M-H-Z

Cite as 

 (BIA 2016)                                Interim Decision #3864




                       Matter of M-H-Z-, Respondent
                                Decided June 9, 2016

                           U.S. Department of Justice
                    Executive Office for Immigration Review
                        Board of Immigration Appeals


  The “material support bar” in section 212(a)(3)(B)(iv)(VI) of the Immigration and
Nationality Act, 

(a)(3)(B)(iv)(VI) (2012), does not include an implied
exception for an alien who has provided material support to a terrorist organization under
duress.
FOR RESPONDENT: Anne Pilsbury, Esquire, Brooklyn, New York
FOR THE DEPARTMENT OF HOMELAND SECURITY:                          Anne Gannon, Senior
Attorney
BEFORE: Board Panel: GUENDELSBERGER and MALPHRUS, Board Members;
GELLER, Temporary Board Member.
GELLER, Temporary Board Member:


    This case was last before us on May 24, 2010, when we dismissed the
respondent’s appeal from an Immigration Judge’s July 28, 2006, decision.
We agreed with the Immigration Judge that the respondent was barred from
seeking relief from removal based on her claim of past persecution because
she had committed an act that she knew or reasonably should have known
afforded material support to a terrorist organization. On September 8,
2014, the United States Court of Appeals for the Second Circuit remanded
the case for us to determine whether the statutory bar contains an implied
exception for material support that was supplied under duress. Hernandez
v. Holder, 

 (2d Cir. 2014). Both parties have filed briefs in
response to the Second Circuit’s remand order. Upon consideration of this
question, we conclude that there is no duress exception to the “material
support bar.” The respondent’s appeal will again be dismissed.

               I. FACTUAL AND PROCEDURAL HISTORY
   The respondent is a native and citizen of Colombia who entered the
United States in 2001 as a nonimmigrant visitor and subsequently sought
asylum. The basic facts of her case are not in dispute. The respondent
bases her claim for relief on her fear of the Revolutionary Armed Forces of

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Colombia (“FARC”) in Colombia. She was a successful businesswoman
who owned a hotel and a store in the town of El Bordo. In the early 1990’s
she began receiving notes and messages from the FARC demanding goods
and money. After the FARC made a number of threats, the respondent
acceded to the demands and began to provide merchandise from her store.
Every 3 months from 1997 to early 1999, she supplied foodstuffs and other
products that the FARC requested. She also housed government officials at
her hotel, which she believes resulted in more serious threats being made in
1999. On March 7, 2000, the FARC attacked El Bordo, and her store and
hotel were destroyed.
    The respondent was admitted to the United States on June 22, 2001, and
applied for asylum in 2002. On August 22, 2002, the Department of
Homeland Security (“DHS”) issued a notice to appear, charging the
respondent with removability as an overstayed nonimmigrant.
    At a hearing before the Immigration Judge, the respondent conceded
removability and applied for asylum and withholding of removal under
sections 208(a)(1) and 241(b)(3)(A) of the Immigration and Nationality
Act, 

(a)(1) and 1231(b)(3)(A) (2000). She also applied
for withholding of removal and deferral of removal 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 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 Immigration Judge denied her
applications for asylum and for withholding of removal under the Act and
the Convention Against Torture, finding that the respondent was barred
from relief because she had committed an act that she knew or reasonably
should have known afforded material support to a terrorist organization.
The Immigration Judge also determined that the respondent had not
established eligibility for deferral of removal under the Convention Against
Torture pursuant to 

 (2006).
    On appeal, we agreed with the Immigration Judge that the respondent
was subject to the mandatory material support bars to asylum and
withholding of removal in sections 208(b)(2)(A)(v) and 241(b)(3)(B)(iv) of
the Act and to withholding of removal under the Convention Against
Torture pursuant to 

(d)(2) (2010). We also agreed with
the Immigration Judge that the respondent had not established eligibility for
deferral of removal under the Convention Against Torture. However, we
remanded the record for the Immigration Judge to make an explicit
determination whether, in the absence of the material support bar, the
respondent would otherwise be eligible for relief, which would allow her to
request a discretionary waiver of the material support bar from the DHS.

