Annachamy, et al v. Holder

Filing

FILED OPINION (RAYMOND C. FISHER, JOHNNIE B. RAWLINSON and RICHARD MILLS) DENIED. Judge: RCF Authoring. FILED AND ENTERED JUDGMENT. [8235711]

Case: 07-70336

07/03/2012

ID: 8235711

DktEntry: 83-1

Page: 1 of 19

FOR PUBLICATION

UNITED STATES COURT OF APPEALS
FOR THE NINTH CIRCUIT
SATHEESKUMAR ANNACHAMY, aka
Sathees Annachamy,
Petitioner,
v.
ERIC H. HOLDER Jr., Attorney
General,
Respondent.




No. 07-70336
Agency No.
A200-041-850
OPINION



On Petition for Review of an Order of the
Board of Immigration Appeals
Argued and Submitted
September 2, 2011—San Francisco, California
Filed July 3, 2012
Before: Raymond C. Fisher and Johnnie B. Rawlinson,
Circuit Judges, and Richard Mills, District Judge.*
Opinion by Judge Fisher

*The Honorable Richard Mills, Senior United States District Judge for
the Central District of Illinois, sitting by designation.

7821

Case: 07-70336

7824

07/03/2012

ID: 8235711

DktEntry: 83-1

Page: 2 of 19

ANNACHAMY v. HOLDER

COUNSEL
Visuvanathan Rudrakumaran, Law Office of Visuvanathan
Rudrakumaran, New York, New York, for the petitioner.
Tony West, Assistant Attorney General, United States Department of Justice; Michael P. Lindemann, Assistant Director;
Ethan B. Kanter (argued), Senior Litigation Counsel, Office
of Immigration Litigation, Washington, D.C., for the respondent.

OPINION
FISHER, Circuit Judge:
Satheeskumar Annachamy petitions for review of a decision of the Board of Immigration Appeals (BIA) denying him
asylum and withholding of removal because he provided
material support to a terrorist organization, in violation of 8
U.S.C. § 1182(a)(3)(B)(iv)(VI). Annachamy argues that the
BIA erred by applying the material support bar because (1)
the organization he supported was engaged in legitimate political violence and (2) he provided support under duress. We
hold that the material support bar does not include an implied
exception for individuals who assist organizations engaged in
legitimate political violence or who provide support under
duress. We thus deny Annachamy’s petition for review.
I.
Annachamy is a native and citizen of Sri Lanka. In a hearing before an immigration judge (IJ), Annachamy testified

Case: 07-70336

07/03/2012

ID: 8235711

DktEntry: 83-1

ANNACHAMY v. HOLDER

Page: 3 of 19

7825

that between 1986 and 2004 he was arrested several times by
the Sri Lankan army on suspicion that he was involved with
the Liberation Tigers of Tamil Eelam (LTTE), a militant organization that was then at war with the Sri Lankan government.1
Each time, the army detained him for many weeks, interrogated him and tortured him, including beating him with weapons while he was hung upside down, inserting a stick in his
rectum, placing a bag soaked in gasoline over his head and
forcibly submerging his head into water.
Annachamy testified that he was never a member of the
LTTE and was opposed to it. On several occasions, however,
he was forced to assist LTTE members. In 1992, for instance,
LTTE members came to his house and demanded that he join
them. Annachamy refused and, upon threat of force, promised
to give them money in the future. In 1996, he paid LTTE
members 2000 rupees (approximately $37). On other occasions, LTTE members blindfolded Annachamy and took him
to a LTTE camp, where they forced him to cook, dig trenches,
fill sandbags and help build fences. Each time he was taken
to perform these activities, he was kept under strict watch and
there was no possibility of escape. Annachamy believed that
he would have been killed if he tried to escape or seek help
from the police. He has had no contact with the LTTE since
1997, when he moved from his home town. Annachamy testified that he was not aware that the LTTE was considered a
terrorist organization when he assisted them.
After being detained by the Sri Lankan army again in 2004,
Annachamy went into hiding. He left Sri Lanka and arrived
in the United States in 2005. Upon his arrival, the Immigration and Naturalization Service, now the Department of
Homeland Security (DHS), initiated removal proceedings.
Annachamy conceded that he was removable based on his
unlawful presence in the United States, but filed an applica1

Because both the IJ and BIA found that Annachamy was a credible
witness, we assume his testimony was true.

