A.A. v. Attorney General United States

PRECEDENTIAL
UNITED STATES COURT OF APPEALS
FOR THE THIRD CIRCUIT
_____________
No. 17-1176
_____________
A.A.,
Petitioner
v.
ATTORNEY GENERAL OF THE UNITED STATES OF
AMERICA,
Respondent
____________
On Petition for Review of a Final Order
of the Board of Immigration Appeals
Agency Number: A208-056-809
Immigration Judge: Mirlande Tadal
______________
Argued: October 15, 2019
______________
Before: CHAGARES, JORDAN, and RESTREPO, Circuit
Judges
(Filed: September 2, 2020)
Anwen S. Hughes [ARGUED]
Human Rights First
75 Broad Street
Floor 31
New York, NY 10004
Counsel for Petitioner
Joseph H. Hunt
Ethan B. Kanter
Paul F. Stone [ARGUED]
Office of Immigration Litigation, Appellate Section
United States Department of Justice
P.O. Box 878, Ben Franklin Station
Washington, DC 20044
Counsel for Respondent
_____________
OPINION OF THE COURT
_____________
CHAGARES, Circuit Judge.
A.A. is a Syrian citizen and national who fled
involuntary military service in a government-controlled militia
called Jaysh al-Sha’bi (the “Militia”) and sought refuge in the
United States. Upon arriving at New York’s John F. Kennedy
International Airport, A.A. gave himself up to United States
Customs and Border Protection and applied for asylum,
2
withholding of removal, and deferral of removal under the
Convention Against Torture (“CAT”).
An Immigration Judge (“IJ”) granted A.A.’s application
for deferral of removal under the CAT because the IJ found
that A.A. was likely to be tortured if he returned to Syria. But
the IJ denied A.A.’s applications for asylum and for
withholding of removal. The IJ determined that the Militia is
a “Tier III,” or “undesignated,” terrorist organization under 8
U.S.C. § 1182(a)(3)(B)(vi)(III) (the “Tier III provision”)
because it is “a group of two or more individuals . . . which
engages in [terrorist activity]” as defined in the Immigration
and Nationality Act (“INA”). Any alien who provides
“material support” to a Tier III organization is statutorily
barred from receiving asylum and withholding of removal. 8
U.S.C. § 1182(a)(3)(B)(iv)(VI). The IJ concluded that A.A.
provided material support to the Militia because, during the
course of his service, A.A. trained to use an assault weapon,
carried out guard duty, and performed errands for his superiors.
Although A.A. secured CAT protection, he pursued his
applications for asylum and withholding of removal before the
Board of Immigration Appeals (“BIA”). A.A. argued before
the BIA that the Militia is beyond the scope of the Tier III
provision because it is a state actor controlled by a foreign
government. The BIA disagreed and dismissed A.A.’s appeal.
A.A. makes the same argument in his petition for review. For
the reasons that follow, we will deny the petition.
I.
A.A. was conscripted into the Syrian military in 2011.
He initially refused to report for duty because he had heard that
3
the Syrian military was engaging in human rights violations
while prosecuting the Syrian Civil War. A.A. was eventually
captured by Syrian military police and forced into service.
A.A. testified that the military conscription office sent him for
various medical tests and examinations over the course of
approximately one year. The examining doctors concluded
that A.A. suffered from “a chronic infection in the middle ear”
and that he should be assigned to “stationary services” rather
than active service. Administrative Record (“A.R.”) 92. He
was assigned to the Militia, which “is controlled by the Syrian
government,” 1 Gov’t Br. 5 (citing A.R. 1793), and which has
“been instrumental in the Assad regime’s campaign of terror
and violence against the citizens of Syria,” id. 5–6 (quoting
A.R. 1792).
A.A. testified that, despite the doctors’ medical
assessment, the Militia put A.A. through basic training, where
he learned how to use an AK-47 rifle. He was first assigned to
guard duty at a power station, then transferred to a soccer field
in Damascus, and later reassigned to Tishreen Stadium in Al-
Bariqah. At each duty station, A.A. served as an unarmed
guard and performed errands for his superiors, who physically
1
Both parties agree that the Militia is controlled by the Syrian
government. See A.A. Br. 4–5 (“There is no dispute . . . that
[the Militia] was a Syrian state actor and under the control of
the Syrian government.” (citing A.R. 18)); Gov’t Br. 5 (“Jaysh
Al-Sha’bi is a militia controlled by the Syrian government.”
(citing A.R. 1793)). Neither party addresses whether a foreign
government’s control (and what degree of control) is sufficient
to make an entity a “state actor.” We assume, without
deciding, that the Militia is controlled by the Syrian
government and is a state actor.
4
and verbally abused him because A.A. repeatedly reminded
them that he was only fit for stationary, non-active service.
A.A. testified that, while at Tishreen Stadium, he
suffered a “nervous breakdown” and was hospitalized. A.R.
1985. He obtained a one-year medical discharge effective
January 1, 2013. Fearing that he would be forced to re-join the
Militia or another armed group after his temporary discharge
expired, A.A. fled Syria in September or October of 2013 and
eventually arrived in the United States.
A.A. was placed in expedited removal proceedings. On
September 30, 2019, he passed his credible fear interview. On
the same date, he received a Notice to Appear charging that he
was inadmissible to the United States. Before an IJ, A.A.
conceded inadmissibility under 8 U.S.C. § 1182(a)(7)(A)(i)(I)
(lack of documentation required for admission) and applied for
asylum, withholding of removal, and deferral of removal under
the CAT.
The IJ granted A.A.’s application for deferral of
removal under the CAT but denied his applications for asylum
and for withholding of removal. The IJ noted that the
Government submitted evidence that the Militia is “controlled
by the Syrian government”; “has conducted . . . operations with
[the] Syrian military”; and has “been instrumental in the Assad
regime’s campaign of terror” against the Syrian people. A.R.
106 (quotation marks omitted). The IJ also noted that the
Militia receives support from Iran and that the Treasury
Department has blocked the Militia’s assets. The IJ credited
A.A.’s testimony about the Militia’s use of “abusive and
violent military tactics.” A.R. 106. A.A. testified that he saw
reports about government soldiers killing civilians and that he
5
heard a story about military police persecuting the family of a
deserter, including raping and murdering members of the
deserter’s family.
The IJ determined that the Militia’s killing and injuring
opposition members and use of terror and violence against
Syrian civilians constituted “terrorist activity” under 8 U.S.C.
§ 1182(a)(3)(B)(iii)(I)–(VI). As a result, the IJ concluded that
the Militia “constitutes a Tier III terrorist organization.” A.R.
106. The IJ further found that A.A. provided “material
support” to the Militia through his military service, including
taking part in weapons training, performing guard duties, and
providing food and laundry services to superior officers. A.R.
