584 F.3d 773 (9th Cir. 2009), 07-72586, Khan v. Holder

Docket Nº:07-72586.
Citation:584 F.3d 773
Opinion Judge:WILLIAM A. FLETCHER, Circuit Judge:
Party Name:Anjam Parvez KHAN, Petitioner, v. Eric H. HOLDER Jr., Attorney General, Respondent.
Attorney:Robert Bradford Jobe, Law Offices of Robert B. Jobe, San Francisco, CA, for the petitioner. Jeffrey Lawrence Menkin, U.S. Department of Justice, Washington, DC, for the respondent.
Judge Panel:Before: D.W. NELSON, W. FLETCHER and RICHARD C. TALLMAN, Circuit Judges. D.W. NELSON, Circuit Judge, concurring:
Case Date:September 09, 2009
Court:United States Courts of Appeals, Court of Appeals for the Ninth Circuit
 
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584 F.3d 773 (9th Cir. 2009)

Anjam Parvez KHAN, Petitioner,

v.

Eric H. HOLDER Jr., Attorney General, Respondent.

No. 07-72586.

United States Court of Appeals, Ninth Circuit.

September 9, 2009

Argued and Submitted Feb. 11, 2009.

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[Copyrighted Material Omitted]

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Robert Bradford Jobe, Law Offices of Robert B. Jobe, San Francisco, CA, for the petitioner.

Jeffrey Lawrence Menkin, U.S. Department of Justice, Washington, DC, for the respondent.

On Petition for Review of an Order of the Board of Immigration Appeals. Agency No. A076-851-013.

Before: D.W. NELSON, W. FLETCHER and RICHARD C. TALLMAN, Circuit Judges.

WILLIAM A. FLETCHER, Circuit Judge:

Anjam Parvez Khan petitions for review of a decision of the Board of Immigration Appeals (" BIA" ) affirming the Immigration Judge's (" IJ" ) denial of his application for asylum and withholding of removal. The BIA adopted the IJ's finding that Khan was ineligible for both forms of relief because he had engaged in terrorist activity. Because we hold that the IJ properly applied the terrorism bar in the Immigration and Nationality Act (" INA" ), we deny the petition for review.

I. Background

According to his credible testimony, Khan was born in Kashmir and is a citizen of India. He has been involved in the Kashmir independence movement since about 1967. Beginning in the early 1970s, Khan worked with the Jammu Kashmir Liberation Front (" JKLF" ), a group dedicated to the establishment of an independent Kashmir, though he was never officially a member of the JKLF.

The JKLF had both militant and political factions that, until approximately 1994, were part of the same organization. According to Khan, the two factions operated separately but were " wings of the same organization." In about 1994, the two factions split into different organizations when half of the JKLF renounced violence. Before the split, the political wing of the organization advocated nonviolently for an independent Kashmir, while the militant

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wing operated an armed insurgency against the Indian government in Kashmir. The militant wing took part in killings of politicians, the kidnapping of the daughter of the Indian Home Minister, and repeated attacks on the Indian Army, including attacks on military convoys.

Khan testified that he was affiliated with only the political wing of the JKLF, that his work with the JKLF was entirely nonviolent in nature, and that he had no knowledge of the activities of the military wing. However, Khan admitted to knowing that he was " part of that movement, a part of which was an arms struggle" and that the militant wing of the JKLF was carrying out a " war" against the Indian military. But he claimed to be unaware of any kidnappings, bombings, or activity targeting civilians by the militant wing of the group. Khan's work with the JKLF consisted of planning political activities for the JKLF, working to distribute aid through a " central committee" funded by the JKLF, and raising funds for the political wing of the JKLF. However, Khan testified that he turned the money he raised over to the JKLF, not merely to its political wing. He further testified that he was one of the primary organizers of the political wing of the JKLF, and that he advised the political wing on how to spend its funds.

In October 1997, Khan fled India and entered the United States on a nonimmigrant visitor visa. In March 1998, he applied for asylum and was referred to an IJ. Before the IJ, he asserted requests for asylum, withholding of removal, and relief under the Convention Against Torture (" CAT" ).

In June 2005, the IJ issued a written decision denying Khan's request for asylum and withholding of removal but granting Khan's request for relief under CAT. The IJ found Khan's testimony to be credible, but held that Khan was statutorily ineligible for asylum or withholding of removal under 8 U.S.C. § 1182(a)(3)(B)(iv)(IV) because he had engaged in terrorist activity. In July 2005, the IJ issued a supplemental decision to account for changes made to the INA by the REAL ID Act, which applied retroactively to cases pending at the time of its enactment. Rafaelano v. Wilson, 471 F.3d 1091, 1092 (9th Cir.2006). The IJ held that the REAL ID Act increased the burden on Khan to show that he had not engaged in terrorist activity. The IJ held that because Khan had failed to meet his burden under the old statute, he necessarily failed under the REAL ID Act.

