Barahona v. Holder

• Decision Date: 13 August 2012
• Docket Number: No. 11–2046.,11–2046.
• Citation: 691 F.3d 349
• Parties: Jose H. BARAHONA, a/k/a Jose Herman Barahona, a/k/a Jose Hernan Barahona, Petitioner, v. Eric H. HOLDER, Jr., Attorney General, Respondent.
• Court: U.S. Court of Appeals — Fourth Circuit

691 F.3d 349

Jose H. BARAHONA, a/k/a Jose Herman Barahona, a/k/a Jose Hernan Barahona, Petitioner,

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

No. 11–2046.

United States Court of Appeals, Fourth Circuit.

Argued: May 15, 2012.

Decided: Aug. 13, 2012.

ARGUED:Kristina Michelle Campbell, University of the District of Columbia, Washington, D.C., for Petitioner. Ethan B. Kanter, United States Department of Justice, Washington, D.C., for Respondent. ON BRIEF: Tony West, Assistant Attorney General, Civil Division, Michael P. Lindemann, Chief, National Security Unit, United States Department of Justice, Washington, D.C., for Respondent.

Before TRAXLER, Chief Judge, and KING and WYNN, Circuit Judges.

Petition for review denied by published opinion. Judge KING wrote the majority opinion, in which Chief Judge TRAXLER joined. Judge WYNN wrote a dissenting opinion.

OPINION

KING, Circuit Judge:

Petitioner José H. Barahona, a native and citizen of El Salvador, petitions this Court for review of the final order of the Board of Immigration Appeals (the “BIA”), dated September 2, 2011, which affirmed his ineligibility for a “special rule” cancellation of removal under section 203 of the Nicaraguan and Central American Relief Act of 1997 (the “NACARA”).¹ Barahona contends that the BIA erred by deeming him ineligible for NACARA relief because he had provided material support to a terrorist organization in the early 1980s by allowing anti-government Salvadoran guerrillas of the so-called “FMLN” (the Frente Farabundo Marti para la Liberción Nacional) the use of the kitchen of his Salvadoran home. As explained below, we reject Barahona's contentions and deny the petition for review.

I.

A.

Barahona entered the United States illegally in 1985. He filed his first application for asylum in 1987, pursuant to 8 U.S.C. § 1158(a), and it was denied on July 15, 1988. Barahona was then given thirty days to leave the United States. Barahona nevertheless remained in this country and applied again for asylum in 1995. On May 9, 2007, his second asylum application was referred to an immigration judge (“IJ”) for adjudication in removal proceedings. On November 11, 2007, Barahona was arrested in Prince William County, Virginia, and charged with a state felony for maliciously causing “bodily injury to Maria Barahona, his wife, with the intent to maim, disfigure, disable, or kill.” J.A. 164–65 (citing Va.Code Ann. § 18.2–51.2).² On December 11, 2007, Barahona pleaded guilty to a misdemeanor offense of domestic assault and battery, receiving a term of probation.

In December 2007, Barahona's asylum proceedings were administratively closed for failure to prosecute. His case was recalendared in May 2009 for the resolution of allegations that he was removable under 8 U.S.C. § 1182(a)(6), as an alien present in the United States without lawful admission or parole. During the subsequent IJ proceedings, conducted in late 2009, Barahona was found to be removable, but was accorded an opportunity to apply for a “special rule” cancellation of removal. Such a cancellation of removal is authorized by section 203 of the NACARA, as codified in 8 U.S.C. § 1229b(b), under which the Attorney General is empowered to “cancel removal of ... an alien who is inadmissible or deportable from the United States, if the alien” satisfies certain criteria, including not being either “inadmissible or deportable” under other provisions of the INA. See8 U.S.C. § 1229b(b), (c)(4). The IJ's evidentiary hearing was conducted on March 22, 2011, and Barahona was the only witness to present evidence.

B.

Barahona testified before the IJ that he was born in 1960 in the city of Carolina, in the San Miguel department of El Salvador. Prior to the outbreak of violence incident to a twelve-year civil war between the military government of El Salvador and the FMLN guerillas, Barahona worked on a small farm in San Miguel. In about 1984, the FMLN guerillas took control of Carolina, and that seizure gave rise to local violence. Due to the FMLN's seizure and frequent labor disputes, Barahona was unable to continue working. For nearly a year, the FMLN guerillas took control of Barahona's home—using it as their needs arose, mainly for preparing food in its kitchen, but occasionally sleeping overnight when the weather was unfavorable.