106–08. The IJ held that A.A.’s provision of material support
to a terrorist organization rendered him statutorily ineligible
for asylum and withholding of removal. A.A. appealed to the
BIA. 2
On December 30, 2016, the BIA dismissed A.A.’s
appeal in an unpublished decision by a single member. A.A.
did not challenge the IJ’s determination that the Militia
engaged in terrorist activity or that he had provided the Militia
with material support. Instead, A.A. argued that the Militia
cannot be a Tier III organization because it is a state actor. The
BIA rejected this argument. It agreed with the IJ that, to be a
Tier III organization, an entity need only be “a group of two or
more individuals, whether organized or not, which engages in,
2
Although A.A. was granted deferral of removal under the
CAT and therefore cannot be removed to Syria at this time, this
form of relief is more restrictive than asylum or withholding of
removal under the INA. A.A. points out, for example, that he
is ineligible to receive a travel document.
6
or has a subgroup which engages in” terrorist activity. A.R. 3
(quoting 8 U.S.C. § 1182(a)(3)(B)(vi)(III)). The BIA
concluded that the Militia “is a group of two or more
individuals,” which engages in “terrorist activity”; that A.A.
provided material support to the Militia; and that nothing in the
relevant provisions of the INA limited the material support bar
to non-state actors. A.R. 3–5 (quoting 8 U.S.C.
§ 1182(a)(3)(B)(vi)(III)).
On January 20, 2017, A.A. filed a petition for review.
Proceedings were held in abeyance while United States
Citizenship and Immigration Services (“USCIS”) considered
whether to grant A.A. a discretionary duress exemption from
the material support bar because A.A. was forced to serve in
the Militia. USCIS later issued a decision declining to grant
A.A. a duress exemption.
II.
We have jurisdiction under 8 U.S.C. § 1252(a). The
BIA had jurisdiction to review the IJ’s decision under 8 C.F.R.
§ 1003.1(b)(3). A.A. timely filed this petition for review
within thirty days of the BIA’s decision, see 8 U.S.C.
§ 1252(b)(1), and the IJ completed proceedings in Elizabeth,
New Jersey, so venue is proper, id. § 1252(b)(2).
Where, as here, the BIA adopted the findings of the IJ
and discussed some of the bases for the IJ’s decision, we
review both decisions. Saravia v. Att’y Gen., 905 F.3d 729,
734 (3d Cir. 2018). A.A.’s petition for review is based on an
issue of law, over which we exercise plenary review. Id.
7
 The BIA’s legal determinations involving the INA are
entitled to deference under Chevron, U.S.A., Inc. v. Natural
Resources Defense Council, Inc., 467 U.S. 837 (1984). See
Mahn v. Att’y Gen., 767 F.3d 170, 173 (3d Cir. 2014). Here,
however, “Chevron deference is inappropriate because we are
asked to review an unpublished, non-precedential decision
issued by a single BIA member.” Id. As a result, the BIA’s
decision is, “[a]t most,” entitled only to deference based on its
persuasive authority. Id. (citing Skidmore v. Swift & Co., 323
U.S. 134, 140 (1944)).
III.
A.A. argues that Congress never intended the Tier III
provision “to extend the concept[s] of a terrorist organization[,]
and of ‘material support’ to a terrorist organization[,] to the
military forces and governments of foreign states.” A.A. Br.
8. For support, A.A. advances a series of arguments based on
the text of the Tier III provision; the structure, context, and
revision history of the INA; the executive branch’s own
policies and past abstention from designating government-
controlled entities as terrorist organizations; and the United
States’ treaty obligations. We address each argument in turn,
and we conclude that each is unavailing.
A.
1.
We begin with relevant legal background. Pursuant to
the INA, “an alien seeking asylum must demonstrate either (i)
proof of past persecution, or (ii) a well-founded fear of future
persecution in his home country ‘on account of race, religion,
8
nationality, membership in a particular social group, or
political opinion.’” Sesay v. Att’y Gen., 787 F.3d 215, 218–
19 (3d Cir. 2015) (quoting 8 U.S.C. § 1101(a)(42)). A well-
founded fear of persecution entitles an applicant to asylum
unless an exception applies. See id. at 219.
An alien’s “application for withholding of removal is
reviewed under a more stringent standard.” Id. For
withholding of removal, “an alien ‘must establish a clear
probability, that is, that it is more likely than not that [his] life
or freedom would be threatened if returned to [his] country’
because of his protected class.” Id. (alterations in original)
(quoting Kaita v. Att’y Gen., 522 F.3d 288, 296 (3d Cir.
2008)).
The INA contains several exceptions to the mandatory
rules governing asylum and withholding of removal. As
relevant here, 8 U.S.C. § 1182(a)(3) provides “[s]ecurity and
related grounds” for deeming an alien inadmissible, and
§ 1182(a)(3)(B) specifically provides for terrorism-related
inadmissibility grounds. Even if an alien is otherwise “eligible
for relief, he will be deemed inadmissible and ineligible for
asylum or withholding of removal if he has engaged in terrorist
activities, including the provision of material support for
terrorist groups.” Sesay, 787 F.3d at 219 (citing 8 U.S.C.
§§ 1158(b)(2)(A)(v), 1182(a)(3)(B)(i)(I), 1231(b)(3)(B), and
1227(a)(4)(B)).
An alien is not entitled to asylum or withholding of
removal if “there are reasonable grounds to believe that [an]
alien is a danger to the security of the United States.” 8 U.S.C.
§ 1231(b)(3)(B)(iv). Further, “an alien who is described in
section 1227(a)(4)(B) of this title shall be considered to be an
9
alien with respect to whom there are reasonable grounds for
regarding as a danger to the security of the United States.” Id.
Section 1227(a)(4)(B), in turn, provides that any alien who is
described in § 1182(a)(3)(B) (defining “terrorist activities”)
and (F) is removable. So, an alien described in § 1182(a)(3)(B)
is not entitled to asylum or withholding of removal and is
removable. See McAllister v. Att’y Gen., 444 F.3d 178, 188
(3d Cir. 2006) (“[A]n alien is not eligible for asylum if the
Attorney General determines ‘there are reasonable grounds for
regarding the alien as a danger to the security of the United
States,’ or that ‘the alien is described in . . . section
1227(a)(4)(B) . . . .’” (quoting 8 U.S.C. § 1158(b)(2)(A)(iv)–
(v)).
Section 1182(a)(3)(B)(iv) defines the term “engage in
terrorist activity,” which includes “to commit an act that the
actor knows, or reasonably should know, affords material
support . . . to a terrorist organization described in [the Tier III
provision].” 8 U.S.C. § 1182(a)(3)(B)(iv)(VI)(dd). This is
commonly referred to as the “material support bar” because the
alien’s giving material support to a terrorist organization bars
the person from admission to the United States. 3 See, e.g.,
Sesay, 787 F.3d at 220.
The Secretaries of State and Homeland Security have
the power to exempt certain groups and individuals from
3
The material support bar also applies where an alien provides
material support to Tier I and Tier II organizations. See 8
U.S.C. § 1182(a)(3)(B)(iv)(VI)(cc).
10
§ 1182(a)(3)(B)’s national security inadmissibility grounds. 4
However, the Secretaries’ exemption authority is subject to a
number of statutory exceptions. See 8 U.S.C.
