti-
tioner with the relief requested in the first instance,
and . . . provides us with reasoning to review.” Arobelidze
v. Holder, 653 F.3d 513, 517 (7th Cir. 2011).
In his brief before the Board, Petitioner argued that
“[i]n presuming that [Petitioner] must have known
about the full scope of activities of the EPLF, the Immigra-
tion Judge ignored” expert testimony and the letter
from FH-T’s friend. Petitioner’s appeal before the Board
further argued “[t]he Immigration Judge also erroneously
concluded that [Petitioner] knew or should reasonably
have known that EPLF was a terrorist organization.” The
government contends that such arguments before the
Board were aimed at persuading it that FH-T was
altogether ignorant of the EPLF’s activities, not that he
possessed innocuous as opposed to inculpating knowl-
edge. Indeed, FH-T did not use the “lawful” versus
“unlawful” activity terminology before the Board, did
not discuss the laws of the places where the EPLF’s
violence was carried out or United States law, and did not
cite the definition of “terrorist activity” contained in
§ 1182(a)(3)(B)(iii).
We agree with the government that FH-T did not
exhaust this argument before the Board. The fact that the
16 No. 12-2471
argument FH-T advanced before the Board appears
consistent with his claim on appeal that he was aware of
the (possibly) lawful violence committed by the EPLF
but simultaneously ignorant of its unlawful activities
is not enough for purposes of exhaustion: it is not the
Board’s responsibility to divine and respond to theories
that are unformed and lacking in citation to supporting
authority. See El-Gazawy v. Holder, 690 F.3d 852, 858-59
(7th Cir. 2012) (unformed arguments before the Board
were “simply too thin for the BIA to recognize [ ] in the
form the petitioner now urges us to consider.”). On
appeal Petitioner claims that “[b]y focusing broadly on
whether Petitioner knew of any violence committed by
the EPLF rather than any unlawful violence, the Board’s
analysis asked the wrong question and reached the
wrong conclusion.” (Petitioner’s Br. at 12). The govern-
ment rightfully points out that this framework turns
the exhaustion requirement on its head: the burden is
affirmatively on the petitioner, not the Board, to present
“arguments that lie within its power to address.” Issaq,
617 F.3d at 968. Petitioner’s arguments before the
Board were insufficient to provide notice of the “lawful
violence” theory he advances on appeal. Had Petitioner
employed the lawful-versus-unlawful terminology
below, cited the definition of terrorist activity in
§ 1182(a)(3)(B)(iii), or elucidated arguments that the
types of force used by the EPLF of which Petitioner
had knowledge are lawful under Eritrean or American
law, our finding may well have been different. Indeed,
in its brief the government does not dispute that the text
of the relevant statutory scheme requires knowledge of
No. 12-2471 17
unlawful violence for purposes of the material support
bar’s knowledge exemption in the context of a Tier III
terrorist organization.5 See Appellee’s Br. at 26. But FH-T’s
failure to articulate this novel argument before the
Board requires us to find that he did not exhaust it, and
his claim that he falls under the knowledge exemption
to the material support bar must therefore fail. We need
not reach the government’s alternative claim that the
Board and Immigration Judge clearly found that FH-T
failed to disprove his awareness of EPLF’s attacks on
civilians (even assuming that the EPLF attacks on the
Ethiopian military do not qualify as terrorist activity).
B. Whether the Petition Must be Granted Because
Current Government Procedures for Adjudicating
Material Support for Terrorism Waivers are
Legally Flawed
Petitioner next argues that even assuming his activities
triggered the material support bar, the denial of asylum
and the entry of a removal order were nevertheless er-
roneous because the Board’s decision deprived him of a
5
Instead, the government noted, without analysis, that two
federal courts of appeals rejected versions of the argument FH-T
now advances on appeal. (Government’s Br. at 27). The gov-
ernment did not address the argument on its terms, instead
relying upon exhaustion as well as an argument that “the
Board’s ruling that FH-T failed to prove he did not know, or
should not reasonably have known of EPLF’s terrorism
of civilians is independently dispositive.” Id.
