S-K

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                              In re S-K-, Respondent
                                 Decided June 8, 2006
                            U.S. Department of Justice
                     Executive Office for Immigration Review
                         Board of Immigration Appeals

(1) The statutory language of section 212(a)(3)(B) of the Immigration and Nationality Act,
  

(a)(3)(B) (West 2005), does not allow a “totality of the circumstances”
  test to be employed in determining whether an organization is engaged in terrorist activity,
  so factors such as an organization’s purposes or goals and the nature of the regime that the
  organization opposes may not be considered.

(2) Neither an alien’s intent in making a donation to a terrorist organization nor the
  intended use of the donation by the recipient is considered in assessing whether the alien
  provided “material support” to a terrorist organization under section 212(a)(3)(B)(iv)(VI)
  of the Act.

(3) The respondent’s contribution of S$1100 (Singapore dollars) over an 11-month period
  to the Chin National Front was sufficiently substantial to constitute material support to an
  organization, which despite its democratic goals and use of force only in self-defense, is
  defined by statute as a terrorist organization acting against the Government of Burma, so
  the respondent is barred from asylum and withholding of removal.
FOR RESPONDENT: Edward Neufville III, Esquire, Baltimore, Maryland

AMICI CURIAE:1 James Feroli, Esquire, Alexandria, Virginia; Thomas Hutchins, Esquire,
Alexandria, Virginia; Annigje J. Buwalda, Esquire, Fairfax, Virginia
FOR THE DEPARTMENT OF HOMELAND SECURITY: Stephen M. Ruhle, Assistant
Chief Counsel; David Landau, Chief Appellate Counsel

BEFORE: Board Panel: FILPPU and PAULEY, Board Members. Concurring Opinion:
OSUNA, Acting Vice Chairman.

PAULEY, Board Member:

  In a decision dated February 2, 2005, an Immigration Judge found the
respondent removable as charged and denied her applications for asylum,
withholding of removal, and protection under the Convention Against Torture
and Other Cruel, Inhuman or Degrading Treatment or Punishment, adopted
and opened for signature Dec. 10, 1984, G.A. Res. 39/46, 39 U.N. GAOR

1
  We acknowledge the very helpful briefs submitted by the parties and by amici curiae,
participating members of the Immigrant and Refugee Appellate Center and supporting
groups.

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Supp. No. 51, at 197, U.N. Doc. A/RES/39/708 (1984) (entered into force
June 26, 1987; for the United States Apr. 18, 1988) (“Convention Against
Torture”). The respondent appealed that decision and her request for oral
argument was granted pursuant to 

(e)(7) (2006). The
respondent’s appeal will be sustained in part and dismissed in part.

            I. FACTUAL AND PROCEDURAL HISTORY
  The respondent, a native and citizen of Burma, is a Christian and an ethnic
Chin. According to the respondent, she faces persecution and/or torture if
returned to Burma because the Government, currently a military dictatorship
ruled by the majority Burman ethnic group, regularly commits human rights
abuses against ethnic and religious minorities and, in fact, arrested and
detained both the respondent’s brother and fiancé, the latter ultimately being
killed by the military.
  In 2001, the respondent became acquainted with an undercover agent for the
Chin National Front (“CNF”) who was a friend of her deceased fiancé. She
became sympathetic to the CNF’s goal of securing freedom for ethnic Chin
people and donated money to the organization for approximately 11 months.
In addition, she attempted to donate some other goods, such as a camera and
binoculars, to the CNF, but they were confiscated after she had given them to
the undercover agent. The agent informed the respondent that she should flee
Burma because the Burmese military, known to torture anyone affiliated with
the CNF, had seen a letter written by the respondent to the CNF; the military
knew that the respondent was the person who had attempted to provide the
material goods. The respondent was actually residing in Singapore at the
time, but since her temporary work visa was about to expire and she could not
return to Burma, she fled to the United States in order to request asylum.
  Although the Immigration Judge found that the respondent had established
a well-founded fear of persecution in order to qualify for asylum, he denied
her application for relief because, by providing money and other support to the
CNF, an organization which uses land mines and engages in armed conflict
with the Burmese Government, the respondent provided material support to
an organization or group of individuals who she knew, or had reason to know,
uses firearms and explosives to endanger the safety of others or to cause
substantial property damage. Therefore, she was statutorily barred from
asylum and from withholding of removal under either section 241(b)(3) of the
Immigration and Nationality Act, 

(b)(3) (West 2005), or the
Convention Against Torture. See sections 208(b)(2)(A)(v), 212(a)(3)(B)(i)(I),
(iii)(V), (iv)(VI)(bb) of the Act, 

(b)(2)(A)(v),
1182(a)(3)(B)(i)(I), (iii)(V), (iv)(VI)(bb) (West 2005); see also
sections 237(a)(4)(B), 241(b)(3)(B)(iv) of the Act, 8 U.S.C.A.

