Matter of A-C-M-, 27 I&N Dec. 303 (BIA 2018): Material Support Bar Has No Quantitative Requirement

 

Introduction: Matter of A-C-M-, 27 I&N Dec. 303 (BIA 2018)

On June 6, 2018, the Board of Immigration Appeals (BIA) issued a published decision in the Matter of A-C-M-, 27 I&N Dec. 303 (BIA 2018) [PDF version]. In this decision, the Board adopted an expansive definition of the “material support” inadmissibility ground in section 212(a)(3)(B)(i)(VIII) of the Immigration and Nationality Act (INA), which also constitutes a bar to certain immigration benefits such as asylum, withholding of removal, and cancellation of removal. First, the Board held that the term “material support” does not entail a quantitative requirement, that is, it covers any action that “has a logical and even reasonably foreseeable tendency to promote, sustain, or maintain the [terrorist] organization, even if only to a de minimis degree.” Second, regarding the instant case, the Board concluded that the respondent had provided material support “because the forced labor she provided [to the terrorist organization] in the form of cooking, cleaning, and washing closed aided [it] in continuing [its] mission…”

In this article, we will discuss the factual and procedural history of the case, the Board's analysis and conclusions, and what this decision will mean going forward. Furthermore, we will devote a separate section to the concurring in part, dissenting in part opinion of Board Member Linda S. Wendtland.

On January 9, 2017, the Board had issued an invitation for amicus briefs from interested members of the public on whether the term “material” as used in the statute in conjunction with “support” has an “independent meaning” and whether there is a de minimis exception to the material support bar. The Board resolved both questions in the instant case. You may read our earlier article on the amicus invitation here: [see article].

Please see our full list of articles on administrative precedent decisions to learn about a variety of important immigration law decisions [see index].

Factual and Procedural History: 27 I&N Dec. at 304-05

The respondent, a native and citizen of El Salvador, claimed to have entered the United States without inspection in 1991. Subsequently, she obtained Temporary Protected Status (TPS) when El Salvador was designated for TPS. While on TPS, the respondent departed the United States on advance parole. She sought admission upon return on March 7, 2004. The Department of Homeland Security (DHS) initiated removal proceedings against the respondent at that time, charging her as removable under section 212(a)(7)(A)(i)(I) as an alien without a valid entry document.

During removal proceedings on the initial entry document charge, the respondent applied for cancellation of removal. The DHS opposed her application, arguing that she was ineligible under section 240A(c)(4) “based on her undisputed testimony that she was kidnapped by guerillas in El Salvador in 1990 and was coerced into undergoing weapons training and performing forced labor in the form of cooking, cleaning, and washing their clothes.” (BIA's description of the argument.)

On December 15, 2011, the Immigration Judge found that the respondent was removal, but granted her application for cancellation of removal. The DHS appealed from that decision to the BIA. On January 14, 2014, the Board vacated the Immigration Judge's decision after concluding that the respondent was, in fact, inadmissible under section 212(a)(3)(B)(i)(VIII) for having received military-type weapons training from a terrorist organization, and that she was thus ineligible for cancellation of removal. The Board also “found no basis for the Immigration Judge's assertion that there is a self-defense or duress exception in section 212(a)(3)(B) of the [INA].”

On remand, no longer eligible to seek cancellation of removal due to being inadmissible for having received military-type weapons training from a terrorist organization, the respondent applied for asylum, withholding of removal, and protection under the Convention Against Torture. The Immigration Judge concluded that the respondent was ineligible for asylum and withholding of removal based on her being covered by the material support bar in section 212(a)(3)(B)(iv)(VI) of the INA. The Immigration Judge stated that she would have granted the application for asylum but for the material support bar, noting that, “in addition to being kidnapped and required to perform cooking and cleaning for guerillas under threat of death, the respondent was forced to witness her husband, a sergeant in the Salvadoran Army, dig his own grave before being killed” (BIA's description of the ruling). The Immigration Judge did grant the respondent's request for deferral of removal under the Convention Against Torture.

The respondent appealed to the BIA from the denial of asylum and withholding of removal. On appeal, she argued that the term “material support” entails a limitation based on the extent and type of support rendered.

