Annachamy v. Holder

• Citation: 733 F.3d 254
• Decision Date: 19 August 2013
• Docket Number: No. 07–70336.,07–70336.
• Parties: Satheeskumar ANNACHAMY, aka Sathees Annachamy, Petitioner, v. Eric H. HOLDER, Jr., Attorney General, Respondent.
• Court: United States Courts of Appeals. United States Court of Appeals (9th Circuit)

733 F.3d 254

Satheeskumar ANNACHAMY, aka Sathees Annachamy, Petitioner,

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

No. 07–70336.

United States Court of Appeals,Ninth Circuit.

Argued and Submitted Sept. 2, 2011.

Filed July 3, 2012.

Amended Aug. 19, 2013.

Visuvanathan Rudrakumaran, Law Office of Visuvanathan Rudrakumaran (argued), New York, NY, for Petitioner.

Tony West, Assistant Attorney General, United States Department of Justice; Michael P. Lindemann, Assistant Director; Ethan B. Kanter (argued), Senior Litigation Counsel, Office of Immigration Litigation, Washington, D.C., for Respondent.

Sean Riordan, ACLU of San Diego & Imperial Counties, San Diego, CA, for Amici Curiae Harvard Immigration and Refugee Clinic and American Civil Liberties Union of San Diego & Imperial Counties.

On Petition for Review of an Order of the Board of Immigration Appeals. Agency No. A200–041–850.

Before: RAYMOND C. FISHER and JOHNNIE B. RAWLINSON, Circuit Judges, and RICHARD MILLS, District Judge.^*

ORDER

FISHER, Circuit Judge:

The opinion filed July 3, 2012, and reported at 686 F.3d 729 (9th Cir.2012), is amended. The amended opinion is filed concurrent with this Order.

With the amended opinion, the panel has voted to GRANT Petitioner's petition for rehearing. Judges Fisher and Rawlinson have voted to deny the suggestion for rehearing en banc and Judge Mills so recommends.

The full court has been advised of the suggestion for rehearing en banc and no active judge has requested a vote on whether to rehear the matter en banc. Fed. R.App. P. 35.

Petitioner's suggestion for rehearing en banc, filed September 14, 2012, is DENIED.

No future petitions for rehearing or rehearing en banc will be entertained.

OPINION

Satheeskumar Annachamy petitions for review of a decision of the Board of Immigration Appeals (BIA) denying him asylum and withholding of removal because he provided material support to a terrorist organization, in violation of 8 U.S.C. § 1182(a)(3)(B)(iv)(VI). Annachamy argues that the BIA erred by applying the material support bar because (1) the organization he supported was engaged in legitimate political violence and (2) he provided support under duress. We hold that the material support bar does not include an implied exception for individuals who assist organizations engaged in legitimate political violence or who provide support under duress. We thus deny Annachamy's petition for review.

I.

Annachamy is a native and citizen of Sri Lanka. In a hearing before an immigration judge (IJ), Annachamy testified that between 1986 and 2004 he was arrested several times by the Sri Lankan army on suspicion that he was involved with the Liberation Tigers of Tamil Eelam (LTTE), a militant organization that was then at war with the Sri Lankan government.¹ Each time, the army detained him for many weeks, interrogated him and tortured him, including beating him with weapons while he was hung upside down, inserting a stick in his rectum, placing a bag soaked in gasoline over his head and forcibly submerging his head into water.

Annachamy testified that he was never a member of the LTTE and was opposed to it. On several occasions, however, he was forced to assist LTTE members. In 1992, for instance, LTTE members came to his house and demanded that he join them. Annachamy refused and, upon threat of force, promised to give them money in the future. In 1996, he paid LTTE members 2000 rupees (approximately $37). On other occasions, LTTE members blindfolded Annachamy and took him to a LTTE camp, where they forced him to cook, dig trenches, fill sandbags and help build fences. Each time he was taken to perform these activities, he was kept under strict watch and there was no possibility of escape. Annachamy believed that he would have been killed if he tried to escape or seek help from the police. He has had no contact with the LTTE since 1997, when he moved from his home town. Annachamy testified that he was not aware that the LTTE was considered a terrorist organization when he assisted them.

After being detained by the Sri Lankan army again in 2004, Annachamy went into hiding. He left Sri Lanka and arrived in the United States in 2005. Upon his arrival, the Immigration and Naturalization Service, now the Department of Homeland Security (DHS), initiated removal proceedings. Annachamy conceded that he was removable based on his unlawful presence in the United States, but filed an application for asylum, withholding of removal and protection under the Convention Against Torture (CAT).

