A.A. v. Attorney Gen. of the U.S.
| Decision Date | 02 September 2020 |
| Docket Number | No. 17-1176,17-1176 |
| Citation | 973 F.3d 171 |
| Parties | A.A., Petitioner v. ATTORNEY GENERAL of the UNITED STATES of America, Respondent |
| Court | U.S. Court of Appeals — Third Circuit |
Anwen S. Hughes [ARGUED], Human Rights First, 75 Broad Street, Floor 31, New York, NY 10004, Counsel for Petitioner
Joseph H. Hunt, Ethan B. Kanter, Paul F. Stone [ARGUED], Office of Immigration Litigation, Appellate Section, United States Department of Justice, P.O. Box 878, Ben Franklin Station, Washington, DC 20044, Counsel for Respondent
Before: CHAGARES, JORDAN, and RESTREPO, Circuit Judges
A.A. is a Syrian citizen and national who fled involuntary military service in a government-controlled militia called Jaysh al-Sha'bi (the "Militia") and sought refuge in the United States. Upon arriving at New York's John F. Kennedy International Airport, A.A. gave himself up to United States Customs and Border Protection and applied for asylum, withholding of removal, and deferral of removal under the Convention Against Torture ("CAT").
An Immigration Judge ("IJ") granted A.A.’s application for deferral of removal under the CAT because the IJ found that A.A. was likely to be tortured if he returned to Syria. But the IJ denied A.A.’s applications for asylum and for withholding of removal. The IJ determined that the Militia is a "Tier III," or "undesignated," terrorist organization under 8 U.S.C. § 1182(a)(3)(B)(vi)(III) (the "Tier III provision") because it is "a group of two or more individuals ... which engages in [terrorist activity]" as defined in the Immigration and Nationality Act ("INA"). Any alien who provides "material support" to a Tier III organization is statutorily barred from receiving asylum and withholding of removal. 8 U.S.C. § 1182(a)(3)(B)(iv)(VI). The IJ concluded that A.A. provided material support to the Militia because, during the course of his service, A.A. trained to use an assault weapon, carried out guard duty, and performed errands for his superiors.
Although A.A. secured CAT protection, he pursued his applications for asylum and withholding of removal before the Board of Immigration Appeals ("BIA"). A.A. argued before the BIA that the Militia is beyond the scope of the Tier III provision because it is a state actor controlled by a foreign government. The BIA disagreed and dismissed A.A.’s appeal. A.A. makes the same argument in his petition for review. For the reasons that follow, we will deny the petition.
He was assigned to the Militia, which "is controlled by the Syrian government,"1 Gov't Br. 5 (citing A.R. 1793), and which has "been instrumental in the Assad regime's campaign of terror and violence against the citizens of Syria," id. 5–6 (quoting A.R. 1792).
A.A. testified that, despite the doctors’ medical assessment, the Militia put A.A. through basic training, where he learned how to use an AK-47 rifle. He was first assigned to guard duty at a power station, then transferred to a soccer field in Damascus, and later reassigned to Tishreen Stadium in Al-Bariqah. At each duty station, A.A. served as an unarmed guard and performed errands for his superiors, who physically and verbally abused him because A.A. repeatedly reminded them that he was only fit for stationary, non-active service.
A.A. testified that, while at Tishreen Stadium, he suffered a "nervous breakdown" and was hospitalized. A.R. 1985. He obtained a one-year medical discharge effective January 1, 2013. Fearing that he would be forced to re-join the Militia or another armed group after his temporary discharge expired, A.A. fled Syria in September or October of 2013 and eventually arrived in the United States.
A.A. was placed in expedited removal proceedings. On September 30, 2019, he passed his credible fear interview. On the same date, he received a Notice to Appear charging that he was inadmissible to the United States. Before an IJ, A.A. conceded inadmissibility under 8 U.S.C. § 1182(a)(7)(A)(i)(I) () and applied for asylum, withholding of removal, and deferral of removal under the CAT.