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    In a decision dated December 13, 2010, the Immigration Judge held
that, but for the material support bar, the respondent would be eligible for
asylum based on her past persecution by the FARC. 1 The respondent filed
a petition for review with the Second Circuit, which issued a summary
order granting the respondent’s petition in part and denying it in part. In
particular, the court agreed that the support the respondent provided to the
FARC was “material” because it aided the terrorist organization in its fight
against the Colombian Government and that this support was not de
minimis. Therefore the question whether the respondent provided material
support to a terrorist organization is no longer at issue. However, the
Second Circuit has remanded for us to determine whether the statute
contains an implied exception to the material support bar for aliens whose
support was supplied under duress.

                                     II. ISSUE
    The question before us is whether the “material support bar” in section
212(a)(3)(B)(iv)(VI) of the Act, 

(a)(3)(B)(iv)(VI) (2012),
includes an implied exception for an alien who has provided material
support to a terrorist organization under duress.

                                 III. ANALYSIS
    The respondent has not challenged the Immigration Judge’s factual
findings regarding the circumstances surrounding her support to the FARC,
but she argues that she was not accountable for her actions because she was
under duress, namely the threat of death. She therefore asserts that she
should be exempt from the provisions of the “material support bar.” We
disagree.
    Section 212(a)(3)(B)(iv)(VI) of the Act defines the term “engage in
terrorist activity” to include a person who

      commit[s] 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 for a terrorist activity.]

(Emphasis added.) An alien who has engaged in terrorist activity is
inadmissible under section 212(a)(3)(B)(i)(I) of the Act and is barred from

1
    The DHS has not appealed that determination by the Immigration Judge.


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establishing eligibility for asylum and for withholding of removal under
the Act and the Convention Against Torture. Sections 208(b)(2)(A)(v),
241(b)(3)(B)(iv) of the Act; 

(d)(2); see also Matter of
S-K-, 

 (A.G. 2007; BIA 2006). Thus, under these
provisions, any alien who has provided material support to a terrorist
organization is subject to the “material support bar.” Ay v. Holder, 

 (2d Cir. 2014). However, a question remains whether the bar
includes an exception for aliens whose support was provided under duress.
    The Federal circuit courts that have addressed this issue in a precedent
decision have all held that the material support bar does not include an
implied exception for aliens who provided material support to a terrorist
organization under duress. See Sesay v. Att’y Gen. of U.S., 

 (3d Cir. 2015) (holding that “the material support bar does not
distinguish between voluntary and involuntary support”); Annachamy
v. Holder, 

 (9th Cir. 2013) (stating that “the material
support bar does not include an implied exception for individuals . . . who
provide support under duress”), overruled on other grounds by Abdisalan
v. Holder, 

 (9th Cir. 2014); Alturo v. U.S. Att’y Gen.,

 (11th Cir. 2013) (finding that because the material
support bar contains no express duress exception, the Board reasonably
declined to recognize one, and noting that “every circuit that has addressed
the issue has concluded that there is no implied exception to the material
support bar for support given involuntarily or under duress”); Barahona
v. Holder, 

 (4th Cir. 2012) (“Put simply, the terms of the
Material Support Bar encompass both voluntary and involuntary support
and, like those of the Crewman Bar, fail to provide for the [duress]
exception under which Barahona seeks relief.”). However, the Second
Circuit has remanded for us to decide the question “in the first instance in
light of [our] own expertise.” Ay, 

 (quoting Negusie
v. Holder, 

 (2009)).
    As the Second Circuit observed in Ay, the Supreme Court addressed the
question whether the “persecutor bar” contains a duress exception in
Negusie, 

, and determined that statutory silence with respect
to duress is not conclusive of the issue. 2 According to the Second Circuit,
“Like the provision addressed in Negusie, the plain language of the material


2
   In Negusie, the Supreme Court considered whether the “persecutor bar” in sections
208(b)(2)(A)(i) and 241(b)(3)(B)(i) of the Act prohibits a grant of asylum or withholding
of removal to a refugee who was compelled against his will by credible threats of death
or torture to assist or participate in acts of persecution. Whether a duress exception
applies to the persecutor bar is distinct from the issue we address in this case.