18 No. 12-2471
fair opportunity to obtain a waiver from that bar. The
Secretary of State and Secretary of Homeland Security may,
in consultation with one another and the Attorney
General, waive the application of the material sup-
port bar for individual aliens or groups. 8 U.S.C.
§ 1182(d)(3)(B)(i). The legislative history surrounding
the availability of such waivers or exemptions, which
are rarely issued, suggests that Congress was concerned
that the breadth of the definition of “terrorism” as con-
tained in the bars might sweep too broadly, effectively
denying asylum to otherwise deserving applicants.
See “The ‘Material Support’ Bar: Denying refuge to the
Persecuted,” S. Hrg. 110-753, 7 (Sept. 19, 2007). In
addition, when Congress last amended the exemption
process, it added language indicating that waiver deci-
sions shall be subject to judicial review under
§ 1252(A)(2)(D).6 The Consolidated Appropriations Act
2008, Pub. L. No. 110-161, Div. J, § 691, 121 Stat. 1844, 2364-
66 (Dec. 26, 2007).
FH-T contends that published DHS policy suggests
that the Department will not consider whether to grant a
waiver until: (1) the petitioner was found eligible for
asylum “but for” the material support for terrorism bar;
and (2) the petitioner has received a final order denying
6
The amended language provides that “no court shall have
jurisdiction to review such a determination or revocation
except in a proceeding for review of a final order of removal
pursuant to section 1252 of this title and review shall be
limited to the extent provided in section 1252(a)(2)(D).”
8 U.S.C. § 1182(d)(3)(B)(i).
No. 12-2471 19
him asylum (and thus ordering removal). It is undisputed
that the Board is required to promptly proceed with
an asylum case and cannot hold it indefinitely in
abeyance while awaiting waiver adjudication by DHS.
See 8 C.F.R. 1003.1(e)(8) (requiring the Board, with
certain exceptions, to adjudicate cases within 90 days
(for single-member boards) or 180 days (for three-
member panels)).
FH-T argues that this procedure is legally flawed as
applied to this case in two respects: (1) the Board erred
in its adjudication by not addressing whether FH-T
would be eligible for asylum “but for” the material
support for terrorism bar, despite the fact that an ex-
emption possibility existed; and (2) the Board erred
in ordering removal and denying asylum before
DHS adjudicated the exemption matter, effectively pre-
venting judicial review of any waiver determination in
the context of a final removal order, as authorized in
8 U.S.C. § 1182(d)(3)(B)(i).
(i) The Board’s Decision Not to Adjudicate the
Merits of Petitioner’s Claim
Petitioner first argues that because published DHS
policy requires that a petitioner be eligible for asylum
“but for” the material support bar in order to be con-
sidered for a waiver, it was erroneous for the Board
to dismiss Petitioner’s asylum claim without addressing
the merits. The Board explained that “[t]o the extent
that the respondent has argued his possible eligibility
for a waiver under section 212(d)(3)(B)(i) of the Act, we
20 No. 12-2471
note that the Secretary of State has the sole authority
to grant this waiver, and this provision does not affect
the disposition of the instant removal proceedings,”
(Supplementary Appendix at 3, n. 1) (hereafter “SA”),
effectively acknowledging the existence of such a waiver
but recognizing its lack of authority to decide the issue.
