Hani Nuure v. Merrick Garland

NOT FOR PUBLICATION FILED
UNITED STATES COURT OF APPEALS MAY 24 2021
MOLLY C. DWYER, CLERK
U.S. COURT OF APPEALS
FOR THE NINTH CIRCUIT
HANI ABDI NUURE, No. 17-72909
Petitioner, Agency No. A208-595-821
v.
MEMORANDUM*
MERRICK B. GARLAND, Attorney
General, 1
Respondent.
On Petition for Review of an Order of the
Board of Immigration Appeals
Argued and Submitted March 10, 2021
San Francisco, California
Before: GOULD and FRIEDLAND, Circuit Judges, and ERICKSEN,** District
Judge. Concurrence by Judge FRIEDLAND.
1
On March 11, 2021, Attorney General Merrick B. Garland was
automatically substituted as Respondent. See Fed. R. App. P. 43(c).
*
This disposition is not appropriate for publication and is not precedent
except as provided by Ninth Circuit Rule 36-3.
**
The Honorable Joan N. Ericksen, United States District Judge for the
District of Minnesota, sitting by designation.
Petitioner Hani Abdi Nuure seeks review of the Board of Immigration
Appeals’ (“BIA”) denial of relief from removal. Because the BIA’s decision was
supported by substantial evidence, the petition is denied.
Petitioner, a citizen and native of Somalia, sought asylum in the United
States after being held in captivity by the terrorist organization Al-Shabaab. The
Immigration Judge (“IJ”) denied her asylum claim under the material support for
terrorism bar in the Immigration and Nationality Act (“INA”), 8 U.S.C.
§ 1182(a)(3)(B). The IJ concluded that she would qualify for asylum if not for the
fact that she had provided material support to Al-Shabaab by cooking for them
under duress while imprisoned. The BIA affirmed.2
The parties agree that Petitioner cooked for a terrorist organization but
dispute whether that constituted “material support” under the INA. In her petition
for review, Petitioner argues that the support was de minimis and that Al-Shabaab
would have continued as a terrorist organization had she not cooked for its
members. The Government argues that no exception exists for de minimis support.
Where “the BIA conducted an independent review of the record and
provided its own grounds for affirming the IJ’s decision,” this Court will review
2
Petitioner also applied for withholding of removal and protection under the
Convention Against Torture (“CAT”). The IJ determined that the material support
bar rendered Petitioner ineligible for withholding of removal, and the BIA
affirmed. The IJ also denied Petitioner’s application for CAT relief, and the BIA
deemed the issue to be waived on appeal.
2
the BIA’s opinion and any portion of the IJ’s decision expressly adopted by the
BIA. Doe v. Holder, 736 F.3d 871, 877 (9th Cir. 2013) (quoting Navas v. INS, 217
F.3d 646, 654 (9th Cir. 2000)). A denial of asylum is “conclusive unless manifestly
contrary to the law.” 8 U.S.C. § 1252(b)(4)(D). The BIA’s findings of fact are
reviewed for substantial evidence and “are conclusive unless any reasonable
adjudicator would be compelled to conclude to the contrary.” Id. § 1252(b)(4)(B).
“A noncitizen who has engaged in ‘terrorist activity’ cannot obtain asylum
or withholding of removal.” Rayamajhi v. Whitaker, 912 F.3d 1241, 1244 (9th Cir.
2019) (citing 8 U.S.C. § 1182(a)(3)(B)(i)(I)). “Engag[ing] in terrorist activity”
includes committing “an act that the actor knows, or reasonably should know,
affords material support” to a terrorist organization. 8 U.S.C.
§ 1182(a)(3)(B)(iv)(VI). This bar to entry applies even if the support was provided
under duress. Rayamajhi, 912 F.3d at 1244 (citing Annachamy v. Holder, 733 F.3d
254, 267 (9th Cir. 2013), overruled in part on other grounds by Abdisalan v.
Holder, 774 F.3d 517, 526 (9th Cir. 2015) (en banc)).
This Court has held that there is no de minimis exception for material
support in the form of funds. Id. at 1244–45. The BIA has gone further, holding
that the material support bar generally contains no de minimis exception. In re A-
C-M-, 27 I. & N. Dec. 303, 308 (BIA 2018). This Court has not determined
whether cooking constitutes material support or whether de minimis support in the
3
form of cooking is material. In the context of a criminal prohibition on providing
material support for terrorism, the Supreme Court has noted that even “[m]aterial
support meant to promote peaceable, lawful conduct can further terrorism” because
it “frees up other resources within the organization that may be put to violent
ends.” Holder v. Humanitarian Law Project, 561 U.S. 1, 30 (2010) (internal
quotation marks, citation, and alteration omitted). The Sixth Circuit has applied
this reasoning to the immigration statute at issue here and held that material
support must be both “relevant” and “significant.” Hosseini v. Nielsen, 911 F.3d
366, 375–76 (6th Cir. 2018).