Case: 07-70336

7826

07/03/2012

ID: 8235711

DktEntry: 83-1

Page: 4 of 19

ANNACHAMY v. HOLDER

tion for asylum, withholding of removal and protection under
the Convention Against Torture (CAT).
After a hearing, an IJ granted Annachamy asylum and withholding of removal. The IJ found that, despite some inconsistencies, Annachamy testified in a credible manner. Relying on
Annachamy’s application, testimony and State Department
reports on the conditions in Sri Lanka, the IJ found that
Annachamy had demonstrated a well-founded fear of persecution based on a protected ground. The IJ also found that
Annachamy was not precluded from obtaining relief even
though he gave assistance to the LTTE, because he was
forced to do so. The IJ found that Annachamy’s “life or freedom would have been threatened” if he had not assisted the
LTTE.
The BIA reversed. In an unpublished opinion, the BIA
accepted the IJ’s credibility determination and found that
there was “no question” that Annachamy had established a
well-founded fear of future persecution that went unrebutted.
The BIA found, however, that the Immigration and Nationality Act (INA) barred Annachamy from obtaining asylum or
withholding of removal because he had provided material
support to a terrorist organization. The BIA instead granted
Annachamy deferral of removal under CAT and remanded to
the IJ to complete identity, law enforcement or security examinations required under 8 C.F.R. § 1003.1(d)(6).2 Annachamy
petitions for review of that decision.
2

Before granting an application for relief or protection from removal,
DHS must complete certain identity, law enforcement and security examinations. See 8 C.F.R. § 1003.47. Under 8 C.F.R. § 1003.1(d)(6), “[w]here
background checks are required but have not yet been completed, the BIA
must either issue an order remanding the case to the IJ with instructions
to allow the DHS to complete the background checks, or provide notice
to both parties that the case is on hold pending completion of the background checks.” Junming Li v. Holder, 656 F.3d 898, 902 (9th Cir. 2011).

Case: 07-70336

07/03/2012

ID: 8235711

DktEntry: 83-1

ANNACHAMY v. HOLDER

Page: 5 of 19

7827

II.
We have jurisdiction to review the BIA’s final order denying asylum and withholding of removal under 8 U.S.C.
§ 1252. See Li, 656 F.3d at 904 (“[W]here the BIA denies
relief and remands pursuant to § 1003.1(d)(6) for background
checks required for alternative relief, we have jurisdiction to
consider an appeal of the final order denying relief.”). “Our
review is confined to the BIA’s decision except to the extent
the BIA incorporated the IJ’s decision.” Id. at 900-01. We
review de novo constitutional and other questions of law. See
Khan v. Holder, 584 F.3d 773, 776 (9th Cir. 2009). We afford
the BIA’s unpublished opinion Skidmore deference, meaning
“we ‘examine the validity of the BIA’s reasoning, its thoroughness, and overall persuasiveness,’ and give it weight
accordingly.” United States v. Casasola, 670 F.3d 1023, 1030
(9th Cir. 2012) (quoting Garcia-Quintero v. Gonzales, 455
F.3d 1006, 1015 (9th Cir. 2006)).
III.
[1] An alien who has engaged in terrorist activities is ineligible for asylum, withholding of removal and withholding
under CAT, but remains eligible for deferral of removal under
CAT. See Haile v. Holder, 658 F.3d 1122, 1125-26 (9th Cir.
2011).3 We have previously recognized that the INA “defines
‘engag[ing] in terrorist activity’ broadly.” Khan, 584 F.3d at
777 (alteration in original). The definition includes committing, planning or gathering information about potential targets
for a terrorist activity, and soliciting funds or individuals for
3

See also 8 U.S.C. § 1182(a)(3)(B)(i)(I) (providing that an alien who
has “engaged in terrorist activity” is inadmissible); id. § 1158(b)(2)(A)(v)
(providing that an alien described in § 1182(a)(3)(B)(i)(I) is ineligible for
asylum); id. §§ 1227(a)(4)(B), 1231(b)(3)(B)(iv) (same for withholding of
removal); 8 C.F.R. § 1208.16(d)(2) (same for withholding under the
CAT); 8 C.F.R. § 1208.17(a) (providing that an alien eligible for CAT
protection but ineligible for CAT withholding shall be granted deferral of
removal).

