Sesay v. Attorney Gen. of U.S.

• Decision Date: 26 May 2015
• Docket Number: No. 14–2996.,14–2996.
• Parties: Musa SESAY, Petitioner v. ATTORNEY GENERAL OF the UNITED STATES of America, Respondent.
• Court: U.S. Court of Appeals — Third Circuit

787 F.3d 215

Musa SESAY, Petitioner

v.ATTORNEY GENERAL OF the UNITED STATES of America, Respondent.

No. 14–2996.

United States Court of Appeals, Third Circuit.

Argued Jan. 22, 2015.

Filed: May 26, 2015.

Thomas V. Massucci, Esq. (Argued), New York, N.Y., Counsel for Petitioner.

Loretta Lynch, Esq., Thomas W. Hussey, Esq., Jeffrey L. Menkin, Esq. (Argued), Benjamin Zeitlin, Esq., United States Department of Justice, Washington, DC, Counsel for Respondent.

Before: RENDELL, SMITH, and KRAUSE, Circuit Judges.

OPINION

KRAUSE, Circuit Judge:

In the midst of Sierra Leone's catastrophic civil war, Musa Sesay was forced to provide assistance to a terrorist group while facing regular beatings and the barrel of a gun. He resisted when possible and escaped when he could. In short, he was himself a victim of terrorist violence, and, to the extent he provided any aid to the group, he did so under duress. However, because the Board of Immigration Appeals (“BIA”) concluded that there was no duress exception to the bar on asylum or withholding of removal for aliens who provide material support to terrorist groups, it found him ineligible for relief.

Sesay now petitions for review of the BIA's order denying his application for asylum and ordering him removed from the United States, and we must decide for the first time whether there is a duress exception to the material support bar. While we are sympathetic to Sesay's plight, long-standing canons of statutory construction and the opinions of our sister Circuits on this issue convince us that there is no such exception. Thus, we will deny the petition for review.

I. Facts¹

The facts relevant here date back to early 2001, the eleventh year of what is widely recognized as a brutal civil war in Sierra Leone.² Amid the humanitarian catastrophe, and at a time when a fragile peace accord had largely failed, Sesay lived with his family in the country's capital, Freetown. One night in early 2001, three rebels from the Revolutionary United Front (“RUF”) forcibly entered Sesay's home and demanded he join the RUF. When he refused, and while his parents pleaded for his safety, the rebels blindfolded him and took him away. Upon arriving at a windowless room, the rebels again demanded he join the RUF, again beat him when he said no, and imprisoned him. Over approximately the next month, the rebels periodically asked whether he was ready to join the RUF. Each time, he refused. And each time, they beat him in response.

After about one month of imprisonment, the rebels moved Sesay to a RUF encampment where he witnessed some captives being executed and saw others with missing body parts. While there, the rebels tried to train him to use a machine gun. Again, he refused. Because Sesay was untrained in weaponry, the rebels forced him instead to provide menial assistance. Specifically, on approximately five occasions, he entered the Sierra Leone jungle with the rebels during active fighting. RUF trucks, however, had trouble traversing the jungle terrain. As a result, the rebels forced Sesay and others to carry their weapons, ammunition, drinking water, and food, and to load and unload these provisions from the trucks. Sesay complied under supervision of an armed guard.

After about one month in the encampment, Sesay used the chaos of war to his advantage. When Guinean aircraft approached the encampment, frightening the rebels, Sesay escaped, fleeing to neighboring Guinea, and eventually, Gambia. In May 2001, he entered the United States and soon thereafter applied for asylum. Except for a permitted trip to visit his ill mother, he has been in the United States ever since. In December 2009, he was served with a Notice to Appear, and proceedings before an Immigration Judge (“IJ”) followed.

II. Legal Standards and Procedural History

Under the Immigration and Nationality Act (“INA”), an alien seeking asylum must demonstrate either (i) proof of past persecution, or (ii) a well-founded fear of future persecution in his home country “on account of race, religion, nationality, membership in a particular social group, or political opinion.” 8 U.S.C. § 1101(a)(42) ; see Camara v. Att'y Gen., 580 F.3d 196, 201–02 (3d Cir.2009). “Although these two roads to asylum are doctrinally distinct from one another, they intersect.”Camara, 580 F.3d at 202. Specifically, a well-founded fear of future persecution, without more, entitles an applicant to asylum. Id. But a “demonstration of past persecution can be rebutted by the government if the government ‘establishes by a preponderance of the evidence that the applicant could reasonably avoid persecution by relocating to another part of his or her country or that conditions in the applicant's country have changed so as to make his or her fear no longer reasonable.’ ” Id. (quoting Abdulrahman v. Ashcroft, 330 F.3d 587, 592 n. 3 (3d Cir.2003) ).

