Singh-Kaur v. Atty Gen USA

Opinions of the United
2004 Decisions States Court of Appeals
for the Third Circuit
9-23-2004
Singh-Kaur v. Atty Gen USA
Precedential or Non-Precedential: Precedential
Docket No. 03-1766
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PRECEDENTIAL
Robert D. McCallum, Jr.
UNITED STATES Assistant Attorney General
COURT OF APPEALS Michael P. Lindemann
FOR THE THIRD CIRCUIT Assistant Director
Ethan B. Kanter (ARGUED)
Senior Litigation Counsel
No. 03-1766 Office of Immigration Litigation
Civil Division
U.S. Department of Justice
CHARANGEET SINGH-KAUR, P.O. Box 878
Petitioner Ben Franklin Station
Washington, D.C. 20044
v.
ATTORNEYS FOR RESPONDENT
JOHN ASHCROFT,
ATTORNEY GENERAL
UNITED STATES OF AMERICA,
Respondent OPINION OF THE COURT
ALDISERT, Circuit Judge.
On Petition for Review
of an Order of the Charangeet Singh-Kaur, 1 a native
Board of Immigration Appeals and citizen of India, petitions this Court to
(INS No. A29-932-930) review an order of the Board of
Immigration Appeals (“BIA”) that Singh
be deported from the United States to
Argued: March 30, 2004 India. This appeal requires us to
determine whether providing food and
Before: Alito, Fisher and Aldisert, setting up shelter for people engaged in
Circuit Judges, terrorist activities constitutes affording
“material support” within the meaning of
(Filed: September 23, 2004) the Immigration and Nationality Act
(“INA”) § 212(a)(3)(B)(iv)(VI) (2002), 8
U.S.C. § 1182(a)(3)(B)(iv)(VI) (2000 &
Steven A. Morley (ARGUED) 2002 Supp.). For the reasons that follow,
Morley Surin & Griffin, P.C.
Constitution Place
325 Chestnut Street, Ste. 1305-P 1
At oral argument, the petitioner’s
Philadelphia, PA 19106 attorney informed us that the petitioner’s
proper surname is “Singh,” and we will
ATTORNEY FOR PETITIONER refer to the petitioner by that name.
we conclude that it does, and we will deny application for asylum, asserting that if he
the petition for review. returned to India he would be arrested and
persecuted. He claimed membership in the
The BIA had jurisdiction to review
“Babbar Khalsa Group,” whose purpose,
the decision of the Immigration Judge
he said, was “to protect and promote the
(“IJ”) pursuant to 8 C.F.R. § 3.1(b) (2002)
Sikh faith,” and the “Sant Jarnail Sing
(renumbered 8 C.F.R. § 1003.1(b) (2003)).
Bhindrawala Militant Group,” whose
Because Singh was placed in deportation
purpose was “to fight for and protect the
proceedings before April 1, 1997, and his
religious and political cause of Sikh
final order of deportation was issued by
community.” Singh stated that he had
the BIA after October 31, 1996, we have
participated in demonstrations and other
jurisdiction under 8 U.S.C. § 1105(a)
activities of these two groups. He further
(1994), as amended by the transitional
claimed to be “on the military and police
rules for judicial review in section
wanted list because of known and
309(c)(4) of the Illegal Immigration
s u s p e c te d a c t i v i ti e s again st th e
Reform and Immigrant Responsibility Act
government” of India.
of 1996, Pub. L. No. 104-208, 110 Stat.
3009-546, 3009-626 (Sept. 30, 1996) In an affidavit supporting his
(“IIRIRA”). See also Sandoval v. Reno, asylum application, Singh stated that after
166 F.3d 225, 229 (3d Cir. 1999) (applying the Indian military attacked a Sikh holy
IIRIRA transitional rules of jurisdiction). site called the Golden Temple in 1984, he
“together with many other young men in
I.
our village formally took the vows to join
Singh entered the United States and follow the militant section of Sant
without inspection on September 27, 1989. Jarnail, known as Babbar Khalsa.” He
The Immigration and Naturalization said that he participated in “planning
Service (“INS”)2 initiated deportation meetings” and “became involved in
proceedings. Singh submitted an assisting the freedom fighters in the
movement of weapons through my village
and other villages, as well as giving shelter
2
The immigration enforcement to militants who were involved in the
functions of the former INS were transportation of weapons.” Subsumed in
transferred to the Bureau of Citizenship all of this is a statement of military activity
and Immigration Services within the against the government of India.
Department of Homeland Security. See
Singh submitted additional
Homeland Security Act of 2002, Pub. L.
materials supporting his application for
No. 107-296, § 451, 116 Stat. 2135, 2195
asylum, including evidence of active
(2002) (codified at 6 U.S.C. § 271 (Supp.
membership in the International Sikh
2003)). Because the operative events in
Youth Federation and a statement by the
this case took place before the name
change, INS is used here.
2
Khalistan Commando Force that Singh had Following the entry of the State
taken an oath to participate with the Force. Department letter, the administrative
record reflects an unexplained gap of
A previous immigration judge in
nearly four years in the proceedings. On
this case referred Singh’s application for
October 23, 1995, the INS moved to re-
asylum to the Department of State for its
calendar the case for completion of
non-mandatory review and comments. See
deportation proceedings. Subsequently,
8 C.F.R. § 208.11 (1991). In a letter dated
Singh informed an immigration judge that
January 9, 1992, the State Department’s
he was the beneficiary of an approved
Bureau of Hum an Rights and
skilled worker visa petition enabling him
Humanitarian Affairs concluded that the
to proceed on an application for
Indian government did not persecute Sikhs
adjustment of status.3 He stated that the
such as Singh merely for their faith or
adjustment of status request would be his
membership in certain organizations.
principal application.
Rather, Sikhs targeted for arrest were those
who had involvement in specific violent Singh then submitted an affidavit
acts. purporting to clarify statements in his
asylum application. He asserted that he
The State Department further
had never been involved in or supported
commented:
v i o l e n t activities a gains t India n
The applicant, however, government officials. He stated that the
admits to membership in the Indian police and military merely
International Sikh Youth presumed that he, as a Sikh, opposed the
Federation, a radical off- government. He said that he had
shoot of the AISSF, as well undergone an induction ceremony known
as the Khalistan Commando as “Amrit Chakna,” in which he
Force, a notorious terrorist committed to remain faithful to his
group responsible for a religion, to wear a turban and to keep his
grisly April 1985 random hair and beard long. He stated that he was
killing in a Punjab village, enrolled as a member of Babbar Khalsa at
and the equally notorious the time of this ceremony.
Babbar Khalsa, an even
more fundamen talist
terrorist group with a
reputation for its use of
3
explosives. Many of the At a hearing on September 17, 1996,
bombings resulting in the the IJ noted that “it is unfortunate to
murder of innocent persons observe that from 1990 until the present
in recent years are attributed time, 1996, nothing has been done in
to the latter group. regard to the respondent’s deportation
case.” (A.R. at 80.)
3
He further stated that, having determined that Singh was ineligible for
participated in Amrit Chakna, he was adjustment of status pursuant to 8 U.S.C.
expected to make charitable contributions §§ 1255(a) and 1182(a)(3)(B)4 :
to the community, including “provision of
We note that the respondent
food and assistance to the poor.” While
testified that he was a
acknowledging that some members of
member of the Babbar
Babbar Khalsa had been involved in
Khalsa and the Sant Jarnail
violence in the 1990s, he stated that he had
Singh Bhindra Wala. See
been in the United States since 1989 and
Tr. at 64. He further
did not support militant activities. He did
testified that he had helped
state, however, that while he was in India
members of these groups,
there were several killings of Indian police
who were fighting the
by Muslims in Sikh clothing.
Indian governm ent, b y
At a hearing on January 22, 1997, giving them food and
Singh told the IJ that he assisted with helping to set up tents for
meetings of Sant Jarnail Singh followers: them. See Tr. at 65. A
person “engages in terrorist
“We – I used to help by
activities” by providing
putting that tent and
“any type of material
organize the mondo [sic] or
support” to “any individual
the tent. . . . I never kept any
t h e acto r kn ow s, o r
weapons. Those Sikhs who
reasonably should know, has
were baptized, they used to
committed or plans to
come and they knew that I
commit a terrorist activity.”
am also baptized and I just
See section 212(a)(3)(B)(iii)
help them with the – giving
of the Act (emphasis added).
them food.”