Case: 07-70336

7828

07/03/2012

ID: 8235711

DktEntry: 83-1

Page: 6 of 19

ANNACHAMY v. HOLDER

a terrorist activity or terrorist organization. See 8 U.S.C.
§ 1182(a)(3)(B)(iv). An alien also engages in terrorist activity
by
commit[ting] 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 —
(aa) for the commission of a terrorist activity;
(bb) to any individual who the actor knows, or reasonably should know, has committed or plans to
commit a terrorist activity;
(cc) to a terrorist organization described in subclause
(I) or (II) of clause (vi) or to any member of such an
organization; or
(dd) to a terrorist organization described in clause
(vi)(III), or to any member of such an organization,
unless the actor can demonstrate by clear and convincing evidence that the actor did not know, and
should not reasonably have known, that the organization was a terrorist organization.
Id. § 1182(a)(3)(B)(iv)(VI).
[2] “The statute also defines ‘terrorist organization’ broadly.” Khan, 584 F.3d at 777. The definition includes organizations designated as a “terrorist organization” by the Secretary
of State, in consultation with the appropriate officials, see 8
U.S.C. § 1182(a)(3)(B)(vi)(I)-(II) — often referred to as Tier
I and Tier II terrorist organizations — and any “group of two
or more individuals, whether organized or not, which engages

Case: 07-70336

07/03/2012

ID: 8235711

DktEntry: 83-1

ANNACHAMY v. HOLDER

Page: 7 of 19

7829

in, or has a subgroup which engages in, [terrorist activities],”
id. § 1182(a)(3)(B)(vi)(III) — referred to as Tier III terrorist
organizations.
Annachamy concedes that he materially assisted the LTTE,
and the parties agree that the LTTE qualified as a Tier III
organization at the time he assisted it. Annachamy challenges
the BIA’s decision on two grounds, however. He argues, first,
that the material support bar does not apply to him because
the LTTE was engaged in legitimate political violence; and,
second, that the bar does not apply to him because he supported the LTTE under duress. We consider each argument in
turn.
A.

Political Offense Exception.

Annachamy contends that the material support bar does not
apply to him because the LTTE was engaged in “legitimate
political violence.” Our decision in Khan forecloses this argument. See 584 F.3d at 781-85.
In that case, the BIA found an alien ineligible for asylum
and withholding of removal because he had engaged in terrorist activities by soliciting funds for a terrorist organization, in
violation of 8 U.S.C. § 1182(a)(3)(B)(iv)(IV). See id. at 776.
The alien argued on appeal that he did not assist a “terrorist
organization” because “the definition of ‘terrorist activity’
under § 1182(a)(3)(B)(iii) incorporates international law, and
thus excludes legitimate armed resistance against military targets.” Id. at 781. We rejected this argument because the plain
language of the INA allowed for no such exception. See id.
Annachamy advances the same argument we rejected in
Khan, except he concedes the LTTE is a terrorist organization
and thus that it engaged in terrorist activity. Rather than arguing there is a “political offense” exception to the definition of
“terrorist activity,” Annachamy would have us locate the
exception in the material support bar. We decline to do so.

Case: 07-70336

7830

07/03/2012

ID: 8235711

DktEntry: 83-1

Page: 8 of 19

ANNACHAMY v. HOLDER

[3] The material support bar provides that any alien 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
has
engaged
in
terrorist
activity.
8
U.S.C.
§ 1182(a)(3)(B)(iv)(VI). Annachamy provides no textual
hook for his argument that the material support bar does not
apply to political offenses. He argues only that denying relief
to aliens who have participated in political offenses would
violate the United States’ obligations under international law
and would lead to troubling results, whereby, for instance,
individuals who resisted the Nazis would be barred from
obtaining asylum. We considered and rejected both of these
arguments in Khan. See 584 F.3d at 781-84; see also In re SK-, 23 I. & N. Dec. 936, 941 (B.I.A. 2006) (“[W]e 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.”). We therefore hold that there
is no political offense exception to the material support bar.4
B.

Duress Exception.

Annachamy also argues that he is not barred from obtaining
asylum or withholding of removal because the material sup4

In Khan, we acknowledged that there may be an exception to the definition of “terrorist activity” where “the law of the country in question
incorporates international law such that the conduct in question is no longer ‘unlawful’ under the country’s domestic law.” 584 F.3d at 781.
Annachamy argues that this case should be remanded to the BIA to consider whether Sri Lanka has incorporated international law, such that the
LTTE’s activities were not unlawful under Sri Lankan domestic law.
Because Annachamy has not provided any evidence that Sri Lanka has
incorporated such international law, we decline his invitation to remand.