§ 1182(d)(3)(B)(i). And the Secretary of State may not
exercise the exemption power with respect to an alien who is
the subject of pending removal proceedings under § 1229a.
See id. 5
Since 2005, the Secretaries have announced exemptions
in the Federal Register. There are two types of exemptions.
“Group-based” exemptions cover classes of aliens, such as
those deemed inadmissible because of their association with a
particular Tier III organization. See Terrorism-Related
Inadmissibility Grounds (TRIG), U.S. Citizenship & Immigr.
Servs., https://www.uscis.gov/laws-and-policy/other-
resources/terrorism-related-inadmissibility-grounds-trig (last
updated Nov. 19, 2019). “Situational exemptions” apply to
aliens subject to certain inadmissibility grounds based on their
individual conduct. Id. USCIS processes exemptions pursuant
to the Secretaries’ delegation of authority.
4
The INA refers to these exemptions as “waivers,” but they
are commonly referred to as “exemptions” to distinguish them
from waivers under § 1182(d)(3)(A). Gov’t Br. 17–18.
5
Removal proceedings conducted under 8 U.S.C. § 1229a
commence with the filing of a Notice to Appear with the
immigration court. 8 C.F.R. § 1239.1.
11
2.
The INA defines three types of “terrorist organizations”
in 8 U.S.C. § 1182(a)(3)(B)(vi)(I) through (III). 6 Clause (I)
6
The full text of 8 U.S.C. § 1182(a)(3)(B)(vi) provides:
As used in this section, the term “terrorist
organization” means an organization—
(I) designated under section 1189
of this title;
(II) otherwise designated, upon
publication in the Federal Register,
by the Secretary of State in
consultation with or upon the
request of the Attorney General or
the Secretary of Homeland
Security, as a terrorist
organization, after finding that the
organization engages in the
activities described in subclauses
(I) through (VI) of [§
1182(a)(3)(B)(iv) (defining
“engage in terrorist activity”)]; or
(III) that is 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
12
describes “Tier I” terrorist organizations that the Secretary of
State formally designates according to the procedures set forth
in 8 U.S.C. § 1189(a). Clause (II) describes “Tier II” terrorist
organizations, which are also designated by the Secretary of
State. Neither the Secretary of State nor the Secretary of
Homeland Security may grant group-based exemptions to Tier
I or Tier II terrorist organizations. See 8 U.S.C.
§ 1182(d)(3)(B)(i). However, the Secretary of State may still
grant situational exemptions to individuals associated with Tier
I and Tier II terrorist organizations.
Clause (III) describes “Tier III,” or “undesignated,”
terrorist organizations. No executive agency formally
designates Tier III organizations; rather, IJs or the BIA
designate them on a case-by-case basis in the course of
reviewing individual aliens’ applications for immigration
relief. As a result, an IJ’s or the BIA’s designation of a Tier III
organization only impacts the alien whose case is before that IJ
or before the BIA.
The Attorney General has the power to review IJ and
BIA decisions designating Tier III organizations. See 8 U.S.C.
§ 1103(g)(2) (“The Attorney General shall . . . review such
administrative determinations in immigration proceedings . . .
as the Attorney General determines to be necessary.”); 8 C.F.R.
§ 1003.1(h)(1) (“The [BIA] shall refer to the Attorney General
for review of its decision all cases that . . . (i) The Attorney
General directs the [BIA] to refer to him.”). The Secretary of
State and the Secretary of Homeland Security have the power
(I) through (VI) of
[§ 1182(a)(3)(B)(iv)].
13
to grant group-based exemptions to Tier III organizations and
situational exemptions to Tier III organization members,
subject to some statutory exceptions. See 8 U.S.C.
§ 1182(d)(3)(B)(i) (barring, inter alia, exemptions for groups
that have “purposefully engaged in . . . terrorist activity that is
directed at civilians”). Unlike Tier I and Tier II organizations,
aliens can avoid the immigration consequences of providing
material support to a Tier III organization if they “did not
know, and should not reasonably have known, that the
organization was a terrorist organization.” Id.
§ 1182(a)(3)(B)(iv)(IV)(cc), (VI)(dd).
3.
On April 24, 2019, after A.A. filed his opening brief and
before the Government filed its response, the Secretary of State
published a notice under his discretionary exemption power
that exempts all subgroups of foreign governments from Tier
III status. Office of the Secretary; Exercise of Authority Under
the Immigration and Nationality Act, 84 Fed. Reg. 17230-01
(Apr. 24, 2019) (the “Exemption”). The Exemption provides,
in relevant part:
[The Tier III provision] shall not apply to any
ministry, department, agency, division, or other
group or sub-group within any foreign
government; except that this exercise of
authority shall not apply to any group designated
under [8 U.S.C. § 1189] or any group prohibited
from benefiting from an exercise of authority
under [8 U.S.C. § 1182(d)(3)(B)(i)] for having
engaged in terrorist activity against the United
States or another democratic country, or having
14
purposefully engaged in a pattern or practice of
terrorist activity that is directed at civilians. This
waiver applies both retroactively and
prospectively.
84 Fed. Reg. 17230-01. The three exceptions to the Exemption
— (i) groups designated under 8 U.S.C. § 1189 (the Tier I
organization provision); (ii) groups that engage in terrorist
activity against the United States or another democratic
country; and (iii) terrorist groups that target civilians — are
dictated by 8 U.S.C. § 1182(d)(3)(B)(i). The Secretary of State
has no power to exempt these groups.7
B.
First, A.A. argues that the Tier III provision does not
include state actors because it only encompasses an
“organization” that meets the Tier III criteria, and the INA’s
general definition of “organization” refers only to non-state
actors. We disagree.
In interpreting a statute, “we must begin with the
statutory text.” United States v. Moreno, 727 F.3d 255, 259
(3d Cir. 2013) (citing United States v. Gonzales, 520 U.S. 1, 4
7
We assume, without deciding, that the Militia is a terrorist
group that “purposefully engage[s] in a pattern or practice of
terrorist activity that is directed at civilians.” 84 Fed. Reg.
17230-01. As a result, the Exemption cannot apply to A.A.
Further, although the Exemption applies retroactively,
§ 1182(d)(3)(B)(i) prevents it from applying to aliens subject
to pending removal proceedings. The Exemption cannot apply
to A.A. for this reason as well.
15
(1997)). We “presume[] that Congress expresse[d] its intent
through the ordinary meaning of its language,” so “every
exercise of statutory interpretation begins with an examination
of the plain language of the statute.” Murphy v. Millennium
Radio Grp. LLC, 650 F.3d 295, 302 (3d Cir. 2011) (quoting
Alston v. Countrywide Fin. Corp., 585 F.3d 753, 759 (3d Cir.
2009)). “[W]here the text of a statute is unambiguous,” we will
enforce it “as written,” and we will only depart from that
language based on “the most extraordinary showing of
contrary intentions in the legislative history.” Id. (quoting In
re Phila. Newspapers, LLC, 599 F.3d 298, 314 (3d Cir. 2010)).