After a hearing, an IJ granted Annachamy asylum and withholding of removal. The IJ found that, despite some inconsistencies, Annachamy testified in a credible manner. Relying on Annachamy's application, testimony and State Department reports on the conditions in Sri Lanka, the IJ found that Annachamy had demonstrated a well-founded fear of persecution based on a protected ground. The IJ also found that Annachamy was not precluded from obtaining relief even though he gave assistance to the LTTE, because he was forced to do so. The IJ found that Annachamy's “life or freedom would have been threatened” if he had not assisted the LTTE.

The BIA reversed. In an unpublished opinion, the BIA accepted the IJ's credibility determination and found that there was “no question” that Annachamy had established a well-founded fear of future persecution that went unrebutted. The BIA found, however, that the Immigration and Nationality Act (INA) barred Annachamy from obtaining asylum or withholding of removal because he had provided material support to a terrorist organization. The BIA instead granted Annachamy deferral of removal under CAT and remanded to the IJ to complete identity, law enforcement or security examinations required under 8 C.F.R. § 1003.1(d)(6).² Annachamy petitions for review of that decision.

II.

We have jurisdiction to review the BIA's final order denying asylum and withholding of removal under 8 U.S.C. § 1252. See Li, 656 F.3d at 904 (“[W]here the BIA denies relief and remands pursuant to § 1003.1(d)(6) for background checks required for alternative relief, we have jurisdiction to consider an appeal of the final order denying relief.”). “Our review is confined to the BIA's decision except to the extent the BIA incorporated the IJ's decision.” Id. at 900–01. We review de novo constitutional and other questions of law. See Khan v. Holder, 584 F.3d 773, 776 (9th Cir.2009). We afford the BIA's unpublished opinion Skidmore deference, meaning “we ‘examine the validity of the BIA's reasoning, its thoroughness, and overall persuasiveness,’ and give it weight accordingly.” United States v. Casasola, 670 F.3d 1023, 1030 (9th Cir.2012) (quoting Garcia–Quintero v. Gonzales, 455 F.3d 1006, 1015 (9th Cir.2006)).

III.

An alien who has engaged in terrorist activities is ineligible for asylum, withholding of removal and withholding under CAT, but remains eligible for deferral of removal under CAT. See Haile v. Holder, 658 F.3d 1122, 1125–26 (9th Cir.2011).³ We have previously recognized that the INA “defines ‘engag[ing] in terrorist activity’ broadly.” Khan, 584 F.3d at 777 (alteration in original). The definition includes committing, planning or gathering information about potential targets for a terrorist activity, and soliciting funds or individuals for a terrorist activity or terrorist organization. See8 U.S.C. § 1182(a)(3)(B)(iv). An alien also engages in terrorist activity by

commit[ting] an act that the actor knows, or reasonably should know, affords material support, including a safe house, transportation, communications, funds, transfer of funds or other material financial benefit, false documentation or identification, weapons (including chemical, biological, or radiological weapons), explosives, or training

—

(aa) for the commission of a terrorist activity;

(bb) to any individual who the actor knows, or reasonably should know, has committed or plans to commit a terrorist activity;

(cc) to a terrorist organization described in subclause (I) or (II) of clause (vi) or to any member of such an organization; or

(dd) to a terrorist organization described in clause (vi)(III), 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.

Id. § 1182(a)(3)(B)(iv)(VI).

“The statute also defines ‘terrorist organization’ broadly.” Khan, 584 F.3d at 777. The definition includes organizations designated as a “terrorist organization” by the Secretary of State, in consultation with the appropriate officials, see8 U.S.C. § 1182(a)(3)(B)(vi)(I)–(II)—often referred to as Tier I and Tier II terrorist organizations—and any “group of two or more individuals, whether organized or not, which engages in, or has a subgroup which engages in, [terrorist activities],” id. § 1182(a)(3)(B)(vi)(III)—referred to as Tier III terrorist organizations.

Annachamy does not dispute that he materially assisted the LTTE, and the parties agree that the LTTE qualified as a Tier III organization at the time he assisted it.⁴ Annachamy challenges the BIA's decision on two grounds, however. He argues, first, that the material support bar does not apply to him because the LTTE was engaged in legitimate political violence; and, second, that the bar does not apply to him because he supported the LTTE under duress. We consider each argument in turn.

A. Political Offense Exception.

Annachamy contends that the material support bar does not apply to him because the LTTE was engaged in “legitimate political violence.” Our decision in Khan forecloses this argument. See584 F.3d at 781–85.

In that case, the BIA found an alien ineligible for asylum and withholding of removal because he had engaged in terrorist activities by soliciting funds for a terrorist organization, in violation of 8 U.S.C. § 1182(a)(3)(B)(iv)(IV). See id. at 776. The...