On February 18, 1998, the IJ
4
concluded that Singh was eligible for The BIA quoted portions of the INA as
adjustment of status and granted his it read prior to enactment of the Uniting
application. The IJ determined that even and Strengthening America by Providing
though Singh had entered the United Appropriate Tools Required to Intercept
States without inspection, his eight-year a n d O b s t r u c t T e r r o r i sm ( “U S A
presence gave him “sufficient equity to PATRIOT”) Act of 2001, Pub. L. No. 107-
overcome that adverse Immigration 56, § 411(a)(1), 115 Stat. 272, 346-347
conduct.” The INS appealed, and on (2001). Compare INA § 212(a)(3)(B)(iii)
February 26, 2003, the BIA vacated the (2000), 8 U.S.C. § 1182(a)(3)(B)(iii)
IJ’s order and ordered Singh removed (2000) with INA § 212(a)(3)(B)(iv)
from the United States. The BIA (2002), 8 U.S.C. § 1182(a)(3)(B)(iv) (2000
& 2002 Supp.).
4
We find that the described capricious or manifestly contrary to the
actions, of offering food and statute.’” Ahmed v. Ashcroft, 341 F.3d
helping to arrange shelter 214, 216-217 (3d Cir. 2003) (citations
for persons, constitute omitted).
“material support,” as
III.
contemplated by section
212(a)(3)(B)(iii) of the Act. Under the INA, the Attorney
The respondent further General has authority to grant adjustments
admitted that he had offered of status to aliens who meet certain
the described support to requirements. See INA § 245(a); 8 U.S.C.
“militan ts w ho were § 1252(a). The question here is whether
engaged in terrorist Singh was “admissible to the United States
activities.” See Tr. at 65. for permanent residence.” See INA §
As these militants were 245(a); 8 U.S.C. § 1252(a). He was
members of groups which inadmissible if he “has engaged in a
were designated as terrorist t e rr o r i s t a c t iv i t y. ” IN A §
organizations, by the United 212(a)(3)(B)(i)(I) (2002); 8 U.S.C. §
States Department of State, 1182(a)(3)(B)(i)(I) (2000 & 2002 Supp.).
and on account of the The INA definition of engaging in a
respondent’s admission that terrorist activity includes the provision of
he was aware of their “material support:”
terrorist activities, we find
As used in this
that the respondent did in
chapter, the term “engage in
fact offer persons, who had
terrorist activity” means, in
committed and were
an individual capacity or as
planning to commit terrorist
a member of an organization
activities, material support.
–
(A.R. at 3) (footnote omitted).
...
Singh timely petitioned for review.
(VI) to commit an act that
II. t h e a c t o r kno ws , o r
reasonably should know,
We review the BIA’s factual
affords material support,
findings to determine whether they are
including a safe house,
supported by substantial evidence. Von
t r a n s p o r t a t i o n ,
Pervieux v. INS, 572 F.2d 114, 118-119
commu nications, funds,
(3d Cir. 1978); Carrillo-Gonzalez v. INS,
transfer of funds or other
353 F.3d 1077, 1079 (9th Cir. 2003). We
material financial benefit,
will uphold the BIA’s interpretation of the
false documentation or
INA “unless the interpretation is ‘arbitrary,
5
identification, weapons ....
( i n c lu d i n g c h e m i c a l,
INA § 212(a)(3)(B)(iv) (2002), 8 U.S.C. §
biological, or radiological
1182(a)(3)(B)(iv) (2000 & 2002 Supp.)
weapons), explosives of
(emphasis added).
training –
(aa) for the commission of a
terrorist activity;
condition for the release of
(bb) to any individual who
the individual seized or
t h e acto r kn ow s, o r
detained.
reasonably should know, has
committed or plans to
(III) A violent attack upon
commit a terrorist activity; 5
an internationally protected
person (as defined in section
1116(b)(4) of Title 18) or
5
The INA defines “terrorist activity:” upon the liberty of such a
person.
As used in this chapter, the term (IV) An assassination
“terrorist activity” means any activity (V) The use of any –
which is unlawful under the laws of the
place where it is committed (or which, if ( a ) biologic a l a ge nt,
committed in the United States, would be chemical agent, or nuclear
unlawful under the laws of the United weapon or device, or
States or any State) and which involves (b) explosive, firearm or
any of the following: other weapon or dangerous
device (other than for mere
(I) The hijacking or personal monetary gain),
sabotage of any conveyance with intent to endanger,
(including an air craft, directly or indirectly, the
vessel, or vehicle). safety of one or more
individuals or to cause
(II) The seizing or detaining, substantial dama ge to
and threatening to kill, property.
injure, or continue to detain,
another individual in order (VI) A threat, attempt, or
to compel a third person conspiracy to do any of the
(including a governmental foregoing.
organization) to do or
abstain from doing any act INA § 212(a)(3)(B)(iii) (2002); 8 U.S.C. §
as an explicit or implicit 1182(a)(3)(B)(iii) (2000 & 2002 Supp.).
6
The BIA stated that the Department or “to any individual who the actor knows,
of State had designated Babbar Khalsa as or reasonably should know, has committed
a terrorist organization. None of the or plans to commit a terrorist activity.”
organizations to which Singh belonged, INA § 212(a)(3)(B)(iv)(VI)(aa) and (bb);
including Babbar Khalsa, are among the 8 U.S.C. § 1182(a)(3)(B)(iv)(VI)(aa) and
thirty-six Foreign Terrorist Organizations (bb). This is so because inadmissibility
(“FTO”) designated by the United States results from provision of material support
Department of State in accordance with either to those who have committed or
INA § 219, 8 U.S.C. § 1189. See 31 plan to commit terrorist activity or to
C.F.R. Ch. V, App. A. Babbar Khalsa and terrorist organizations. See INA §
the International Sikh Youth Federation, 212(a)(3)( B )(iv)(VI), 8 U .S.C . §
however, were named by the Department 1182(a)(3)(B)(iv)(VI). The BIA based its
of the Treasury on June 27, 2002, as decision on the former.
Specially Designated Global Terrorist
We must first determine whether
(“SDGT”) organizations in accordance
the type of activity in which Singh
with an asset-freezing program authorized
engaged comes within the statutory
in 2001 by Presidential Executive Order
definition of “material support” as a matter
13224. See 31 C.F.R. Ch. V, App. A; see
of law. If we conclude that it does, we
also Audrey Kurth Cronin, “The ‘FTO
must then decide whether Singh’s conduct
L ist’ and Congress: Sa nction ing
constituted “material support” as a matter
Designated Foreign T errorist
of fact.
Organizations,” CRS Report for Congress
(Oct. 21, 2003). IV.
We need not, however, determine We turn now to the statute. We
whether the BIA erred in retroactively start with “the language employed by
applying the SDGT designations to the Congress, . . . and we assume that the
organizations with which Singh interacted legislative purpose is expressed by the
in India prior to 1989. Nor do we need to ordinary meaning of the words used.” INS
consider whether Babbar Khalsa, Sant v. Phinpathya, 464 U.S. 183, 189 (1984)
Jarnail Singh, the International Sikh Youth (internal quotations and citations omitted).
Federation or any other group was a The word “material” means “[h]aving
terrorist organization within the meaning some logical connection with the
of INA § 212(a)(3)(B)(iv)(VI)(cc) or (dd), consequential facts.” Black’s Law
8 U.S.C. § 1182(a)(3)(B)(iv)(VI)(cc) or Dictionary 991 (7th ed. 1999). It also
(dd). Rather, our task tracks the narrow means “significant” or “essential.” Id.compass of determining whether Singh’s Support is defined as: “[s]ustenance or
conduct in providing food and setting up maintenance; esp., articles such as food
tents constituted “material support” either and clothing that allow one to live in the
“for the commission of terrorist activity”
7
degree of comfort to which one is list of examples does not lead to the
accustomed.” Id. at 1453. c o n c l u s io n t ha t I N A s e c t i o n
212(a)(3)(B)(iv)(VI) must be read as an
In illustrating the concept of
exhaustive list. We are familiar with the
“material support” to those engaged in
canon of statutory construction urged on us
t e r r o r is t a ct iv it ie s, IN A sec tio n
by Singh: “where Congress includes
212(a)(3)(B)(iv)(VI) provides various
particular language in one section of a
examples that broadly cover the areas of
statute but omits it in another section of
lodging, communications, transportation,
the same Act, it is generally presumed that
financing, weapons and provision of other
Congress acts intentionally and purposely
means to accomplish terrorist activities.
in the disparate inclusion or exclusion.”
