Gholamreza Bojnoordi v. Eric Holder, Jr. , 757 F.3d 1075 ( 2014 )

FOR PUBLICATION
UNITED STATES COURT OF APPEALS
FOR THE NINTH CIRCUIT
GHOLAMREZA BOJNOORDI, No. 10-73588
Petitioner,
Agency No.
v. A071-524-565
ERIC H. HOLDER, Jr., Attorney
General, OPINION
Respondent.
On Petition for Review of an Order of the
Board of Immigration Appeals
Argued and Submitted
June 2, 2014—Pasadena, California
Filed July 7, 2014
Before: Ronald M. Gould and N.R. Smith, Circuit Judges,
and Edward R. Korman, Senior District Judge.*
Opinion by Judge Gould
*
The Honorable Edward R. Korman, Senior District Judge for the U.S.
District Court for the Eastern District of New York, sitting by designation.
2 BOJNOORDI V. HOLDER
SUMMARY**
Immigration
The panel denied a petition for review of the Board of
Immigration Appeals’ determination that a native of Iran
provided material support to a Tier III terrorist organization
and was thus ineligible for immigration relief other than
deferral of removal under the Convention Against Torture.
The panel held that the statutory terrorism bar at 8 U.S.C.
§ 1182(a)(3)(B) applies retroactively to petitioner’s material
support of a Tier III organization, the Mojahedi-e Khalq
(“MEK”), even though his activities with MEK in the 1970s
were before it was officially designated as a terrorist group.
The panel held that substantial evidence supported the
Board’s determination that MEK was a terrorist organization
in the 1970s. The panel further held that Bojnoordi provided
material support to MEK during the 1970s and that he failed
to show by clear and convincing evidence that he did not
know, or should not reasonably have known, that MEK was
a terrorist organization during that time frame.
**
This summary constitutes no part of the opinion of the court. It has
been prepared by court staff for the convenience of the reader.
BOJNOORDI V. HOLDER 3
COUNSEL
Lisa Anderson (argued) and Houman Varzandeh, Varzandeh
Anderson LLP, Los Angeles, California, for Petitioner.
Lyle Davis Jentzer (argued), Attorney; Tony West, Assistant
Attorney General; Ethan B. Kanter, Deputy Chief, National
Security Unit; Edward J. Duffy, Trial Attorney, United States
Department of Justice, Civil Division, Office of Immigration
Litigation, Washington, D.C., for Respondent.
OPINION
GOULD, Circuit Judge:
Petitioner Gholamreza Bojnoordi challenges a Board of
Immigration Appeals (“BIA”) determination that he provided
material support in the 1970s to a “Tier III”1 terrorist
organization, Mojahedin-e Khalq (“MEK”), making him
statutorily ineligible for immigration relief other than deferral
of removal under the Convention Against Torture (“CAT”).
We have jurisdiction under 8 U.S.C. § 1252(a), and we deny
the petition for review for the reasons stated below.
1
The Immigration and Nationality Act (“INA”) divides “terrorist
organization” into three categories: a “Tier I” organization is officially
designated by the Secretary of State as a foreign terrorist organization
under 8 U.S.C. § 1189; a “Tier II” organization is otherwise designated as
a terrorist organization by the Secretary of State in consultation with the
Attorney General or Secretary of Homeland Security; and a “Tier III”
organization is “a group of two or more individuals . . . which engages in”
terrorist activities as defined by 8 U.S.C. § 1182(a)(3)(B)(iv)(I)-(VI). See
8 U.S.C. § 1182(a)(3)(B)(vi)(I)-(III).
4 BOJNOORDI V. HOLDER
We review “constitutional and other questions of law de
novo.” Khan v. Holder, 584 F.3d 773, 776 (9th Cir. 2009).
We review factual findings and mixed questions of law and
fact for substantial evidence. Id.Bojnoordi, a native and citizen of Iran, contends that the
statutory terrorism bar2 does not apply retroactively to his
activities with MEK in the 1970s because MEK was not then
officially designated as a terrorist group.3 But the plain
language of the INA contradicts Bojnoordi’s statutory
argument. See 8 U.S.C. § 1182(a)(3)(B); Uniting and
Strengthening America By Providing Appropriate Tools
Required to Intercept and Obstruct Terrorism (USA Patriot
Act) Act of 2001, Pub. L. No. 107-56, § 411(c), 155 Stat. 272(2001). The PATRIOT Act amendments to the INA are
generally retroactive. See § 411(c)(1)(A). While there is an
exception to retroactivity for certain activities involving a
“Tier I” or “Tier II” terrorist organization, see § 411(c)(3)(A),
such an exception to the terrorism bar expressly does not
apply to an alien’s material support of a “Tier III” terrorist
organization. See § 411(c)(3)(B)(ii); see also 8 U.S.C.