As previously mentioned, 8 U.S.C. § 1182(d)(3)(B)(i)
empowers the Secretary of State and Secretary of Home-
land Security, in consultation with one another and the
Attorney General, to waive the application of the
material support bar for individual aliens or groups. It
further provides that no court shall have jurisdiction “to
review such a determination” except in a proceeding for
review of a final removal order. Id. According to a “Fact
Sheet” published by DHS regarding such waivers, a
threshold requirement for obtaining a waiver is that an
applicant “is seeking a benefit or protection under the
Act and has been determined to be otherwise eligible for the
benefit or protection.” (SA at 46) (emphasis added). The
Fact Sheet explains that an asylum petition will only be
given exemption consideration “if relief or protection
was denied solely on the basis of one of the grounds of
inadmissibility for which exemption authority has been
exercised by the Secretary.” (SA at 49). FH-T argues
that because the Board halted its analysis upon deter-
mining that the material support bar had been trig-
gered and declined to adjudicate the merits,7 Petitioner
7
The Board explained “[a]s the respondent is barred from
receiving asylum and withholding of removal, we need not
(continued...)
No. 12-2471 21
was necessarily denied the opportunity to seek a waiver
from DHS, as the statute permits.
Petitioner argues that the precarious position he
occupies—unable to seek a waiver because no final finding
of asylum eligibility “but for the bar” has been issued,
and unable to receive a full adjudication of
asylum eligibility on the basis that he is subject to the
material support bar—has been rejected by the
Seventh Circuit. He claims that our case law requires
coordination am ong agencies with overlapping
authority, as between the Board and DHS or between
the Board and the Department of State, and that the
Board’s decision not to fully address the merits of his
claim constituted an abdication of its role. (Petitioner’s
Br. at 37 (“[T]he Board abdicated its consultative role
by not only not making a recommendation, but by
issuing a decision which hinders DHS from making
any exemption decision in the case.”).)
In support of this claim, FH-T cites a line of cases
which he argues stands for the proposition that a mini-
mum level of coordination among the various execu-
tive agencies is required and supports our jurisdiction
here. See Siddiqui v. Holder, 670 F.3d 736, 741 (7th Cir.
2012); Ceta v. Mukasey, 535 F.3d 639, 646-47 (7th Cir.
2008) (“unless [] subagencies engage in some minimal co-
7
(...continued)
address the other arguments on appeal regarding the merits
of the respondent’s claim of persecution in Eritrea on account
of actual or imputed political opinion.” (SA at 3).
22 No. 12-2471
ordination of their respective proceedings—for example,
by the immigration courts favorably exercising discre-
tion, in the appropriate case, to continue proceedings to
allow the other subagency to act—the statutory opportu-
nity to seek [relief] will prove to be a mere illusion.”);
Potdar v. Keisler, 505 F.3d 680, 684 (7th Cir. 2007), vacated
on other grounds by Potdar v. Keisler, 550 F.3d 594 (7th Cir.
2008); Boyanivskyy v. Gonzales, 450 F.3d 286, 292 (7th
Cir. 2006); Benslimane v. Gonzalez, 430 F.3d 828, 832 (7th Cir.
2005); Subhan v. Ashcroft, 383 F.3d 591, 595 (7th Cir. 2004).
FH-T suggests that because the Board’s adjudication
practices operate to “nullify a statutory right” and effec-
tively thwart Congress’s desire to provide aliens subject
to terrorism bars with an exemption possibility, we are
authorized to review such procedures and instruct
the Board to adjudicate Petitioner’s claim in a
particular way.
In Ceta, we provided a helpful discussion of the rea-
soning behind the line of cases upon which Petitioner
relies:
In Subhan, we concluded that, despite the door-closing
statute, we had jurisdiction to review the denial of a
continuance when such a denial would nullify an
alien’s statutory opportunity to adjust sta-
tus. Specifically, we found it untenable “that Congress,
intending, as it clearly did, to entitle illegal aliens to
seek an adjustment of status upon the receipt of
[certain required] certificates . . ., at the same time also
intended section 1252(a)(2)(B)(ii) to place beyond
judicial review decisions that nullif[y] the statute.”