The list presented in INA section
INS v. Cardozo-Fonseca, 480 U.S. 421,
212(a)(3)(B)(iv)(VI), supra, is not
432 (1987) (internal quotation and citation
exhaustive. No language in the statute
omitted).
limits “material support” to th e
enumerated examples. Use of the term This canon, however, is not
“including” suggests that Congress applicable in this case. First, the two
intended to illustrate a broad concept statutes were not enacted by the same
rather than narrowly circumscribe a term Congress. The INA provision was adopted
with exclusive categories. See In re SGL in 1990 and revised in 2001, and the
Carbon Corp., 200 F.3d 154, 160 (3d Cir. criminal provision was adopted in 1994.
1999) (stating that a statute in which the See Immigration Act of 1990, Pub. L. No.
word “including” was followed by a list of 101-649, § 601(a), 104 Stat. 4978, 5067-
factors “strongly suggests those factors are 5070 (1990); Uniting and Strengthening
not exhaustive”). America by Providing Appropriate Tools
Required to Intercept and Obstruct
That the f e de ra l s ta t u te
Terrorism (“USA PATRIOT”) Act of
criminalizing the provision of “material
2001, Pub. L. No. 107-56, §411(a)(1), 115
support or resources” to terrorists, 18
Stat. 272, 345-347 (2001); Violent Crime
U.S.C. section 2339A,6 includes a longer
Control and Law Enforcement Act of
1994, Pub. L. No. 103-322, § 120005(a),
108 Stat. 1796, 2022 (1994). Thus, we
6
“In this section, the term ‘material cannot say that the differences in the two
support or resources’ means currency or statutes are “significantly highlighted by
monetary instrum ents or finan cial the fact that the same Congress
securities, financial services, lodging, simultaneously drafted” them. Cardozo-
training, expert advice or assistance,
safehouses, false documentation or
identification, communications equipment, other physical assets, except medicine or
facilities, weapons, lethal substances, religious materials.” 18 U.S.C. §
explosives, personnel, transportation, and 2339A(b).
8
Fonseca, 480 U.S. at 432. Second, it In response to questioning from the
would be incongruous to conclude that a IJ at a hearing on January 22, 1997, Singh
person who provides food and sets up tents described his role in meetings of Sant
for terrorists could be jailed for up to life Jarnail Singh followers:
under 18 U.S.C. section 2339A, but the
Q.W ell, but in this
same conduct could not prohibit admission
statement, sir, that I just
to the United States under INA section
read to you, you say there
212. See United States v. Hodge, 321 F.3d
were known activities that
429, 434 (3d Cir. 2003) (stating avoidance
you took against the Indian
of “unintended or absurd results” is a
government. What were
“dee ply rooted rule of statutory
those activities?
construction”) (internal quotations and
citation omitted). A.Sant Jarna il Singh
organized meetin gs in
For the reasons described above,
dif ferent villages to
the BIA’s conclusion that Congress
propagate religion.
intended INA section 212(a)(3)(B)(iv)(VI)
to include provision of food and setting up Q.So, in other words you’re
tents within the definition of “material telling me that you attended
support” was not “arbitrary, capricious or these meetings, correct?
manifestly contrary to the statute.”
A.Yes. We used to have
Ahmed, 341 F.3d at 216-217; see also
those people to arrange our
McMullen v. INS, 788 F.2d 591, 599 (9th
tents and put some – some
Cir. 1988) (rejecting as “too narrow” the
sort of – arrange preparation
petitioner’s argument that the nonpolitical
of the food and also arrange
crimes exception to withholding of
to bring people to these
deportation in the former INA section
gatherings and then take
243(h), 8 U.S.C. section 1253(h), applied
them back to their places.
“only to those who actually ‘pulled the
trigger’” and holding instead that it (A.R. at 115-116.)
encompassed those who provide “the
Later in the same hearing, Singh
physical and logistical support that enable,
responded to questions from the INS
modern terrorist groups to operate”).
attorney:
V.
Q.So, in other words, you
We must now apply the foregoing were helping the militants
precepts to the facts in this case. who were involved in
terrorist activities? Isn’t
A.
that true?
9
A.When we came from far with them, the members of the various
away to this (indiscernible) militant Sikh organizations opposed to the
congregation, then we may Indian government had committed or
have some contact. We planned to commit terrorist activity.
never help in any other way
Although Singh stated that the
than giving them food. Yes.
purpose of the meetings at which he
(A.R. at 124.) provided food and shelter was to propagate
the teachings of Sant Jarnail Singh, he did
Taking Singh’s statement of
not elaborate at the January 22, 1997
minimal participation, it is beyond cavil
hearing on the content of those teachings.
that Singh furnished food and shelter to
In his first affidavit, however, Singh
Sant Jarnail Singh followers participating
stated: “Sant Jarnail Singh Bhindrawala
in meetings. The sole remaining issue is
was never inclined to be militant.
whether the individuals to whom Singh
However, after his death his group became
provided food and shelter come within the
militant because of the violence
rubric of INA section 212(a)(3)(B)(iv).
perpetrated upon him and his and his [sic]
B. followers by the Indian Military.”
We must now decide whether A 1985 Amnesty International
substantial evidence supports the BIA’s Report submitted by Singh as part of his
determination that Singh provided food asylum application related a June 5, 1984
and shelter to individuals who he knew or battle, where “heavy fighting ensued
reasonably should have known had between the army and the followers of
committed or planned to commit terrorist Sant Jarnail Singh Bhindranwale, the Sikh
activity. fundamentalist leader who had taken
refuge in the temple and who the
We begin with the statutory
government blamed for directing much of
definition of “terrorist activity” as “any
the violence in the Punjab in recent years.”
activity which is unlawful under the laws
of the place where it is committed” and Although Babbar Khalsa and the
involving, among other things, “[t]he use International Sikh Youth Federation,
of any . . . explosive, firearm or other groups to which Singh belonged, were not
weapon or dangerous device (other than named Specially Designated Global
for mere personal monetary gain), with Terrorist organizations until 2002, it does
intent to endanger, directly or indirectly, not follow that members of those groups
the safety of one or more individuals or to were not involved in terrorist activities
cause substantial damage to property.” prior to 1989. In commenting on Singh’s
INA § 212(a)(3)(B)(iii), 8 U.S.C. § asylum application in 1992, the State
1182(a)(3)(B)(iii). The evidence is clear D e p ar tm e nt conclu ded th at: th e
that at the time of Singh’s participation International Sikh Youth Federation was a
10
“radical off-shoot” of another group; that militants who had committed or planned to
the Khalistan Commando Force, to which commit terrorist activity. 7
Singh had taken an oath, was “a notorious
Although Singh himself denied
terrorist group responsible for a grisly
participating directly in any violence,
April 1985 random killing in a Punjab
substantial evidence supports the BIA’s
village”; and that Babbar Khalsa was
determination that he knew or should have
“equally notorious,” was “an even more
known the militant Sikhs to whom he
fundamentalist terrorist group with a
provided food and shelter had committed
reputation for its use of explosives” and
or planned to commit terrorist activities
was responsible for bombings that killed
within the meaning of the statute. That is
innocent people.
sufficient to render Singh inadmissible
The activities described by the State under INA § 212(a)(3)(B)(iv)(VI)(bb).
Department come within the meaning of Because he was inadmissible, Singh did
the INA’s definition of terrorist activities not meet the requirements for adjustment
because they involved assassinations and of status. INA § 245(a), 8 U.S.C. §
use of explosives “with intent to endanger, 1252(a).
directly or indirectly, the safety of one or
The petition for review will be
m o r e i n d i v i d u a l s .” IN A §
denied.
