Khan v. Holder, s. 13–2106

• Decision Date: 04 September 2014
• Docket Number: Nos. 13–2106,13–3385.,s. 13–2106
• Citation: 766 F.3d 689
• Parties: Sami Ullah KHAN, Petitioner, v. Eric H. HOLDER, Jr., Attorney General of the United States, Respondent.
• Court: U.S. Court of Appeals — Seventh Circuit

766 F.3d 689

Sami Ullah KHAN, Petitioner,

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

Nos. 13–2106, 13–3385.

United States Court of Appeals,Seventh Circuit.

Argued Nov. 7, 2013.

Decided Sept. 4, 2014.

Timothy A. Gambacorta, Attorney, Gambacorta Law Office, Skokie, IL, for Petitioner.

Oil, Aaron R. Petty, Paul F. Stone, Attorney, Department of Justice, Washington, DC, for Respondent.

Before BAUER, MANION, and SYKES, Circuit Judges.

SYKES, Circuit Judge.

Sami Ullah Khan seeks review of a decision of the Board of Immigration Appeals (“BIA”) applying the “terrorism bar,” 8 U.S.C. § 1182(a)(3)(B)(i)(I), a broad barrier to admissibility into the United States. Underneath the surface is an important legal question about the proper interpretation of an exception to the bar, but we can't reach it because it wasn't properly preserved for review.

Khan is a Mohajir, which means that his parents were immigrants into Pakistan when it was partitioned from the British Indian Empire in 1947. Some Mohajirs formed a political party—the Mohajir Qaumi Movement—in response to perceived repression by nonimmigrant locals. Khan joined in 1992 when he was 14 or 15 years old. He distributed flyers, attended meetings, and recruited people to the cause. The group became increasingly violent, however, and many Mohajirs, including Khan, left to join a new, supposedly more peaceful group called MQM–Haqiqi. But this party too resorted to violence, so Khan eventually left it as well.

Khan's switch had made him a target, and he was repeatedly attacked by members of the first party, including beatings and death threats. On two occasions he was kidnapped and tortured. He eventually fled to the United States on a visitor visa, and when it expired, he asked for asylum and other forms of relief from removal. While his case was pending, he married a United States citizen, making him eligible for permanent residency through his marriage.

The government opposed Khan's admission to the United States, arguing that he was ineligible for having engaged in terrorist activity by supporting both factions of the Mohajir Qaumi Movement. An immigration judge (“IJ”) accepted the government's position and the BIA affirmed. Khan petitioned for review, raising many issues, but he failed to preserve the that the MQM factions authorized terrorism during the time he was a member. Accordingly, we deny the petition for review.

I. Background

A portion of the Immigration and Nationality Act provides that any alien who has “engaged in a terrorist activity” is ineligible for admission into the United States. 8 U.S.C. § 1182(a)(3)(B)(i)(I). Terrorist activity is defined expansively to include “commit[ting] an act that the actor knows, or reasonably should know, affords material support” to a terrorist organization. Id. § 1182(a)(3)(B)(iv)(VI). The knowledge requirement only applies to the actor's awareness that he is providing material support. The knowledge required with respect to a group's status as a terrorist organization depends on how it's categorized. Terrorist organizations are divided into three tiers: Tier 1 and 2 organizations are determined by the Secretary of State and published in the Federal Register, while Tier 3 organizations are any others that engage in terrorist activities. Id. § 1182(a)(3)(B)(vi). ¹ If an alien gave material support to a Tier 1 or Tier 2 organization, he is barred from entry regardless of whether he knew it was a terrorist organization. Compare id. § 1182(a)(3)(B)(iv)(VI)(cc)with (dd). However, if a group is in Tier 3, the alien has an opportunity to “demonstrate by clear and convincing evidence that [he] did not know, and should not reasonably have known, that the organization was a terrorist organization.” § 1182(a)(3)(B)(iv)(VI)(dd). This is known as the “knowledge exception” to the material support bar we just described.