A.A. contends that the Tier III provision does not
extend to state actors because the INA’s general definition of
“organization” applies to the prefatory language introducing
the Tier III provision, and so that definition narrows the scope
of the Tier III provision. Specifically, the prefatory language
in § 1182(a)(3)(B)(vi) provides: “As used in this section, the
term ‘terrorist organization’ means an organization” that fits
the Tier I, II, or III organization criteria. Id. (emphasis added);
see also 8 U.S.C. § 1101(a)(28) (defining “organization”).
A.A. asserts that the INA definition of “organization” should
apply to the phrase “an organization” in § 1182(a)(3)(B)(vi).
Section 1101(a)(28)’s definition of “organization” provides:
“The term ‘organization’ means, but is not limited to, an
organization, corporation, company, partnership, association,
trust, foundation or fund; and includes a group of persons,
whether or not incorporated, permanently or temporarily
associated together with joint action on any subject or
subjects.”
A.A. argues that this definition does not encompass
state actors because it only consists of a list of terms that refer
16
to non-state actors, and therefore, the definition of “terrorist
organization” must only encompass non-state actors as well.
A.A. asserts that this is consistent with the dictionary definition
of “organization,” which also does not refer to state actors.
A.A. Br. 13 (citing Organization, Merriam-Webster.com
(defining “organization” as an “(a) association, society” or “(b)
an administrative and functional structure, such as a business
or a political party”)). Finally, A.A. points out that the INA
defines “foreign state” separately, and he argues that this is
evidence that Congress did not intend for the definition of
“organization” to encompass state actors. See A.A. Br. 13
(citing 8 U.S.C. § 1101(a)(14)).
The Government responds that the Tier III provision
“neither expressly nor impliedly excludes militias” and
“provides that an entity need only be ‘a group of two or more
individuals, whether organized or not.’” Gov’t Br. 25 (quoting
8 U.S.C. § 1182(a)(3)(B)(vi)(III)). The Government asserts
that this reading is consistent with the ordinary meaning of
“group”: “‘a number of individuals assembled together or
having some unifying relationship’ and ‘military unit[s].’”
Gov’t Br. 26 (quoting Group, Webster’s Third New
International Dictionary (1961)). So, because the Militia
consists of a “group of two or more individuals,” and nothing
in the provision expressly excludes state actors, the Militia fits
the definition of a Tier III organization. As a result, the
Government contends, we need not address whether
§ 1101(a)(28)’s definition of “organization” modifies
§ 1182(a)(3)(B)(vi)’s definition of “terrorist organization.”
However, the Government argues that even if we apply
§ 1101(a)(28)’s definition of “organization” to
§ 1182(a)(3)(B)(vi)’s definition of “terrorist organization,”
17
A.A.’s interpretation still fails. It reasons that, first,
§ 1101(a)(28) defines “organization” as “an organization,”
followed by additional terms, because Congress wanted the
definition “to be broader than its commonly understood
definition.” Gov’t Br. 29. Second, the definition is not
exhaustive because it includes a catch-all modifier: “means,
but is not limited to, an organization . . . .” Id. at 28 (quoting 8
U.S.C. § 1101(a)(28) (emphasis added)). Third, the definition
of “organization” “includes a group of persons.” Gov’t Br. 28
(quoting 8 U.S.C. § 1101(a)(28) (emphasis added)). So, if the
Militia is a “group” under the Tier III provision, then it is also
an “organization” under § 1101(a)(28). Finally, the ordinary
meaning of “organization” includes “a military command
consisting of two or more units” and “a state or manner of
being organized,” both of which encompass the Militia. Gov’t
Br. 30 (quoting Organization, Webster’s Third New
International Dictionary (1961)).
We agree with the Government that the Tier III
provision encompasses state actors, including the Militia. At
the outset, A.A. alternately frames the issue before us as
whether the Tier III provision encompasses “national military
forces of foreign countries,” A.A. Br. 1, and whether the Tier
III provision applies to “state actors” more generally, A.A. Br.
9. The Government tries to limit the question to whether the
Tier III provision encompasses state-controlled “militias.”
Gov’t Br. 3, 31–32. Neither party presents any limiting
principle for why a state-controlled “militia” is legally
distinguishable in this context from any other state-controlled
armed or unarmed group, and we perceive none. Therefore,
we address the question of whether state actors generally can
be designated as Tier III organizations.
18
The plain text of the Tier III provision answers the
question before us: a Tier III terrorist organization is any
“group of two or more individuals, whether organized or not”
that “engage[s] in terrorist activity” as described in
§ 1182(a)(3)(B)(iv). The ordinary meaning of the term
“group” includes “a number of individuals assembled together
or having some unifying relationship” and “a military unit.”
Group, Webster’s Ninth New Collegiate Dictionary (1986);
Group, Merriam-Webster.com, https://www.merriam-
webster.com/dictionary/group (last visited Aug. 11, 2020)
(same definition). The Militia is an organized military unit
controlled by the Syrian government. It is a “a group of two or
more individuals,” united in a common purpose, that has
“engage[d] in terrorist activity” as described in
§ 1182(a)(3)(B)(iv). So, by its plain meaning, the Tier III
provision encompasses the Militia.
Even if we read § 1101(a)(28)’s definition of
“organization” to apply to the Tier III provision, the result is
the same. Once again, § 1101(a)(28)’s definition provides:
“The term ‘organization’ means, but is not limited to, an
organization, corporation, company, partnership, association,
trust, foundation or fund; and includes a group of persons,
whether or not incorporated, permanently or temporarily
associated together with joint action on any subject or
subjects.” The definition is non-exhaustive, includes a catch-
all modifier, and does not expressly exclude state actors. The
ordinary meaning of “organization” is similarly expansive and
in no way excludes state actors. See, e.g., Organization,
Black’s Law Dictionary (11th ed. 2019) (“A group . . . formed
for a particular purpose.”); Organization, Oxford English
Dictionary, https://www.oed.com/view/Entry/132452 (last
visited Aug. 11, 2020) (“An organized body of people with a
19
particular purpose, as a business, government department,
charity, etc.”). And as the Government points out, the
definition of “organization” includes the term “group.” So, if
the Militia is a “group,” then it must also be an “organization”
under § 1101(a)(28). Finally, the fact that the INA includes a
separate definition of “foreign state,” without more, does not
suggest that the definition of “organization” or the Tier III
provision does not encompass state actors.
The ordinary meaning of the terms “group” and
“organization” both include multiple individuals organized
into military units. A.A. asks us to categorically exclude state
actors from the scope of the Tier III provision and
§ 1101(a)(28)’s definition of “organization” based solely on
the fact that the general definition of “organization” does not
specifically refer to state actors. The plain text of these
provisions simply does not support A.A.’s position.
C.
A.A. next argues that the structure, context, and revision
history of the INA is inconsistent with reading the Tier III
provision to encompass state actors. Again, we disagree.
1.