212(a)(3)(B)(iii)(IV) and (V) (2002); 8
U.S.C. § 1182(a)(3)(B)(iii)(IV) and (V)
(2000 & 2002 Supp.). The Amnesty
International Report and Singh’s own
statements provide evidence that the
7
followers of Sant Jarnail Singh also Although other matters were presented
engaged in terrorist activities within the b y a f f i d a v it a n d tes tim on y a t
meaning of the INA. administrative hearings, our review is
confined to the bases upon which the BIA
Even in light of the recantations
relied for its order. See Securities and
made in his second affidavit, Singh’s self-
Exchange Comm’n v. Chenery Corp., 332
described activities in conjunction with his
U.S. 194, 196 (1947) (“[W]e emphasized
membership in various militant Sikh
a simple but fundamental rule of
organizations consisted of: (1) providing
administrative law. That rule is to the
food to militant Sikhs who had committed
effect that a reviewing court, in dealing
or planned to commit terrorist activity; and
with a determination or judgment which an
(2) setting up tents for meetings of
administrative agency alone is authorized
to make, must judge the propriety of such
action solely by the grounds invoked by
the agency.”). Here, the grounds are
“offering food and helping to arrange
shelter.”
11
FISHER, Circuit Judge, dissenting. tents. See Maj. Op. at 11 n.7.8 Indeed, the
BIA, in reversing the order of the
Finding that Singh-Kaur helped
Immigration Judge (“IJ”), did not recite or
members of Sikh militant groups “by
rely upon the 1991 asylum application at
giving them food and helping to set up
all. And although we do not review the
tents,” the Board of Immigration Appeals
findings of the IJ, he accepted Singh-
(“BIA”) held that Singh-Kaur “engaged in
Kaur’s testimony disclaiming the asylum
terrorist activities.” However, Singh-Kaur
application in finding Singh-Kaur eligible
testified that the meetings were for
for adjustment of status. Thus, our scope
religious purposes, and the BIA did not
of review is limited to the BIA’s stated
find Singh-Kaur’s testimony to lack
basis of “offering food and helping to
credibility. The issue here is therefore
arrange shelter” for these meetings. See
straightforward – whether providing food
also Ernesto Navas v. INS, 217 F.3d 646,
and tents for such meetings, without more,
658 n.16 (9th Cir. 2000) (we “cannot
constitutes “engag[ing] in terro rist
affirm the BIA on a ground upon which it
activity” through provision of “material
did not rely”).9
support.” The acts here are not of the
degree and kind contemplated by the It must be further noted that Singh-
“material support” provision – material Kaur testified that the food and tents were
acts in support of terrorism. Because the set up for religious meetings. Neither the
majority’s holding ignores the plain
language of the statute by reading
“material” out of “material support,” I 8
As acknowledged in the footnote, the
respectfully dissent. majority concedes that “[a]lthough other
matters were presented by affidavit and
I.
testimony at the administrative hearings,
Before addressing the statute, it is our review is confined to the bases upon
necessary to clarify the scope and standard which the BIA relied for its order.” Maj.
of our review. The majority does not at Op. at 11 n.7 (citing SEC v. Chenery
first restrict its discussion to the BIA’s Corp., 332 U.S. 194, 196 (1947)).
findings, and recites in detail material from
9
Singh-Kaur’s 1991 asylum application. “The final order we normally review is
See Maj. Op. at 2-5. Although those facts the decision of the BIA, unless the BIA
cast Singh-Kaur in an unfavorable light, defers to the IJ’s findings.” Miah v.
the majority ultimately concedes in a Ashcroft, 346 F.3d 434, 439 (3d Cir. 2003)
footnote that Singh-K aur’s asylum (citing Abdulai v. Ashcroft, 239 F.3d 542,
application was not relevant to the BIA’s 549 n.2 (3d Cir. 2001)). Here, the BIA did
decision, which rested solely on food and not defer, expressly or by necessary
implication, to the IJ’s findings.
Accordingly, we review the order of the
BIA.
12
IJ nor the BIA made an adverse credibility Op. at 7. Thus, as the majority appears to
finding. Because the BIA did not adopt or agree, the BIA’s holding cannot be upheld
defer to the IJ’s finding on credibility, we on the basis that Singh-Kaur provided
“must proceed as if [petitioner’s] “material support ” to a terrorist
testimony were credible and determine organization. Rather, the BIA’s holding
whether the BIA's decision is supported by rests solely on the narrow ground that the
substantial evidence in the face of his provision of food and tents prior to 1989 to
assumed (but not determined) credibility.” unnamed members of the Babbar Khalsa
Kayembe v. Ashcroft, 334 F.3d 231, 235 and Sant Jarnail organizations was the
(3d Cir. 2003); see also Lim v. INS, 224 provision of “material support . . . to any
F.3d 929, 933 (9th Cir. 2000) (where individual the actor knows, or reasonably
neither IJ nor BIA make express credibility should know, has committed or plans to
findings, court must accept testimony as commit a terrorist activity.” However, the
true). Therefore, we must assume Singh- record does not contain any evidence as to
Kaur’s testimony before the IJ to be true. what terrorist acts, if any, these unnamed
individuals committed or planned to
In addition, it must be noted – as
commit.
the majority implicitly concedes – that the
BIA erred in finding that the Babbar Regarding our standard of review,
Khalsa and Sant Jarnail Singh Bhindra the BIA’s interpretation of the statute
Wala (hereinafter, “Sant Jarnail”) groups cannot be upheld under any standard. The
had been designated terrorist organizations majority appears to apply Chevron
by the Department of State.10 See Maj. deference, see Maj. Op. at 5, but as the
statute is unambiguous and its meaning is
plain, unbridled agency deference is
10
As noted by the majority, see Maj. Op. unwarranted. As the Supreme Court held
at 7, neither organization has been in INS v. St. Cyr, 533 U.S. 289 (2001), we
d e s i g n a te d a F o r e i g n T e r r o r i s t only defer “to agency interpretations of
Organization by the Department of State in statutes that, applying the normal ‘tools of
accordance with INA § 219, 8 U.S.C. § statutory construction,’ are ambiguous.”
1189. See 31 C.F.R. Ch. V, App. A. The Id. at 320 n.45 (quoting Chevron U.S.A.
majority correctly notes that Babbar Inc. v. Natural Resources Defense
Khalsa was designated as a Specially Council, Inc., 467 U.S. 837, 843 n.9
Designated Global Terrorist organization (1984)); see also Steele v. Blackman, 236
in accordance with an asset-freezing F.3d 130, 133 (3d Cir. 2001) (“Where the
program authorized by Presidential language of a statute is clear, however, the
Executive Order 13224 in 2001. See 31
C.F.R. Ch. V, App. A. However, the
Specially Designated Global Terrorist
designation was done by the Department State, and is not the same as Foreign
of Treasury and not the Department of Terrorist Organization designation.
13
text of the statute is the end of the otherwise reads “material” out of “material
matter.”).11 support” and treats half of the statutory
term as surplusage. Such a result is
II.
inconsistent with the plain language of the
Examining the statute’s plain statute and with the normal tools of
language and employing the “normal tools statutory construction.
of statutory construction,” I conclude that
Section 245 of the Immigration and
Congress did not intend “material support”
Nationality Act (“INA”) provides that an
to embrace acts that are not of importance
alien may be eligible for adjustment of
or relevance to terrorism. To hold
status, if, among other things, he is
“admissible to the United States for
permanent residence.” INA § 245(a), 8
11
In any case, the conclusion does not U.S.C. § 1255(a). Section 212, in turn,
hinge upon the standard of review. As the provides that any alien who “has engaged
majority states in reciting the standard for in a terrorist activity” is inadmissible. INA
Chevron deference, “[w]e will uphold the § 212(a)(3 )(B)( i)(I), 8 U.S .C. §
BIA’s interpretation of the INA unless the 1182(a)(3)(B)(i)(I). Thus, we must
interpretation is arbitrary, capricious or determine whether the BIA properly found
manifestly contrary to the statute.” Maj. that Singh-Kaur had “engaged in a terrorist
Op. at 5 (quoting Ahmed v. Ashcroft, 341 activity.” Under INA § 212, “engage in
F.3d 214, 216-217 (3d Cir. 2003) (citations terrorist activity” means, among other
omitted)) (quo tations omitted and things:
emphasis added). Here, the BIA’s
(VI) to commit an act that the
construction is manifestly contrary to the
actor knows, or reasonably should
statute’s plain meaning because it reads
know, affords material support,
“material” out of “material support,” so
i n c l u d in g a s a f e h o u s e ,
under any standard of review, the
transportation, communications,
majority’s conclusion cannot stand.