Board's Analysis of Relevant Statutes: 27 I&N Dec. at 306-07

Under section 208(b)(2)(A)(v) of the INA, an alien who is inadmissible under sections 212(a)(3)(B)(i)(I), (II), (III), (IV), or (VI), or who is removable under section 237(a)(4)(B), is ineligible for asylum. Through section 241(b)(3)(B), aliens inadmissible or removable under those provisions are barred from eligibility for withholding of removal.

The instant case concerned whether the respondent was described by section 212(a)(3)(B)(iv)(VI). Under this provision, an alien is considered to have engaged in terrorist activity when he or she “commit[s] an act that [he or she] knows, or reasonably should know, affords material support…” to a terrorist organization. Although the Board majority did not address it in this section, the statute also provides a non-exhaustive list of types of support included in the inadmissibility provision: “[Support may include] 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…”

In Matter of S-K-, 23 I&N Dec. 936, 943-44 (BIA 2006) [PDF version], remanded 24 I&N Dec. 289 (A.G. 2007), clarified, 24 I&N Dec. 475 (BIA 2008), the Board held that where an alien establishes by clear and convincing evidence that he or she “did not know, and should not reasonably have known, that the organization [to which he or she gave material support] was of that character” (i.e., a terrorist organization), the alien would not be subject to section 212(a)(3)(B)(iv)(VI).

Under 8 C.F.R. 1240.8(d) (2018), where the evidence indicates that an alien is subject to the material support bar, the alien bears the burden of establishing by the preponderance of the evidence that the bar does not apply.

Board Declines to Find “Duress Exception” to Material Support Bar: 27 I&N Dec. at 306

First, the respondent argued that, even if she were subject to the material support bar, she would be entitled to a “duress exception.” In other words, she argued that because she was forced to provide the support to a terrorist organization, she should be exempted from the inadmissibility provision.

However, the Board recently concluded in Matter of M-H-Z-, 26 I&N Dec. 757 (BIA 2016) [PDF version], that there is no implied duress exception to the material support bar. We discuss Matter of M-H-Z- in a separate article on site [see article].

The instant case arose in the jurisdiction of the United States Court of Appeals for the Second Circuit, which has jurisdiction over New York, Connecticut, and Vermont. In Hernandez v. Sessions, 884 F.3d 107, 109 (2d Cir. 2018) [PDF version], the Second Circuit deferred to the conclusion of the Board in Matter of M-H-Z- that the material support bar does not include an implied duress exception.

Accordingly, the Board declined to revisit its conclusion from Matter of M-H-Z- that section 212(a)(3)(B)(iv)(VI) of the INA does not include an implied duress exception.

Second Circuit Previously Requested Precedential Decision on the Statute: 27 I&N Dec. at 306 & n.2

It is worth noting that the Second Circuit, in which jurisdiction the instant proceedings arose, concluded in an unpublished (non-precedential) decision in Ayvaz v. Holder, F.App'x 625, 628 (2d Cir. 2014) [PDF version], that the term “material” in section 212(a)(3)(B)(iv)(VI) of the INA was ambiguous. It remanded that case to the Board for the issuance of a precedential decision interpreting the statute. The Board noted that its decision in the instant case “responds to the [Second Circuit's] request” from Ayvaz.

Board Concludes that the Term “Material Support” Does Not Include a Quantitative Requirement: 27 I&N Dec. at 306-308

The respondent argued that her support to the terrorist organization was “de minimis,” and was thus not “material.” In short, her argument was premised on the notion that the term “material” implies some minimum level or degree of support. For the forthcoming reasons, the Board disagreed with the respondent's reading of the statute.

In Matter of S-K-, 23 I&N Dec. at 943, the Board stated that it was “unaware of any legislative history which indicates a limitation on the definition of the term 'material support.'” Furthermore, it agreed with the DHS in that case that it was “plausible” that the list of types of support in section 212(a)(3)(B) was intended to “cover virtually all forms of assistance, even small monetary contributions.” Id. at 945. However, in that case in 2006, the Board declined to reach the question of whether the term “material” should be given “independent context” because it was not necessary in order to resolve the case.