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§§ 1227(a)(4)(B), 1231(b)(3)(B)(iv) (West 2005); 

(d)(2)
(2006). However, the Immigration Judge also found that because of the
speculative nature of the respondent’s information regarding what the
Burmese military knows about her, she had failed to meet her burden of
establishing a clear probability of persecution or torture and, for this
additional reason, he denied her applications for withholding of removal
under section 241(b)(3) of the Act, and for protection under the Convention
Against Torture.
  Both parties submitted briefs on appeal, and two amici curiae briefs were
filed on the respondent’s behalf. We granted the respondent’s request for oral
argument in order for the parties to address what we viewed as the major
questions arising in the case: (1) what standards or definition should be used
to assess whether the term “material support” should be defined narrowly or
more broadly; whether it should take into consideration the mens rea of the
provider, as proposed by the respondent; and whether it includes the type of
support provided by the respondent to the CNF;2 and (2) to what extent, in
light of our precedent, we should factor in an organization’s purpose and
goals in order to assess whether an organization, like the CNF, is engaged in
terrorist activity. In other words, we asked the parties to address whether the
use of justifiable force against an illegitimate regime and the right of people
to self-determination, which the respondent argues is the CNF’s purpose, is
a valid purpose, which would not fall within the definition of terrorist activity
under the Act. We will address these issues in reverse order.

                                    II. ANALYSIS
                              A. Terrorist Organization

  During oral argument and on appeal, the respondent argued that the
Burmese Government is not legitimate because the military junta rules the
country under martial law and crushes any attempts at democratic reform.
According to the respondent, the United States does not recognize the
Burmese Government’s legislative acts, and therefore the CNF’s actions are
not unlawful under Burmese law. Rather, she asserts, the organization’s
actions are similar to those of forces fighting the Taliban in Afghanistan or
forces rebelling against Saddam Hussein in Iraq, which are supported by the

2
  We also raised the question whether the terrorism bar for providing material assistance
includes mere attempts to provide assistance, since some of the provisions donated by the
respondent to the CNF had been confiscated prior to delivery. While an interesting
question, we find it unnecessary to decide that issue now, because the respondent clearly did
provide monetary assistance to the CNF.

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United States. Its goals are democracy and it uses force only in self-defense.
Moreover, the CNF is allied with the National League of Democracy, which
the United States has recognized as a legitimate representative of the Burmese
people and is recognized by the United Nations. Therefore, the respondent
contends that the Immigration Judge erred in concluding that the CNF is a
terrorist organization. See section 212(a)(3)(B)(iii) of the Act (requiring that
terrorist activity must be unlawful under the laws of the place where it is
committed or under the laws of the United States).3
  Whether the CNF’s actions are lawful in Burma is a question of foreign law
and is a factual issue on which the respondent bears the burden of proof,
inasmuch as the “evidence indicates” that the terrorism bar to asylum may
apply. See 

(d) (2006); see also Abdille v. Ashcroft, 

 (3d Cir. 2001); Matter of Annang, 

 (BIA 1973). In other
words, the Department of Homeland Security (“DHS”) satisfied its burden of
establishing that the evidence “indicated” that an asylum bar applied, and
under the regulation the burden of proof has shifted to the respondent to show
by a preponderance of the evidence that the bar is inapplicable.
  During oral argument, the respondent pointed to testimony from the
Assistant Secretary of State describing the Burmese military as a “group of
thugs,” as well as to the fact that the United States Government has passed the
Burmese Freedom and Democracy Act of 2003, 

Stat. 864, acknowledging that the National League of Democracy is the
legitimate representative of the Burmese people. In addition, in response to
a Department of State (“DOS”) request for information, the Resource
Information Center (“RIC”), a branch of the asylum division in the United
States Citizenship and Immigration Services of the DHS, indicated that it had
no information about whether the CNF had engaged in terrorist activities.

