Rayamajhi v. Whitaker

Decision Date15 January 2019
Docket NumberNo. 16-70534,16-70534
Parties Sunil RAYAMAJHI, Petitioner, v. Matthew G. WHITAKER, Acting Attorney General, Respondent.
CourtU.S. Court of Appeals — Ninth Circuit

GRABER, Circuit Judge:

Petitioner Sunil Rayamajhi fled Nepal in 2009 because a terrorist organization tortured and threatened him repeatedly. Before fleeing, Petitioner knowingly gave money to a member of the terrorist organization at least once. After arriving in the United States, Petitioner sought asylum, statutory withholding of removal, withholding of removal under the Convention Against Torture ("CAT"), and deferral of removal under CAT.

An immigration judge ("IJ") granted Petitioner deferral of removal under CAT, but denied him asylum and both forms of withholding of removal. The IJ found Petitioner ineligible for asylum and withholding of removal because Petitioner provided "material support" to a terrorist organization, as defined in 8 U.S.C. § 1182(a)(3)(B)(iv)(VI). The Board of Immigration Appeals ("BIA") affirmed the denials of asylum and withholding of removal and left undisturbed the grant of deferral of removal. Petitioner seeks review of the BIA's decision. We have jurisdiction under 8 U.S.C. § 1252(a). We deny the petition in part and dismiss it in part.

Petitioner is a Nepali citizen. In 2003, he took an administrative position with Doctors Without Borders, an international nongovernmental organization. During the early stages of his work for Doctors Without Borders, Petitioner became a target of a Nepali terrorist organization called the Maoists. The Secretary of State designated the Maoists as a "terrorist organization" under 8 U.S.C. § 1182(a)(3)(B)(vi)(II) in 2004, but revoked that designation in 2012. 77 Fed. Reg. 54,944 -02, 54,944 (Sept. 6, 2012).

From 2004 to 2008, Maoists beat Petitioner twice, demanded that he give them money and join their political party, and threatened him and his family. In February 2009, a Maoist approached Petitioner at a taxi stand and demanded money. Petitioner recognized the Maoist as one of the men who had beaten him in the past. Fearing what the Maoist might do to him if he did not comply, Petitioner gave the man the equivalent of about $50.1 Petitioner left Nepal soon after that incident.

Petitioner entered the United States in June 2009 on a visitor's visa. He applied for asylum and withholding of removal in December 2009. An IJ found that, even considering only the 2009 "donation," Petitioner gave material support to the Maoists in the form of money. Thus, the IJ ruled that the Immigration and Nationality Act's ("INA") "material support bar" rendered Petitioner ineligible for asylum and withholding of removal. The IJ also held that she lacked jurisdiction to grant an exception on the ground of duress. The IJ ordered Petitioner removed to Nepal, but deferred his removal under CAT because he likely would suffer torture if sent back to Nepal. The material support bar does not apply to deferral of removal under CAT. 8 C.F.R. § 1208.17(a). Petitioner appealed the denial of asylum and withholding of removal, and the government appealed the grant of deferral of removal.

On appeal, the BIA rejected Petitioner's argument that the material support bar did not apply to him, holding: "There is no de minimis exception to the material support bar" and "no duress exception to the material support bar." The BIA also concluded that the IJ had not properly considered the country condition evidence in the record as it pertained to CAT deferral. Accordingly, the BIA remanded the case to the IJ solely for further consideration of Petitioner's claim for CAT deferral. On remand, the IJ incorporated the facts and procedural history of her prior decision and the BIA's prior decision. She again granted Petitioner CAT deferral.

Petitioner again appealed to the BIA and contested the IJ's denials of asylum and withholding of removal under the material support bar. In 2016, the BIA issued its second decision, reaffirming its dismissal of Petitioner's asylum and withholding claims. The government did not appeal the IJ's second grant of CAT deferral, so that portion of the ruling remains in effect.

Petitioner timely seeks our review. He argues that the BIA and the IJ erred by denying him asylum and withholding of removal under the material support bar, because he gave money to the Maoists under duress and gave only de minimis support. We review only the BIA's opinion, except to the extent that it expressly adopted portions of the IJ's decision. Doe v. Holder , 736 F.3d 871, 877 (9th Cir. 2013). We review the BIA's fact-finding for substantial evidence and may grant a petition only if the evidence compels a conclusion contrary to the BIA's conclusion. Id. We review de novo the BIA's determination of purely legal questions, but defer to the BIA's legal interpretation of the INA unless that interpretation contradicts the statute's plain meaning. Simeonov v. Ashcroft , 371 F.3d 532, 535 (9th Cir. 2004) (citing Chevron U.S.A. Inc. v. Nat. Res. Def. Council, Inc. , 467 U.S. 837, 843 n.9, 104 S.Ct. 2778, 81 L.Ed.2d 694 (1984) ).