Both the government and Khan appealed to the BIA. The BIA adopted and affirmed the IJ's decision on January 17, 2007. Khan timely petitioned for review.

II. Standard of Review

When the BIA affirms and adopts an IJ's decision, this court reviews the decision of the IJ. Tapia v. Gonzales, 430 F.3d 997, 999 (9th Cir.2005). In reviewing the decision of the IJ, we review constitutional and other questions of law de novo. Id.; Cerezo v. Mukasey, 512 F.3d 1163, 1166(9th Cir.2008). We apply Chevron deference to the Attorney General's interpretations of ambiguous immigration statutes, but need not defer if the statute is unambiguous. INS v. Aguirre-Aguirre, 526 U.S. 415, 424, 119 S.Ct. 1439, 143 L.Ed.2d 590 (1999). We review agency factual findings and determinations of mixed questions of law and fact for substantial evidence. INS v. Elias-Zacarias, 502 U.S. 478, 481, 483-84, 112 S.Ct. 812, 117 L.Ed.2d 38 (1992); Dhital v. Mukasey, 532 F.3d 1044, 1050 (9th Cir.2008) (applying substantial evidence standard to mixed question).

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III. Discussion

The INA precludes aliens who have engaged in terrorist activity from seeking some forms of relief. In particular, 8 U.S.C. § 1182(a)(3)(B)(i) renders inadmissible certain aliens who have engaged in terrorist activity, have been members or representatives of terrorist organizations, or have encouraged others to engage in terrorist activity. This provision applies to aliens seeking both asylum or withholding of removal through other parts of the statute. Section 1158(b)(2)(A)(v) provides that any alien described in § 1182(a)(3)(B)(i)(I)-i.e., " any alien" who " has engaged in a terrorist activity" -is ineligible for asylum Additionally, § 1231(b)(3)(B)(iv) provides that withholding of removal is unavailable when " there are reasonable grounds to believe that the alien is a danger to the security of the United States." " Reasonable grounds exist to believe that an alien is a danger to security if the alien ‘ has engaged, is engaged, or at any time after admission engages in any terrorist activity (as defined in section 1182(a)(3)(B)(iv) ...).’ " Bellout v. Ashcroft, 363 F.3d 975, 978 (9th Cir.2004) (quoting § 1231(b)(3)(B)(iv) and a former version of § 1227(a)(4)(B)). Thus, if an alien " has engaged in a terrorist activity" under § 1182(a)(3)(B)(iv) at any time, he is ineligible for both asylum and withholding of removal. It does not matter that the alien ceased participation in terrorist activity at some point before seeking admission to or relief in the United States.

The statute defines " engag[ing] in terrorist activity" broadly. Section 1182(a)(3)(B)(iv)(IV)(cc) defines " engag[ing] in terrorist activity" to include " solicit[ing] funds or other things of value for ... a terrorist organization described in clause (vi)(III), unless the solicitor can demonstrate by clear and convincing evidence that he did not know, and should not reasonably have known, that the organization was a terrorist organization." An alien's intention in soliciting funds only for nonviolent activity is irrelevant to this definition, even when an organization has separate political and militant wings, because money donated to an organization's political wing is considered to be support for the militant wing as well. Humanitarian Law Project v. Reno, 205 F.3d 1130, 1136 (9th Cir.2000) (" [M]oney is fungible; giving support intended to aid an organization's peaceful activities frees up resources that can be used for terrorist acts." ).

The statute also defines " terrorist organization" broadly. The definition includes " 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 (I) through (VI) of clause (iv)." 8 U.S.C. § 1182(a)(3)(B)(vi)(III). Subclauses (I) through (VI) of clause (iv) list ways in which an individual or an organization can " engage in terrorist activity." These include committing, planning, soliciting funds for, soliciting individuals for, or providing material support for a terrorist activity. Id. § 1182(a)(3)(B)(iv).

The statute defines a " terrorist activity" as

any activity which is unlawful under the laws of the place where it is committed (or which, if it had been committed in the United States, would be unlawful under the laws of the United States or any State) and which involves any of the following:

(I) The highjacking or sabotage of any conveyance (including an aircraft, vessel, or vehicle).

(II) The seizing or detaining, and threatening to kill, injure, or continue to detain, another individual in order to compel a third person (including a

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governmental organization) to do or abstain from doing any act as an explicit or implicit condition for the release of the individual seized or detained.

(III) A violent attack upon an internationally protected person (as defined in section 1116(b)(4) of title 18) or upon the liberty of such a person.

(IV) An assassination.

(V) The use of any-

(a) biological agent, chemical agent, or nuclear weapon or device, or

(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...

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