Hernandez v. Sessions

• Decision Date: 28 February 2018
• Docket Number: August Term 2017,No. 16-2323-ag,16-2323-ag
• Citation: 884 F.3d 107
• Parties: Marleny HERNANDEZ, Petitioner, v. Jefferson B. SESSIONS III, United States Attorney General, Respondent.
• Court: U.S. Court of Appeals — Second Circuit

884 F.3d 107

Marleny HERNANDEZ, Petitioner,

v.Jefferson B. SESSIONS III, United States Attorney General, Respondent.

No. 16-2323-ag

August Term 2017

United States Court of Appeals, Second Circuit.

Argued: November 30, 2017

Decided: February 28, 2018

Gregory Silbert (with Kevin Meade and Melanie Conroy on the brief ), Weil, Gotshal & Manges LLP, New York, NY and Boston, MA; Anne Pilsbury and Heather Yvonne Axford, Central American Legal Assistance, Brooklyn, NY, for Petitioner.

Jeffrey L. Menkin, Senior Counsel for National Security, Office of Immigration Litigation (with Chad A. Readler, Acting Assistant Attorney General, and Ethan B. Kanter, Deputy Chief, on the brief ), United States Department of Justice, Washington, D.C., for Respondent.

Before: Jacobs, Raggi, and Droney, Circuit Judges.

Judge Droney concurs in the opinion of the Court and files a concurring opinion.

Dennis Jacobs, Circuit Judge:

Petitioner Marleny Hernandez, a native and citizen of Colombia, seeks review of a June 9, 2016 published decision of the Board of Immigration Appeals ("BIA") finding her ineligible for asylum on the ground that she provided "material support" to a terrorist organization, notwithstanding that she acted under duress. See Matter of M–H–Z–, 26 I. & N. Dec. 757 (B.I.A. 2016).

The Immigration and Nationality Act ("INA") deems ineligible for asylum any alien who has "engaged in a terrorist activity." 8 U.S.C. §§ 1158(b)(2)(A)(v), 1182(a)(3)(B)(i)(I). In a provision known as the "material support bar," the INA defines "[e]ngag[ing] in [a] terrorist activity" to include committing an act that "the actor knows, or reasonably should know, affords material support" to a terrorist organization. Id. § 1182(a)(3)(B)(iv)(VI). A 2014 Summary Order of this court identified no error in the BIA's conclusion that Hernandez provided material support to a terrorist organization by providing the Revolutionary Armed Forces of Colombia $100 packages of foodstuffs every three months for more than two years. See Hernandez v. Holder, 579 Fed.Appx. 12, 15 (2d Cir. 2014). But the Order remanded the matter for the BIA to determine in the first instance whether the material support bar, which makes no explicit mention of duress, nevertheless has an implied duress exception that might exempt Hernandez. See id. (citing Ay v. Holder, 743 F.3d 317, 320 (2d Cir. 2014) (explaining that the material support bar is "silent on the question" of whether "a duress exception is implicit in its terms") ). The agency decision resulting from that remand is the subject of the petition before us.

The principal question presented by the petition is whether the agency's determination that the material support bar contains no implied duress exception is 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). We conclude that Chevron deference is warranted and join several other circuits in holding that the material support bar does not except aliens, like Hernandez, who acted under duress.¹ We also reject Hernandez's argument that aliens who are rendered ineligible for relief from removal by the material support bar have a due process right to some means of obtaining an exemption based on duress, other than the currently available procedure for obtaining a discretionary waiver from the Department of State or the Department of Homeland Security—a waiver that Hernandez sought but did not receive. See 8 U.S.C. § 1182(d)(3)(B)(i). Accordingly, we deny the petition.

The facts and procedural course of this case are set out in the BIA's published decision and in our 2014 Summary Order. We review only the BIA's decision issued on remand. See Belortaja v. Gonzales, 484 F.3d 619, 623 (2d Cir. 2007).

I

The INA's material support bar, 8 U.S.C. § 1182(a)(3)(B)(iv)(VI), is construed by the BIA to have no implied exception for duress. When, as here, the BIA construes "the statute which it administers," we apply the familiar principles of deference outlined originally in Chevron . I.N.S. v. Aguirre–Aguirre, 526 U.S. 415, 424, 119 S.Ct. 1439, 143 L.Ed.2d 590 (1999). "At the first step" of the two-step Chevron framework, we "determine whether Congress has directly spoken to the precise question at issue," and if it has, we "give effect to [Congress's] unambiguously expressed intent .... If, however, the statute [is] ambiguous ..., we proceed to a second step of analysis to [determine] whether the agency's interpretation is reasonable," and if it is, "we must defer to it." Adams v. Holder, 692 F.3d 91, 95 (2d Cir. 2012) (internal quotation marks and citations omitted).