A.A. contends that various amendments to the INA
exhibit Congress’s intent to treat state and non-state actors
differently, at least with respect to the INA’s terrorism
provisions. A.A. points out that the Uniting and Strengthening
America by Providing Appropriate Tools Required to Intercept
and Obstruct Terrorism Act of 2001 (the “USA PATRIOT
Act”) “eliminated from the definition of ‘engage in terrorist
20
activity’ . . . the reference to providing material support to ‘any
individual, organization or government in conducting a
terrorist activity.’” A.A. Br. 17 (emphasis added) (citing USA
PATRIOT Act of 2001, Pub. L. No. 107-56, § 411, 115 Stat.
272, 346; 8 U.S.C. § 1182(a)(3)(B)(iii) (2000) (prior definition
of “engage in terrorist activity”)). Although A.A. does not
mention it in his briefing, the USA PATRIOT Act also
eliminated a reference to “terrorist government” in what was
then § 1182(a)(3)(B)(iii)(V) (2000). A.A. argues that
Congress excised these references to “government” because it
intended to exclude state actors from the definition of “terrorist
organization” in § 1182(a)(3)(B)(vi), and that Congress passed
the USA PATRIOT Act to address the threat of terrorism from
non-state actors. See A.A. Br. 23–26 (quoting statements by
Senators Leahy, 147 Cong. Rec. S10990, S11014 (daily ed.
Oct. 25, 2001), Graham, id. at S11017, Hatch, id. at S11016,
and Kyl, id. at S11050, emphasizing the importance of
addressing terrorist threats emanating from non-state actors).
The Government claims that Congress’s elimination of
the INA’s references to “government” and “terrorist
government” actually broadened the scope of the term
“terrorist organization” “to ‘account for the complex and often
mutating nature of terrorist groups by expanding the class of
inadmissible’” aliens. Gov’t Br. 34 (quoting 147 Cong. Rec.
S10990-2, S11016 (daily ed. Oct. 25, 2001) (statement of Sen.
Hatch)). In the Government’s view, the USA PATRIOT Act
did nothing to narrow the terrorism-related inadmissibility
provisions generally and did nothing to exclude state actors
specifically.
We agree. A.A. focuses too narrowly on the USA
PATRIOT Act’s removal of references to “government” from
21
the definition of “engage in terrorist activity.” That Act did
much more than excise the word “government” from
§ 1182(a)(3)(B) — it completely overhauled the definition of
“engage in terrorist activity,” refining and expanding it, as well
as adding the subsection that defines “terrorist organization.”
Moreover, a primary purpose of the Act was to broaden and
deepen penalties for engaging in or supporting terrorist
activity. See USA PATRIOT ACT of 2001, Pub. L. No. 107-
56, 115 Stat. 272, 272 (“An Act [t]o deter and punish terrorist
acts in the United States and around the world, to enhance law
enforcement investigatory tools, and for other purposes.”).
Reading the Tier III provision to exclude state actors on the
ground that the USA PATRIOT Act struck references to
“government” and “terrorist government” would sharply cut
against the broader purpose of the Act. Other than noting that
the Act removed the term “terrorist government” from
§ 1182(a)(3), A.A. cannot point to any affirmative evidence
that Congress intended to exclude state actors from the scope
of the Tier III provision.
2.
A.A. also asserts that, if the Tier III provision
encompasses state actors, then designating a state actor
controlled by a foreign government as a Tier III organization
effectively designates that entire foreign government as a
terrorist organization. For support, A.A. points to the language
of the Tier III provision, which encompasses “any organization
of two or more persons, whether organized or not, that engages
in or has a subgroup that engages in” terrorist activity. A.A.
Br. 17 (citing 8 U.S.C. § 1182(a)(3)(B)(vi)(III)). According to
A.A., under the subgroup clause, “unlawful violence by a
country’s” military forces, if “authorized” by the government,
22
“would turn the entire national government into a Tier III
terrorist organization.” A.A. Br. 18. A.A. implies that
Congress could never have intended to empower IJs and the
BIA to designate entire foreign governments as terrorist
organizations.
The Government responds that the BIA’s power to
designate foreign governments as Tier III organizations should
not impact the plain meaning of the Tier III provision. It
asserts that the subgroup clause is further evidence that
Congress desired to broaden the definition of “terrorist
organization.” In any case, the Government claims that the
Secretary of State’s Exemption for subgroups of most foreign
governments “diminishes the impact of a determination” that
such a subgroup is a Tier III organization. Gov’t Br. 50 (citing
84 Fed. Reg. 17230-01).
A.A.’s arguments are unavailing. First, until an IJ or the
BIA designates an organization as a Tier III organization, that
organization is not covered by the Tier III provision, even if
the provision’s text appears applicable to it. And designating
a subgroup as a Tier III organization does not infect the
controlling, parent entity with the same label. See 8 U.S.C.
§ 1182(a)(3)(B)(vi)(III). So while the BIA had the power to
designate the entire Syrian government as a Tier III
organization based on the conduct of its subgroup, the Militia,
the BIA did not do so. Instead, the BIA designated only the
subgroup — the Militia itself — as a Tier III organization, and
that designation does not apply to the Syrian government as a
whole.
Second, at base — both here, and in other parts of his
brief — A.A. argues that our interpreting the Tier III provision
23
in a way that permits IJs and the BIA to designate state actors
as Tier III organizations will inject IJs and the BIA into the
conduct of foreign policy, which is firmly the president’s
constitutional prerogative. A.A. asserts that Congress could
not have intended such “absurd results.” A.A. Reply Br. 1.
The Government responds that Congress created the Tier III
provision, delegated the power to make Tier III determinations
to IJs and the BIA, and vested the Secretaries of State and
Homeland Security with the power to exempt sub-entities of
foreign governments from Tier III status — and if Congress
wants to change that regime, it is free to do so.
Although “it is . . . a ‘basic tenet of statutory
construction . . . that courts should interpret a law to avoid
absurd or bizarre results,’” Encompass Ins. v. Stone Mansion
Rest. Inc., 902 F.3d 147, 152 (3d Cir. 2018) (second alteration
in original) (quoting In re Kaiser Aluminum Corp., 456 F.3d
328, 338 (3d Cir. 2006)), our interpretation of the Tier III
provision does not “def[y] rationality or render[] the statute
nonsensical and superfluous,” id. (quoting United States v.
Moreno, 727 F.3d 255, 259 (3d Cir. 2013)). A.A.’s argument
has surface-level appeal, but ultimately founders when
examining the Tier III provision in the context of the INA as a
whole.
The INA empowers the Secretaries of State and
Homeland Security and the Attorney General to intervene in
immigration proceedings to prevent absurd or bizarre results.
As the Government points out, because the Exemption clearly
applies to most subgroups of foreign governments, it will
significantly narrow IJs’ powers to apply the Tier III provision
to foreign governments at all. See 84 Fed. Reg. 17230-01. And
the Secretaries of State and Homeland Security can expand on
24
these exemptions if they deem it necessary to further the United
States’ international interests. See 8 U.S.C. § 1182(d)(3)(B).
In any case, the Attorney General, and by extension, the
President, retains ultimate control over BIA determinations.