3
  Subsequent to oral argument, the respondent submitted a motion to supplement in which
she asserts that it is significant that Congress chose the term “unlawful” in section
212(a)(3)(B)(iii) of the Act, rather than the term “illegal.” Relying on the distinction
between the words “lawful,” which implies an ethical content, and “legal,” which denotes
compliance with technical rules, the respondent claims that actions of the CNF against the
Burmese Government should not be considered unlawful because they are merely outlawed
by the repressive regime, rather than inherently wrong. See Black’s Law Dictionary 885
(6th ed. 1990).
  However, the terms “unlawful” and “illegal” are both defined by Black’s Law Dictionary
as against, contrary to, or unauthorized by law. Id. at 747, 1536. Therefore, the fact that
Congress chose to use the term “illegal” in some parts of the Act, does not, in our view,
provide support for the respondent’s argument, inasmuch as there is no indication by
Congress that either term was meant to exclude morally repugnant laws. Consequently, we
are not convinced that Congress intended different meanings for the terms “unlawful” and
“illegal.”

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  As pointed out by the DHS during oral argument, the RIC did not
necessarily take into consideration the definition of terrorist activities in the
Act when drafting its response to the DOS’s request for information.
Furthermore, the respondent acknowledged, upon questioning, that the United
States does maintain a diplomatic relationship with the Burmese Government
and maintains an embassy there. Therefore, in some sense or degree, the
United States recognizes as legitimate the Burmese Government, which
appears to consider the activities of the CNF unlawful.
  Although the respondent urges us to determine that the Burmese
Government is illegitimate and argues that we have such authority, we are
unable to agree with the respondent’s argument. While there may have been
cases in which we determined that certain acts by foreign governments were
unlawful in terms of harming individuals who sought asylum here, we have
not gone so far as to determine that a foreign sovereignty would not be
recognized by the United States Government. Such a determination is beyond
our delegated authority and is a matter left to elected and other high-level
officials in this country.
  Furthermore, the respondent cites to past case law interpreting asylum
applicants’ claims and granting relief where aliens have attempted to
overthrow governments that do not allow citizens to change the political
structure and therefore exercise illegitimate power when prosecuting such
individuals. In other words, she asserts that the motivation of the group
seeking to effect change in a country must be analyzed in order to determine
whether the harm produced is persecution or, as claimed in this case, terrorist
activity. See Matter of Izatula, 

 (BIA 1990) (holding, in a
case involving an alien who actively assisted the mujahedin in Afghanistan,
that the general rule that prosecution for an attempt to overthrow a lawfully
constituted government does not constitute persecution is inapplicable in
countries where a coup is the only means of effectuating political change);
Matter of Rodriguez-Majano, 

 (BIA 1988) (holding that an
alien who had involuntarily helped the guerrillas in El Salvador was not
barred from asylum for having participated in the persecution of others,
because harm that may result incidentally from behavior aimed at another
goal, e.g., the overthrow of a government or the defense of a government
against an opponent, particularly in the context of civil war, is not directed at
overcoming a belief or characteristic of those persecuted). During oral
argument, counsel for the respondent acknowledged that by utilizing such
factors to determine whether an organization falls within section 212(a)(3) of
the Act, he was advocating that we apply a “totality of the circumstances” test.
  We are unable to find any support for the respondent’s assertion that such
a test should be utilized. Our past case law is not inconsistent with some of
the respondent’s arguments. However, that case law does not address the bar

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to relief in section 212(a)(3)(B)(i)(I) of the Act. In this case, we are dealing
with specific statutory language, which we read as applying to the respondent.
See Singh-Kaur v. Ashcroft, 

 (3d Cir. 2004).
  As noted by the DHS during oral argument, the fact that Congress included
exceptions elsewhere in the Act for serious nonpolitical offenses and aliens
who have persecuted others, even where persecuted themselves, and that it has
not done so in section 212(a)(3)(B), indicates that the omission of an
exception for justifiable force was intentional. In fact, having reviewed the
statutory sections, we find that Congress intentionally drafted the terrorist bars
to relief very broadly, to include even those people described as “freedom
fighters,” and it did not intend to give us discretion to create exceptions for
members of organizations to which our Government might be sympathetic.
Rather, Congress attempted to balance the harsh provisions set forth in the Act
with a waiver, but it only granted the power to make exemptions to the
Attorney General and the Secretaries of State and Homeland Security, who
have not delegated such power to the Immigration Judges or the Board of
Immigration Appeals.4 See REAL ID Act of 2005, Div. B of 

