Yusupov v. Attorney General of U.S.

Decision Date14 March 2008
Docket NumberNo. 06-3160.,No. 05-5411.,No. 05-4232.,05-4232.,05-5411.,06-3160.
Citation518 F.3d 185
PartiesBekhzod Bakhtiyarovich YUSUPOV, Petitioner v. ATTORNEY GENERAL OF the UNITED STATES, Respondent. Ismoil Samadov, Petitioner v. Attorney General of the United States, Respondent.
CourtU.S. Court of Appeals — Third Circuit

Lawrence H. Rudnick, Esquire (Argued), Steel, Rudnick & Ruben, Philadelphia, PA, for Petitioner, Bekhzod Bakhtiyarovich Yusupov.

Paul A. Engelmayer, Esquire, Bassina Farbenblum, Esquire (Argued), Wilmer Cutler Pickering Hale & Dorr, New York, NY, for Petitioner, Ismoil Samadov.

Peter D. Keisler, Assistant Attorney General, Civil Division, Michael P. Lindemann, Assistant Director, Jonathan Potter, Esquire (Argued), United States Department of Justice, Office of Immigration Litigation, Washington, DC, for Respondent.

Before: McKEE and AMBRO, Circuit Judges, ACKERMAN,* District Judge.

OPINION OF THE COURT

AMBRO, Circuit Judge.

An alien unlawfully in this country may have his removal blocked under certain circumstances. One is withholding of removal under Immigration and Nationality Act (INA) § 241(b)(3)(A), 8 U.S.C. § 1231(b)(3)(A), which prohibits removal if the Attorney General believes that the alien's life or freedom would be threatened in the country of removal.1 Eligibility for withholding of removal is erased, however, if "there are reasonable grounds to believe that the alien is a danger to the security of the United States." INA § 241(b)(3)(B)(iv), 8 U.S.C. § 1231(b)(3)(B)(iv). In this case we consider the Attorney General's interpretation of that exception (commonly referred to as the national security exception).

In In re A-H-, 23 I. & N. Dec. 774, 788 (2005), the Attorney General construed the exception as referring to "any nontrivial level of danger" or "any nontrivial degree of risk." He further interpreted the provision to establish a "reasonable person standard," which he deemed to be "satisfied if there is information that would permit a reasonable person to believe that the alien may pose a danger to the national security." Id. at 789.

The Board of Immigration Appeals (BIA or the Board) relied on this interpretation2 in the decisions under review here.3 It affirmed the determination that petitioners, two aliens from Uzkbekistan, were entitled to deferral of removal under the CAT because they faced likely persecution or torture if returned to that country.4 It also concluded that the national security exception barred petitioners from withholding of removal.

Petitioners argue that we should reject the Attorney General's interpretation of the national security exception. For the exception to apply, they believe the danger must be current, it must be "serious" or "grave," and that this must be established by at least a probable cause standard.5 The Attorney General responds that his interpretation of the exception is entitled to deference under the principles announced in 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 agree with the Attorney General on all points save one. The challenged interpretation ignores clear congressional intent to the extent that, instead of following the statutory language6 and asking whether an alien "is a danger to the security of the United States," it inquires whether an alien "may pose a danger to the national security" (emphasis added). Because we cannot discern from the record whether this error in the Attorney General's interpretation led to a result contrary to the intent of Congress in petitioners' cases, we remand for application of the correct standard.

I. Factual Background

Petitioners Bekhzod Bakhtiyarovich Yusupov and Ismoil Samadov are Uzbek nationals. They claim to be "independent Muslims" who attended the mosque of Imam Obidkhon Nazarov, whose followers, they assert, have been subject to continued persecution by the Uzbek government. Yusupov and Samadov stated that they left Uzbekistan to pursue educational opportunities in America but refused to return to their former country for fear of persecution.

Petitioners entered the United States separately in 1999 on F-1 student visas to learn English. With the exception of a four-week course in English attended by Samadov, petitioners did not attend educational institutions. Instead, despite lacking permission to work, they both found employment in Philadelphia, living together in a house with other Uzbek nationals, including Erkinjon Zakirov.