Case: 07-70336

07/03/2012

ID: 8235711

DktEntry: 83-1

ANNACHAMY v. HOLDER

Page: 9 of 19

7831

port bar does not apply to aliens who supported terrorist activities or organizations under duress. We do not believe that is
a permissible reading of the statute.
[4] We begin with the text of the statute. Notably, the
material support bar itself does not provide an exception for
material support that is involuntary or coerced. Although
silence is certainly not conclusive as to whether an exception
exists, see Negusie v. Holder, 555 U.S. 511, 518 (2009); cf.
Holder v. Gutierrez, 132 S. Ct. 2011, 2019 (2012) (“We cannot read a silent statute as requiring (not merely allowing)
imputation just because that rule would be family-friendly.”),
the statutory framework makes clear that no exception was
intended. First, in the material support bar Congress explicitly
carved out an exception, in the case of Tier III terrorist organizations, for aliens who “demonstrate by clear and convincing evidence that the actor did not know, and should not
reasonably have known, that the organization was a terrorist
organization.” 8 U.S.C. § 1182(a)(3)(B)(iv)(VI)(dd). That
Congress included this express exception within the provision
is some indication that it would have likewise expressly
excepted involuntary support if it intended to do so.
[5] Second, as the BIA observed, Congress created an
explicit involuntariness exception in a neighboring subsection. Section 1182(a)(3)(D)(i) provides that “[a]ny immigrant
who is or has been a member of or affiliated with the Communist or any other totalitarian party (or subdivision or affiliate
thereof), domestic or foreign, is inadmissible.” Congress specified that the bar is inapplicable “if the alien establishes . . .
that the membership or affiliation is or was involuntary.” Id.
§ 1182(a)(3)(D)(ii). “ ‘[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, 480 U.S. 421, 432
(1987) (alteration in original) (quoting Russello v. United
States, 464 U.S. 16, 23 (1983)); see also Fedorenko v. United

Case: 07-70336

7832

07/03/2012

ID: 8235711

DktEntry: 83-1

Page: 10 of 19

ANNACHAMY v. HOLDER

States, 449 U.S. 490, 512 (1981) (holding, where Congress
had included a voluntariness requirement in one subsection of
the statute, but not another, that “the deliberate omission of
the word ‘voluntary’ . . . compels the conclusion” that Congress did not intend to adopt a voluntariness requirement in
the latter subsection).5
Third, the existence of an administrative waiver provision
in the INA “weakens [Annachamy’s] argument that the BIA’s
reading of the statutory language is overly broad, because the
broad statutory definition is combined with a discretionary
waiver by executive branch officials.” Khan, 584 F.3d at 782.
The waiver provision states:
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 subsection
(a)(3)(B) of this section [defining “terrorist activities”] shall not apply with respect to an alien within
the scope of that subsection or that subsection
(a)(3)(B)(vi)(III) of this section [defining Tier III terrorist organization] shall not apply to a group within
the scope of that subsection, except that no such
waiver may be extended to an alien who is within the
scope of subsection (a)(3)(B)(i)(II) [i.e. an alien who
the executive knows, or has reasonable ground to
believe, is engaged in or likely to engage in terrorist
activity after entry], no such waiver may be extended
to an alien who is a member or representative of, has
voluntarily and knowingly engaged in or endorsed or
5

Annachamy points out that the totalitarian bar was enacted several
years before the material support bar, as the BIA acknowledged, but we
must “assume that Congress is aware of existing law when it passes legislation.” See Miles v. Apex Marine Corp., 498 U.S. 19, 32 (1990).