See id. § 1103(g)(2) (“The Attorney General shall . . . review
such administrative determinations in immigration
proceedings . . . as the Attorney General determines to be
necessary . . . .”); 8 C.F.R. § 1003.1(d)(1)(i), 1003.1(h) (“The
[BIA] shall refer to the Attorney General for review of its
decision all cases that . . . (i) The Attorney General directs the
[BIA] to refer to him.”). These provisions empower executive
branch officials to prevent Tier III designations that could have
potentially sensitive foreign policy implications, and therefore,
avoid the absurd or bizarre results that A.A. warns us against.
Finally, we note that the BIA already rules on issues that
could impact the United States’ relations with other countries.
See, e.g., Matter of Vides Casanova, 26 I. & N. Dec. 494, 495,
501–02 (BIA 2015) (recognizing that the Salvadoran military
and related militias were responsible for civilian killings and
torture). And, at least in the past, the BIA has refrained from
ruling on issues that go to the very heart of a foreign state’s
legitimacy. See, e.g., Matter of S-K-, 23 I. & N. Dec. 936, 940
(BIA 2006) (declining to “determine that a foreign sovereignty
would not be recognized by the United States Government”).
So our interpretation of the Tier III provision does not thrust
IJs or the BIA into any unintended new or greatly expanded
role of influence over American foreign policy. 8
8
A.A. similarly argues that applying the Tier III provision to
state actors would force federal courts to rule on the legitimacy
of foreign states. But, as the Government points out, federal
courts already examine the conduct of foreign states in other
25
3.
A.A. further claims that applying the Tier III provision
to state actors would render the extrajudicial killing and child
soldier inadmissibility grounds superfluous. A.A. Br. 18–20
(citing Milner v. Dep’t of the Navy, 562 U.S. 562, 575 (2011)
(noting that courts should avoid interpreting statutes in ways
that render provisions superfluous)).
The extrajudicial killing inadmissibility ground,
enacted in 2004, bars aliens who have committed “under color
of law of any foreign nation, any extrajudicial killing.” 8
U.S.C. § 1182(a)(3)(E)(iii)(II). For comparison, according to
A.A., the relevant portion of the terrorist activity
inadmissibility ground bars aliens from immigration relief
based on “[t]he use of any . . . (b) explosive, firearm, or other
weapon or dangerous device (other than for mere personal
monetary gain), with intent to endanger, directly or indirectly,
the safety of one or more individuals or to cause substantial
damage to property.” Id. § 1182(a)(3)(B)(iii)(V). A.A. thus
argues that if the Tier III provision encompasses state actors,
then it applies in any situation in which the extrajudicial killing
contexts, such as under the Foreign Sovereign Immunities Act,
without issue. Gov’t Br. 40–41 (citing 28 U.S.C. §§ 1605A
(terrorism exception to the jurisdictional immunity of a foreign
state), 1605B (responsibility of foreign states for international
terrorism against the United States); Bank Markazi v. Peterson,
136 S. Ct. 1310, 1328 (2016) (holding that statute for enforcing
judgments against foreign states does not violate separation of
powers principles); Valore v. Islamic Republic of Iran, 700 F.
Supp. 2d 52, 73–90 (D.D.C. 2010) (awarding damages against
Iran based on its support for terrorism).
26
ground would apply. A.A. also notes that the extrajudicial
killing ground targets state actors, and was enacted in 2004,
after Congress created the Tier III provision.
The Government responds that actions can be “under
the color of law even where [state officials] act without state
sanction.” Gov’t Br. 53 (quoting Ramirez-Peyro v. Holder,
574 F.3d 893, 901 (8th Cir. 2009) (holding that the use of
official authority does not require state sanction)); see also
Kadic v. Karadžić, 70 F.3d 232, 245 (2d Cir. 1995) (“A private
individual acts under color of law within the meaning of
section 1983 when he acts together with state officials or with
significant state aid.”)). According to the Government, the
alien “need not commit the act in association with an
organization” and need not have “organizational
authorization” for it. Gov’t Br. 53 (citing Uddin v. Att’y Gen.,
870 F.3d 282, 290 (3d Cir. 2017) (holding that “Tier III status
cannot be assigned to a group” unless “the specified terrorist
acts were actually authorized” by that group)). As a result, the
Government contends, applying the Tier III provision to state
actors would not result in the terrorism grounds swallowing the
extrajudicial killing ground because the latter would apply
where an alien commits a killing, under color of law, without
authorization from the foreign state.
A.A. also argues that if state militaries can be Tier III
organizations, then the child soldier inadmissibility ground
would be superfluous. Enacted in 2008, the child soldier
provision bars aliens who have “engaged in the recruitment or
use of child soldiers.” 8 U.S.C. § 1182(a)(3)(G). The
Government responds that if a sovereign country used child
soldiers in its military in otherwise legitimate armed combat,
“that military would not be an undesignated terrorist
27
organization and the members of the organization would not
be committing or supporting terrorism.” Gov’t Br. 54–55. In
that situation then, the terrorism ground would not swallow the
child soldier ground.
A.A.’s arguments are unpersuasive. The Government
has identified plausible situations in which either the
extrajudicial killing or child soldier inadmissibility ground
could apply, and the terrorism inadmissibility grounds through
the Tier III provision would not. As a result, neither the
extrajudicial killing ground nor the child soldier ground would
be made redundant by interpreting the Tier III provision to
encompass state actors. Further, because Congress
deliberately drafted the inadmissibility grounds broadly,
invalidating or narrowing one ground because it overlaps with
another would cut against Congress’s intent. See, e.g., Uddin,
870 F.3d at 285 (“Terrorist activity is defined broadly by the
statute . . . .”); Khan v. Holder, 584 F.3d 773, 777 (9th Cir.
2009) (“[T]he statute defines ‘engag[ing] in terrorist activity’
broadly. . . . The statute also defines ‘terrorist organization’
broadly.”). It is not apparent from the reach of other
inadmissibility grounds that Congress intended to carve out a
safe harbor for state actors that otherwise meet the definition
of a Tier III organization and whose conduct otherwise meets
the definition of engaging in terrorist activity.9
9
A.A. also contends that “a group may be designated as a
[foreign terrorist organization by the Secretary of State] under
[8 U.S.C. § 1189] if it engages in terrorist activity as defined
in [8 U.S.C. § 1182(a)(3)(B)] or terrorism as defined in 22
U.S.C. § 2656[f(d)(2)].” A.A. Br. 16 & n.2 (emphasis added).
Section 2656f(d)(2) defines “terrorism” as “premeditated,
politically motivated violence perpetrated against
28
D.
A.A. then argues that the executive branch’s own
actions cut against the Government’s argument that the Tier III
provision should apply to state actors. First, A.A. argues that
terrorism law and policy treat state actors differently, so we
should restrict the Tier III provision to non-state actors as a
means of abiding by this general norm of differential treatment.
A.A. specifically points to the United States’ sanctions against
Syria as evidence that it does not treat the Syrian government
as a terrorist organization, but rather as a state sponsor of
terrorism.