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support bar is inconclusive as to whether a duress exception is implicit in
its terms; the statute is silent on the question.” Ay, 

.
     Because the statute is unclear in this respect, we look to “the language
and design of the statute as a whole” to determine its legislative purpose.
K Mart Corp. v. Cartier, Inc., 

 (1988). In this regard, we
note that the statute renders inadmissible any alien “who is or has been a
member of or affiliated with the Communist or any other totalitarian party,”
but Congress created an explicit exception for an alien who establishes
that “the membership or affiliation is or was involuntary.” Section
212(a)(3)(D)(i)−(ii) of the Act. It is a well-known canon of statutory
construction that “[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.” INS v. Cardoza-Fonseca, 

 (1987) (quoting Russello v. United States, 

 (1983)). If
Congress intended to make involuntariness or duress an exception for aliens
who provided material support to a terrorist organization, it would
reasonably be expected to have enacted a provision similar to that in section
212(a)(3)(D)(ii) of the Act. See Sesay, 787 F.3d at 222−23; Annachamy,

; Alturo, 

. 3
     The assertion that a duress defense should be read into the material
support bar in section 212(a)(3)(B)(iv)(VI) of the Act is also undermined
by the fact that Congress has created a waiver for deserving aliens to avoid
the consequences of the bar. 4 Specifically, the waiver provision at section
212(d)(3)(B)(i) of the Act provides in pertinent part:

3
   The courts have also noted that Congress’s explicit exception to the material support
provision in section 212(a)(3)(B)(iv)(VI)(dd) of the Act for aliens who demonstrate a
lack of knowledge that the organization was a terrorist organization “is some indication
that it would have likewise expressly excepted involuntary support if it intended to do
so.” Annachamy, 

; see also Sesay, 

.
4
   Although the waiver provision was enacted well after the material support bar, it is
evidence of earlier congressional intent. Annachamy, 

 n.8. The waiver’s
significance is reflected in Congress’s subsequent addition of annual reporting
requirements with respect to the number of duress waivers sought and the factors to be
considered when evaluating them. See 

. Moreover, Congress demonstrated its
ability to distinguish between voluntary and involuntary conduct by adding a provision
preventing aliens who voluntarily supported or received training from certain terrorist
organizations from obtaining a waiver. See 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.”).


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        The Secretary of State, after consultation with the Attorney General and the
    Secretary of Homeland Security, or the Secretary of Homeland Security, after
    consultation with the Secretary of State and the Attorney General, may determine in
    such Secretary’s sole unreviewable discretion that [section 212(a)(3)(B) of the Act]
    shall not apply with respect to an alien within the scope of that subsection [subject to
    various specified exceptions]. 5

    We previously addressed this waiver in Matter of S-K-, 

 (BIA 2006), where we held that there is no exception to the
material support bar for the use of justifiable force against an illegitimate
regime. We stated there that the inclusion of the waiver was a means of
balancing the harsh provisions of the material support bar and an indication
that Congress’s omission of ameliorative provisions in section 212(a)(3)(B)
of the Act was intentional.
    Congress’s enactment of the waiver similarly indicates that the omission
of any duress exception was intentional. Thus, as we noted in Matter of
S-K-, the only remedy for an alien who has provided material support to a
terrorist organization “appears to lie in the waiver afforded by Congress for
this purpose.” 

. Congress’s decision to provide a waiver, but to
allow no exception for involuntariness or duress, should therefore be given


5
    The Immigration Judges and the Board do not have the authority to adjudicate this
discretionary waiver, which was accorded to the Secretary of State to exercise prior to the
initiation of removal proceedings and to the Secretary of Homeland Security to exercise
at any time, but only upon consultation with the Attorney General. The United States
Citizenship and Immigration Services (“USCIS”) issued a fact sheet describing the
process by which the Secretary of Homeland Security exercises the authority to grant a
waiver. See USCIS Fact Sheet, “Department of Homeland Security Implements
Exemption Authority for Certain Terrorist-Related Inadmissibility Grounds for Cases
with Administratively Final Orders of Removal” (Oct. 23, 2008), https://www.uscis.gov
/sites/default/files/USCIS/News/Pre-2010%20-%20Archives/2008%20Press%20Releases
/Oct%2008/DHS_implements_exempt_auth_certain_terrorist_inadmissibility.pdf. This
guidance indicates that the Secretary has given the USCIS authority, in consultation with
U.S. Immigration and Customs Enforcement, to grant such waivers on a case-by-case
basis to aliens who fall within particular categories of cases.
    For the USCIS to consider granting such a waiver, it must first be shown that the alien
is seeking an immigration benefit or protection for which he or she has been determined
to be otherwise eligible. See Interoffice Memorandum from Jonathan Scharfen, Deputy
Dir., Office of the Dir., to DHS officials (May 24, 2007), https://www.uscis.gov/sites/
default/files/files/pressrelease/MaterialSupport_24May07.pdf. Therefore, consistent with
this waiver scheme, Immigration Judges should ordinarily determine first whether an
alien is otherwise eligible for the benefit or protection sought. Only if it is determined
that the alien is otherwise eligible would it be necessary or appropriate to consider
whether the material support bar applies.