In this case, the Board majority agreed with the conclusion of the United States Court of Appeals for the Third Circuit in its decision in Sesay v. Att'y Gen. of U.S., 787 F.3d 215, 222 (3d Cir. 2015) [PDF version], that the word “material” in the statute must be “ascribed some meaning.” However, while the Board concluded that the term “material” must be ascribed an independent meaning, it further found that “the meaning does not relate to a quantitative requirement.” The Board emphasized that there was no support in the legislative history for reading a quantitative requirement into the material support bar. Thus, it concluded: “If an alien affords material support to a terrorist organization, he or she is subject to the bar, regardless of how limited that support is in amount.”

The Board rejected the argument that its interpretation of the term “material” rendered it superfluous. Here, the Board said that were it not for the term “material,” “the bar could have been construed to apply to a person who merely expressed general 'support' for a terrorist organization, which would have raised substantial freedom of expression concerns.” However, it is important to note that the Board clarified its example with a citation to the Supreme Court of the United States decision in Holder v. Humanitarian Law Project, 561 U.S. 1, 38-39 (2010) [PDF version], wherein the Supreme Court upheld a conviction under the criminal law analogue to the material support bar and concluded that speech in the form of “training” could be prohibited. Thus, while the Board read the term “material” as excluding “general” support such as mere speech in support of a terrorist organization, it made clear that certain types of speech may nevertheless constitute “material support.”

The Board further explained that the term “material” relates to the “type” of aid provided rather than the “amount” of aid provided. Here, it adopted as its precedent the reasoning of the United States Court of Appeals for the Seventh Circuit in Boim v. Quranic Literacy Inst. And Holy Land Found. For Relief and Dev., 291 F.3d 1000, 1015 (7th Cir. 2002) [PDF version], to the extent that the Court held that the term “material” “relates to the type of aid provided rather than whether it is substantial or considerable,” reasoning that “Congress' goal of cutting off funding for terrorism would be seriously compromised if terrorist organizations could avoid liability by simply pooling together small donations to fund a terrorist act.”

The Board also found the reasoning of the Third Circuit in Singh-Kaur v. Ashcroft, 385 F.3d 293, 298-301 (3d Cir. 2004) [PDF version], to be persuasive. There, after having had deferred to the conclusion of the Board that the “provision of food and setting up tents” constituted “material support,” the Third Circuit defined the term as anything that has a “logical connection” to the aims of the terrorist organization, but clarifying that the conduct or action need not be done for the specific purpose of aiding any particular terrorist act(s). The Board also noted that the definition in Singh-Kaur was similar to that in Black's Law Dictionary 1066 (9th ed. 2009), which defined the term “material” as “[h]aving some logical connection with the consequential facts.” The Board concluded that Congress intended “to use the adjective 'material' in a rational sense-that is, to denote a necessary logical relationship between an act and a forbidden consequence.”

For these reasons, the Board concluded “that an alien provides 'material support' to a terrorist organization, regardless of whether it was intended to aid the organization, if the act has a logical and reasonably foreseeable tendency to promote, sustain, or maintain the organization, even if only to a de minimis degree.”

Additional Arguments that Material Support Bar Does Not Include Quantitative Requirement: 27 I&N Dec. at 306, 308-311

The above section covered the Board majority's certain reasoning for why the material support bar does not include a quantitative requirement. However, the Board majority ventured several additional arguments for its conclusion that the material support bar does not include a quantitative requirement. We will address those arguments in the following sub-sections.

Treatment of Duress Exception Weighs Against Quantitative Requirement: 27 I&N Dec. at 306

The Board took the position that its past treatment of the “duress exception” and similar treatment from Federal courts weighed against the notion that the material support bar includes a quantitative requirement. Citing to Dixon v. United States, 548 U.S. 1, 6-7 (2006) [PDF version], the Board explained that the entire concept of a duress exception is that it negates an individual's culpability for otherwise criminal actions. The Board explained that “[a] person who voluntarily renders assistance has acted culpably and would seem to present a greater threat than one whose aid was only involuntarily given.” Accordingly, it found that “[i]t therefore appears unlikely that Congress intended to impose the bar on an alien who was coerced into giving material support to a terrorist organization but to exempt one who willingly provided such assistance, even if it was small in degree.”

