FH-T v. Holder, 12–2471.

• Citation: 723 F.3d 833
• Decision Date: 23 July 2013
• Docket Number: No. 12–2471.,12–2471.
• Parties: FH–T, Petitioner, v. Eric H. HOLDER, Jr., Attorney General of the United States, Respondent.
• Court: United States Courts of Appeals. United States Court of Appeals (7th Circuit)

723 F.3d 833

FH–T, Petitioner,

v.Eric H. HOLDER, Jr., Attorney General of the United States, Respondent.

No. 12–2471.

United States Court of Appeals,

Seventh Circuit.

Argued April 18, 2013.

Decided July 23, 2013.

Thomas J. Maas, Attorney, Katten Muchin Rosenman LLP, Charles Roth (argued), Attorney, National Immigrant Justice Center, Chicago, IL, for Petitioner.

Ethan B. Kanter (argued), Attorney, Oil, Attorney, Daniel I. Smulow, Attorney, Department of Justice, Washington, DC, for Respondent.

David M. Cooper (argued), Attorney, Brain J. Murray, Attorney, Jones Day, New York, NY, for Amicus Curiae.

Before BAUER, FLAUM, and SYKES, Circuit Judges.

FLAUM, Circuit Judge.

Petitioner FH–T appeals from the decision of the Board of Immigration Appeals affirming the Immigration Judge's removal order. Petitioner's applications for asylum and withholding of removal were denied on the basis that he had provided material support to the Eritrean People's Liberation Front (“EPLF”), which the Board and Immigration Judge classified as a “Tier III” terrorist organization. See8 U.S.C. § 1182(a)(3)(B)(vi)(III). The Board did not decide whether Petitioner would be eligible for asylum “but for” the material support bar, finding it unnecessary to reach FH–T's arguments challenging the denial of his political persecution claim on the merits. On appeal, Petitioner argues that the Board should have found him eligible for the “knowledge exemption” to the material support for terrorism bar because he did not know that the EPLF was involved in the unlawful use of force, as compared to the lawful use of force as part of a war of independence. Because Petitioner did not exhaust this argument before the Board, this claim cannot succeed.

Petitioner next claims that because the Board did not consider the merits of his asylum claim, he is ineligible for a terrorism bar waiver under current Department of Homeland Security (“DHS”) policy, effectively nullifying a statutory right to waiver consideration. He further suggests that government procedures for adjudicating waivers are “legally flawed” because the process lacks coordination among various agencies: in most cases, the Board issues a final removal order before a waiver determination has been issued by DHS. FH–T contends that this bifurcated system frustrates Congress's provision for judicial review of exemption determinations in the context of a petition for review of final removal orders. For the following reasons, we deny the petition.

I. Background

A. Factual Background

FH–T joined the EPLF when he was approximately fifteen years old in 1982, while Eritrea and Ethiopia were in the midst of a war that would last thirty years. By way of background, in 1950 the United Nations General Assembly voted to merge Eritrea with Ethiopia as an autonomous federated unit, with Eritrea under Ethiopian sovereignty. Ethiopia abolished the federation unilaterally in 1962, annexing Eritrea and triggering the onset of the war. FH–T's asylum application suggests that he was motivated to join the EPLF by “youthful emotions” as well as the “prevailing war and politics.” He quickly regretted this decision and attempted to return home after two days, though the EPLF refused to let him leave. He served in the EPLF for the next nine years, working in communications and as a small car and truck driver in Sudan, along the border of the southern region of Eritrea. His responsibilities primarily involved transporting food and clothing as a driver and transferring calls, as well as relaying requests for truck parts. He did not transport weapons.

In 1991, the EPLF defeated the Ethiopian army, achieving Eritrean independence. In 1994, the EPLF dissolved itself and transformed into a mass political party, the People's Front for Democracy and Justice (“PFDJ”), which remains Eritrea's only political party. The PFDJ maintains a compulsory labor program referred to as the “National Service” under which all Eritrean citizens must work for the government. While conscription is supposed to last for eighteen months, in practice the Eritrean government frequently does not release National Service workers after their term is completed and requires them to remain in the Service indefinitely. Conscription workers labor under poor conditions and are paid meager wages. When the war ended, FH–T was employed as a transportation supervisor at a government-owned company. Many of the people with whom Petitioner worked were government conscripts.