§ 1182(a)(3)(B)(iv)(VI)(dd) (material support); 8 U.S.C.
§ 1182(a)(3)(B)(vi)(III) (“Tier III” terrorist organization).
We hold that the statutory terrorism bar applies
retroactively to an alien’s material support of a “Tier III”
2
Most forms of immigration relief are barred by statute for aliens who
have engaged in terrorist activities. See Haile v. Holder, 658 F.3d 1122,
1125–26 (9th Cir. 2011) (listing statutory provisions).
3
Bojnoordi’s participation with MEK predated official designation of
MEK as a “Tier I” terrorist organization. MEK was designated by the
Secretary of State as a foreign terrorist organization under 8 U.S.C. § 1189in 1997. This designation was removed in 2012.
BOJNOORDI V. HOLDER 5
terrorist organization. This is a consequence of a normal
reading of the INA as amended by the PATRIOT Act. As we
explained in Haile v. Holder, “aliens who have engaged in
terrorist activities are precluded from seeking several forms
of relief from removal, including asylum, withholding, and
CAT protection in the form of withholding, but remain
eligible for deferral of removal under the CAT.” 658 F.3d at
1125-26. The statutory terrorism bar applies to Bojnoordi
because MEK was a “Tier III” terrorist organization during
the time that Bojnoordi gave it material support, including
weapons training for MEK members, in the 1970s.
Bojnoordi further contends that the BIA did not give
factual support for its conclusions (1) that MEK was a “Tier
III” terrorist organization during the 1970s, and (2) that
Bojnoordi provided material support to MEK in that period
of time. We disagree.
The INA defines “terrorist organization” and “engag[ing]
in terrorist activity” broadly. Annachamy v. Holder, 733 F.3d
254, 258 (9th Cir. 2013); Khan, 584 F.3d at 777. Substantial
evidence in the record supports the BIA’s determination that
MEK was a “Tier III” terrorist organization during the 1970s.
The government submitted a 2001 U.S. Department of State
Report on Foreign Terrorist Organizations that said MEK
staged terrorist attacks inside Iran and killed United States
military personnel and civilians working on defense projects.
The report also said that MEK supported the takeover of the
United States embassy in Tehran in 1979. The government
submitted other secondary materials stating that MEK
participated in terrorist activities in Iran in the late 1970s,
including assassinating six United States nationals and
opposing the release of United States hostages after the
takeover of the United States embassy. These actions satisfy
6 BOJNOORDI V. HOLDER
the definition of terrorist activities in the INA and constitute
substantial evidence that MEK was a “Tier III” terrorist
organization when Bojnoordi participated in it. See 8 U.S.C.
§ 1182(a)(3)(B)(iii); Haile, 658 F.3d at 1127.
Substantial evidence also supports the BIA’s
determination that Bojnoordi gave material support to MEK
in the 1970s. Bojnoordi contends that the BIA did not
provide examination or analysis in its conclusion, but the BIA
expressly relied upon the IJ’s findings that Bojnoordi passed
out flyers, wrote articles, and trained MEK members on the
use of guns in the mountains outside Tehran, knowing that
this training would further MEK’s goals. These activities
show substantial evidence of material support. See 8 U.S.C.
§ 1182(a)(3)(B)(iv)(VI); Haile, 658 F.3d at 1127.
Bojnoordi testified that MEK’s goal was regime change,
which could only be accomplished through violence. MEK’s
goal remained the same, Bojnoordi said, even after the
revolution because Ayatollah Khomeini treated MEK worse
than the Shah did. MEK had terrorist aims in the 1970s while
Bojnoordi aided its efforts. Bojnoordi has not shown by
“clear and convincing evidence that he did not know, and
should not reasonably have known,” that MEK was a terrorist
organization during the time in which he gave it material
support. See 8 U.S.C. § 1182(a)(3)(B)(iv)(VI)(dd); Khan,
584 F.3d at 785.
Because the statutory terrorism bar applies retroactively
to Bojnoordi’s material support of MEK through the 1970s
when MEK was a “Tier III” terrorist organization, Bojnoordi
BOJNOORDI V. HOLDER 7
is only eligible for deferral of removal under CAT, which he
has received.
PETITION FOR REVIEW DENIED.