The inquiry here begins at Chevron step two, because we have already concluded that the material support bar is ambiguous as to whether duress is an exception.² See Hernandez, 579 Fed.Appx. at 15 (citing Ay, 743 F.3d at 320 ). At Chevron step two, we conclude that the BIA's construction of the material support bar is reasonable and therefore entitled to Chevron deference. In doing so, we join several of our sister circuits in holding that the material support bar does not contain an implied duress exception. See Sesay v. Att'y Gen., 787 F.3d 215, 217–18 (3d Cir. 2015) ; Barahona v. Holder, 691 F.3d 349, 355–56 (4th Cir. 2012) ; Annachamy v. Holder, 733 F.3d 254, 260, 267 (9th Cir. 2013), overruled on other grounds by Abdisalan v. Holder, 774 F.3d 517 (9th Cir. 2014) (en banc); Alturo v. U.S. Att'y Gen., 716 F.3d 1310, 1314 (11th Cir. 2013).

Hernandez argues that the BIA's construction is not reasonable in view of (1) the context, purpose, and legislative history of the INA; (2) United States treaty obligations; and (3) the availability of a duress defense in criminal proceedings. For the reasons that follow, we reject these arguments.

1. The BIA reasonably determined that the nonexistence of a duress exception can be inferred from the language and design of the INA as a whole. See Adams, 692 F.3d at 95. The text of the material support bar itself is "silent" as to conduct taken under duress.³ See Ay, 743 F.3d at 320. Elsewhere in the INA, the bar to relief from removal for members or affiliates of communist or totalitarian political parties contains an explicit exception for individuals who can establish that their "membership or affiliation is or was involuntary." 8 U.S.C. § 1182(a)(3)(D)(i)-(ii). The omission of such an express exception in the material support bar supports the inference drawn by the BIA that no exception was intended. See INS v. Cardoza–Fonseca, 480 U.S. 421, 432, 107 S.Ct. 1207, 94 L.Ed.2d 434 (1987) ("[W]here Congress includes particular language in one section of a statute but omits it in another section of the same Act, it is generally presumed that Congress acts intentionally and purposely in the disparate inclusion or exclusion." (internal quotation marks and citation omitted) ). Other circuits agree. See Alturo, 716 F.3d at 1314 (observing that the lack of an explicit duress exception in the material support bar "stands in marked contrast to a neighboring provision in the INA that includes an explicit involuntariness exception for aliens who have been affiliated with a totalitarian party"); Annachamy, 733 F.3d at 261 (same); Sesay, 787 F.3d at 222–23 (same).⁴

The BIA likewise relied on the separate INA provision under which an alien who "has not ‘voluntarily and knowingly’ supported terrorist activities" may apply for a discretionary "waive[r] [ ] of the material support bar" from "the Secretary of State or [ ] the Secretary of Homeland Security"—a waiver that requires inter-agency consultation.⁵ Ay, 743 F.3d at 321 (emphasis added) (quoting 8 U.S.C. § 1182(d)(3)(B)(i) ). In enacting that provision—"well after [enacting] the material support bar"—"Congress demonstrated its ability to distinguish between voluntary and involuntary" conduct in the INA. Matter of M–H–Z–, 26 I. & N. Dec. at 761 n.4 ; see also Sesay, 787 F.3d at 223–24 ("Given that the 2007 Amendments discussed duress waivers and voluntariness, and required reporting on persons removed for having provided material support under duress, Congress clearly legislated on the premise that the material support bar otherwise applied to support given under duress."); Annachamy, 733 F.3d at 262 n.8 ("Although the waiver provision was not enacted until 15 years after the creation of the material support bar, the waiver provision is still relevant in determining the earlier congressional intent.").

2. Hernandez argues that a material support bar without an implied duress exception is incompatible with the non-refoulement obligation of the 1976 United Nations Protocol Relating to the Status of Refugees (the "Protocol"), to which the United States is a signatory. That argument appears to suggest that the Protocol is self-executing: it is not. See Yuen Jin v. Mukasey, 538 F.3d 143, 159 (2d Cir. 2008). In any event, the BIA recognized that the absence of an implied duress exception to the material support bar is consistent with the United States's obligations under the Protocol.

"The Protocol incorporates by reference Articles 2 through 34 of the [1951] United Nations Convention Relating to the Status of Refugees [ (the ‘Convention’) ]," Aguirre–Aguirre, 526 U.S. at 427, 119 S.Ct. 1439, and Article 33.2 of the Convention provides that non-refoulement may not "be claimed by a refugee whom there are reasonable grounds for regarding as a danger to the security of the country in which he is," Convention, art. 33.2, reprinted in 19 U.S.T. 6223. Moreover, "the determination of refugee status under the 1951 Convention and the 1967 Protocol ... is incumbent upon the Contracting State in whose territory the refugee finds himself." Cardoza–Fonseca, 480 U.S. at 439 n.22, 107 S.Ct. 1207 (quoting Office of the United Nations High Commissioner for Refugees, Handbook on Procedures and Criteria for Determining Refugee Status 1 (ii) (Geneva, 1979) ). Therefore, "[u]nder the Protocol...