Singh-Kaur v. Ashcroft

Decision Date23 September 2004
Docket NumberNo. 03-1766.,03-1766.
Citation385 F.3d 293
PartiesCharangeet SINGH-KAUR, Petitioner v. John ASHCROFT, Attorney General United States of America, Respondent.
CourtU.S. Court of Appeals — Third Circuit

Steven A. Morley (Argued), Morley Surin & Griffin, P.C., Philadelphia, PA, for Petitioner.

Robert D. McCallum, Jr., Assistant Attorney General, Michael P. Lindemann, Assistant Director, Ethan B. Kanter (Argued), Senior Litigation Counsel, Office of Immigration Litigation, Civil Division, U.S. Department of Justice, Washington, D.C., for Respondent.

Before ALITO, FISHER and ALDISERT, Circuit Judges.

ALDISERT, Circuit Judge.

Charangeet Singh-Kaur,1 a native and citizen of India, petitions this Court to review an order of the Board of Immigration Appeals ("BIA") that Singh be deported from the United States to India. This appeal requires us to determine whether providing food and setting up shelter for people engaged in terrorist activities constitutes affording "material support" within the meaning of the Immigration and Nationality Act ("INA") § 212(a)(3)(B)(iv)(VI) (2002), 8 U.S.C. § 1182(a)(3)(B)(iv)(VI) (2000 & 2002 Supp.). For the reasons that follow, we conclude that it does, and we will deny the petition for review.

The BIA had jurisdiction to review the decision of the Immigration Judge ("IJ") pursuant to 8 C.F.R. § 3.1(b) (2002) (renumbered 8 C.F.R. § 1003.1(b) (2003)). Because Singh was placed in deportation proceedings before April 1, 1997, and his final order of deportation was issued by the BIA after October 31, 1996, we have jurisdiction under 8 U.S.C. § 1105(a) (1994), as amended by the transitional rules for judicial review in section 309(c)(4) of the Illegal Immigration Reform and Immigrant Responsibility Act of 1996, Pub.L. No. 104-208, 110 Stat. 3009-546, 3009-626 (Sept. 30, 1996) ("IIRIRA"). See also Sandoval v. Reno, 166 F.3d 225, 229 (3d Cir.1999) (applying IIRIRA transitional rules of jurisdiction).

I.

Singh entered the United States without inspection on September 27, 1989. The Immigration and Naturalization Service ("INS")2 initiated deportation proceedings. Singh submitted an application for asylum, asserting that if he returned to India he would be arrested and persecuted. He claimed membership in the "Babbar Khalsa Group," whose purpose, he said, was "to protect and promote the Sikh faith," and the "Sant Jarnail Sing Bhindrawala Militant Group," whose purpose was "to fight for and protect the religious and political cause of Sikh community." Singh stated that he had participated in demonstrations and other activities of these two groups. He further claimed to be "on the military and police wanted list because of known and suspected activities against the government" of India.

In an affidavit supporting his asylum application, Singh stated that after the Indian military attacked a Sikh holy site called the Golden Temple in 1984, he "together with many other young men in our village formally took the vows to join and follow the militant section of Sant Jarnail, known as Babbar Khalsa." He said that he participated in "planning meetings" and "became involved in assisting the freedom fighters in the movement of weapons through my village and other villages, as well as giving shelter to militants who were involved in the transportation of weapons." Subsumed in all of this is a statement of military activity against the government of India.

Singh submitted additional materials supporting his application for asylum, including evidence of active membership in the International Sikh Youth Federation and a statement by the Khalistan Commando Force that Singh had taken an oath to participate with the Force.

A previous immigration judge in this case referred Singh's application for asylum to the Department of State for its non-mandatory review and comments. See 8 C.F.R. § 208.11 (1991). In a letter dated January 9, 1992, the State Department's Bureau of Human Rights and Humanitarian Affairs concluded that the Indian government did not persecute Sikhs such as Singh merely for their faith or membership in certain organizations. Rather, Sikhs targeted for arrest were those who had involvement in specific violent acts.

The State Department further commented:

The applicant, however, admits to membership in the International Sikh Youth Federation, a radical offshoot of the AISSF, as well as the Khalistan Commando Force, a notorious terrorist group responsible for a grisly April 1985 random killing in a Punjab village, and the equally notorious Babbar Khalsa, an even more fundamentalist terrorist group with a reputation for its use of explosives. Many of the bombings resulting in the murder of innocent persons in recent years are attributed to the latter group.