The IJ granted A.A.’s application for deferral of removal under the CAT but denied his applications for asylum and for withholding of removal. The IJ noted that the Government submitted evidence that the Militia is "controlled by the Syrian government"; "has conducted ... operations with [the] Syrian military"; and has "been instrumental in the Assad regime's campaign of terror" against the Syrian people. A.R. 106 (quotation marks omitted). The IJ also noted that the Militia receives support from Iran and that the Treasury Department has blocked the Militia's assets. The IJ credited A.A.’s testimony about the Militia's use of "abusive and violent military tactics." A.R. 106. A.A. testified that he saw reports about government soldiers killing civilians and that he heard a story about military police persecuting the family of a deserter, including raping and murdering members of the deserter's family.
The IJ determined that the Militia's killing and injuring opposition members and use of terror and violence against Syrian civilians constituted "terrorist activity" under 8 U.S.C. § 1182(a)(3)(B)(iii)(I)–(VI). As a result, the IJ concluded that the Militia "constitutes a Tier III terrorist organization." A.R. 106. The IJ further found that A.A. provided "material support" to the Militia through his military service, including taking part in weapons training, performing guard duties, and providing food and laundry services to superior officers. A.R. 106–08. The IJ held that A.A.’s provision of material support to a terrorist organization rendered him statutorily ineligible for asylum and withholding of removal. A.A. appealed to the BIA.2
On December 30, 2016, the BIA dismissed A.A.’s appeal in an unpublished decision by a single member. A.A. did not challenge the IJ's determination that the Militia engaged in terrorist activity or that he had provided the Militia with material support. Instead, A.A. argued that the Militia cannot be a Tier III organization because it is a state actor. The BIA rejected this argument. It agreed with the IJ that, to be a Tier III organization, an entity need only be "a group of two or more individuals, whether organized or not, which engages in, or has a subgroup which engages in" terrorist activity. A.R. 3 (quoting 8 U.S.C. § 1182(a)(3)(B)(vi)(III) ). The BIA concluded that the Militia "is a group of two or more individuals," which engages in "terrorist activity"; that A.A. provided material support to the Militia; and that nothing in the relevant provisions of the INA limited the material support bar to non-state actors. A.R. 3–5 (quoting 8 U.S.C. § 1182(a)(3)(B)(vi)(III) ).
On January 20, 2017, A.A. filed a petition for review. Proceedings were held in abeyance while United States Citizenship and Immigration Services ("USCIS") considered whether to grant A.A. a discretionary duress exemption from the material support bar because A.A. was forced to serve in the Militia. USCIS later issued a decision declining to grant A.A. a duress exemption.
We have jurisdiction under 8 U.S.C. § 1252(a). The BIA had jurisdiction to review the IJ's decision under 8 C.F.R. § 1003.1(b)(3). A.A. timely filed this petition for review within thirty days of the BIA's decision, see 8 U.S.C. § 1252(b)(1), and the IJ completed proceedings in Elizabeth, New Jersey, so venue is proper, id. § 1252(b)(2).
Where, as here, the BIA adopted the findings of the IJ and discussed some of the bases for the IJ's decision, we review both decisions. Saravia v. Att'y Gen., 905 F.3d 729, 734 (3d Cir. 2018). A.A.’s petition for review is based on an issue of law, over which we exercise plenary review. Id.
The BIA's legal determinations involving the INA are entitled to deference under Chevron, U.S.A., Inc. v. Natural Resources Defense Council, Inc., 467 U.S. 837, 104 S.Ct. 2778, 81 L.Ed.2d 694 (1984). See Mahn v. Att'y Gen., 767 F.3d 170, 173 (3d Cir. 2014). Here, however, " Chevron deference is inappropriate because we are asked to review an unpublished, non-precedential decision issued by a single BIA member." Id. As a result, the BIA's decision is, "[a]t most," entitled only to deference based on its persuasive authority. Id. (citing Skidmore v. Swift & Co., 323 U.S. 134, 140, 65 S.Ct. 161, 89 L.Ed. 124 (1944) ).
A.A. argues that Congress never intended the Tier III provision "to extend the concept[s] of a terrorist organization[,] and of ‘material support’ to a terrorist organization[,] to the military forces and governments of foreign states." A.A. Br. 8. For support, A.A. advances a series of arguments based on the text of the Tier III provision; the structure, context, and revision history of the INA; the executive branch's own policies and past abstention from designating government-controlled entities as terrorist organizations; and the United States’ treaty obligations. We address each argument in turn, and we conclude that each is unavailing.
We begin with relevant legal background. Pursuant to the 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,...
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