Ahmed v. Garland ( 2023 )

NOT FOR PUBLICATION FILED
UNITED STATES COURT OF APPEALS APR 20 2023
MOLLY C. DWYER, CLERK
U.S. COURT OF APPEALS
FOR THE NINTH CIRCUIT
Zaheer Akhtar Ahmed; Nazish No. 22-226
Akhtar; Mahanoor Akhtar; Ahmed Hassan Agency Nos.
Akhtar, A200-997-475
A200-997-476
Petitioners,
A200-997-477
A200-997-478
v.
Merrick B. Garland, U.S. Attorney General, MEMORANDUM*
Respondent.
On Petition for Review of an Order of the
Board of Immigration Appeals
Submitted April 17, 2023**
San Francisco, California
Before: CALLAHAN and BUMATAY, Circuit Judges, and BOLTON,***
District Judge.
Petitioners, a family of four who are natives and citizens of Pakistan, seek
review of the denial of asylum and withholding of removal for Zaheer Akhtar
*
This disposition is not appropriate for publication and is not
precedent except as provided by Ninth Circuit Rule 36-3.
**
The panel unanimously concludes this case is suitable for decision
without oral argument. See Fed. R. App. P. 34(a)(2).
***
The Honorable Susan R. Bolton, United States District Judge for
the District of Arizona, sitting by designation.
Ahmed (“Ahmed”), the denial of asylum for Nazish Akhtar (“Nazish”) and
Mahanoor Akhtar (“Mahanoor”), and the denial of any form of relief for Ahmed
Hassan Akhtar (“Akhtar”). We review questions of law and whether a petitioner
has exhausted an issue de novo. See Great Basin Mine Watch v. Hankins, 456
F.3d 955, 961 (9th Cir. 2006). We have jurisdiction under 8 U.S.C. § 1252(a),
and deny in part and dismiss in part.
1. Ahmed challenges the denial of his asylum and withholding of removal
claims based on his material support for a terrorist organization. See 8 U.S.C. §§
1182(a)(3)(B)(i)(I)-(III), 1158(b)(2)(A)(v). Unless a petitioner raises
constitutional or legal questions, we lack jurisdiction to review the denial of
asylum and withholding of removal under the material support bar. Rayamajhi
v. Whitaker, 912 F.3d 1241, 1244 (9th Cir. 2019) (citing 8 U.S.C.
§ 1158(b)(2)(D)). The immigration judge (“IJ”) determined that Ahmed
materially supported the terrorist group, Muttahida Qaumi Movement (“MQM”).
Ahmed claims MQM is not a terrorist organization and that he reasonably did not
know that MQM was a terrorist organization because it is a political party,
maintains an office in the United States, and is a part of the Pakistan government
at times.
Under our precedent, these are questions of law or mixed questions and we
retain jurisdiction to review them. Khan v. Holder, 584 F.3d 773, 780 (9th Cir.
2009). We agree with the IJ’s determination that MQM is a terrorist organization.
The record shows that MQM has been linked to bombings and the killing of
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political opponents. Also, Ahmed has not satisfied his burden to show that he did
not know or should not have reasonably known that MQM was a terrorist
organization. Id. at 777 (terrorism bar applies unless the petitioner “can
demonstrate by clear and convincing evidence that he did not know, and should
not reasonably have known, that the organization was a terrorist organization”).
Ahmed testified that he knew MQM was involved in the bombing of his building
and he described it as a “land-grabbing mafia” involved in extortion and targeted
killings.
Ahmed also claims that he did not materially support MQM because he did
not engage in violence and he supported MQM under duress. Participation in
violent terrorist activities is not necessary for material support; it is satisfied by
“providing . . . any type of material support” such as “funds” or a “safe house.” 8
U.S.C. § 1182(a)(3)(B)(iv)(VI). Furthermore, duress is not a cognizable exception
to the material support ban. See Rayamajhi, 912 F.3d at 1244. For these reasons,
we deny Ahmed’s petition for review.
2. We dismiss Nazish and Mahanoor’s challenge to the denial of their
asylum claim. We lack jurisdiction over issues not raised with the Board of
Immigration Appeals (“BIA”). See Alvarado v. Holder, 759 F.3d 1121, 1127-28
(9th Cir. 2014). Nazish and Mahanoor failed to raise the denial of their asylum
claim to the BIA. Their claim is thus unexhausted and cannot be considered.
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3. Likewise, we dismiss Akhtar’s challenge to the IJ’s failure to consider
his claim for asylum and withholding of removal. Akhtar did not raise this
issue to the BIA.
The petition is DENIED IN PART; DISMISSED IN PART.
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