 103(b), 104, 

, 302, 307-09 (“REAL ID Act”)
(eliminating with immediate effect the waiver provision formerly found at
section 212(a)(3)(b)(iv) of the Act and creating a new, revised waiver at
section 212(d)(3)).
  In sum, we find no error in the Immigration Judge’s conclusion that the CNF
is a terrorist organization within the definition of the Act. Contrary to the
respondent’s assertions on appeal and during oral argument, there is no
exception in the Act to the bar to relief in cases involving the use of justifiable
force to repel attacks by forces of an illegitimate regime. As noted by the
Immigration Judge, there was sufficient evidence in the record to conclude
that the CNF uses firearms and/or explosives to engage in combat with the
Burmese military, and the respondent has not provided evidence that would
rebut this conclusion or lead us to interpret the Act differently. Moreover, the
record shows that the respondent knew or should have known of the CNF’s




4
  While we need not decide the issue, we do tend to agree with the DHS’s assertion during
oral argument that the new waiver provisions apply to this case. Furthermore, although this
provision lacks an express effective date, we believe it unlikely that Congress intended to
create a gap in which there would be no waiver available for asylum cases pending prior to
the effective date of the REAL ID Act.

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use of arms.5 Thus, assuming the respondent provided material support to the
CNF, her sole remedy to extricate herself from the statutory bar appears to lie
in the waiver afforded by Congress for this purpose, for which the DHS stated
at oral argument she is eligible to apply.6 However, the Immigration Judges
and the Board have no role in the adjudication of such a waiver.

                        B. Materiality of Support Provided

  The respondent also argues that the type and amount of support which she
provided to the CNF was not material. She asserts that the Immigration Judge
failed to take into consideration whether the funds and goods she provided
were relevant to the planning or implementation of a terrorist act, as allegedly
required by the United States Court of Appeals for the Third Circuit in Singh-Kaur v. Ashcroft, supra, at 13-16. Since no evidence was submitted to
support a conclusion that the respondent’s contributions were relevant to a
specific terrorist goal, the respondent asserts that finding that her contributions
were material goes against congressional intent to tie materiality to terrorist
activity. In support of her argument, the respondent has attached an advisory
opinion from the United Nations High Commissioner for Refugees
(“UNHCR”) to her counsel, which indicates that materiality must be assessed
in conjunction with the alien’s claim of persecution and the question whether
or not the alien presents a present or future danger to the security of the United
States.7 Advisory opinion of Kolude Doherty, Regional Representative,


5
   Indeed, section 212(a)(3)(b)(iv)(VI)(dd) of the Act provides that it is the respondent’s
burden to demonstrate a lack of such knowledge or a reasonable failure to know by “clear
and convincing evidence.” See REAL ID Act, § 103(b), 119 Stat. at 307. This provision
is applicable to the instant proceedings. Id. § 103(d), 119 Stat. at 308-09.
6
  The concurring opinion, while agreeing with our construction of the Act, finds the result
lamentable. We note that the ultimate outcome of the respondent’s case is still
undetermined in light of her ability to apply for a waiver. See infra note 14. In any event,
we regard our responsibility as confined to the application and interpretation of the statutes
we administer, and we will not opine as to the wisdom of the scheme Congress has enacted.
7
  Implicit in the UNHCR’s advisory opinion is the assertion that our holding, which would
(apart from the possibility of a waiver) bar asylum to this alien and possibly future aliens
who have been or will be persecuted, conflicts with international law, which must be
interpreted alongside and consistently, where possible, with our domestic laws. It is also
well established that Congress may enact statutes that conflict with international law. See,
e.g., Guaylupa-Moya v. Gonzales, 

, 133-34 (2d Cir. 2005); United States v.
Yousef, 

 (2d Cir. 2003). However, we are not convinced that it was the
intent of Congress to do so here. While it is clear that our government leaders have taken

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United Nations High Commissioner for Refugees, to Edward Neufville III,
Esq. (June 15, 2005).
  Section 212(a)(3)(B)(iv)(VI) of the Act states that “material support”
includes “a safe house, transportation, communication, funds, transfer of
funds or other material financial benefit, false documentation or identification,
weapons (including chemical, biological, or radiological weapons),
explosives, or training.” The UNHCR advisory opinion correctly asserts that
the term “material support” is not completely defined and that while the list
of examples following the term provides some clarification regarding its
scope, its meaning remains somewhat ambiguous. The advisory opinion goes
on to state that when assessing the scope of the term, one must look at the
regularity and amount of funds or goods/services provided and determine
whether they are sufficiently serious to warrant exclusion. It concludes that
denial of relief is only warranted where the alien constitutes a present or future
danger to the security of the United States.
  We are unaware of any legislative history which indicates a limitation on the
definition of the term “material support.” Nor do we understand the decision
in Singh-Kaur v . Ashcroft, supra, to require a showing of an intent on the part
of a provider of material support to further a particular admission-barring or
asylum-barring goal of a terrorist organization.8 Rather, the statute is clearly
drafted in this respect to require only that the provider afford material support
to a terrorist organization, with the sole exception being a showing by clear
and convincing evidence that the actor did not know, and should not