Case: 07-70336

07/03/2012

ID: 8235711

DktEntry: 83-1

ANNACHAMY v. HOLDER

Page: 11 of 19

7833

espoused or persuaded others to endorse or espouse
or support terrorist activity on behalf of, or has voluntarily and knowingly received military-type training from a terrorist organization that is [designated
as a Tier I or II terrorist organization], and no such
waiver may be extended to a group that has engaged
terrorist activity against the United States or another
democratic country or that has purposefully engaged
in a pattern or practice of terrorist activity that is
directed at civilians.
8 U.S.C. § 1182(d)(3)(B)(i).6 As we recognized in Khan, this
delegation of authority to the specified Secretaries reflects
Congress’ determination that executive branch officials are in
a position to judge the characteristics of particular groups
engaging in terrorist activities, see 584 F.3d at 782, perhaps
taking into account whether the groups have a practice of
forcing innocent civilians to support their causes under threat
of force.
Indeed, the relevant officials here have exercised their
authority to create a mechanism by which aliens who have
provided material support under duress may be exempted
from the material support bar. In March 2007, Secretary of
Homeland Security Michael Chertoff, after appropriate consultations, exercised his discretion under the waiver provision
to exempt from the material support bar aliens who provided
support to several specific organizations. See Exercise of
Authority Under Sec. 212(d)(3)(B)(i) of the Immigration and
Nationality Act, 72 Fed. Reg. 9954-01 to 9957-02 (Mar. 6,
2007) (exempting aliens who provide material support to the
Alzados, Kayan New Land Party, Karenni National Progressive Party, Karen National Union/Karen National Liberation
6

The waiver provision was originally passed as part of the Real ID Act
of 2005. See Pub. L. No. 109-13, § 104, 119 Stat. 231, 309 (2005). It was
amended to its current form by the Consolidated Appropriations Act,
2008. See Pub. L. No. 110-161, § 691(a), 121 Stat 1844 (2007).

Case: 07-70336

7834

07/03/2012

ID: 8235711

DktEntry: 83-1

Page: 12 of 19

ANNACHAMY v. HOLDER

Army, Mustangs, Arakan Liberation Party, Chin National
Front/Chin National Army and Chin National League for
Democracy). He also exercised his discretion by creating a
mechanism by which certain aliens who provided material
support to a Tier III terrorist organization under duress could
be exempted from the material support bar. See Exercise of
Authority Under Sec. 212(d)(3)(B)(i) of the Immigration and
Nationality Act, 72 Fed. Reg. 9958-01 (Mar. 6, 2007). He set
forth specific criteria an alien must meet to qualify for a
duress exception and delegated to U.S. Citizenship and Immigration Services, in consultation with U.S. Immigration and
Customs Enforcement, the authority to make individual determinations. See id. Shortly thereafter, the Secretary extended
the mechanism for duress waivers to aliens who provided support to Tier I and Tier II organizations. See Exercise of
Authority Under Section 212(d)(3)(B)(i) of the Immigration
and Nationality Act, 72 Fed. Reg. 26138-02 (May 8, 2007).7
Subsequent legislative action helps clarify Congress’ intent.
Only months after Secretary Chertoff issued his directive
exempting specified groups from the material support bar and
creating a mechanism for processing duress waivers, Congress passed the Consolidated Appropriations Act, 2008. See
7
We acknowledge that several commentators have questioned the adequacy of the Secretary’s waiver mechanism. See, e.g., Steven H. Schulman, Victimized Twice: Asylum Seekers and the Material-Support Bar, 59
Cath. U. L. Rev. 949, 953-54 (2010) (describing “pronounced” delays
associated with the waiver process); Human Rights First, Denial and
Delay: The Impact of the Immigration Law’s “Terrorism Bars” on Asylum
Seekers and Refugees in the United States, 7-8 (2009), available at http://
www.humanrightsfirst.org/wp-content/uploads/pdf/RPP-DenialandDelayFULL-111009-web.pdf (last visited May 28, 2012). We express no opinion as to the efficacy of the waiver mechanism. That determination has
been delegated solely to the Secretaries of State and of Homeland Security
and, as we discuss below, Congress appears to be monitoring the mechanism in an effort to strike the appropriate balance between the United
States’ humanitarian obligations and national security. We rely on the
waiver provision only insofar as it informs our understanding of the statutory structure.

Case: 07-70336

07/03/2012

ID: 8235711

DktEntry: 83-1

ANNACHAMY v. HOLDER

Page: 13 of 19

7835

Pub. L. No. 110-161, 121 Stat 1844 (Dec. 26, 2007). That Act
created a statutory exemption from the material support bar
for the eight groups the Secretary had previously excepted
from the bar. See id. In response to the mechanism for duress
waivers, the Act also required the Secretary to report to Congress on an annual basis:
(1) the number of individuals subject to removal
from the United States for having provided material
support to a terrorist group who allege that such support was provided under duress;
(2) a breakdown of the types of terrorist organizations to which the individuals described in paragraph
(1) have provided material support;
(3) a description of the factors that the Department
of Homeland Security considers when evaluating
duress waivers; and
(4) any other information that the Secretary believes
that the Congress should consider while overseeing
the Department’s application of duress waivers.
Id. These legislative reactions indicate that Congress was
deliberate in delegating to the Secretary the sole authority to
waive the applicability of terrorist-related bars, and has paid
specific attention to duress waivers.
[6] Moreover, the Act amended the waiver provision itself,
significantly expanding the Secretaries’ authority to grant waivers.8 Among the amendments was an express prohibition on
8