funds, transfer of funds or other
Indeed, even where Chevron deference is
material financial benefit, false
applicable, we nevertheless consider the
documentation or identification,
“thoroughness evident in [the agency’s]
weapons (including chemical,
consideration” and “the validity of its
b i o l o g ic a l , o r r a d i o l o g i c a l
reasoning.” Sierra v. Romaine, 347 F.3d
weapons), explosives, or training–
559, 569 (3d Cir. 2003), pet. for cert. filed,
(U.S. Jan 27, 2004) (No. 03-8662). Here, (aa) for the commission of a
the BIA supplies no reasoning beyond the terrorist activity;
bare assertion that food and tents
(bb) to any individual who the
constitute “material support.” Thus, under
actor knows, or reasonably should
any standard, the conclusion remains the
same.
14
know, has committed or plans to for “material” in this context – “[h]aving
commit a terrorist activity; some logical connection with the
consequential facts,” and “significant” or
(cc) to a terrorist organization
“essential.” Id. (quoting Black’s, supra, at
described in clause (vi)(I) or
991). Similarly, Webster’s defines
(vi)(II); or
“material” in part as “being of real
(dd) to a terrorist organization importance or great consequence.”
described in clause (vi)(III), unless Webster’s Third New Int’l Dict. 1392
the actor can demonstrate that he (1981).
did not know, and should not
Even a cursory examination of the
reasonably have known, that the act
“material support” provision makes it clear
would further the organization’s
that both meanings of “material” –
terrorist activity.
relevance and importance – are embraced
INA § 212(a)(3)(B)(iv)(VI), 8 U.S.C. § by the statute. Regarding relevance, the
1182(a)(3)(B)(iv)(VI). statute’s express language requires an act
that “affords material support” that is
I agree with the majority’s
either “for the commission of a terrorist
threshold canon that “‘we assume that the
activity,” “to any individual who the actor
legislative purpose is expressed by the
knows, or reasonably should know, has
ordinary meaning of the words used.’”
committed or plans to commit a terrorist
Maj. Op. at 7 (quoting INS v. Phinpathya,
activity,” or “to a terrorist organization.”
464 U.S. 183, 189 (1984) (internal
Thus, the support must be relevant to the
quotations and citations om itted)).
specified terrorist goal, terrorist persons, or
Employing that canon, I have no doubt that
terrorist organizations, which in sum
the term “support,” in isolation, could
means that the support must be relevant to
embrace food and tents. As noted by the
terrorism. Regarding importance, the
majority, support is defined as:
statute recites a laundry list of types of
“Sustenance or maintenance; esp., articles
“material support” that are relevant to
such as food and clothing that allow one to
terrorism – safe house, transportation,
live in the degree of comfort to which one
communications, funds, transfer of funds
is accustomed.” Id. (quoting Black’s Law
or other material financial benefit, false
Dictionary 1453 (7th ed. 1999)). Had the
documentation or identification, weapons
statute referred to mere “support,” I might
(including chemical, bio logical, or
concur with my colleagues, as substantial
radiological weapons), explosives, or
evidence shows that “support” was
training. All are plainly important to
afforded.
terroris m , terrorists, o r terroris t
But the analysis does not end there organizations. Thus, the support must be
because “material” qualifies “support.” important to terrorism.
The majority correctly notes two meanings
15
Therefore, even under the broadest each word in a statutory provision is to be
possible reading, “material” in this context given meaning and not to be treated as
must mean both “important” and surplusage.” Acceptance Ins. Co. v. Sloan,
“relevant” to terrorism. “Material 263 F.3d 278, 283 (3d Cir. 2001)
support,” by its plain language, means that (quotation marks omitted); see also Ki Se
the act affording support must be of a kind Lee v. Ashcroft, 368 F.3d 218, 223 (3d
and degree that has relevance and Cir. 2004) (“we should adopt a
importance to terrorist activity, terrorists, construction which recognizes each
or terrorist organizations. Put another element of the statute”). 12 Here,
way, an act “affording material support” “material” has an obvious meaning and is
must move the ball down the field for not surplusage.
terrorism. This is not to say that under
Second, the examples of “material
certain circumstances, food and shelter
support” provided in the statute all regard
could not be “material support.” But as
acts of importance and relevance to
these are normal types of “support,” the
terrorism, terrorists, an d terro rist
facts must show that they are more than
organizations – safe houses, transportation,
mere support – i.e., they must be of
communications, funds, transfer of funds
relevance and importance to terrorism.
or other material financial benefit, false
The conclusion that “material” documentation or identification, weapons
means both importance and relevance is (including chem ical, biological, or
underscored by further examination of the radiological weapons), explosives, or
statute. First, mere “support” cannot be training. This reinforces the conclusion
“material support.” As noted, “support”
means “sustenance or maintenance.”
There is no doubt that sustenance, such as
food and water, or maintenance, such as
shelter, are necessary for life, but they are
12
not per se necessary for terrorism. To hold Food and shelter indeed could be,
differently would – in cases like this one, under certain circumstances, important and
involving food and tents – automatically relevant to terrorism. It is not impossible
transmute mere “support” into “material to imagine a hypothetical situation where
support.” This would eviscerate the a dying terrorist begs an alien for a glass of
statute. Had Congress intended the mere water so that he can survive long enough
provision of food and shelter, without to walk the last half-mile to complete his
more, to be “engag[ing] in terrorist terrorist aim. Under those circumstances,
activity,” there would have been no need the support would be more than mere
to include the term “material” in the support, as it had relevance and
statute. An indisputable axiom of statutory importance to terrorism under those
construction is that “whenever possible circumstances. But as discussed in Part
III, infra, that situation is not before us.
16
that “material support” means exactly that, construction’ is that the ‘specific governs
support that is material. 13 the general.’” Ki See Lee, 368 F.3d at 223(quoting Doe v. Nat’l Bd. of Medical
That fact that the listing of types of
Examiners, 199 F.3d 146, 154–55 (3d Cir.
“material support” is not exhaustive does
1999)) (alteration in original). Here, the
not transform any type of support into
enumerated examples, consistent with the
material support. I do not disagree with
plain language of the term “material
the majority that the use of “including”
support,” are all acts that can be of
before the laundry list means that the
importance and relevance to terrorism.
enumerated listing is not exhaustive. See
Any unenumerated act that is alleged to
In re SGL Carbon Corp., 200 F.3d 154,
constitute “material support” must
160 (3d Cir. 1999) (use of “including”
therefore be measured by the plain
followed by a listing of factors “strongly
language of the term “material support”
suggests those factors are not exhaustive”).
and the nature of the enumerated
However, it does not follow that any kind
examples. Even the enumerated act that is
of support is material support. Indeed, the
arguably the closest to the facts at hand
majority ignores the canon that “[a]nother
here – provision of a “safe house” 14 – is
‘commonplace [rule] of statutory
plainly of a degree and kind that is
important and relevant to terrorism and far
13 different from the mere provision of food
In its decision, the BIA recited the
and tents.15
prior version of INA § 212. This provision
was amended and expanded in 2001
pursuant to the PATRIOT Act. See 14
Strangely, the majority states that the
Uniting and Strengthening America by express language of the statute embraces
Providing Appropriate Tools Required to “lodging.” Maj. Op. at 8. However, the
Intercept and Obstruct Terrorism, Pub. L. statute does not include the term
No. 107-56, § 411(a)(1)(F), 115 Stat. 272 “lodging,” but only “safe house.” By
(2001) (“PATRIOT Act”). Petitioner asserting that “lodging” is “material
concedes the current version applies, so support” without explanation, the majority
the analysis above focuses on the law as it begs the question before us – whether tents
exists now. Under either version, the and food are “material support” in the first
BIA’s conclusion does not comport with place. Safe houses by definition aid and
the plain language. It should be noted that abet in terrorism, whereas lodging might
in the PATRIOT Act, Congress added not.
