Introduction: The Matter of M-H-Z-

On June 9, 2016, the Board of Immigration Appeals (BIA) issued a precedent decision in the Matter of M-H-Z-, 26 I&N Dec. 757 (BIA 2016) [PDF version]. The issue question for the Board was whether there is an exception from the “material support bar” to asylum [see section] and withholding of removal [see article] if such material support was rendered under duress. The Board held that there is no duress exception to the material support bar. In this article, we will review the facts of the case, the Board’s analysis and decision, and the broader effects of the decision on asylum applications.

Facts and Procedural History

The respondent, a native and citizen of Colombia, entered the United States as a nonimmigrant visitor in 2001. She subsequently applied for asylum in 2002. In 2002, after the respondent applied for asylum, the Department of Homeland Security (DHS) placed her in removal proceedings for having overstayed her nonimmigrant visa.

In a hearing before the Immigration Judge, the respondent conceded that she was removable and applied for asylum and withholding of removal under sections 208(a)(1) and 241(b)(3)(A) of the Immigration and Nationality Act (INA). She also applied for withholding and deferral of removal under the Convention Against Torture. The Immigration Judge denied the respondent’s applications for asylum, withholding of removal, and relief under the Convention Against Torture because she had committed an act that “she knew or reasonably should have known afforded material support to a terrorist organization” under section 212(a)(3)(B)(iv)(VI). The Immigration Judge also denied her request for deferral of removal under the Convention Against Torture.

On appeal, the Board agreed with the Immigration Judge that the respondent was ineligible for asylum and withholding of removal because she was subject to the mandatory material support bars to asylum and withholding of removal found in sections 208(b)(2)(A)(v) and 241(b)(3)(B)(iv) of the INA and to withholding of removal under the Convention Against Torture under 8 C.F.R. 1208.16(d)(2). The Board also agreed with the Immigration Judge that the respondent had failed to meet her burden for establishing eligibility for deferral of removal under the Convention Against Torture. The Board remanded the record for the Immigration Judge “to make an explicit determination whether, in the absence of the material support bar, the respondent would be otherwise eligible for relief.” The Immigration Judge held that the respondent would be eligible for asylum if she was not subject to the material support bar.

The respondent filed a petition for review with the Second Circuit. The Second Circuit issued a summary opinion in which it agreed with the Board and the Immigration Judge that the support the respondent rendered to a terrorist organization was “material” and not de minimis (too minor). However, the Second Circuit remanded the record to the Board for a determination on whether there is an “implied exception” from the material support bar for material support rendered under duress.

Facts of the Fear of Persecution and Material Support

The respondent’s applications for asylum and relief were based on her fear of the Revolutionary Armed Forces of Colombia (FARC). She had been a businesswoman in Colombia. In the early 1990s, the respondent began receiving messages from the FARC demanding goods and money. The respondent acquiesced to the FARC’s demands after receiving threats. From 1997 to 1999, the respondent replied food and other products to FARC every three months. The respondent had also housed government officials at her hotel which she believes led to more serious threats from the FARC. In 2000, the FARC attacked the city in which her hotel and store were located and both were destroyed.

Issue

The question for the Board to resolve was whether the “material support bar” to asylum found in section 212(a)(3)(B)(iv)(VI) of the INA includes an implied exception for an alien who provided material support to a terrorist organization under duress.

Relevant Statutes and Regulations

Section 212(a)(3)(B)(iv)(VI) defines the term “engage in terrorist activity” as including a person who (excerpted by the Board):

Commit[s] an act that the actor knows, or reasonably should know, affords 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 [to a terrorist organization or for a terrorist activity].

If an alien is found to have engaged in terrorist activity, he or she is inadmissible under section 212(a)(3)(B)(i)(I) and is barred from establishing eligibility for asylum and for withholding of removal under the INA and the Convention Against Torture under sections 208(b)(2)(A)(v) and 241(b)(3)(B)(iv).

BIA Analysis and Decision

The Board began by noting that several circuit courts have held that the material support bar does not include a duress exception: see Sesay v. Att’y Gen. of U.S., 787 F.3d 215, 224 (3d Cir. 2015) [PDF version]; Annachamy v. Holder, 733 F.3d 254, 267 (9th Cir. 2013) [PDF version]; Alturo v. U.S. Att’y Gen., 716 F.3d 1310, 1314 (11th Cir. 2013) [PDF version]; Barahona v. Holder, 691 F.3d 349, 355 (4th Cir. 2012) [PDF version]. However, the Second Circuit has no precedent on the issue, and remanded the record to the Board so that it could decide the question using its expertise.