Existence of Limited Waiver Weights Against Quantitative Requirement: 27 I&N Dec. at 308-309

The Board noted that Congress provided for a limited waiver of the material support inadmissibility ground in section 212(d)(3)(B)(i) of the INA. The Board described the waiver provision as “confer[ing] upon the Secretary of Homeland Security the authority to grant a waiver regarding the application of the material support bar in order to address excusable violations including, among other things, support provided under duress or to only a de minimus degree.” It explained that the DHS has interpreted the waiver to apply specifically in cases where the alien provided “insignificant material support” to an undesignated terrorist organization, a member of such an organization, or to an individual who the individual knew or should have known had committed or planned to commit terrorist activity. This was outlined in the Federal Register (FR) at 79 FR 6913 (Feb. 5, 2014) [PDF version]. The FR notice also specifies that the waiver may apply in cases where “an alien who provided limited material support … that involves (1) certain routine commercial transactions or certain routine social transactions …, (2) certain humanitarian assistance, or (3) [under] substantial pressure that does not rise to the level of duress.” (Excerpted by the Board.)

In Matter of S-K-, 23 I&N Dec. at 941, the Board had held that the waiver was included to balance the “harsh provisions” of the material support bar. In Sesay, 787 F.3d at 223 n.8, the Third Circuit noted that the DHS and U.S. Department of State (DOS) have expanded the categories of activities eligible for the waiver.

The Board reasoned that were the provision of an “insignificant” amount of support to be deemed to fall outside the scope of the material support bar, the DHS would have no need to specify that insignificant support could fall under the waiver provision. The Board acknowledged that the DHS's interpretation does not bind the Board or Federal courts. However, it took the position that the DHS's interpretation of the statute was “entitled to some weight.” Accordingly, the Board found that, while the respondent's case was “sympathetic,” there was “no support for concluding that Congress intended to provide a quantitative exclusion from the term “material support.”

Applying Statutory/Regulatory Interpretation to Instant Case: 27 I&N Dec at 309-10

The Board concluded that the respondent had provided material support to the guerillas by cooking and cleaning for them. To this effect, the Board cited to Humanitarian Law Project v. Reno, 205 F.3d 1130, 1136 (9th Cir. 2000) [PDF version], wherein the Ninth Circuit stated that “giving support intended to aid an organization's peaceful activities frees up resources that can be used for terrorist acts.” The Board found that. “[w]hile the respondent's assistance may have been relatively minimal, if she had not provided the cooking and cleaning services she was forced to perform, another person would have needed to do so.”

Board's Conclusion on Convention Against Torture Argument: 27 I&N Dec. at 311-12

The Immigration Judge had granted the respondent deferral of removal under the Convention Against Torture. The DHS argued that the Immigration Judge had erred in doing so because the respondent had not sustained her burden of establishing that it was more likely than not that she would be tortured if removed to El Salvador. We discuss the burden of proof for protection under the Convention Against Torture in a separate article [see article].

The Board concluded that the Immigration Judge did “not provide[] sufficient fact-finding and analysis regarding the respondent's request for protection under the Convention Against Torture.” Accordingly, the Board stated that it could not meaningfully address the DHS's arguments. Here, the Board cited to Matter of S-H-, 23 I&N Dec. 462, 463 (BIA 2002) [PDF version], wherein it remanded the case to the Immigration Judge due to insufficient factual findings and legal analysis. The Board also cited to Matter of A-P-, 22 I&N Dec. 468, 477 (BIA 1999) [PDF version], wherein it stated that the Immigration Judge is “responsible for the substantive completeness of the decision.”

The Board added that it was unclear from the record “whether the Immigration Judge applied the correct legal standard in assessing the merits of the respondent's claim for protection under the Convention Against Torture.”

The Board explained that “[t]he Immigration Judge's analysis was conclusory, stating only that the respondent met her burden to show that she was subject to torture and that deferral of removal was warranted.” For this reason, the Board remanded the record to the Immigration Judge “to provide factual and legal analyses for her decision.”