Following the entry of the State Department letter, the administrative record reflects an unexplained gap of nearly four years in the proceedings. On October 23, 1995, the INS moved to recalendar the case for completion of deportation proceedings. Subsequently, Singh informed an immigration judge that he was the beneficiary of an approved skilled worker visa petition enabling him to proceed on an application for adjustment of status.3 He stated that the adjustment of status request would be his principal application.

Singh then submitted an affidavit purporting to clarify statements in his asylum application. He asserted that he had never been involved in or supported violent activities against Indian government officials. He stated that the Indian police and military merely presumed that he, as a Sikh, opposed the government. He said that he had undergone an induction ceremony known as "Amrit Chakna," in which he committed to remain faithful to his religion, to wear a turban and to keep his hair and beard long. He stated that he was enrolled as a member of Babbar Khalsa at the time of this ceremony.

He further stated that, having participated in Amrit Chakna, he was expected to make charitable contributions to the community, including "provision of food and assistance to the poor." While acknowledging that some members of Babbar Khalsa had been involved in violence in the 1990s, he stated that he had been in the United States since 1989 and did not support militant activities. He did state, however, that while he was in India there were several killings of Indian police by Muslims in Sikh clothing.

At a hearing on January 22, 1997, Singh told the IJ that he assisted with meetings of Sant Jarnail Singh followers:

"We — I used to help by putting that tent and organize the mondo [sic] or the tent.... I never kept any weapons. Those Sikhs who were baptized, they used to come and they knew that I am also baptized and I just help them with the — giving them food."

On February 18, 1998, the IJ concluded that Singh was eligible for adjustment of status and granted his application. The IJ determined that even though Singh had entered the United States without inspection, his eight-year presence gave him "sufficient equity to overcome that adverse Immigration conduct." The INS appealed, and on February 26, 2003, the BIA vacated the IJ's order and ordered Singh removed from the United States. The BIA determined that Singh was ineligible for adjustment of status pursuant to 8 U.S.C. §§ 1255(a) and 1182(a)(3)(B):4

We note that the respondent testified that he was a member of the Babbar Khalsa and the Sant Jarnail Singh Bhindra Wala. See Tr. at 64. He further testified that he had helped members of these groups, who were fighting the Indian government, by giving them food and helping to set up tents for them. See Tr. at 65. A person "engages in terrorist activities" by providing "any type of material support" to "any individual the actor knows, or reasonably should know, has committed or plans to commit a terrorist activity." See section 212(a)(3)(B)(iii) of the Act (emphasis added). We find that the described actions, of offering food and helping to arrange shelter for persons, constitute "material support," as contemplated by section 212(a)(3)(B)(iii) of the Act. The respondent further admitted that he had offered the described support to "militants who were engaged in terrorist activities." See Tr. at 65. As these militants were members of groups which were designated as terrorist organizations, by the United States Department of State, and on account of the respondent's admission that he was aware of their terrorist activities, we find that the respondent did in fact offer persons, who had committed and were planning to commit terrorist activities, material support.

(A.R. at 3) (footnote omitted).

Singh timely petitioned for review.

II.

We review the BIA's factual findings to determine whether they are supported by substantial evidence. Von Pervieux v. INS, 572 F.2d 114, 118-119 (3d Cir.1978); Carrillo-Gonzalez v. INS, 353 F.3d 1077, 1079 (9th Cir.2003). We will uphold the BIA's interpretation of the INA "unless the interpretation is `arbitrary, capricious or manifestly contrary to the statute.'" Ahmed v. Ashcroft, 341 F.3d 214, 216-217 (3d Cir.2003) (citations omitted).

III.

Under the INA, the Attorney General has authority to grant adjustments of status to aliens who meet certain requirements. See INA § 245(a); 8 U.S.C. § 1252(a). The question here is whether Singh was "admissible to the United States for permanent residence." See INA § 245(a); 8 U.S.C. § 1252(a). He was inadmissible if he "has engaged in a terrorist activity." INA § 212(a)(3)(B)(i)(I) (2002); 8 U.S.C. § 1182(a)(3)(B)(i)(I) (2000 & 2002 Supp.). The INA definition of engaging in a terrorist activity includes the provision of "material support:"

As used in this chapter, the term "engage in terrorist activity" means, in an individual capacity or as a member of an organization —

...

(VI) to commit an act that the actor knows, or reasonably should know, affords material...

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