No. 12-2471 23
Subhan, 383 F.3d at 595. In Benslimane v. Gonzales, we
explained that Subhan applies when the denial of a
continuance request has “the effect of a substantive
ruling on the application to adjust . . . status.” 430 F.3d
828, 832 (7th Cir. 2005) (“An immigration judge
cannot be permitted, by arbitrarily denying a motion
for a continuance without which the alien cannot
establish a ground on which Congress has deter-
mined that he is eligible to seek to remain in this
country, 8 U.S.C. §§ 1151(b)(2)(A)(i), 1255(a), to thwart
the congressional design.”).
535 F.3d at 645-46. These cases did not concern a pur-
ported right to a waiver determination in the context of
the material support for terrorism bar, but rather
statutory rights to apply for adjustment of status (Ceta,
Subhan, Benslimane), or to present evidence in a removal
hearing (Boyanivskyy), or to seek “legalization” (Potdar,
Siddiqui). Nevertheless, Petitioner argues that these cases
stand for the general principle that we must instruct
the Board to adjudicate the merits of his claim.
The government counters that we lack jurisdiction to
review the Board’s case adjudication practices and argues
that the cases Petitioner cites are distinguishable from
the present one because they concerned “statutory
rights,” whereas the waiver provision at issue here confers
no such rights. 8 The government claims that “[n]othing
8
The government also claims that Petitioner failed to exhaust
the argument below that the Board was required to adjudicate
(continued...)
24 No. 12-2471
in the exemption provision establishes a right in any
alien to apply for an exemption, or any right, entitlement,
or interest in the exemption possibility itself.” (Govern-
ment’s Br. at 38).
It is true that the language of the statutes permitting
an individual to vindicate adjustment of status or legaliza-
tion rights invites individuals to “apply,” see 8 U.S.C.
§ 1255(a) (describing the alien’s ability to “make[] an
application for such adjustment”), whereas the language
of the waiver provision at issue here does not,
instead simply empowering the Secretaries with “sole
unreviewable discretion” to grant a waiver, 8 U.S.C.
§ 1182(d)(3)(B)(i).9 Indeed, the Secretary of DHS herself
has apparently advanced this understanding, declaring
that her exercise of the provision’s authority is “not
(...continued)
the merits of his argument. This view of exhaustion is
too demanding. In his brief before the Board, Petitioner explic-
itly acknowledged the while the grant of the discretionary
waiver is outside the authority of the Board or the Immigra-
tion Judge to issue directly, the Board should nevertheless
“consider all his arguments on appeal even if the Board upholds
the material support bar” so that his ability to obtain other
administrative remedies is not frustrated. (Administrative
Record at 24). Indeed, the Board discussed the issue in its
decision, (SA at 6), further indicating that the argument
was appropriately exhausted.
9
The provision also enumerates bars to the extension of
that relief and the right to judicial review. 8 U.S.C.
§ 1182(d)(3)(B)(i).
No. 12-2471 25
intended to create any substantive or procedural right or
benefit that is legally enforceable by any party.” (SA at 46).
The government further notes that Petitioner’s case is
distinguishable from the Ceta line in a procedural sense:
FH-T has not sought a continuance or the approval of
an application for a benefit, but instead seeks “the equiva-
lent of a pardon” to remove the material support for
terrorism designation.
Thus, at least as a matter of text, the exemption
provision before us is technically distinct from the rights
at issue in the Ceta line of cases. Denying Petitioner
relief on this basis is somewhat troubling, as, in a
broader sense this case is much like the other cases
in which we expect the immigration courts to coordinate
action with other executive agencies so as to avoid de-
priving individuals of opportunities to which they are
legislatively entitled. Moreover, the Secretary of
DHS’s characterization of the exemption provision is
unsatisfying: The suggestion that her exercise of the
provision’s authority is not “legally enforceable” is at
least in some sense belied by Congress’s explicit authoriza-
tion of judicial review of waiver determinations.