a strict approach to dealing with suspected terrorists and have attempted to make it more
difficult for those involved in terrorism to gain relief of any kind, they also have expressly
provided a waiver that may be exercised in cases where the result reached under the terrorist
bars to relief would not be consistent with our international treaty obligations or where, as
a matter of discretion, the Secretary of State or the Secretary of Homeland Security
determines that the facts of a specific case warrant such relief. See REAL ID Act § 104, 119
Stat. at 309 (setting forth the waiver provision to be found at section 212(d)(3)(B) of the
Act). Accordingly, while the Immigration Judges and the Board do not have the authority
to grant the respondent or similarly situated aliens a discretionary waiver, other officials,
including the Secretary of State, prior to the instigation of removal proceedings, or the
Secretary of Homeland Security, at any time upon consultation with other agency officials,
have been granted this power. We find no reason to assume they will not act consistently
with our international treaty obligations in exercising their power to grant such a waiver.
8
  Singh-Kaur v. Ashcroft, supra, did not decide this question, as the case concerned the
provision of material support to any individual who the actor knows, or reasonably should
know, has committed or plans to commit a terrorist activity. Indeed, it was the dissenting
judge who predicated his separate opinion on a ground similar to the respondent’s assertion
here. Singh-Kaur v. Ashcroft, supra, at 301 (Fisher, J., dissenting).

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reasonably have known, that the organization was of that character. Section
212(a)(3)(B)(iv)(VI)(dd) of the Act. We thus reject the respondent’s assertion
that there must be a link between the provision of material support to a
terrorist organization and the intended use by that recipient organization of the
assistance to further a terrorist activity. Especially where assistance as
fungible as money is concerned, such a link would not be in keeping with the
purpose of the material support provision, as it would enable a terrorist
organization to solicit funds for an ostensibly benign purpose, and then
transfer other equivalent funds in its possession to promote its terrorist
activities.
  We turn then to the respondent’s claim that the statute’s requirement of
material support means that trivial or unsubstantial amounts of assistance,
such as she allegedly provided, are not within the statutory bar.9 In Singh-Kaur v. Ashcroft, supra, the Third Circuit found that the provision of very
modest amounts of food and shelter to individuals who the alien reasonably
should have known had committed or planned to commit terrorist activity did
constitute material support.10 The court also found that the listed examples in
section 212(a)(3)(B)(iv)(VI) of the Act were not exhaustive but were
“intended to illustrate a broad concept rather than narrowly circumscribe a
term with exclusive categories.” Id. at 298.
  In addition, the court rejected the alien’s arguments that because a similar
statute criminalizing such support to terrorists included a longer list of
examples, including lodging, congressional intent was to limit the types of
support that would qualify to those listed. Singh-Kaur v. Ashcroft, supra, at
298-99. The court noted that the two statutes were enacted at different times
by different Congresses and that “it would be incongruous to conclude that a
person who provides food and sets up tents for terrorists could be jailed for up
to life under 18 U.S.C. section 2339A, but the same conduct could not
prohibit admission to the United States under INA section 212.” Id. at 299.



9
  A common dictionary definition of the word “material” includes such terms as substantial,
noticeable, of importance, and relevant. See, e.g., Webster’s II New College Dictionary 675
(1995).
10
   While Singh-Kaur v. Ashcroft, supra, is not controlling because this case falls within the
jurisdiction of the Fifth Circuit, which apparently has not yet issued a precedent decision
on this subject, we do find it highly persuasive. We disagree with the respondent’s
contention that Singh-Kaur is distinguishable from this case because the organization at
issue in that case was a designated terrorist organization. The Act does not make a
distinction between designated terrorist organizations and those which are found to be
terrorist organizations under section 212(a)(3)(B)(vi)(III) of the Act.