The Government responds that sanctions against state
sponsors of terrorism are not the executive branch’s exclusive
means of punishing state actors that engage in terrorist activity.
Sanctions are economic and targeted at states, whereas the
INA’s terrorist activity provisions impose immigration
consequences on individuals. A terrorist organization
designation under § 1182(a)(3)(B)(vi) only has consequences
for the organization’s members, not for the organization itself.
noncombatant targets by subnational groups or clandestine
agents.” A.A. points to the term “subnational groups” as
indicative of Congress’s intent to target non-state actors. We
are not persuaded. First, § 2656f(d)(2)’s definition of
“terrorism” applies to Tier I designations under § 1189, not
Tier III designations. Second, § 1189 provides that an entity
can be designated a Tier I organization based on either 8 U.S.C.
§ 1182(a)(3)(B) or 22 U.S.C. § 2656f(d)(2). A.A. offers no
reason why we should defer to § 2656f(d)(2)’s possibly more
restrictive definition, and we see no reason to do so.
29
A.A. also argues that since the USA PATRIOT Act
created the Tier III provision, neither the Department of
Homeland Security (“DHS”) nor the BIA has applied it to “the
armed forces of a national government,” or any other state
actor. A.A. Br. 26. Instead, A.A. claims, in cases involving
state actors, DHS has pursued the so-called persecutor bar. The
persecutor bar is a statutory exception to the INA definition of
“refugee.” That exception provides: “The term ‘refugee’ does
not include any person who ordered, incited, assisted, or
otherwise participated in the persecution of any person on
account of race, religion, nationality, membership in a
particular social group, or political opinion.” 8 U.S.C.
§ 1101(a)(42)(B). A.A. cites three decisions involving state
actors where DHS pursued the persecutor bar but could have
pursued the material support bar through the Tier III provision.
See Negusie v. Holder, 555 U.S. 511 (2009) (involving a
Eritrean military conscript); FH-T v. Holder, 723 F.3d 833 (7th
Cir. 2013) (involving a former member of a Eritrean rebel
movement who fled Eritrean national military service, where
the material support bar was raised with respect to his time in
the rebel movement but not his time fighting for the Eritrean
state); Matter of J.M. Alvarado, 27 I. & N. Dec. 27 (BIA 2017)
(involving an individual who served in the Salvadoran
National Guard during the Salvadoran Civil War).
We disagree with A.A.’s argument. In enforcing the
law, DHS has prosecutorial discretion to pursue (or not pursue)
whatever combination of inadmissibility grounds that it
chooses in enforcing the country’s immigration laws. See, e.g.,
Heckler v. Chaney, 470 U.S. 821, 831 (1985) (“[A]n agency’s
decision not to prosecute or enforce, whether through civil or
criminal process, is a decision generally committed to an
agency’s absolute discretion.”); Reno v. Am.-Arab Anti-
30
Discrimination Comm., 525 U.S. 471, 483–84 (1999) (noting
the long history of executive branch discretion to pursue or
abandon removal proceedings); Texas v. United States, 106
F.3d 661, 667 (5th Cir. 1997) (noting the State of Texas’s
concession that 8 U.S.C. § 1103, describing the powers of the
Attorney General in immigration matters, “places no
substantive limits on the Attorney General and commits
enforcement of the INA to her discretion”). We see no reason
why the Government’s exercise of discretion to initiate
removal proceedings based on one inadmissibility ground over
another should impact the scope of the Tier III provision.
A.A. makes a similar argument that the Government has
never classified a state actor as a Tier I or Tier II organization,
and therefore, it would be incongruous to interpret the Tier III
provision to encompass state actors. However, on April 15,
2019, after A.A. filed his opening brief and before the
Government filed its response brief, the Secretary of State
designated the Iranian Revolutionary Guard (“IRG”) as a Tier
I terrorist organization. See In the Matter of the Designation
of the Islamic Revolutionary Guard Corps (and Other Aliases)
as a Foreign Terrorist Organization, 84 Fed. Reg. 15278-01
(Apr. 15, 2019). And on April 24, 2019, the Secretary of State
published the Exemption from Tier III status for subgroups of
foreign governments. See Exemption, 84 Fed. Reg. 17230-01.
The Government points to the Tier I designation of the IRG as
evidence that the executive branch can and does designate state
actors as terrorist organizations. And the Government claims
that the Exemption “shows the executive branch consider[s]
that groups and subgroups of any foreign government can be
[Tier III] terrorist organizations.” Gov’t Br. 27. A.A. responds
that the “Executive Branch’s assertion of its ability to treat
foreign governments and their agencies as Tier III terrorist
31
organizations . . . is not determinative of whether Congress
ever gave it that authority.” A.A. Reply Br. 3.
We are again unconvinced by A.A.’s argument. A.A. is
correct that the executive’s assertion of statutory authority is
not determinative of whether it has such power. See Rucho v.
Common Cause, 139 S. Ct. 2484, 2494 (2019) (“[I]t is ‘the
province and duty of the judicial department to say what the
law is.’” (quoting Marbury v. Madison, 1 Cranch 137, 177
(1803))). However, the plain meaning of the Tier III provision
encompasses state actors. See supra Part III.B. The
Government has discretion to invoke one ground for removal
over another. Its choices do not narrow the plain meaning of
the Tier III provision, nor limit the Government’s otherwise
lawful powers.
E.
A.A. next claims that interpreting the Tier III provision
to encompass state actors conflicts with the United States’
treaty obligations under the Convention Relating to the Status
of Refugees, July 28, 1951, 189 U.N.T.S. 150 (the
“Convention”), and the 1967 United Nations Protocol relating
to the Status of Refugees, Jan. 31, 1967, 606 U.N.T.S. 267 (the
“Protocol”), which “[binds] parties to comply with the
substantive provisions of Articles 2 through 34” of the
Convention. Khan, 584 F.3d at 782 (alteration in original)
(quoting INS v. Stevic, 467 U.S. 407, 416 (1984)). A.A. argues
that the Protocol only permits exceptions to mandatory asylum
for aliens for whom there are “reasonable grounds for
regarding . . . as a danger to the security of the country where
he is.” A.A. Br. 40 (quoting Convention, Article 33(2)). A.A.
asserts that Congress incorporated the Protocol into domestic
32
law through the Refugee Act of 1980 (the “Refugee Act”),
which added language to § 1231(b)(3)(B)(iv) that reflects the
language of Article 33(2). Section 1231(b)(3)(B)(iv) bars
aliens from refugee status where there are “reasonable grounds
to believe that the alien is a danger to the security of the United
States.” A.A. claims that more recently enacted terrorism
provisions are refracted through this exception, and thus, the
Protocol should guide our interpretation of § 1231(b)(3)(B)
and § 1182(a)(3)(B), including the Tier III provision.
Therefore, he argues, because certain inadmissibility grounds
under § 1182(a)(3)(B) automatically create “grounds” “to
believe that the alien is a danger to the security of the United
States,” those inadmissibility grounds destroy the “reasonable”
requirement in § 1231(b)(3)(B)(iv) and Article 33(2).