Nevertheless, we are of the opinion that the present
case does not fall within the Ceta line. In addition to the
textual distinctions (no part of the present statute
affords a petitioner the opportunity to “apply” for an
exemption) and procedural disparities (FH-T did not
request a continuance), pragmatic considerations coun-
sel in favor of abstaining from encroachment upon
agency expertise in this context. As compared to the
26 No. 12-2471
adjustment of status or legalization applications, exemp-
tion grants from the terrorism bars are exceedingly rare.
Accordingly, while there are sound practical consider-
ations weighing in favor of requiring a floor of inter-
agency coordination in the context of the (relatively)
frequently granted status adjustments or legalization
applications, a decree requiring a specific method of
Board adjudication in every case in which a petitioner
holds himself out as eligible for a waiver to the
terrorism bars may serve only to prolong the resolution
of cases in an already strained system. While it may be
optimal in theory for the Board to adjudicate all asylum
cases in a manner that furnishes DHS with every poten-
tially useful determination to inform its consideration
of exemptions, we cannot conclude that the Ceta line
of cases compels as much. Indeed, instructing the Board
to adjudicate all asylum cases implicating the material
support for terrorism bar in the manner prescribed by
Petitioner would be far more intrusive than any of our
past mandates (such as instructing the Board to issue
continuances) on the basis of a far less certain statutory
right, if such a right exists at all.1 0
10
Although the present case does not fall within the Ceta line,
this does not mean, as the government suggests, that we lack
jurisdiction to review the procedural sufficiency of the Board’s
actions. The government argues that “[w]here neither the
statute, regulations, nor the Constitution afford FH-T a right
or entitlement to apply or be considered for a terrorism
waiver, FH-T necessarily also lacks any ground upon which to
(continued...)
No. 12-2471 27
It’s worth noting that if Petitioner’s interpretation of the
DHS Fact Sheet is in fact accurate, he is rightfully frus-
trated that by declining to reach the question of whether
he would be eligible for asylum “but for” the bar, the
Board effectively deprived him of the opportunity to
plausibly seek a waiver from DHS. However, it’s not
clear that FH-T’s interpretation of the Fact Sheet is
correct, or that the Fact Sheet is in any sense binding
upon the Board or DHS. For instance, the government
points out that the Fact Sheet requires only that “[a]ll
10
(...continued)
assert that the jurisdictional clause in § 1182(d)(3)(B)(i)—
providing jurisdiction to review an exemption ‘determina-
tion,’—pertains to anything other than the exemption ‘deter-
mination’ he has not obtained.” (Government’s Br. at 41-42).
However, we have said that “[t]he procedural sufficiency of
an immigration hearing is a legal question,” Boyanivskyy, 450
F.3d at 291, and thus we properly consider the Board’s
actions de novo. Id. Indeed, if we were to have concluded that
the current agency process “thwart[s] the congressional design,”
Benslimane, 430 F.3d at 832, we would be within our authority
in remanding the case to the Board for a full determination as
to whether Petitioner would be eligible for asylum but for the
bar. See id. at 833(“We are not required to permit Benslimane
to be ground to bits in the bureaucratic mill against the will
of Congress.”); see also Lagunas-Salgado v. Holder, 584 F.3d 707,
713 (7th Cir. 2009) (the immigration statute guarantees a fair
hearing); Ceta, 535 F.3d at 645 (“In Subhan, we concluded that,
despite the door-closing statute, we had jurisdiction to review
the denial of a continuance when such a denial would nullify
an alien’s statutory opportunity to adjust status.”).