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  As the DHS contends, it is certainly plausible, in light of the decision in
Singh-Kaur v. Ashcroft, supra, and recent amendments to the Act,11 that the
list in section 212(a)(3)(B) was intended to have an expanded reach and cover
virtually all forms of assistance, even small monetary contributions.12
Congress has not expressly indicated its intent to provide an exception for
contributions which are de minimis. Thus the DHS asserts that the term
“material support” is effectively a term of art and that all the listed types of
assistance are covered, irrespective of any showing that they are independently
“material.”
  On the other hand, the respondent’s contrary argument that “material”
should be given independent content is by no means frivolous. However, we
find it unnecessary to resolve this issue now, inasmuch as we agree with the
DHS that based on the amount of money the respondent provided, her
donations of S$1100 (Singapore dollars) constituted material support.13
Specifically, the respondent testified that she contributed approximately
S$100 per month over an 11-month period, representing approximately oneeighth of her monthly income. This was sufficiently substantial by itself to
have some effect on the ability of the CNF to accomplish its goals, whether


11
   The definition of “material support” was amended recently in 2001 in order to add the
term “transfer of funds or other material financial benefit.” See Uniting and Strengthening
America by Providing Appropriate Tools Required to Intercept and Obstruct Terrorism
(USA PATRIOT ACT) Act of 2001, 

, 

, 345-47
(emphasis added) (codified at section 212(a)(3)(B)(iv)(VI) of the Act). Last year Congress
again amended the immigration laws to provide for greater restrictions on asylum applicants,
particularly terrorists who seek to abuse the asylum process. See REAL ID Act § 103(b),
119 Stat. at 306-07.
12
    As noted by the Seventh Circuit in a decision construing civil liability for providing
material support to a terrorist organization, “Congress’ goal of cutting off funding for
terrorism would be seriously compromised if terrorist organizations could avoid liability by
simply pooling together small donations to fund a terrorist act.” Boim v. Quranic Literary
Inst., 

, 1015 (7th Cir. 2002). As stated elsewhere in this opinion, we need not
resolve this issue today; however, we point out that the Seventh Circuit was not addressing
whether very small monetary contributions barred asylum to an alien with a well-founded
fear of persecution.
13
    We take administrative notice that this corresponded at the time to approximately
US$685. See Rivera-Cruz v. INS, 

 (5th Cir. 1991) (noting that we may take
administrative notice of commonly acknowledged facts); see also, e.g.,
www.cnnmoney.com; www.ratesfx.com. By contrast, the average annual per capita income
in Burma was approximately US$225. See Bureau of East Asian and Pacific Affairs, U.S.
Dep’t of State, Background Note: Burma (Aug. 2005), available at
www.state.gov/r/pa/ei/bgn/35910.htm.

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in the form of purchasing weaponry or providing routine supplies to its forces,
for example. We therefore agree with the Immigration Judge that the
respondent provided material support to the CNF.

                               III. CONCLUSION

  Based on the foregoing, we agree with the Immigration Judge’s decision that
the respondent is statutorily ineligible for asylum and withholding of removal
for having provided material support to a terrorist organization. The
respondent’s appeal will therefore be dismissed in part regarding her
applications for that relief. However, during oral argument, the DHS
conceded that the respondent is eligible for deferral of removal under the
Convention Against Torture.14 We agree and will therefore sustain the
respondent’s appeal and vacate the Immigration Judge’s decision in that
regard. The record will be remanded for the appropriate background checks
to be updated.
  ORDER: The respondent’s appeal from the Immigration Judge’s decision
denying her applications for asylum and withholding of removal is dismissed.
  FURTHER ORDER: The respondent’s appeal from the Immigration
Judge’s decision denying her application for deferral of removal under the
Convention Against Torture is sustained and the decision of the Immigration
Judge is vacated in part.
  FURTHER ORDER: Pursuant to 

(d)(6), the record is
remanded to the Immigration Judge for the purpose of allowing the
Department of Homeland Security the opportunity to complete or update
identity, law enforcement, or security investigations or examinations, for
further proceedings, if necessary, and for the entry of an order as provided by

(h). See Background and Security Investigations in
Proceedings Before Immigration Judges and the Board of Immigration
Appeals, 

, 4752-54 (Jan. 31, 2005).


CONCURRING OPINION: Juan P. Osuna, Acting Vice Chairman

  I join the majority’s decision. I agree with the majority that the Immigration
Judge properly denied the respondent’s applications for asylum and
withholding of removal, as this result is compelled by the specific language


14
    We note that the DHS also indicated that once granted deferral of removal under the
Convention Against Torture, the respondent may be eligible for a section 212(d)(3) waiver
to the material support bar.