Prior to the Act, the Secretary was given authority to issue waivers
with respect to only three specific terrorism bars. See 8 U.S.C.
§ 1182(d)(3)(B)(i) (2006) (permitting waivers for aliens who were members of a political group that endorsed terrorist activity, themselves
endorsed terrorist activities or provided material support to a terrorist

Case: 07-70336

7836

07/03/2012

ID: 8235711

DktEntry: 83-1

Page: 14 of 19

ANNACHAMY v. HOLDER

waivers to aliens who “voluntarily and knowingly” support or
receive training from Tier I and II organizations, again indicating that Congress has appreciated the distinction between
voluntary and involuntary conduct when amending the INA
and has been express when it seeks to distinguish between the
two. In light of all this legislative activity, we should defer to
Congress’ chosen method to try to strike the correct balance
between the United States’ humanitarian obligations and
national security.9
activity). The Act amended the waiver provision to permit the Secretary
to waive almost all of the terrorism-related bars. See id. § 1182(d)(3)(B)(i)
(2008) (permitting waiver for any part of subsection (a)(3)(B), except
where executive official has reasonable grounds to believe the alien is
engaged in or is likely to engage after entry in terrorist activity or the alien
has voluntary and knowingly espoused support for, received military training from or engaged in terrorist activity on behalf of a Tier I or II terrorist
organization). This amendment made eligible for waivers several classes
of aliens who were previously ineligible, including members and representatives of Tier III organizations, persons who themselves have “engaged
in terrorist activity,” provided that it was not on behalf of a Tier I or II
organization, and persons who “engaged in terrorist activity” on behalf of
a Tier I or II group, provided that they did not do so voluntarily and knowingly.
9
At oral argument, Annachamy urged us not to rely on the executive
waiver provision when interpreting the material support bar in this
instance because the Secretary lacks the authority to grant him a waiver.
Specifically, he points to an exception to the waiver provision that says
“no . . . waiver may be extended to a group that has engaged terrorist
activity against the United States or another democratic country,” 8 U.S.C.
§ 1182(d)(3)(B)(i), and Sri Lanka is a democratic country. Annachamy
misreads the statute. By its own terms, the exception limits only the Secretaries’ authority to extend waivers to groups. See id. (delegating the
authority to “determine . . . that subsection (a)(3)(B)(vi)(III) of this section
[defining Tier III terrorist organizations] shall not apply to a group within
the scope of that subsection” (emphasis added)). The exception does not
apply to the Secretaries’ authority to “determine . . . that subsection
(a)(3)(B) of this section [which includes the material support bar] shall not
apply with respect to an alien within the scope of that subsection.” Id.
(emphasis added).

Case: 07-70336

07/03/2012

ID: 8235711

DktEntry: 83-1

ANNACHAMY v. HOLDER

Page: 15 of 19

7837

Annachamy argues that interpreting the material support
bar to include aliens who provided support under duress is
inconsistent with Fedorenko v. United States, 449 U.S. 490
(1981), and Negusie v. Holder, 555 U.S. 511 (2009). We disagree. In Fedorenko, the Court interpreted the Displaced Persons Act of 1948 (DPA), which Congress enacted “to enable
European refugees driven from their homelands by [World
War II] to emigrate to the United States without regard to traditional immigration quotas.” 449 U.S. at 495. “The DPA
incorporated the definition of ‘refugees or displaced persons’
contained in Annex I to the Constitution of the International
Refugee Organization of the United Nations” (IRO Constitution). Id. at 495 n.3. Section 2 of the IRO Constitution, as
codified by Congress, excluded any individual “who can be
shown: (a) to have assisted the enemy in persecuting civil
populations of countries, Members of the United Nations; or
(b) to have voluntarily assisted the enemy forces since the
outbreak of the second world war in their operations against
the United Nations.” Id. at 495 n.4 (quoting Annex I, Part II,
62 Stat. 3037, 3051-52 (1946)) (internal quotation marks
omitted). The Fedorenko Court held that “an individual’s service as a concentration camp armed guard — whether voluntary or involuntary — made him ineligible for a visa” under
§ 2(a) of the IRO Constitution. Id. at 512. The Court
observed, “[t]hat Congress was perfectly capable of adopting
a ‘voluntariness’ limitation where it felt that one was necessary is plain from comparing § 2(a) with § 2(b), which
excludes only those individuals who ‘voluntarily assisted the
enemy forces . . . in their operations.’ ” Id. (alteration in original) (emphasis in original). “Under traditional principles of
statutory construction, the deliberate omission of the word
‘voluntary’ from § 2(a) compels the conclusion that the statute made all those who assisted in the persecution of civilians
ineligible for visas.” Id. (emphasis in original).
In Negusie, the BIA held that it was constrained by
Fedorenko to read an implied involuntariness exception into