Here, it is important to note that the Board was unanimous on the decision to remand for further proceedings on the respondent's claim for protection under the Convention Against Torture. Board Member Linda S. Wendtland only dissented from the Board's conclusions regarding the respondent's inadmissibility for material support to a terrorist organization.

Concurring and Dissenting Opinion: 27 I&N Dec. at 312-15 (Wendtland, Dissenting)

In this section, we will address the concurring and dissenting opinion of Board Member Wendtland. It is important to note that this dissenting opinion is not precedent. Rather, it expresses how Board Member Wendtland believed the Board should have ruled on the issues. Although the dissenting opinion is not controlling, it is nevertheless instructive in that it offers a different view of the legal questions. Furthermore, a dissenting opinion may serve as a blueprint for a later Board panel or a Federal court to issue a different ruling on similar questions. As we noted before, Board Member Wendtland concurred with the Board's decision to remand for further proceedings on whether the respondent had sustained her burden for establishing eligibility for deferral of removal under the Convention Against Torture. Her dissent dealt with the question of whether the respondent had afforded material support to a terrorist organization. In the following section, we will address the Board majority's responses to the points raised in the dissent. The response is part of the published decision, and thus, unlike the dissent, constitutes binding precedent going forward.

Board Member Wendtland stated that she would have concluded that the respondent's activities were not “of the kind and magnitude that would meet the threshold requirement of 'material.'”

She began by agreeing with the Board majority that “[t]o prevent Congress' use of the word 'material' from being superfluous, the word must have independent meaning.” However, she disagreed with the majority about that meaning.

Referring to the statutory language of section 212(a)(3)(B)(iv)(VI), Board Member Wendtland noted that Congress had provided a list of activities included in the definition of “material support.” The list, provided in statute, listed the provision of “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.” She admitted that the list provided in section 212(a)(3)(B)(iv)(VI) was not exhaustive. However, she interpreted Congress' decision to list specific examples of what constitutes material support as “impl[ying] that certain kinds and levels of support are required in order to constitute 'material' support.” Here, the dissent cited to the Supreme Court decision in Holder v. Hall, 512 U.S. 874, 917 (1994) [PDF version], for the proposition that general statutory terms “should be understood to refer to items belonging to the same class that is defined by the more specific terms on the list.” She also cited to Federal Land Bank of St. Paul v. Bismarck Lumber Co., 314 U.S. 95, 100 (1941) [PDF version], wherein the Court held that the use of the word “including … conveys that other kindred items may be included within that definition, even if the items are not explicitly listed” (dissent's paraphrase of the holding).

As we will see in the next section, the Board rejected the dissent's reliance on the above doctrine — titled ejusdem generis — by relying on the Board decision in Matter of L-, 9 I&N Dec. 14 (BIA 1960) [PDF version]. In Matter of L-, the Board held that ejusdem generis does not apply where specific terms are listed and are not accompanied by a general term. The dissent regarded Matter of L- as inapplicable to the instant issue, taking the position that “the statute does use a general term, namely, 'material support.'”

Board Member Wendtland concluded that the respondent's “support” was not of “the same class” of the types of support set forth in the statute. Here, she stated that “[t]he enumerated examples all involve items that either can directly be used to plan and carry out terrorist activities or, in the case of funds, have the liquidity and fungibility to readily be diverted to such use.” She would have held that cooking and cleaning services for individuals who merely happen to belong to a terrorist organization “cannot validly be placed in the same category as items that can be used to plan and carry out the organization's goals.” She added that had Congress intended for cooking and cleaning services and like activities to be included in the definition of “material support,” it would not have listed only “multiple specific examples that relate directly to terrorist activity.”

The dissent also concluded that “the incidental assistance the respondent afforded to guerillas [does not] provide[] 'material' support in the logical sense of having at least some importance to promoting, sustaining, or maintaining the organization's goals.” Here, the dissent quoted from the Supreme Court decision in Dolan v. U.S. Postal Serv., 546 U.S. 481, 486 (2006) [PDF version]: “A word in a statute may or may not extend to the outer limits of its definitional possibilities. Interpretation of a word or phrase depends on reading the whole statutory text, considering the purpose and context of the statute, and consulting any precedents or authorities that inform the analysis.” Regarding the instant statute, the dissent reasoned that Congress did not intend that any support, “no matter how small, dissimilar to the statutorily enumerated examples, or indeed immaterial,” would trigger the material support bar.