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of the statute. I write separately because I have considerable doubts that this
result is what Congress had in mind when it enacted the “material support” bar
to asylum.
   We are finding that a Christian member of the ethnic Chin minority in
Burma, who clearly has a well-founded fear of being persecuted by one of the
more repressive governments in the world, one that the United States
Government views as illegitimate, is ineligible to avail herself of asylum in the
United States despite posing no threat to the security of this country. It may
be, as the majority states, that Congress intended the material support bar to
apply very broadly. However, when the bar is applied to cases such as this,
it is difficult to conclude that this is what Congress intended.
   Unfortunately, there is virtually no legislative history that accompanies the
material support bar. We therefore have nothing to examine to determine
congressional intent, beyond the statutory language itself. And that language
mandates that we bar this respondent from asylum.
   The respondent clearly faces persecution in her home country. The
Immigration Judge found her credible. He also found that the respondent has
a well-founded fear of persecution due to her imputed political opinion. The
Immigration Judge denied asylum, however, after finding that the respondent
was barred from establishing eligibility because she is inadmissible under
section 212(a)(3)(B)(i)(I) of the Immigration and Nationality Act, 

(a)(3)(B)(i)(I) (West 2005), for having “engaged in a terrorist activity.”
Under the Act, to “engage in terrorist activity” includes committing an act the
actor knows, or reasonably should know, affords “material support” to, among
others, a designated terrorist organization or to “a group of two or more
individuals, whether organized or not,” which engages in any of a number of
activities, including the use of an “explosive, firearm, or other weapon or
dangerous device . . . with intent to endanger, directly or indirectly, the safety
of one or more individuals or to cause substantial damage to property.”
Sections 212(a)(3)(B)(iii)(V), (iv)(VI), (vi)(III) of the Act. The organization
that the respondent provided support to, the Chin National Front (“CNF”), has
an armed wing that is resisting the Government of Burma. The CNF is allied
with the National League of Democracy, which is recognized by the United
States as a legitimate representative of the Burmese people.
   In enacting the material support bar, Congress was rightly concerned with
preventing terrorists and their supporters from exploiting this country’s
asylum laws. It is unclear, however, how barring this respondent from asylum
furthers those goals. The respondent provided funds and some equipment to
a member of the CNF, an organization that has not been designated by the
Department of State as a terrorist organization under section 212(a)(3)(B)(vi)
of the Act. The available information in the record indicates that the CNF
engages in violence primarily as a means of self-defense against the Burmese

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Government, a known human rights abuser that has engaged in systematic
persecution of Burmese ethnic minorities, including the Chin Christians. By
reference to common definitions of the term “terrorism” and “terrorist,” it is
doubtful that the CNF would be considered a terrorist organization. See

(c) (2000) (defining terrorist acts as those intended to
intimidate a civilian population, to influence the policy of a government by
intimidation or coercion, or to affect the policy of a government by
assassination or kidnapping). Indeed, the Resource Information Center of the
Department of Homeland Security (“DHS”) reported in February 2004 that
there is no information that the CNF has been involved in terrorist activities
or in abuses against civilians on any large or systematic scale. CIS
Resource Information Center, U.S. Citizenship and Immigration
Services, Burma (Myanmar): Information on the Chin National
Front/Chin National Army (Feb. 26, 2004), available at http://
www.uscis.gov/graphics/services/asylum/ric/documentation/mmr04001.htm.
  The CNF, however, is a group that has resorted to violence in self-defense,
including the use of explosives. The Immigration Judge was thus correct to
find that the assistance that the respondent provided to the CNF constituted
material support to any individual who the respondent knew, or should have
known, “has committed or plans to commit a terrorist activity.” Section
212(a)(3)(B)(iv)(VI)(bb) of the Act. The fact that this language goes beyond
common notions of “terrorism” is immaterial in the context of this case.
  Yet, the statutory language is breathtaking in its scope. Any group that has
used a weapon for any purpose other than for personal monetary gain can,
under this statute, be labeled a terrorist organization. This includes
organizations that the United States Government has not thought of as terrorist
organizations because their activities coincide with our foreign policy
objectives. For example, the DHS conceded at oral argument that an
individual who assisted the Northern Alliance in Afghanistan against the
Taliban in the 1990s would be considered to have provided “material
assistance” to a terrorist organization under this statute and thus would be
barred from asylum. This despite the fact that the Northern Alliance was an
organization supported by the United States in its struggle against a regime
that the United States and the vast majority of governments around the world
viewed as illegitimate.
  It also includes groups and organizations that are not normally thought of as
“terrorists” per se. Read literally, the definition includes, for example, a group
of individuals discharging a weapon in an abandoned house, thus causing
“substantial damage to property.” Section 212(a)(3)(B)(iii)(V) of the Act.
This may constitute inappropriate or even criminal behavior, but it is not what
we normally think of as “terrorist” activity. See McAllister v. Attorney
General, 