Case: 07-70336

7838

07/03/2012

ID: 8235711

DktEntry: 83-1

Page: 16 of 19

ANNACHAMY v. HOLDER

the INA’s persecutor bar. See 555 U.S. at 518.10 The Supreme
Court held that the BIA erred by assuming that Fedorenko
controlled without considering the differences between the
statutory frameworks at issue in Fedorenko and Negusie. In
particuar, “[t]he textual structure of the statute in Fedorenko
(‘voluntary’ is in one subsection but not the other) [was] not
part of the statutory framework considered” in Negusie. Id. at
519. The Court remanded to allow the BIA to exercise its
interpretive authority to construe the persecutor bar. See id. at
522-23.
Fedorenko and Negusie are consistent with our conclusion
here. As with the IRO Constitution in Fedorenko, Congress’
express distinction between voluntary and involuntary conduct in § 1182 compels the conclusion that it deliberately
omitted a voluntariness requirement from the material support
bar. Furthermore, we are not faced with a situation in which
the BIA mistakenly based its decision on precedent that was
not controlling. Rather, the BIA engaged in an independent
interpretation of the statute, employing some of the same canons of statutory interpretation that we have applied above, and
concluded that the material support bar contains no exception
for duress.11
10

The persecutor bar states: “The term ‘refugee’ does not include any
person who ordered, incited, assisted, or otherwise participated in the persecution of any person on account of race, religion, nationality, membership in a particular social group, or political opinion.” 8 U.S.C.
§ 1101(a)(42).
11
Annachamy also argues that the criminal law presumption of a duress
exception should be imported into immigration law. In Negusie, the
Supreme Court did not decide whether the INA’s persecutor bar imports
this principle of criminal culpability. See 555 U.S. at 517-18 (declining to
address the issue). Some Justices were divided on the issue. Compare id.
at 526 (Scalia, J., joined by Alito, J., concurring) (providing several reasons a duress defense based on principles of criminal culpability should
not necessarily be read into the INA’s persecutor bar) and id. at 549 n.3
(Thomas, J., dissenting) (arguing that “[t]here is no warrant to read
criminal-law requirements into” the INA) with id. at 536-37 (Stevens, J.,

Case: 07-70336

07/03/2012

ID: 8235711

DktEntry: 83-1

ANNACHAMY v. HOLDER

Page: 17 of 19

7839

We also reject Annachamy’s suggestion that construing the
material support bar to include involuntary support conflicts
with the United States’ obligations under the United Nations
Protocol Relating to the Status of Refugees (“Protocol”) and
the United Nations Convention Relating to the Status of Refugees (“Convention”). Although Annachamy does not identify
the provisions of the Convention or Protocol that support his
argument, he apparently relies on the Convention’s limited
exceptions to refugee status and its nonrefoulement provision.
The Convention excepts from the definition of refugee:
any person with respect to whom there are serious
reasons for considering that:
(a) he has committed a crime against peace, a war
crime, or a crime against humanity, as defined in the
international instruments drawn up to make provision in respect of such crimes;
(b) he has committed a serious non-political crime
outside the country of refuge prior to his admission
to that country as a refugee;
(c) he has been guilty of acts contrary to the purposes and principles of the United Nations.
Convention, art. 1F, reprinted in 19 U.S.T. 6223.
joined by Breyer, J., concurring in part and dissenting in part) (arguing
that principles of criminal culpability should apply to the persecutor bar).
Unlike Negusie, however, where the statutory structure surrounding the
persecutor bar did not inform the provision’s silence as to duress, the statutory structure surrounding the material support bar would be strong
enough to defeat the criminal law presumption that there is a duress exception. Thus, we need not reach the more general question of whether Congress should be presumed to have legislated with a duress exception in
mind.