The dissent added that the majority's contrary position would lead to absurd results. Here, the dissent listed several hypothetical examples that it believed would be covered by the majority's broader definition of “material support”:

Providing a glass of water to a thirsty individual who happened to belong to a terrorist organization;
Providing medical care to a flu-stricken member of a terrorist organization;
Selling groceries to a member of a terrorist organization; and
Cooking breakfast or doing laundry for one's spouse if said spouse is the member of a terrorist organization.

Regarding the above examples, the dissent concluded that the majority decision had effectively rendered the term “material” superfluous.

Finally, the dissent addressed the Board's ruling in Matter of M-H-Z- that the material support bar contains no duress exception. Citing to a concurring opinion in the Seventh Circuit decision in Jabateh v. Lynch, 845 F.3d 332, 348 (7th Cir. 2017) (Hamilton, J., concurring in part and concurring in judgment) [PDF version], the reasoned that it is important “to give meaning to the statutory limit of material” in light of the decision in Matter of M-H-Z-.

Response to the Dissent: 27 I&N Dec. at 310-11

The majority decision took just over a page to respond to the points raised by the dissent. Before beginning, it is important to reiterate that the majority's response constitutes part of its opinion, and thus, unlike the dissent, is precedential.

First, the majority cited to several unpublished Federal court decisions that had found that the term “'material support' includes activities, both voluntary and involuntary, such as fundraising, making payments of money, providing food and shelter, and performing physical labor.” The majority explained that these decisions recognized a broader definition of “material support” than that which was set forth in the statutorily enumerated examples.” You may find the entire list of examples at 27 I&N Dec. at 310.

Referring to Matter of S-K-, 23 I&N Dec. at 944, the Board concluded that the examples of types of material support in statute are not exhaustive, and are not intended to “narrowly circumscribe a term with exclusive categories.”

The Board found that no Federal court has excluded the type of support afforded by the respondent in the instant case from the definition of “material support.” It added that the Supreme Court held in Humanitarian Law Project, 561 U.S. at 30, that “[m]aterial support meant to 'promot[e] peaceable lawful conduct' can further terrorism by foreign groups in multiple ways.”

As we noted in our section on the dissent, the majority rejected the dissent's appeal to the canon of statutory construction known as ejusdem generis. The Board cited to Matter of L-, 9 I&N Dec. 14, 21 (BIA 1960), wherein the Board defined ejusdem generis as when “general words in a statute follow the enumeration of particular classes of persons of things, the general words will be construed as applicable only to persons or things of the same general nature or class as those enumerated.” The Board concluded that “canons of statutory construction are merely general guides and should not be applied where the context dictates otherwise.” In the instant case, the Board found that “Congress has considered that combating terrorism is a high priority and that any contributions to terrorist organizations further their terrorism.” This context, the Board concluded, “plainly counsels against a limitation being placed on the type of support rendered by an alien.”

Conclusion

In Matter of A-C-M-, the Board adopted a broad definition of “material support” in section 212(a)(3)(B)(i)(VIII), applying it to involuntary support in the form of cooking and cleaning services. Specifically, the Board held that any support provided to a terrorist organization, regardless of how minor, constitutes “material support.” This decision, in conjunction with the Board's rejection of an implied duress exception in Matter of M-H-Z-, will mean that the material support bar will reach a large number of cases.

Regardless of the current rules on the scope of the material support bar, it is imperative that any individual seeking protection in the form of asylum, withholding of removal, and/or the Convention Against Torture consults with an immigration attorney who is experienced in these areas. Applying for any of these forms of protection is a complex process, and the facts of each case are unique. An experienced attorney will be able to assess an individual's case, counsel the individual on which forms of relief may be available, and assist the individual in seeking those forms of relief for which he or she may be eligible.

To learn more about asylum and refugee protection, please see our full section on site [see category]. We cover withholding of removal [see article] and the Convention Against Torture [see article] in their own series.