In this case, we need not decide whether a de minimis exception exists or
whether cooking provides material support in all instances. Before the BIA,
Petitioner argued only that the support she provided was not material because it
was de minimis. The BIA’s decision that her activity was not de minimis, and was
therefore material, is supported by substantial evidence. Petitioner has not disputed
the BIA’s finding that she “cooked for Al-Shabaab for an extended period of time
while she was detained,” and the record supports the BIA’s conclusion that the
support provided was above a threshold that could be considered de minimis.
Therefore, we find no factual basis on which to reach a conclusion contrary to the
BIA’s decision.
4
DENIED. The temporary stay of removal remains in place until issuance of
the mandate. The motion for a stay of removal is otherwise denied.
5
FILED
Nuure v. Garland, No. 17-72909 MAY 24 2021
MOLLY C. DWYER, CLERK
FRIEDLAND, J., concurring: U.S. COURT OF APPEALS
I concur because it appears that Nuure failed to argue before the BIA that
cooking is not “material support” under 8 U.S.C. § 1182(a)(3)(B)(iv)(VI). See
Tijani v. Holder, 628 F.3d 1071, 1080 (9th Cir. 2010). I write separately to urge
our court to clarify the meaning of “material” in a future case because I believe that
cooking is not “material support” under the statute.
A noncitizen is ineligible for asylum or withholding of removal if he or she
has provided “material support” to a terrorist organization or its members. 8
U.S.C. § 1182(a)(3)(B)(iv)(VI). Under traditional rules of statutory construction, it
is apparent that “material” modifies “support,” and that “material” must be given
some effect that does not render it redundant. See Nielsen v. Preap, 139 S. Ct. 954,
969 (2019). Yet in two recent cases, while declining to adopt a precise definition,
we have narrowed the possibilities for what “material” could mean under the
statute.
First, we held that the material support bar contains no exception for
activities conducted under duress. Annachamy v. Holder, 733 F.3d 254, 267 (9th
Cir. 2013), overruled in part on other grounds by Abdisalan v. Holder, 774 F.3d
517, 526 (9th Cir. 2015) (en banc). Second, we held that the material support bar
contains no exception for “de minimis aid in the form of funds.” Rayamajhi v.
1
Whitaker, 912 F.3d 1241, 1245 (9th Cir. 2019). Although we limited our holding
to “aid in the form of funds,” we approved in dicta of the BIA’s broader
determination that “no de minimis exception exists” to the material support bar.
Id. (citing In re A-C-M-, 27 I. & N. Dec. 303, 307 (BIA 2018)).
Given these precedents, if “material” is to be given any effect, then it must
be to modify “support” to include only certain types of conduct. The Sixth Circuit
has reached a similar conclusion, holding that “material” requires that support be
“relevant” and “significant” to the commission of terrorism. Hosseini v. Nielsen,
911 F.3d 366, 375-76 (6th Cir. 2018). This construction comports with the term’s
ordinary meaning. Id.; see also Material, Black’s Law Dictionary (11th ed. 2019)
(defining “material” as “significant; essential”). It is also consistent with the
remaining text in the relevant provision, which lists examples of types of support
that should be considered “material support,” including “a safe house,
transportation, communications, funds, transfer of funds or other material financial
benefit, false documentation or identification, weapons (including chemical,
biological or radiological weapons), explosives, or training.” 8 U.S.C.
§ 1182(a)(3)(B)(iv)(VI). These activities, unlike cooking, are all clearly important
to advancing the goals of terrorism.
If the statute barred admissibility for noncitizens who provided “support” to
terrorists—without qualification—then perhaps it would apply to cooking. But
2
because the statute requires that support be “material,” I urge our court to clarify in
a future case that cooking cannot trigger the material support bar. 1
1
In the same fractured opinion in which the BIA held that the material
support bar includes no de minimis exception, it also rejected the proposition that
“the support provided must be of a certain type in order to be covered by the
material support bar.” In re A-C-M-, 27 I. & N. Dec. at 310. We have not
considered whether the statute compels a contrary determination. We also have
not considered whether the BIA’s conclusion was a reasonable interpretation of an
ambiguous statute—we have only considered the BIA’s conclusion as to whether a
de minimis exception exists. See Rayamajhi, 912 F.3d at 1245. I believe the
BIA’s determination that “material” does not limit “support” to certain types of
conduct should be rejected on the ground that the statute unambiguously requires
otherwise or on the ground that, even if the statute is ambiguous, this interpretation
is unreasonable.
Alternatively, I urge the BIA to adopt a different position that gives meaning
to each of the terms in the statute.
3