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deference. 6 See Annachamy, 

 (stating that “we should defer
to Congress’ chosen method to try to strike the correct balance between the
United States’ humanitarian obligations and national security”).
    According to the respondent, a conclusion that no duress exception to
the material support bar exists would necessarily lead to results that are
inconsistent with our treaty obligations, including the duty of
nonrefoulement. While we agree that the provisions of the Act should
generally be read consistently with our international obligations to the
extent they are not in conflict with governing law, we are not persuaded
that any inconsistency exists here. See Annachamy, 

(observing that under international law, “Congress is free to decide that an
alien who provided material support to a terrorist organization, even if
under duress, is a danger to the security of the United States”); Khan
v. Holder, 

 (9th Cir. 2009) (stating that the definition of
“terrorist activity” in the Act “not only does not violate the [1967 United
Nations Protocol Relating to the Status of Refugees], but adheres to its
specific non-refoulement exception”). 7
    The respondent also asserts that because duress may be a defense to
negate culpability in the criminal context, an exception for duress should
similarly apply to the material support bar. We find this argument to be
misplaced because, unlike criminal proceedings, immigration proceedings
are civil in nature. See, e.g., Negusie v. Holder, 

 (Scalia, J.,
concurring) (stating that the duress defense in criminal cases is inapplicable
to the interpretation of the asylum statute’s persecutor bar, because an
“order of deportation is not a punishment for a crime”) (quoting Fong Yue
Ting v. United States, 

, 730 (1893)). See generally Mehboob
v. Att’y Gen. of U.S., 

, 277 n.3 (3d Cir. 2008) (stating that
immigration statutes need not “encompass separate statutory or common
law defenses that are available to a criminal defendant”); Dor v. District
Director, INS, 

 (2d Cir. 1989) (observing that a
deportation proceeding “is not a criminal proceeding . . . and the full
trappings of legal protections that are accorded to criminal defendants are
6
    The Second Circuit expressed concern about the lack of any “published process” for
seeking a waiver when discussing its reasons for remanding in Ay, 

.
However, the efficacy of the administration of the waiver does not bear on Congress’s
intent and is a matter outside of our authority.
7
    Our treaty obligations under the Convention Against Torture are different from those
implicated in our assessment of the material support bar to asylum and withholding of
removal under the Act. The material support bar does not preclude deferral of removal
under the Convention Against Torture pursuant to 

. However, we
previously affirmed the Immigration Judge’s denial of such protection in this case, and
the respondent has not further challenged that aspect of the Immigration Judge’s decision.


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not necessarily constitutionally required in deportation proceedings”).
Moreover, the argument that a duress exception must necessarily be
implied is undercut by the fact that, even in criminal cases, duress is not
always a defense. See Annachamy, 

 n.6 (stating that the
criminal law concept of “duress does not excuse the majority of acts listed
in the definition of ‘terrorist activity,’” such as murder).
    In drafting the terrorism bar for providing material support, Congress
gave no indication that it intended to narrow the statutory definition by
including an implied exception for duress or coercion. See Matter of S-K-,

 (finding that “Congress intentionally drafted the
terrorist bars to relief very broadly, . . . and it did not intend to give us
discretion to create exceptions”). Accordingly, we hold that the material
support bar in section 212(a)(3)(B)(iv)(VI) of the Act includes no exception
for duress. See Sesay, 

 (“To read the statute in any other
way . . . would contravene unambiguous legislative intent.”). Therefore,
absent a waiver, an alien who affords material support to a terrorist
organization is inadmissible and statutorily barred from establishing
eligibility for asylum and for withholding of removal under the Act and the
Convention Against Torture, even if such support was provided under
duress.
    The Second Circuit has affirmed our determination that the respondent
“provided material support to a terrorist organization” based on her credible
testimony that she supplied goods to the FARC. Because Congress did not
include an implied duress exception to the material support bar, we agree
with the Immigration Judge that the respondent is barred from eligibility for
relief from removal, even though she established that she did not
voluntarily provide material support to the FARC. Accordingly, the
respondent’s appeal will be dismissed.
    ORDER: The appeal is dismissed.




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