The Board discussed the Second Circuit’s decision in Ay v. Holder, 743 F.3d 317, 319 (2d Cir. 2014) [PDF version], in which the Second Circuit asked the Board to consider whether there is a duress exception from the material support bar. In Ay, the Second Circuit noted that the statute is silent as to whether there exists a duress exception, but cited to the Supreme Court decision in Neguise v. Holder, 555 U.S. 511, 517 (2009) [PDF version], in which the Court found that with respect to the “persecutor bar,” statutory silence with regard to a duress exception is not determinative on whether there is such an exception.

The Board noted that a separate inadmissibility ground found in section 212(a)(3)(D)(i)-(ii) renders an alien inadmissible “who is or has been a member of or affiliated with the Communist or any other totalitarian party” unless he or she establishes that “the membership or affiliation is or was involuntary.” In light of that, the Board cited to Supreme Court precedent in INS v. Cardoza-Fonseca, 480 U.S. 421, 432 (1987) [PDF version], in which the Supreme Court held that when Congress includes certain language in one section of a statute but omits it in a different section of the same act, it should be generally presumed that Congress acted intentionally and purposely. The Board noted that Sesay, Annachamy, and Alturo all reasoned that had Congress intended for there to be a duress exception from the material support bar, it would have included it explicitly.

The Board then looked to the one available statutory waiver from the material support bar in section 212(a)(3)(B)(iv)(VI). This waiver is found in section 212(d)(3)(B)(i) and reads as follows (excerpted by the Board):

The Secretary of State, after consultation with the Attorney General and the Secretary of Homeland Security, or the Secretary of Homeland Security after consultation with the Secretary of State and the Attorney General, may determine in such Secretary’s sole unreviewable discretion that [section 212(a)(3)(B) of the Act] shall not apply with respect to an alien within the scope of that subsection [subject to various specified exceptions].

It is important to note, as the Board did in a footnote, that a waiver under section 212(d)(3)(B)(i) may only be granted by the Secretary of State or the Secretary of Homeland Security. 212(d)(3)(B)(i) waivers may not be adjudicated by an Immigration Judge or by the BIA.

The Board noted that in the Matter of S-K-, 23 I&N Dec. 936, 941 (BIA 2006) [PDF version], it held that there is no exception from the material support bar for the use of justifiable force against an illegitimate regime. In so doing, that Congress’ omission of an exception for justifiable force against an illegitimate regime was intentional, and that Congress intended to balance the “harsh provisions” of section 212(a)(3)(B)(iv)(VI) with the section 212(a)(3)(B) discretionary waiver.

The Board followed its reasoning from the Matter of S-K- in stating that “Congress’ enactment of the [section 212(a)(3)(B)] waiver indicates that the omission of any duress exception was intentional.” Accordingly, the Board held that the remedy for an alien who is covered under the material support bar is the section 212(a)(3)(B) waiver.

The respondent argued that finding that there is no duress exception to the material support bar would lead to results that are inconsistent with the United States’ international treaty obligations. The Board agreed that the INA should generally be read consistently with international treaty obligations, but it disagreed with the respondent’s assertion that finding there is no duress exception to the material support bar would lead to any inconsistency. The Board cited to Annachamy, wherein the Ninth Circuit held that Congress had the authority to decide that an alien who provided material support to a terrorist organization is a danger to the security of the United States even if the support was rendered under duress.

The respondent also argued that because duress may be used as “a defense to negate culpability in the criminal context,” it should also apply to the material support bar. However, the Board noted that immigration proceedings are civil in nature. It cited to Justice Antonin Scalia’s concurring opinion in Neguise which stated that the duress defense was inapplicable to the persecutor bar because an “order of deportation is not a punishment for a crime” (quoting Fong Yue Ting v. United States, 149 U.S. 698, 730 (1893) [PDF version]). Furthermore, the Board cited to Annachamy in which the Ninth Circuit noted that in the criminal law context, “duress does not excuse the majority of acts listed in the definition of terrorist activity.”

The Board held that there is no duress exception from the material support bar. Accordingly, an alien who is found to have afforded material support to a terrorist organization is subject to the material support bar absent a waiver under section 212(d)(3)(B)(i).

Order

Because the Board found that there was no duress exception to the material support bar, the Board agreed with the Immigration Judge that the respondent was barred from eligibility for relief from removal. The Board dismissed the respondent’s appeal.

Conclusion: The Matter of M-H-Z-

In the Matter of M-H-Z-, the Board followed the reasoning of several circuits in finding that the material support bar contains no duress exception. Accordingly, this means that a person found to be subject to the material support bar cannot rely upon having rendered the material support under duress in immigration proceedings. However, the section 212(d)(3)(B)(i) waiver provides the Secretary of State and the Secretary of Homeland Security with broad discretion to waive the material support bar. It is important when applying for asylum and withholding of removal to consult with an experienced immigration attorney immediately. An immigration attorney will be able to assess the facts of the situation and determine what courses of action may be available to an alien seeking asylum and/or withholding of removal.