 (3d Cir. 2006) (stating that the definition of terrorist

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activity in section 212(a)(3)(B) of the Act encompasses more conduct than our
society, and perhaps even Congress, has come to associate with traditional acts
of terrorism); see also id. at 191 (Barry, J., concurring) (noting that the
definition of terrorist activity “sweeps in not only the big guy, but also the
little guy who poses no risk to anyone”).15
  The broad reach of the material support bar becomes even starker when
viewed in light of the nature of the Burmese regime, and how it is regarded by
the United States Government. In 2003, Congress passed the Burmese
Freedom and Democracy Act of 2003, 

 Stat. 864,
which, among other things, imposes sanctions on the Burmese Government
as a result of its deplorable human rights record. The Secretary of State has
designated Burma as one of a handful of “countries of particular concern” in
light of this record, including its treatment of ethnic and religious minorities.
Bureau of Democracy, Human Rights and Labor, U.S. Dep’t of State,
Burma - International Religious Freedom Report 2003 (Dec. 18, 2003)
available at http://www.state.gov/g/drl/rls/irf/2003/23823.htm. In particular,
the Burmese Government has engaged in arrests of Christian clergy,
destruction of churches, prohibition of religious services and proselytizing by
Christians, and forced conversions of Christians. 

 These efforts are part
of a larger effort to “Burmanize” the Chin ethnic minority. See Bureau of
Democracy, Human Rights and Labor, U.S. Dep’t of State, Country Reports
for Human Rights Practices - 2005 (Mar. 2006), available at
http://www.state.gov/g/drl/rls/hrrpt/2005/61603.htm (noting that the Burmese
Government’s “human rights record worsened during the year, and the
government continued to commit numerous serious abuses”); President
George W. Bush, State of the Union Address (Jan. 31, 2006) (listing Burma,
along with Syria, Zimbabwe, North Korea and Iran, as countries that deny
freedom and democracy to their citizens).
  The United States Commission on International Religious Freedom notes
that “[s]erious human rights abuses perpetuated by Burma’s military regime


15
   Amici suggest that the material support definition could include members of organized
armed forces, even those of the United States. For example, as the Jubilee Campaign and
Christian Legal Society note in their amicus brief, the Iraqi national who provided
information to United States Marines that led to the rescue of Private Jessica Lynch in 2003
could also be deemed to have provided “material support” under section
212(a)(3)(B)(iv)(VI) of the Act. It is unclear whether that specific example would be
deemed to fall under the scope of the material support bar, in light of the requirement under
the statute that the act must be unlawful under the laws of the place where it is committed,
or under the laws of the United States. However, amici raise a valid point about the broad
scope of the material support bar, which, in certain instances, could potentially bar from
relief those who provide assistance to United States or allied armed forces.

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continue to be widespread, including systematic and egregious violations of
religious freedom.” Annual Report of the United States Commission on
International Religious Freedom 103 (May 2006), available at http://
www.uscirf.org/countries/publications/currentreport/2006annualRpt.pdf#p
age=1.16 The Commission adds that members of religious groups, including
Chin Christians, continue to face “serious abuses of religious freedom and
other human rights” by the Burmese military, including forced conscription,
destruction of churches, restrictions on construction of churches, forced
conversions and other abuses. Id. at 103-05.
  In sum, what we have in this case is an individual who provided a relatively
small amount of support to an organization that opposes one of the most
repressive governments in the world, a government that is not recognized by
the United States as legitimate and that has engaged in a brutal campaign
against ethnic minorities. It is clear that the respondent poses no danger
whatsoever to the national security of the United States. Indeed, by
supporting the CNF in its resistance to the Burmese junta, it is arguable that
the respondent actually acted in a manner consistent with United States
foreign policy. And yet we cannot ignore the clear language that Congress
chose in the material support provisions; the statute that we are required to
apply mandates that we find the respondent ineligible for asylum for having
provided material support to a terrorist organization.
  Accordingly, I concur in the majority’s result. I note, however, that the law
provides for a limited waiver of the material support bar to be exercised by the
DHS in appropriate cases. Section 212(d)(3) of the Act. I suggest that the
DHS may wish to consider this respondent as someone to whom the grant of
such a waiver is appropriate.




16
  We are permitted to take administrative notice of the contents of official documents.

(d)(3)(iv) (2006).

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