“chemical, biological, or radiological
15
weapons” to the laundry list of activities Thus, I disagree with my colleagues
constituting “material support.” The that the mere fact that the listing is not
gravity of such activities reinforces the exhaustive means that “the BIA’s
conclusion that “material support” is not conclusion that Congress intended INA §
“immaterial support.” 212(a)(3)(B)(iv)(VI) to include provision
17
Third, my conclusion is further other things of value for a terrorist activity
confirmed by the statute’s surrounding or organization; and (5) soliciting any
provisions. In determining Congress’ individual to engage in terrorist activity or
intent, “we look to the statute’s language, to join a terrorist organization. INA §
structure, subject matter, context, and 212(a)(3)(B)(iv)(I)-(V), 8 U.S.C. §
history–factors that typically help courts 1182(a)(3)(B)(iv)(I)-(V).
determine a statute’s objectives and
As the majority rightly suggests in
thereby illuminate its text.” Almendarez-
a different context, avoiding “unintended
Torres v. United States, 523 U.S. 224, 228
or absurd results” is a “deeply rooted rule
(1998); Beecham v. United States, 511
of statutory construction.” United States v.
U.S. 368, 372 (1994) (“The plain meaning
Hodge, 321 F.3d 429, 434 (3d Cir. 2003).
that we seek to discern is the plain
It would be absurd for five of the
meaning of the whole statute, not of
definitions of “engage in terrorist activity”
isolated sentences.”). Here, “afford[ing]
to be of import and gravity, but for the
material support” is but one of six
sixth definition to be otherwise. “Statutory
examples of “engaging in terrorist
construction is a holistic endeavor ... and,
activity.” INA § 212(a)(3)(B)(iv), 8
at a minimum, must account for a statute’s
U.S.C. § 1182(a)(3)(B)(iv). These other
full text, language as well as punctuation,
examples of “engaging in terrorist
structure, and subject matter.” Tineo v.
activity” are all grievous forms of conduct
Ashcroft, 350 F.3d 382, 391 (3d Cir. 2003)
whose relevance and importance to
(parenthetically quoting United States
terrorism are indisputable: (1) committing
Nat’l Bank of Or. v. Indep. Ins. Agents of
or inciting terrorist activity; (2) preparing
America, Inc., 508 U.S. 439, 455 (1993))
or planning terrorist activity; (3) gathering
(alteration in original). As each
information on potential targets for
disjunctive example of “engage in terrorist
terrorist activity; (4) soliciting funds or
activity” is a significant form of conduct
that materially furthers the goals of
terrorism, so does “material support.” 16
of food and setting up tents within the See Beecham, 511 U.S. at 371 (“That
definition of ‘material support’ was not
‘arbitrary, capricious or manifestly
16
contrary to the statute.’” Maj. Op. at 9. Further examination of the
For one thing, Chevron deference is not surrounding portions of INA § 212 only
warranted as the plain language compels reinforces this conclusion. The definitions
the opposite conclusion from that reached of “terrorist activity” and the ultimate ban
by the BIA. For another, even under on admissibility for those engaging in such
Chevron, the BIA’s reading is “manifestly activity both recite conduct of extreme
contrary” to the statute to the extent the gravity. See INA § 212(a)(3)(B),
BIA concluded that food and tents, without 212(a)(3)(B )(iii), 8 U .S.C . §
more, constitute “material support.” 1182(a)(3)(B), 1182(a)(3)(B)(iii).
18
several items in a list share an attribute 212, the definition of “material support or
counsels in favor of interpreting the other resources” in § 2339A includes both safe
items as possessing that attribute as houses and lodging.
well.”).
I disagree with Singh-Kaur, who
As a final matter, I turn briefly to argues that under the maxim of expressio
the criminal material support statute, 18 unius est exclusio alterius, the presence of
U.S.C. § 2339A. Both Singh-Kaur and the “lodging” in § 2339A, and its absence in
majority argue that the statute supports INA § 212, means that Congress did not
their respective positions. The statute, intend “lodging” to be “material support”
entitled “Providing material support to for purposes of § 212. As noted above, the
terrorists,” prohibits the provision of listing in INA § 212 is not exhaustive.
“material support or resources” for Thus, the real question, as discussed
preparing or carrying out any of a list of
enumerated terrorist and other significant
crimes.17 Unlike INA § violation, or attempts or conspires
to do such an act, shall be fined
under this title, imprisoned not
17
18 U.S.C. § 2339A provides: more than 15 years, or both, and, if
(a) O f f e n s e.–Wh oe ve r the death of any person results,
provides material support or shall be imprisoned for any term of
resources or conceals or disguises years or for life. A violation of this
the nature, location, source, or section may be prosecuted in any
ownership of material support or Federal judicial district in which
resources, knowing or intending the underlying of fe nse w as
that they are to be used in committed, or in any other Federal
preparation for, or in carrying out, judicial district as provided by law.
a violation of section 32, 37, 81, (b) Definition.–In this
175, 229, 351, 831, 842(m) or (n), section, the term “material support
844(f) or (i), 930(c), 956, 1114, or resources” means currency or
1116, 1203, 1361, 1362, 1363, monetary instruments or financial
1366, 1751, 1992, 1993, 2155, securities, financial services,
2156, 2280, 2281, 2332, 2332a, lodging, training, expert advice or
2332b, 2332f, or 2340A of this assistance, safehouses, fals e
title, section 236 of the Atomic documentation or identification,
Energy Act of 1954 (42 U.S.C. c o m m u n i c a t i o n s e q u i p m e n t,
2284), or section 46502 or f a c i l i t ie s , w e a p o n s , l e th a l
60123(b) of title 49, or in substances, explosives, personnel,
preparation for, or in carrying out, transportation, and other physical
the concealment of an escape from assets, except medicine or religious
the commission of any such materials.
19
above, is not whether non-enumerated statute, the mere provision of food and
conduct can be “material support,” but tents, even to a terrorist, would not be a
whether non-enumerated supportive acts criminal act unless the “material support or
rise to the requisite level of materiality. resources” were knowingly or intentionally
supplied “to be used in preparation for, or
I also part with the majority, which
in carrying out” one of § 2339A’s
concludes that the existence of § 2339A
specified and grievous terrorist crimes.
requires that we construe INA § 212 so
broadly that we read “material” out of the Thus, one could not be jailed under
statute. The majority suggests that “it § 2339A, let alone jailed for life,19 for
would be incongruous to conclude that a providing a terrorist with a glass of water,
person who provides food and sets up tents unless, for example, the water was heavy
for terrorists could be jailed for up to life water that the defendant knows or intends
under 18 U.S.C. § 2339A, but the same be used to develop a nuclear weapon. The
conduct could not prohibit admission to majority does not explain how the mere
the United States under INA § 212.” Maj. provision of food and tents, without more,
Op. at 9. might constitute knowing or intentional
provision of “material support or
The majority’s suggestion of
resources” that are “to be used in
incongruity is easily dismissed. Section
preparation for, or in carrying out” terrorist
2339A requires that the “material support
acts such as hijacking or unleashing
or resources” be provided by a person,
weapons of mass destruction. In sum,
“knowing or intending that they are to be
there is no incongruity, 20 and § 2339A
used in preparation for, or in carrying out”
a long list of specific and extremely
serious crimes of terror. 18 Under that
in nature.
19
I note that the majority’s hypothetical
18
The statute lists over thirty specific, sentence of life imprisonment under §
serious acts of criminal terror that include 2339A could not even arise unless the
destruction of aircraft, 18 U.S.C. § 32; tents and food were somehow used in
violence at international airports, 18 preparation for or in carrying out a serious
U.S.C. § 37; prohibitions with respect to act of terrorism that led to death. Nowhere
biological weapons, 18 U.S.C. § 175; use does the majority explain how Singh-
of chemical weapons, 18 U.S.C. § 229; Kaur’s food and tents was connected,
assassination and kidnapping of members directly or indirectly, to any death.
of Congress, the Cabinet, and the Supreme
20
Court, 18 U.S.C. § 351; transactions Indeed, I believe that under
involving nuclear materials, 18 U.S.C. § appropriate circumstances – not at hand
831; and many more crimes, nearly all here – a glass of water could constitute
obviously terroristic and hugely significant “material support” under INA § 212 as
20
does not support the majority’s attempt substitutes conjecture for proof and reads
treat INA § 212’s recitation of “material” “material” out of “material support.”
as surplusage.