A. Duress

In Annachamy v. Holder , 733 F.3d 254, 267 (9th Cir. 2013), overruled in part on other grounds by Abdisalan v. Holder , 774 F.3d 517, 526 (9th Cir. 2015) (en banc), we held that "the material support bar does not include an implied exception for individuals" who give support to a terrorist organization while "under duress." Annachamy forecloses Petitioner's argument that a "duress" exception to the material support bar applies here.

Because Petitioner's duress argument is not colorable in view of our precedent, we lack jurisdiction to consider it. Under 8 U.S.C. § 1158(b)(2)(D), we lack jurisdiction to consider a petition for review of the BIA's denial of asylum and withholding of removal pursuant to the material support bar. Under 8 U.S.C. § 1252(a)(2)(D), however, we retain jurisdiction (despite the BIA's applying the material support bar) only over "colorable constitutional claims or questions of law." Bazua-Cota v. Gonzales , 466 F.3d 747, 748 (9th Cir. 2006) (per curiam). Accordingly, we dismiss the petition in part.

B. De Minimis Support

A noncitizen who has engaged in "terrorist activity" cannot obtain asylum or withholding of removal. See 8 U.S.C. § 1182(a)(3)(B)(i)(I) (stating that an alien who has engaged in "terrorist activity" is inadmissible); id. § 1158(b)(2)(A)(v) (stating that an alien described in § 1182(a)(3)(B)(i)(I) is ineligible for asylum); id. § 1227(a)(4)(B) (stating that any alien described in § 1182(a)(3)(B) is removable); id. § 1231(b)(3)(B)(iv) (stating that an alien described in § 1227(a)(4)(B) is ineligible for withholding of removal). As relevant here, "engage in terrorist activity" means "to commit 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," to a terrorist organization or a member of a terrorist organization, unless the alien did not know (and should not reasonably have known) that the organization was a terrorist organization. Id. § 1182(a)(3)(B)(iv)(VI).

In its decisions on Petitioner's claims, the BIA held that no de minimis exception to the material support bar exists. In a published opinion issued several years later, the BIA held the same: "[A]n alien provides ‘material support’ to a terrorist organization, regardless of whether [the act] was intended to aid the organization, if the act has a logical and reasonably foreseeable tendency to promote, sustain, or maintain the organization, even if only to a de minimis degree ." In re A-C-M- , 27 I. & N. Dec. 303, 308 (B.I.A. 2018) (emphasis added); see also id. at 307 ("In sum, ‘material support’ is a term of art" that refers to "aid of a material and normally tangible nature, and it is not quantitative." (footnote omitted) ). Whether or not we afford Chevron deference to the BIA's interpretation, we agree that the material support bar does not contain an exception for people who give merely de minimis funds to a terrorist organization.

If a statute is unambiguous, we end our analysis by enforcing its text. Chevron , 467 U.S. at 843, 104 S.Ct. 2778. In relevant part, § 1182(a)(3)(B)(iv)(VI) defines engaging in terrorist activity as giving something that "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," to a terrorist organization. (Emphases added.) The statute provides a list of things that constitute "material support." "Funds" fall under this category, and the statute does not establish any numerical threshold for money to qualify as material support. The inclusion in the list of the phrase "other material financial benefit" does not assist Petitioner. Grammatically, that phrase relates only to "transfer of funds" and suggests that "funds" are material per se, because a person affords material support by transferring funds or some "other material financial benefit." Under the plain text of § 1182(a)(3)(B)(iv)(VI), "funds" knowingly given to a terrorist organization are "material support,"2 regardless of the amount given.

If § 1182(a)(3)(B)(iv)(VI) is ambiguous as to whether it contains an exception for de minimis funds, the BIA's interpretation merits Chevron deference even though it post-dates the BIA's decision on Petitioner's claims. Pauly v. U.S. Dep't of Agric. , 348 F.3d 1143, 1152 (9th Cir. 2003) (per curiam); see also Smiley v. Citibank (S.D.), N.A. , 517 U.S. 735, 744 n.3, 116 S.Ct. 1730, 135 L.Ed.2d 25 (1996) (...

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