The Mohajir Qaumi Movement first became a political party in the mid 1980s and quickly rose to prominence in Pakistani politics. It formed an early coalition with the dominant political party, but the relationship soured, leading to conflict and often violent confrontations. In 1992 the military initiated “Operation Clean-up” aimed at purging the City of Karachi of terrorists, though many Mohajirs viewed it as a disguised attempt to suppress the Mohajir Qaumi Movement. See Operation Clean-up,Wikipedia, http:// en. wikipedia. org/ wiki/ Operation_ Clean- up (last visited Sept. 4, 2014). Around the same time, disagreements between the movement's leaders led to the formation of an offshoot faction. The new group called itself MQM–Haqiqi, or “the real Mohajir Qaumi Movement.” (The original party became known as “MQM–A.” From this point forward, we will also use this name to refer to the party before the split. We will occasionally use “MQM” to refer to both factions.) The military supported the new group in an effort to undermine MQM–A. See Farhat Haq, Rise of the MQM in Pakistan: Politics of Ethnic Mobilization, is available at http:// www. jstor. org/ stable/ 2645723. During the military's clean-up operation, which continued until 1994, MQM–H campaigned to convince party activists that MQM–A had become a terrorist organization. Id. Ever since the division of MQM into these two factions, members of both groups have frequently violently clashed. SeeU.S. Dep't of State, U.S. Department of State Country Report on Human Rights Practices 1994–Pakistan (Jan. 30, 1995), available at http:// www. refworld. org/ docid/ 3 ae 6 aa 7 c 14. html (noting that “people were killed almost daily in fighting among factions of the MQM”). Because of this violence, MQM–H has been identified as a Tier 3 terrorist organization. See Hussain v. Mukasey, 518 F.3d 534 (7th Cir.2008) (upholding the BIA's finding that MQM–H's activities in the early 1990s qualify it as a terrorist organization).

* * *

Khan joined MQM–A in 1992 when he was 14 or 15 years old.² He believed, like many in his neighborhood, that the organization existed to fight for the rights of Mohajirs and to improve their education and employment opportunities. He was also upset by the injustice of the military's clean-up operation. Khan distributed flyers and signs, attended meetings, and recruited others in his neighborhood. Over time, however, Khan became aware of increasing violence by members of the party. In his words, MQM activists started engaging in “anti-state, anti-social, and anti-people activities.” Gangsters and criminals “took control of the party and the streets.” When he saw that “[MQM–A] leaders were aware of what was going on but remained silent,” he realized that “the entire mission, cause and objective of the party was changed.” Khan says that this “came as a shock/surprise to Mohajirs and their supporters, including me,” and that he viewed it as a “betrayal[ ] of the Mohajir cause.”

In 1994 Khan, like many Mohajirs, left to join MQM–H, the offshoot faction. The new leaders “assured [Mohajirs] that the party will fight for their just cause,” so Khan joined “with the strong belief and firm consideration that the [MQM–H] leaders are trusted leaders of Mohajirs and their cause to defend Mohajir's struggle is legitimate.” Khan's work with MQM–H remained largely the same; he posted signs and flyers, recruited others, attended meetings, staffed the local office in the evenings, and organized grocery requests for those in need.

But over time Khan began to realize that MQM–H was also engaging in violence. “In the beginning they were doing good things, but later on, gradually, they started doing the same things as [MQM–A].” So in 1997 Khan significantly scaled back his involvement. “As soon as I came to know that these both groups are getting violent, and when they are clashing, I stopped working for them, and I stopped attending their meetings and kept myself aloof from them.” He did not cut off his ties entirely, though. He explained: “I had to slow down my activities, but because I was staying in that locality and that street[,] ... they used to ask me to go with them and work for them.” When asked whether he worked for MQM–H, even after becoming aware of fighting between the factions, Khan responded: “I used to support them, but I never ... worked for them or interfered with their work or what they were doing.” He clarified what he meant by support: “What I mean is that in our street, since everybody was from [MQM–H], they used to meet us and ask questions about us. So, I have to express myself as a supporter, that yes, I am. But I really slowed down my work and didn't do anything for them.” The government specifically questioned him about his attendance at meetings, and Khan admitted that for the next three years he still attended meetings when asked to. “I had to attend the meeting when their higher-ups of the party used to come ... and call everybody or call me for attending the meeting.” ³

Khan's switch in 1994 had turned the wrath of MQM–A against him. He testified that MQM–A members began hunting down MQM–H activists and either killing or torturing them. “Threats to punish and kill starting pouring in against my family and me.” One of Khan's cousins was shot and killed. In the summer of 1999, six MQM–A members, armed with guns, knives, iron rods, and hockey sticks, broke into the MQM–H office during a meeting. They dragged Khan out into the street and beat him. He was thrown into the bed of a pickup truck, driven to an MQM–A torture cell, and beaten for two days before he was released.

The scene worsened in the fall of 1999 when Pervez Musharraf seized control of the country by military coup. The previous government had supported and protected MQM–H, but the new government favored MQM–A. With their protection gone, the attacks against MQM–H intensified. In early 2000 Khan was seriously injured during a raid of the local MQM–H office. MQM–A then began targeting his family and firing shots at his house. “My life...