Barahona confirmed that the FMLN guerillas would arrive at his home and announce that they were going to use the kitchen. He explained that, if he had refused to allow the FMLN access and use of his residence, they would have considered him the enemy. In that event, he would have been given twelve hours to vacate his home city or be killed. Indeed, Barahona's father and cousin had both been executed by the FMLN guerillas, and his father had not been accorded the option of leaving. From early 1984 until Barahona's departure for the United States in February 1985, as many as 200 FMLN guerillas used Barahona's kitchen. They generally utilized the water and cooking facilities of his home, but always brought their own food. On several occasions, Barahona gave the guerrillas directions through the jungle to other locations.

In early 1985, when he was twenty-four years of age, Barahona left El Salvador for this country. In doing so, he travelled by bus through Guatemala and Mexico. Barahona entered the United States in Texas, without being inspected or properly admitted.

C.

After his March 22, 2011 evidentiary hearing, the IJ rendered an oral decision (the “IJ Decision”) denying Barahona's asylum application.³ The IJ Decision credited Barahona's testimony, and found that the criteria for a special rule cancellation were—except for one—entirely satisfied. The sole INA provision underlying the IJ's rejection of the special rule cancellation specifies that an alien is inadmissible if he has engaged in terrorist activity by providing “material support” to a terrorist organization. See8 U.S.C. § 1182(a)(3)(B)(i)(I). “Terrorist activity” is defined by the INA, and includes committing “an act that [the person] knows, or reasonably should know, affords material support ... to a terrorist organization.” Id. § 1182(a)(3)(B)(iv)(VI)(cc).⁴ “Material support” includes providing “ a safe house, transportation, communications, funds, transfer of funds or other material financial benefit, false documentation or identification, weapons ..., explosives, or training.” Id. § 1182(a)(3)(B)(iv)(VI) (hereinafter the “Material Support Bar”) (emphasis added).

Acknowledging the difficulty of deciding whether Barahona, in accommodating the FMLN guerrillas, had provided material support to a terrorist organization, the IJ Decision nevertheless ruled against him. In so ruling, the IJ concluded that Barahona, in allowing the FMLN guerrillas to use his kitchen for nearly a year, had provided “material support” under the INA.⁵ The IJ accepted the fact that Barahona was under duress when he accommodated the guerrillas, and the IJ recognized that Barahona had no choice but to allow the guerrillas to use his kitchen. The IJ reasoned, however, that there is no exception for duress or involuntariness under the Material Support Bar. As a result, the IJ Decision denied Barahona's application for a special rule cancellation, and ordered Barahona removed to El Salvador.

D.

Barahona thereafter appealed the IJ Decision to the BIA, asserting three grounds for relief. First, Barahona claimed that allowing the FMLN the use of his kitchen constituted support that was de minimis only, and thus immaterial. Second, he asserted that he was acting under duress and that his support of the FMLN was entirely involuntary. Finally, Barahona contended that the IJ Decision contravened international law. The BIA filed its order on September 2, 2011 (the “BIA Order”), agreeing with the IJ and affirming the IJ Decision.⁶

The BIA Order rejected Barahona's first contention, finding no error in the IJ's conclusion that Barahona's support was material, and agreeing that there is no exception in the Material Support Bar for de minimis activities on behalf of a terrorist organization. Similarly, rejecting Barahona's second contention, the BIA explained that the Material Support Bar “does not contain any language to support an exception to terrorist support where an alien can establish duress or involuntary contributions, and we decline to find one at this time.” BIA Order 2. Finally, the BIA declined to find a violation of international law. According to the BIA, the INA provides for a discretionary waiver, subject to some limitations, that authorizes the Secretary of State or the Secretary of Homeland Security to grant a waiver of the Bar. See8 U.S.C. § 1182(d)(3)(A). Such a waiver may apply in instances where removal would violate international law. The BIA recognized, however, that “it is well-established that Congress may enact statutes that conflict with international law.” BIA Order 2. In the end, the BIA Order dismissed Barahona's appeal.

II.

Where, as here, the BIA has adopted and supplemented the IJ's decision, we review both rulings. See Cervantes v. Holder, 597 F.3d 229, 232 (4th Cir.2010); see also Kourouma v. Holder, 588 F.3d 234, 239–40 (4th Cir.2009) (“When the BIA and [IJ] both issue decisions in a case, we review both decisions upon appeal.”). Pursuant to section 202(f) of the NACARA, “[a] determination by the Attorney General as to whether an alien satisfies the requirements of [cancellation of removal] is final and shall not be subject to review by any court.” 8 U.S.C. § 1101; see Ixcot v. Holder, 646 F.3d 1202, 1213–14 (9th Cir.2011) (recognizing that court is precluded from reviewing agency's factual determination that alien is ineligible for special rule cancellation of removal under NACARA). Notwithstanding the foregoing legal principle, a court of appeals has jurisdiction to review constitutional claims and questions of law arising from denials of relief under the NACARA, even though such a court ...