Case: 07-70336

7840

07/03/2012

ID: 8235711

DktEntry: 83-1

Page: 18 of 19

ANNACHAMY v. HOLDER

The Convention also includes a duty of nonrefoulement,
which provides that “[n]o Contracting State shall expel or
return (‘refouler’) a refugee in any manner whatsoever to the
frontiers of territories where his life or freedom would be
threatened on account of his race, religion, nationality, membership of a particular social group or political opinion.” Id.
at art. 33.1. The Convention also states, however, that the
benefit of nonrefoulement may not “be claimed by a refugee
whom there are reasonable grounds for regarding as a danger
to the security of the country in which he is.” Id. at art. 33.2.
In Khan, we rejected the argument that Article 1F and the
duty of nonrefoulement compelled a narrow reading of the
INA’s terrorist bars that would exclude legitimate armed
resistance. Although the United States acceded to the Protocol
in 1968, the Protocol is not self-executing and therefore does
not have the force of law in American courts. See Khan, 584
F.3d at 783. We nonetheless “follow[ed] the general rule of
the Charming Betsy canon that ‘an act of Congress ought
never to be construed to violate the law of nations, if any
other possible construction remains.’ ” Id. (quoting Murray v.
The Schooner Charming Betsy, 6 U.S. (2 Cranch) 64, 118
(1804)). We observed that “[t]he Protocol, through Refugee
Convention Article 33.2, allows the United States to refoul an
individual ‘whom there are reasonable grounds for regarding
as a danger to the security’ of the United States” and that,
according to the United Nations High Commissioner for Refugees, “ ‘the determination of refugee status . . . is incumbent
upon the Contracting state in whose territory the refugee finds
himself.’ ” Id. at 783-84 (second alteration in original). Thus,
Congress’ determination in the INA that “an alien who [has
engaged in a terrorist activity] shall be considered to be an
alien with respect to whom there are reasonable grounds for
regarding as a danger to the security of the United States,” 8
U.S.C. § 1231(b)(3), adhered to the Protocol’s nonrefoulement provision and controlled our decision. See id. at 784.
The same reasoning applies here. Under the Protocol and

Case: 07-70336

07/03/2012

ID: 8235711

DktEntry: 83-1

ANNACHAMY v. HOLDER

Page: 19 of 19

7841

Convention, 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.12,13
IV.
[7] For the foregoing reasons, we hold that the material
support bar does not include an implied exception for individuals who assist organizations engaged in legitimate political
violence or who provide support under duress.
PETITION DENIED.
12

Although neither party cites them, we note that the U.N. Guidelines
on the application of Article 1F specify that “[f]actors generally considered to constitute defences to criminal responsibility,” including duress,
“should be considered.” UNHCR, Guidelines on International Protection:
Application of the Exclusion Clauses: Article 1F of the 1951 Convention
relating to the Status of Refugees § II.E.22 (2003) (“Guidelines”). We presume that these Guidelines, like the U.N. Handbook, “may be a useful
interpretive aid,” but they are “not binding on the Attorney General, the
BIA, or United States courts.” INS v. Aguirre-Aguirre, 526 U.S. 415, 427
(1999). In any event, the Guidelines do not conflict with our interpretation.
An individual ineligible for asylum due to the material support bar is
excluded because he is a “danger to the security of the United States,” as
permitted by Article 33.2 of the Convention. Khan, 584 F.3d at 784 (quoting 8 U.S.C. § 1231(b)(3)). The Guidelines do not apply to Article 33.2.
See Guidelines § I.B.4 (“[T]he exclusion clauses are not to be confused
with Articles 32 and 33(2) of the Convention which deal respectively with
the expulsion of, and the withdrawal of protection from refoulement from,
recognised refugees who pose a danger to the host State (for example,
because of serious crimes they have committed there). Article 33(2) concerns the future risk that a recognised refugee may pose to the host
State.”).
13
Furthermore, as we noted in Khan, even if there were a conflict, the
administrative waiver provision, by granting the executive the discretion
to waive applicability of the terrorist bars as to aliens who are not a danger
to the United States, is probably sufficient to resolve the conflict. See
Khan, 584 F.3d at 784 (citing INS v. Stevic, 467 U.S. 407, 428 n.22
(1984)).