In 2005 and 2006, Petitioner repeatedly expressed concerns about abuses of the National Service program by the PFDJ. When he received no response, he elevated his complaints to a high-ranking member of the PFDJ. This individual threatened FH–T with incarceration if he continued to voice opposition to the National Service. In June of 2006, Eritrean “Internal Security” officials arrested two of Petitioner's supervisors at the government-owned company. A month or so later on July 15, 2006, Petitioner was also arrested by two Internal Security officers.

FH–T was imprisoned in a military prison camp for approximately five months. The conditions were deplorable; inmates were housed in shipping containers without proper sanitation, ventilation, or insulation from weather conditions. Petitioner became ill and lost thirty pounds while in prison. Internal Security officers repeatedly interrogated him, accusing him of belonging to an anti-Government group. FH–T denied involvement in any such group. Nevertheless, interrogators presented him with a file detailing his complaints regarding the National Service and questioned his audacity in challenging the government. He was eventually released, having never been charged with or convicted of any crime. Upon release, FH–T was required to report to his office at the government-owned transportation companyevery day, however he was not permitted to perform any work and was not paid for his time. He also remained under surveillance by Internal Security, was regularly interrogated, and received threats upon his life. When he “believed the government was about to kill him for political disobedience,” he fled Eritrea and made his way to the United States, where he filed for asylum. FH–T's father and sister were arrested when he fled the country.

B. Procedural Background

An Immigration Judge denied FH–T's applications for asylum and withholding of removal under 8 U.S.C. §§ 1158 and 1231(b)(3) and ordered removal. ¹ The denial was based upon alternative findings that (1) FH–T lacked credibility, (2) FH–T failed to prove his eligibility for asylum on the merits, and (3) FH–T was statutorily ineligible for having provided material support to the EPLF, which the Immigration Judge classified as a Tier III terrorist organization. With respect to credibility, the Immigration Judge disbelieved that Petitioner was ignorant of the EPLF's violent and “well-known terrorist activities” between 1982 and 1991, such as the EPLF's attacks on United Nations relief convoys, a large-scale 1982 attack on Asmara, and assassinations of Eritrean civilians. While FH–T testified to being present at monthly EPLF “political indoctrination” meetings where he was informed of its current actions, he nevertheless stated that he was ignorant of many such events because he did not personally witness them. Based on these equivocations, the Immigration Judge determined that FH–T was not credible.

The Immigration Judge also found FH–T ineligible for asylum and withholding of removal on the basis that his claimed persecution was not on account of a statutorily protected ground. FH–T asserted that he had been persecuted by the Eritrean government for complaining about working conditions and low pay in the National Service, however the Immigration Judge determined that FH–T's “complaints about treatment of members of the National Service within the scope of his employment with the government of Eritrea did not qualify as an expression of a political opinion for asylum purposes.” The Immigration Judge further reasoned that the fact that FH–T's father and sister were arrested following his departure from Eritrea failed to establish a well-founded fear that he would be persecuted upon his return because those arrests were tied to his previous internal complaints regarding the National Service. Because he could not establish asylum eligibility, the Immigration Judge reasoned that “it necessarily follows that the respondent has failed to satisfy the more stringent probability of persecution standard required for withholding of removal.”

Finally, the Immigration Judge determined that even if FH–T were found to have suffered past persecution and/or a well-founded fear of future persecution, he would still be statutorily barred from relief for having given material support to a terrorist organization, citing Petitioner's nine years of service in the EPLF. The Immigration Judge determined that the EPLF satisfied the definition of a Tier III terrorist organization under 8 U.S.C. § 1182(a)(3)(B)(vi)(III) and further concluded that FH–T had not met his burden of showing by clear and convincing evidence that he did not know the group was a terrorist organization.

The Board affirmed the Immigration Judge's decision that FH–T was barred from receiving asylum and withholding of removal because he provided material support to a Tier III terrorist organization. FH–T had argued before the Board that the Immigration Judge erred by: (1) failing to consider his imputed political opinion theory of asylum; (2) finding that his complaints regarding the National Service amounted to mere whistle-blowing; (3) finding his denial of knowledge that the EPLF engaged in terrorist activity not to be credible; and (4) applying the material support bar because the support he provided to the EPLF was not “material.” The Board rejected these challenges. The Board agreed with the Immigration Judge's determination that FH–T had not...