An application for withholding of removal is reviewed under a more stringent standard. In that case, an alien “must establish a clear probability, that is, that it is more likely than not that [his] life or freedom would be threatened if returned to [his] country” because of his protected class. Kaita v. Att'y Gen., 522 F.3d 288, 296 (3d Cir.2008) (internal quotation marks omitted).

Regardless of whether an alien demonstrates he is eligible for relief, he will be deemed inadmissible and ineligible for asylum or withholding of removal if he has engaged in terrorist activities, including the provision of material support for terrorist groups. 8 U.S.C. §§ 1158(b)(2)(A)(v), 1182(a)(3)(B)(i)(I), 1231(b)(3)(B), 1227(a)(4)(B).

A. Decision of the Immigration Judge

After conducting a hearing and considering evidence, the IJ found Sesay credible and concluded that he was a victim of past persecution on account of his membership in a particular social group, i.e., those who vocally opposed forced conscription into the RUF. As a result, he was entitled to a rebuttable presumption of future persecution. See Camara, 580 F.3d at 202. The IJ found, however, that the Government rebutted this presumption by demonstrating that in the years since Sesay fled, the RUF disbanded, and reconciliation in Sierra Leone generally has been successful. Accordingly, with the presumption of future persecution rebutted, the IJ found Sesay ineligible for asylum or withholding of removal.

In the alternative, the IJ also found Sesay ineligible for asylum and withholding of removal because he provided material support to the RUF, the same group that beat him, imprisoned him, and forced him to provide menial labor under threat of death. To reach this determination, the IJ found that the RUF was an unclassified, or Tier III, terrorist organization.³ Then, citing our holdings in McAllister v. Attorney General, 444 F.3d 178 (3d Cir.2006), and Singh–Kaur v. Ashcroft, 385 F.3d 293 (3d Cir.2004), the IJ found that Sesay's carrying of weapons, ammunition, food, and water for the RUF constituted material support. Finally, the IJ conducted a statutory analysis of the INA and concluded that it does not contain a duress exception to the material support bar. The fact that Sesay's actions were involuntary, the IJ found, was irrelevant.

B. Proceedings before the BIA

In a single-member, non-precedential opinion, the BIA affirmed the IJ's decision and dismissed Sesay's appeal. The BIA did not consider whether Sesay had a well-founded fear of future persecution. Instead, it agreed with the IJ that Sesay's actions constituted material support for terrorism and that there was no duress exception.

Sesay now petitions for review of the BIA decision. The parties agree that two issues are presented: whether the record supports that Sesay provided material support for terrorism, and if so, whether there is a duress exception to the material support bar.

III. Jurisdiction and Standard of Review

We have jurisdiction to review final orders of the BIA pursuant to 8 U.S.C. § 1252. Where, as here, the BIA “relie[d] on an IJ's legal conclusions and findings of fact, we review the IJ's decision and the Board's decision.” Gonzalez–Posadas, 781 F.3d at 684 n. 5. In doing so, we “accept factual findings if supported by substantial evidence,” a deferential standard under which we “uphold the agency's determination unless the evidence would compel any reasonable fact finder to reach a contrary result.” Id.⁴

We review the BIA's legal determinations de novo, ordinarily subject to the principles of deference set forth in Chevron, U.S.A., Inc. v. Natural Resources Defense Council, Inc., 467 U.S. 837, 843–45, 104 S.Ct. 2778, 81 L.Ed.2d 694 (1984). Kaplun v. Att'y Gen., 602 F.3d 260, 265 (3d Cir.2010). We do not, however, give Chevron deference to unpublished, single-member BIA decisions such as the one here. Mahn v. Att'y Gen., 767 F.3d 170, 173 (3d Cir.2014). At most, we treat those decisions as persuasive authority. Id. (citing Skidmore v. Swift & Co., 323 U.S. 134, 140, 65 S.Ct. 161, 89 L.Ed. 124 (1944) ).

IV. Discussion

A. The Material Support Bar

The INA prevents an alien from receiving a grant of asylum or withholding of removal if that alien has engaged in, is engaged in, or is likely to engage in terrorism. “The INA defines [these terms] broadly.” Haile v. Holder, 658 F.3d 1122, 1126 (9th Cir.2011). Engaging in terrorist activities, for example, includes “commit[ting] an act that the actor knows, or reasonably should know, affords material support .... to a terrorist organization ... or to any member of such an organization, unless the actor can demonstrate by clear and convincing evidence that the actor did not know, and should not reasonably have known, that the organization was a terrorist organization.” 8 U.S.C. § 1182(a)(3)(B)(iv)(VI).

We first considered the meaning of material support in Singh–Kaur, 385 F.3d at 298–301. There, the asylum applicant, Singh–Kaur, was a member of a Sikh separatist group in India that was “fighting the Indian government,” for which he provided food and set up tents at the group's religious...