28 No. 12-2471
parties . . . have a chance to litigate the merits of the
case up through the BIA,” (SA at 49); it does not explicitly
require the Board to adjudicate the merits in any
particular fashion. Perhaps more significantly, it is not
clear from the language of the Fact Sheet that the Board
alone possesses the ability to determine whether an
alien would be “otherwise eligible for the benefit or
protection.” The Fact Sheet’s use of the passive voice (the
exemption provision applies to an alien “seeking a
benefit or protection . . . and has been determined to be
otherwise eligible for the benefit or protection.”) (SA at 47)
(emphasis added), suggests that other officials or
agencies, perhaps including DHS itself, could theoretically
determine that an alien would be “otherwise eligible” for
relief. (See Government’s Br. at 56 n. 15). If that were
the case, the Board’s decision not to adjudicate the
merits of Petitioner’s asylum claim would not deprive
him of the opportunity to be considered for a waiver.
Ultimately, the alleged statutory right to consideration
for an exemption is simply too nebulous for us to
require, at this stage, that the Board adjudicate such
claims in the particular manner Petitioner requests. FH-T
does not point us to compelling evidence that Congress,
rather than a single non-binding agency publication,
intended the waiver provision to require Board adjudica-
tion of the merits of asylum claims in every case trig-
gering the material support for terrorism bar. While
Petitioner alerts us to a disconcerting lack of harmonization
among executive agencies, we cannot say that the
Board “legally erred” in declining to reach the merits of
FH-T’s asylum claim.
No. 12-2471 29
(ii) The Board’s Issuance of a Final Removal Order
Prior to a DHS Exemption Decision
Petitioner next argues that the existing waiver process
is flawed because the entry of a removal order by the
Board prior to any waiver adjudication by DHS either
frustrates judicial review or requires the federal courts
to expand their jurisdiction beyond determinations nor-
mally treated as removal orders.1 1 As previously men-
tioned, Congress expressly provided for federal judicial
review over exemption determinations under the limited
jurisdictional provisions of 8 U.S.C. § 1252(a)(2)(D) and
8 U.S.C. § 1182 (d)(3)(B)(i). Congress further specified
11
The government argues that FH-T’s challenge regarding the
timing of waiver determinations presents a non-justiciable
political question. We disagree. The Supreme Court recently
explained that “[t]he Judicial Branch appropriately exercises [ ]
authority . . . where the question is whether Congress or the
Executive is ‘aggrandizing its power at the expense of another
branch.’” Zivotofsky ex rel. Zivotofsky v. Clinton, 132 S.Ct. 1421,
1428 (2012) (quoting Freytag v. Commissioner, 501 U.S. 868, 878
(1991)). FH-T’s claim can properly be characterized as
an argument that the Executive’s current adjudication proce-
dures amount to an aggrandizement of its power at the
expense of statutorily-enacted relief (the possibility of a
waiver and judicial review thereof) explicitly provided for by
Congress. Further, we have repeatedly found judicially man-
ageable standards in determining whether executive agency
actions have the effect of nullifying immigration statutes.
See Potdar, 550 F.3d at 596-97, Ceta, 535 F.3d at 645, Benslimane,
430 F.3d at 832; Subhan, 383 F.3d at 591. Petitioner’s claim
is justiciable.
30 No. 12-2471
that such review must occur in the context of a petition
for review from a final removal order. 8 U.S.C. § 1182(d)(3)(B)(i). Under current DHS procedures, DHS
considers whether to grant a waiver only after a final
removal order is entered. Meanwhile, the removal order
entered by the Board triggers a 30-day window for the
asylum applicant to seek federal judicial review. 8 U.S.C.
§ 1252(b)(1). The DHS waiver process and the removal
order review process are wholly independent; in the
typical case (such as the present one), a petitioner will
have no waiver determination upon which to seek
review as part of his final removal order within the 30-day
window. Petitioner concedes that it is unlikely that Con-
gress intended DHS waiver decisions themselves to con-
stitute separately reviewable decisions analogous to
removal orders, as this would result in twice as many
appeals to this court, raising costs and straining
judicial resources. (Petitioner’s Br. at 41). Thus,
the parallel track scheme as it currently operates
may frustrate Congress’s conferral of exemption review
authority upon the courts. Accordingly, FH-T claims “the
more natural reading of the statute is to require that
exemption decisions be made before a final removal
order, not afterward.” (Petitioner’s Br. at 37) (emphasis
in original). Petitioner suggests that as an alternative to
the present system, “[t]he Board might, for instance,
communicate its decision to the parties, but with-
hold finality from the order until DHS could make a
decision on the exemption possibility.” (Petitioner’s Br.
at 41). At bottom, Petitioner argues that the process by
which DHS and the Board currently coordinate waivers
No. 12-2471 31
of terrorism-related inadmissibility bars should be
deemed unlawful.