We recognize that “one of Congress’ primary purposes
in passing the Refugee Act was to implement the principles
agreed to in the [Protocol].” INS v. Aguirre-Aguirre, 526 U.S.
415, 427 (1999) (quotation marks omitted). But we ultimately
conclude that the Protocol plays no role in our interpretation of
the Tier III provision.
First, the Protocol is not self-executing; that is, it does
not have any independent force absent implementing
legislation. See Medellin v. Texas, 552 U.S. 491, 534 n.2
(2008) (Stevens, J., concurring) (citing a 1992 Senate
declaration of non-self-execution with respect to the Protocol);
United States v. Pinto–Mejia, 720 F.2d 248, 259 (2d Cir. 1983)
(“[I]n enacting statutes, Congress is not bound by international
law.”); United States v. Merkt, 794 F.2d 950, 964 n.16 (5th Cir.
1986) (similar). Cf. Khan, 584 F.3d at 783 (discussing
differences between United States law and the Protocol).
Second, because the Protocol lacks independent force in
33
United States courts, we look to the text of the relevant statutes
to determine what Congress intended. Even where one of
Congress’s purposes in enacting a law was to execute one of
the United States’ international obligations, courts are bound
by the relevant statutes, not by sources of international law.
See, e.g., id. at 784 (holding that the INA’s definition of
“terrorist activity” controls in asylum determinations). Section
1227(a)(4)(B) provides that an alien who is inadmissible under
§ 1182(a)(3)(B) is automatically considered to be an alien with
respect to whom there are reasonable grounds for regarding as
a danger to the security of the United States. See McAllister,
444 F.3d at 188. There is no evidence that Congress intended
§ 1227(a)(4)(B) to bind the United States to the terms of the
Protocol, and the plain meaning of the Tier III provision clearly
encompasses state actors, including the Militia.
IV.
The INA contains no statutory exception for
individuals, like A.A., who are forced to provide material
support to terrorist organizations. Sesay, 787 F.3d at 222–24
(“Congress has ‘delegat[ed] to the Secretary the sole authority
to waive the applicability of terrorist-related bars, . . . paid
specific attention to duress waivers,’ and ‘has appreciated the
distinction between voluntary and involuntary conduct.’”
(quoting Annachamy v. Holder, 733 F.3d 254, 263–64 (9th Cir.
2013))). The only recourse for aliens forced to serve a terrorist
organization and ensnared by the material support bar is a
possible administrative duress exemption. A.A. was denied
such an exemption. We asked the parties to submit
supplemental briefing on how the exemption process works
and why A.A. did not qualify for one.
34
Under 8 U.S.C. § 1182(d)(3)(B)(i), the Secretaries of
State and Homeland Security “may determine in such
Secretary’s sole unreviewable discretion that subsection
(a)(3)(B) shall not apply with respect to an alien within the
scope of that subsection or that subsection (a)(3)(B)(vi)(III)
shall not apply to a group within the scope of that subsection
[subject to limitations].” In 2007, the Secretary of Homeland
Security defined and implemented the duress exemption to the
material support bar. Exercise of Authority Under Sec.
212(d)(3)(B)(i) of the Immigration and Nationality Act, 72
Fed. Reg. 9958-01 (Mar. 6, 2007). To receive a duress
exemption, an alien must first satisfy four threshold
requirements — that he or she:
a) Is seeking a benefit or protection under the
[INA] and [but for the material support bar] has
been determined to be otherwise eligible for the
benefit or protection;
b) Has undergone and passed relevant
background and security checks;
c) Has fully disclosed, in all relevant applications
and interviews with U.S. Government
representatives and agents, the nature and
circumstances of each provision of such material
support; and
d) Poses no danger to the safety and security of
the United States.
Id. USCIS also “may . . . consider[]” the following factors:
“whether the applicant reasonably could have avoided, or took
steps to avoid, providing material support”; “the severity and
type of harm inflicted or threatened, [and] to whom the harm
was directed”; “the perceived imminence of the harm
35
threatened[,] and the perceived likelihood that the harm would
be inflicted”; “the amount, type and frequency of material
support provided, the nature of the activities committed by the
terrorist organization, the alien’s awareness of those activities,
the length of time since material support was provided, the
alien’s conduct since that time, and any other relevant factor.”
Id. All of these factors are discretionary and, ultimately,
USCIS decides whether or not to grant an exemption based on
the “totality of the circumstances.” Id.
USCIS will only consider whether an alien should
receive an exemption after the alien’s order of removal
becomes final. See Department of Homeland Security
Implements Exemption Authority for Certain Terrorism-
Related Inadmissibility Grounds for Cases with
Administratively Final Orders of Removal, U.S. Citizenship
and Immigr. Servs. (Oct. 23, 2008),
https://www.uscis.gov/sites/default/files/USCIS/Laws/TRIG/
USCIS_Process_Fact_Sheet_-
_Cases_in_Removal_Proceedings.pdf (explaining the
exemption process and exemption eligibility requirements).
Cases “in which the applicant appears eligible for the benefit
sought[,] but for the provision of material support[,] will be
subject to two levels of review and concurrence with the
adjudicating office’s recommendation.” USCIS Implementing
Memorandum, Gov’t Supp. Br. Ex. B, at 9. Further, USCIS
headquarters retains “authority to review each application and
will take appropriate steps to ensure agency-wide consistency
in application of the discretionary exemptions.” Id. There is
no administrative appeals process, and exemption decisions are
not subject to judicial review. 8 U.S.C. § 1182(d)(3)(B)(i)
(exemptions granted in the “sole unreviewable discretion” of
the Secretaries of State and Homeland Security),
36
§ 1252(a)(2)(D) (judicial review of final orders of removal
limited to constitutional claims and questions of law).
A.A.’s removal order became administratively final on
December 30, 2016. His case was then submitted to USCIS
for evaluation. On December 18, 2018, USCIS declined to
grant A.A. an exemption. USCIS concluded that A.A. failed
to “fully disclose in all relevant applications and interviews . . .
the nature and circumstances of each provision of material
support to the” Militia. Notice of Determination, Gov’t Supp.
Br. Ex. C, at 3 (Dec. 18, 2018). USCIS noted that A.A.
“initially lied about [his] travel pattern out of fear that [he]
would have been immediately deported.” Id. at 6. USCIS also
noted that A.A. provided more comprehensive information to
the immigration court than he did during his interview at the
airport immediately after he arrived in the United States.
Because of these purported inconsistencies and USCIS’s
uncertainty about the details of A.A.’s military service, and
because A.A.’s “positive factors are insufficient to overcome
the negative factors,” USCIS refused to grant A.A. an
exemption. Id. at 7. As a result, while the administrative
duress exemption might have afforded A.A. the relief he
desired, it ultimately did not, and A.A. has no right to judicial
review of this decision.10
V.
For these reasons, we will deny A.A.’s petition for
review.
10
We have examined A.A.’s remaining arguments and have
found them unavailing.
37