Here, the majority concludes that
“Material support,” by its plain “[t]he evidence is clear that at the time of
language, means that the act affording Singh’s participation with them, the
support must be of a kind and degree that members of the various militant Sikh
has relevance and importance for terrorist organizations opposed to the Indian
a c t iv i ty, t e r r o r i s t s , o r t e r r o r i s t government had committed or planned to
organizations, and cannot be mere support. commit terrorist activity.” Maj. Op. at 10.
In the next section, I apply this plain The majority bases its holding on five
reading to the facts of the case and premises: (1) Singh-Kaur supplied food
conclude that Singh-Kaur’s mere support and tents (2) prior to 1989 (3) to unnamed
does not rise to the requisite level of members of the Babbar Khalsa and/or Sant
materiality. Jarnail organizations (4) who engaged in
unnamed terrorist acts or planned to
III.
engage in such unnamed acts, and (5)
Applying the facts to the law, Singh-Kaur knew or should have known
substantial evidence does not support the that these unnamed individuals engaged in
BIA’s finding that Singh-Kaur provided unnamed terrorist acts or planned to
“material support.” Nothing in the record engage in such unnamed acts.
shows how the food and tents were
At best, only the first three premises
important and relevant to terrorism, and
are supported by the record. There is no
indeed, Singh-Kaur testified that they were
dispute that Singh-Kaur supplied food and
provided for religious meetings. The
tents prior to 1989 to unnamed members of
majority therefore relies on speculation by
at least one of these organizations. But the
concluding that mere support to unnamed
administrative record contains nothing
persons who may or may not have engaged
about whether the individuals at issue had
in unknown terrorist activities constitutes
engaged in terrorist acts or planned to do
“material support.” This conclusion
so. Indeed, the record is to the contrary –
Singh-Kaur testified that the meetings
were for religious purposes. The IJ did not
well, so long as the water was relevant and
find Singh-Kaur’s testimony to lack
important to terrorism. See note 5, supra
credibility and the BIA did not find
(noting that under INA § 212, a glass of
otherwise; we therefore “must proceed as
water may constitute “material support”
if [petitioner’s] testimony were credible
where it was provided to a terrorist so that
and determine whether the BIA's decision
he can survive long enough to walk the
is supported by substantial evidence in the
last half-mile to complete his terrorist aim
face of his assumed (but not determined)
because such support would be both
credibility.” Kayembe, 334 F.3d at 235;
important and relevant to terrorism).
21
see also Lim, 224 F.3d at 933 (where A: Yes, because I was baptized.
neither the IJ nor the BIA expressly made That’s why.
credibility findings, Court must accept
Q: Well, but in this statement, sir,
testimony as true). Nor did the BIA base
that I just read to you, you say there
its finding on other evidence of record,
were known activities that you took
such as the disclaimed 1991 asylum
against the Indian government.
affidavit.
What were those activities?
Accordingly, we are limited to the
A: Sant Jarnail Singh organized
BIA’s finding that Singh-Kaur supplied
meetings in different villages to
food and tents, and we must assume that
propagate religion.
his testimony before the IJ was true. In
this regard, it is helpful to review the Q: So, in other words you’re telling
testimony: me that you attended these
meetings, correct?
IJ: Sir, I want to read to you
something that you wrote in an A: Yes. We used to have those
asylum application that you gave to people to arrange our tents and put
the Immigration Service. You say some – some sort of – arrange
“I am on the military and police preparation of the food and also
wanted list because of known and arrange to bring people to these
suspected activities against the gatherings and then take them back
government and when I left I had to their places.
failed to meet their reporting
Q: Did you do anything else?
requirements.” Now, my first
question to you, sir, is this. Were A: No.
you on a military and police wanted
Q: Sir, when you say here there
list in India, sir?
were known activities against the
A: Yes, on police. Indian government, that is what
you’re referring to, sir?
Q: Why?
A: W e were not a g a in s t
A: Because I baptized. After [the]
gov ernm ent, b u t w e w e r e
killing of Jarnail Singh [by Indian
propagating the teachings of our
authorities], they made a list of all
Sant.
those people who got baptized and
then they started catching all those ....
people.
Q: . . . Were you ever involved in
Q: So, it was only because you any violent activities against the
were baptized as a Sikh, sir. Is that Indian government – wait until I
what you mean?
22
finish, please, sir – in support of an Wala militant group in 1984. Isn’t
independent Sikh state? that correct?
A: Yes. We want Khalistan, but A: I was baptized by Sant Jarnail
we don’t want by the means of Singh Bhindra Wala.
violence.
Q: And, you joined his group,
Q: Well, I want you to answer the militant group, in 1984. Isn’t that
question I asked you, sir. You have correct?
not answered it. Were you ever
A: This is not a militant group.
involved in any violent activity in
India? Q: According to your application
for asylum, it’s called the Sant
A: No.
Jarnail Singh Bhindra Wala militant
A review of this testimony makes it group.
clear that Singh-Kaur disclaimed any
A: That may be a mistake by my
connection to violence. It also shows that
lawyer, but he was saying that by
the meetings at question were “to
getting baptized you will have your
propagate religion.” It further shows that
own army, you will have your own
the tents and food were supplied to
garment, you will have your own
members of Sant Jarnail. Nothing in the
police.
testimony reflects that the purpose or
subject of the meetings was to facilitate Q: And, sir, the purpose of this
terrorism. g r o u p , a c c o r d ing to y o u r
application, is to fight for and
Shortly thereafter, the government’s
protect the religious and political
lawyer questioned Singh-Kaur:
cause of the Sikh community. Is
Q: Sir, accordin g to your that true?
application for asylum, you joined
A: This group propagates the
the Babbar Khalsa group in 1993.
religion and whatever the teachings
Is that so?
of our ten gurus, that group also
A: In 1983. propagates those teachings.
Q: I’m sorry, 1983. Q: And, according to your
affidavit, which is attached to your
A: I got baptized and then my
application for asylum, you assisted
name was written that he belongs to
the freedom fighters in your village
Babbar Khalsa.
in the movement of weapons
Q: And, according to your through your village. Isn’t that
application for asylum you joined correct?
the Sant Jarnail Singh Bhindra
23
A: No. We – I used to help by State Department has designated Sant
putting that tent and organize the Jarnail as a terrorist organization is
mondo (phonetic sp.) or the tent. incorrect and is by itself reversible error.21
Q: And, it also states that you gave Recognizing this error, the majority
shelter to these militants who were does not hold that Singh-Kaur supplied
involved in the transport – “material support” to a terrorist
transportation of weapons. Isn’t organization, but instead, to an “individual
that true? who the actor knows, or reasonably should
know, has committed or plans to commit a
A: No, I never kept any weapons.
terrorist activity.” But the record is devoid
Those Sikhs who were baptized,
of any evidence of who these individuals
they used to come and they knew
were, what terrorist activities they had
that I am also baptized and I just
done, or what terrorist acts they planned to
help them with the – giving them
commit. There is also no evidence of what
food.
Singh-Kaur knew or should have known
Again, Singh-Kaur disclaimed regarding these unknown activities. The
engaging in militant activities or moving only evidence that the BIA and majority
weapons, and he reaffirmed the religious appear to latch upon in this regard is the
nature of the matter. It is in this context following exchange at the end of the
that we must analyze whether the support government’s questioning of Singh-Kaur:
he provided was “material,” i.e., more than
Q: So, in other words, you were
mere support, and support of importance
helping the militants who were
and relevance to terrorism.
involved in the terrorist activities.
As a threshold matter and as Isn’t that true?
acknowledged by the majority, the BIA
A: When we came from far away
erred in determining that Babbar Khalsa
to this (indiscernible) congregation,
and Sant Jarnail were designated by the
then we may have some contact.