Congress has enacted legislation addressing this sort
of problem in other contexts. For example, in the context
of 8 U.S.C. § 1255a(f)(4), which authorizes judicial
review of legalization denials (but likewise only in the
context of a petition for review from a final removal
order), Congress automatically stayed removal for indi-
viduals presenting prima facie legalization claims. 8
U.S.C. § 1255a(e)(2); see also 8 U.S.C. § 1160(d)(2) (same,
for applicants under farm worker program). Legalization
decisions, like material support bar waiver decisions,
are made by DHS and are not reviewable by the Board
of Immigration Appeals. 8 U.S.C. § 1255a(f)(3)(A); Matter
of Singh, 21 I&N Dec. 427 (BIA 1996).
Because Congress has not similarly authorized auto-
matic stays for DHS material support for terrorism
waiver decisions pending review, Petitioner suggests
that the Board should abstain from issuing a final
removal order until after DHS issues an exemption de-
termination, such that the determination could be
reviewed naturally in the course of an appeal from the
removal order itself. This approach, he argues, would
facilitate appeal to this court (should it become neces-
sary), vindicating the judicial review explicitly provided
for by Congress, while limiting the proliferation of
multiple claims by the same petitioner.
The government urges that adopting Petitioner’s argu-
ment would “turn the statute on its head to interpret it
as requiring the Secretaries to afford an alien the oppor-
32 No. 12-2471
tunity to apply for a terrorism waiver in order to
vindicate a right to judicial review of that waiver.” (Gov-
ernment’s Br. at 42). The government reads the statute
as guaranteeing no such right, but rather merely iden-
tifying where (on petition for review of a removal order)
and when (after a determination or revocation) judicial
review may occur, assuming such a determination
takes place. See 8 U.S.C. § 1182(d)(3)(B)(i). Because no
such procedural interest is promised by the statute, the
government continues, the judicial review clause itself
cannot “force the Executive” to provide a determination.
As a textual matter, the government is correct. See id.And Petitioner provides no persuasive support for
the suggestion that it is within our authority to order
the DHS and the Board to coordinate adjudication in
this fashion so that asylum applicants are not ordered
removed before a waiver determination has been made.
The government’s interpretation is of some concern,
however, insofar as Congress did clearly legislate to
provide for judicial review of DHS waiver determina-
tions, and current agency practices will in all likelihood
frustrate the opportunity for review because Board deci-
sions will issue more quickly than DHS exemptions
(and the period for appealing a removal order will other-
wise lapse).
Nevertheless, the comparatively comprehensive scheme
in place for per se stays in the context of legaliza-
tion decisions illustrates the fact that Congress knows
how to solve this predicament when it so chooses. To
instruct the Board to automatically stall the issuance of
No. 12-2471 33
its opinions (including in cases such as the present one
where the petitioner has not requested a continuance)
while awaiting exemption determinations from DHS
which may or may not ever issue would not only grind
the levers of the immigration system to a near halt, but
would constitute an impermissible judicial encroachment
upon agency authority. While Petitioner again alerts us
to the troubling operation of uncoordinated procedures;
we again hold that it is the province of Congress, rather
than the courts, to mend this bifurcated scheme.
We decline Petitioner’s invitation to reverse on this basis.
IV. Conclusion
For the foregoing reasons, we D ENY the petition.
7-23-13