In 2002, agents from the Federal Bureau of Investigation (FBI) visited Yusupov and Samadov at their home. The agents asked questions about criminal charges asserted by the Uzbek government and received permission from them to search the house and the shared household computer. The FBI found no evidence of criminal activity on the premises, but took the computer for further analysis. A search of its hard drive revealed the following in the internet cache:

• a video-clip of a speech by Osama bin Laden in December 2001;

• a video-clip of a speech by Chechen militant Shamil Basayev;

• a video clip from November 2001, including a view of what appear to be Afghan fighters;

• a video-clips of what appear to be attacks on Russian troops and vehicles;

• a publicly available state map showing locations of Pennsylvania State Police facilities; and

• an e-mail sent to Zakirov that read as follows:

Your exit from there might bring some difficulties to the things we are taking care of here. Therefore, if you do not have very strong difficulties, for you to stay where you are and work for Islam is also a big jihad.7

Following the FBI's visit, Samadov was detained by the Immigration and Naturalization Service (INS) (predecessor to the Department of Homeland Security (DHS)) and served with a "notice to appear" for overstaying his visa. He was released on bond on the basis that he posed no danger to the community, the terms of which he followed.

In 2003, Yusupov moved to Virginia purportedly to get a higher-paying job. He worked as a school bus driver for a private Muslim grade school, where he was given access to a small storeroom with a mattress and an internet-enabled computer. He also obtained a job at a factory, falsely claiming to be a U.S. citizen on a federal Employment Eligibility Verification Form I-9. The Bureau of Immigration & Customs Enforcement (BICE) of DHS arrested him for making a false statement on a federal form, and seized a computer and his duffel bag from the school storeroom. BICE found some film containing pictures of the New York skyline and an intersection near the historic Fulton Ferry in the Brooklyn area of New York City, as well as cached pictures from the internet of violent activities in Central Asia. Yusupov pled guilty to making a false statement on the form and was sentenced to payment of a $100 special assessment and probation. BICE also detained him and he entered removal proceedings.

In 2004, Samadov was detained again after the Uzbek government sent a notice of criminal charges8 along with an extradition request9 for him, Yusupov, and Zakirov.10

II. Removal Proceedings and Appeals to the BIA
A. Yusupov

Yusupov conceded that he was removable for violating the terms of his student visa, but applied for asylum, withholding of removal, and CAT relief. The IJ denied the asylum application as untimely. But he made a positive credibility determination, and concluded that Yusupov had established, on the basis of his support for Imam Nazarov, a clear probability of persecution sufficient for meeting the standard for withholding of removal.

The IJ also found that there were no reasonable grounds to believe that Yusupov was a danger to U.S. national security because he had engaged in no violent activities nor had he shown a propensity for doing so in several years of residence here, there was nothing to suggest that he espoused violence, the extradition request was likely a tool of persecution, and the cached web-files pertained to world events near his home region that were of general interest and have become generally available to the public in recent years. In re Yusupov, No. A 79-729-905, at 5-8 (IJ Dec. Nov. 19, 2004). Accordingly, the IJ granted Yusupov's application for withholding of removal.

DHS appealed to the BIA, which dismissed Yusupov's appeal from the denial of asylum and reversed the IJ's determination that there were no reasonable grounds to believe that Yusupov was a danger to our Nation's security, thus making him ineligible for withholding of removal.11 The Board emphasized that "the level of danger required under the statute need not be particularly high," and that DHS's evidence sufficed to meet this "relatively low burden of establishing `reasonable grounds,'" namely: (1) the Uzbek extradition request and an Interpol warrant with allegations that Yusupov conspired with others to use violence, (2) the FBI's discovery of cached video files of speeches by bin Laden and others as well as of bombings in Chechnya, (3) the "jihad" e-mail sent to Yusupov's roommate Zakirov, (4) the fact that Yusupov entered the United States on a student visa but never attended school, and (5) Yusupov's 2003 conviction for making a false statement on a federal form. In re Yusupov, No. A 79-729-905, at 2-3 (BIA Dec. Aug. 26, 2005). Nevertheless, the BIA agreed with the IJ's determination that Yusupov would face persecution and/or torture upon return to Uzbekistan, and thus granted the more limited remedy of deferral of removal under the CAT.12

B. Samadov

Samadov also conceded removability and applied for asylum, withholding of removal, and CAT relief. The IJ denied his application for asylum as untimely, but granted withholding of removal under the INA on the basis of the finding that Samadov's testimony was "extremely credible" that, if removed to Uzbekistan, he would face persecution on account of...

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