State Department as terrorist organizations
We never help in any other way
pursuant to INA § 219. See Maj. Op. at 7;
than giving them food. Yes.
see also note 3, supra. In addition, the
testimony above makes it clear that the
food and tents were supplied to members
of Sant Jarnail. The Sant Jarnail 21
The BIA’s errors regarding the status
organization has not been designated as a
of the two entities are inextricably
Foreign Terrorist Organization or as a
interwoven with the ultimate conclusion
Specially Designated Global Terrorist
that the provision of food and tents to
organization, either by the Department of
members of these organizations was
State or the Department of Treasury.
“material support.” This basis alone
Accordingly, the BIA’s holding that the
warrants granting of the petition.
24
The BIA and majority rely on this passage Further, in the context of this appeal, the
to conclude that Singh-Kaur admitted to term “terrorist activity” has a specified
having offered support to “militants who legal definition, whereas we have no idea
were involved in terrorist activities.” what Singh-Kaur understood the term to
Therefore, the majority upholds the BIA’s mean. At the very least the passage is
finding that Singh-Kaur offered “material ambiguous, and at the worst, reliance on
support . . . to any individual who the actor the passage fails the substantial evidence
knows, or reasonably should know, has test because it requires us to speculate as
committed or plans to commit a terrorist to what Singh-Kaur was saying “Yes” to.
activity.”
Despite these concerns, the case
The majority’s reliance on this need not turn on this issue, because even if
passage is questionable at best. Although we were to assume that Singh-Kaur
admissions may certainly be based on admitted that the unnamed “militants” had
leading questions, it is difficult to know engaged in unspecified “terrorist activity,”
whether or not Singh-Kaur was agreeing to the BIA still has not established that the
the words put into his mouth by the food or the tents were material in any way.
government lawyer and transmitted Nothing in the record shows the type of
through the translator, or what he meant by terrorist activities committed or planned by
the response relayed back through the these unnamed individuals, and nothing
translator. Indeed, moments before, shows how the food and tents were
Singh-Kaur had adamantly denied that the relevant and important to these unnamed
persons he helped were “militants.” 22 persons engaging in unknown terrorist
activities. Under such circumstances,
finding mere support to be “material”
22
The majority also cites to an affidavit support reads “material” out of the statute.
Singh-Kaur filed in 1996 in connection Though the BIA might have looked to
with his adjustment of status application, other bases for its decision, it did not do
in which he states that “after [Sant so, and we cannot raise new bases in the
Jarnail’s] death his group became militant context of a petition for review.23
because of the violence perpetrated upon
him and his and his [sic] followers by the
Indian Military.” Maj. Op. at 10. It is or whether unspecified militant activity
unclear how this proves anything. We do was “terrorist activity” for purposes of
not know whether the individuals to whom INA § 212. Indeed, Sant Jarnail is not a
Singh-Kaur provided food and tents were Foreign Terrorist Organization or a
involved in militant activity at all, Specially Designated Global Terrorist
whatever that activity might be. Indeed, organization. See note 3, supra.
Singh-Kaur later testified before the IJ that
23
the group was not militant. More Although the government argues that
fundamentally, there is no indication how Singh-Kaur had the burden of proving he
25
Thus, it is apparent that even
was not inadmissible, the case does not though the majority concedes that it cannot
turn on which party bore the burden of affirm the BIA on the basis of material
proof. Here, the facts regarding the food support to a terrorist organization, it
and tents were undisputed and Singh- nevertheless uses the affiliation of the
Kaur’s testimony must be treated as unnamed individuals to Sant Jarnail to
credible. Under these circumstances, bootstrap a finding that they engaged in
Singh-Kaur’s actions do not constitute terrorist activities, however unknown those
“material support” regardless of who bears activities may be. But bootstrapping and
the burden. These circumstances evoke conjecture are not even close to substantial
United States v. McGuire, 178 F.3d 203 evidence that the food and tents were
(3d Cir. 1999), a federal arson case where material, i.e., relevant and important to
before the district court, the government terrorism. Where the “conclusion is not
rested Commerce Clause jurisdiction based on a specific, cogent reason, but,
solely on the presence of a bottle of instead, is based on speculation,
Florida orange juice in the trunk of a car conjecture, or an otherwise unsupported
used solely for intrastate business. We personal opinion, we will not uphold it
held that “a conviction under 18 U.S.C. § because it will not have been supported by
844(i) must rest upon more than the such relevant evidence as a reasonable
dubious interstate commerce nexus of our mind would find adequate.” Dia v.
hypothetical cup of sugar, or the Ashcroft, 353 F.3d 228, 250 (3d Cir. 2003)
ephemeral nexus of the government’s (en banc); see also Gao v. Ashcroft, 299
carton of orange juice.” Id. at 211-12. We F.3d 266, 272 (3d Cir. 2002) (findings
rejected the government’s argument on based on “speculation or conjecture, rather
appeal that “we should now look past the than on evidence in the record, are
orange juice and consider other items that reversible”). “In other words, [the finding]
were in the trunk” that might support
federal jurisdiction. Id. at 206.
Here, just as in McGuire, although
the BIA might have relied upon other
information of record to support its
conclusion that Singh-Kaur provided
“material support,” the agency relied “transportation” to the individuals at issue,
solely on the food and tents. The BIA did but the BIA did not rely on this basis. See
not rely on the 1991 asylum application, INA § 212(a)(3)(B)(iv)(VI), 8 U.S.C. §
and we may not go searching for bases not 1182(a)(3)(B)(iv)(VI). See Navas, 217
relied upon by the agency. Possibly, the F.3d at 658 n.16 (Court may not affirm
BIA could have seized upon the fact that BIA on grounds on which the agency did
Singh-Kaur testified to pro vidin g not rely).
26
will not have been supported by substantial would be “material” to terrorism. But
evidence.” Dia, 353 F.3d at 250.24 those facts are not before us, and
permitting a mere cup of water, without
IV.
more, to be “material support” reads
That the BIA’s finding cannot be “material” out of the statute.
upheld is underscored through the
In reaching this conclusion, I
government’s suggestion at oral argument
remain cognizant of the fact that the
that the provision of a cup of water to a
executive branch is best-equipped to
terrorist could constitute “m aterial
handle the fast-changing circumstances of
support.” I have no doubt that under the
the war against terror. But courts may not
right facts, the provision of a single glass
rew rite clear statute s or de cide
of water to a terrorist could be material
immigration petitions on speculation.
support. If bin Laden were dying of thirst
Because “material support” does not mean
and asked for a cup of water to permit him
immaterial support, I would grant the
to walk another half mile and detonate a
petition for review, vacate the order of the
weapon of mass destruction, such support
BIA, and remand for further proceedings.25
24
Along these lines, the majority
discusses at length Singh-Kaur’s
membership in Babbar Khalsa, the
International Sikh Youth Federation, and
the Khalistan Commando Force. See Maj.
25
Op. at 10-11. However, the food and tents Because I conclude that the statute’s
were not provided to these organizations, plain meaning dictates the outcome, I need
but to individuals belonging to a different not rely on the rule of lenity. See St. Cyr,
organization, Sant Jarnail. The relevance 533 U.S. at 320 (“longstanding principle
of these facts to the food and tents is of construing any lingering ambiguities in
nowhere explained, nor could it be. More deportation statutes in favor of the alien”);
fundamentally, the majority cannot and Ki Se Lee, 369 F.3d at 225. Because the
does not identify the terrorist acts that statute is unambiguous and plain, the rule
Singh-Kaur provided “material support” of lenity has no bearing here. See Ki Se
for, for any group. Although facts about Lee, 369 F.3d at 227-28 n.13 (Alito, J.,
other groups paint Singh-Kaur in an dissenting) (“The rule of lenity . . . is
unfavorable light, they do not suffice to reserved for situations in which the normal
provide anything more than speculation as rules of statutory interpretation are
to how his “support” was “material” to unhelpful.”). Nonetheless, our adherence
anything. Finally, the BIA did not cite to to the rule of lenity in the immigration
or rely upon Singh-Kaur’s membership to context provides additional support for the
such other groups. conclusion here.
27