On June 6, 2018, in a 2-1 decision dismissing respondent’s cross-appeal and remanding the record to the Immigration Judge (IJ), the Board of Immigration Appeals (BIA or Board) defined “material support” to a terrorist organization. Board Member Wendtland issued a dissenting opinion.
The opinion initially sets forth a complicated factual and procedural background: Respondent, a native and citizen of El Salvador, had been granted Temporary Protected Status (TPS), departed the U.S. on advance parole, and sought admission on her return. She was placed into proceedings as removable for not having a valid entry document and applied for cancellation of removal. DHS argued she was ineligible for relief “based on her undisputed testimony that she was kidnapped by guerrillas in El Salvador…and was coerced into undergoing weapons training and performing forced labor in the form of cooking, cleaning, and washing their clothes.” The IJ initially found her removable but granted her cancellation application and DHS appealed; the BIA held she was ineligible for cancellation, finding her inadmissible for having received weapons training from the guerrillas – a terrorist organization. The Board also concluded that there is no self-defense or duress exception to the “material support bar” of INA §212(a)(3)(B), sustained the appeal and remanded to the IJ for consideration of any other forms of relief.
On remand, respondent applied for asylum, withholding of removal and CAT protection, with DHS conceding that, although she is ineligible for cancellation because of her military/weapons training, she could seek asylum. The IJ then denied asylum and withholding because of the material support bar but noted “the horrific harm she experienced from the guerrillas in El Salvador because, in addition to being kidnapped and required to perform cooking and cleaning…under threat of death, the respondent was forced to witness her husband, a sergeant in the Salvadoran Army, dig his own grave before being killed.” The IJ granted deferral of removal under the CAT. The issue on appeal here was whether respondent is subject to the material support bar, specifically “if the statutory definition of ‘material support’ has any limitation based on the extent and type of support rendered.”
At the beginning of its lengthy analysis, the BIA noted that INA §208(b)(2)(A)(v) bars asylum to certain applicants, a list that includes those who, per §241(b)(3)(B), have engaged in any terrorist activity (INA §237(a)(4)(B)) and are therefore regarded as dangers to U.S security. Further, stated the Board, INA §212(a)(3)(B)(iv)(VI) provides that one engages in terrorist activity when she commits an act that she knows, or reasonably should know, affords material support to a terrorist organization, the sole exception to the bar being “a showing by clear and convincing evidence that the actor did not know, and should not reasonably have known, that the organization was of that character.” If the evidence indicates the bar applies, held the BIA, the applicant has the burden of proving by a preponderance that “the bar is not applicable.”In this regard, respondent claimed that the IJ had erred by finding her subject to the support bar because any assistance she provided was de minimisand therefore not “material.” She further averred that even if the bar applies, she is entitled to a duress exception. However, noted the Board, a prior precedent – Matter of M-H-Z-, 26I&N Dec. 757 (BIA 2016) – had held that there is no duress exception to the material support bar. As the Second Circuit, which has jurisdiction over the instant matter, has already deferred to this interpretation, the opinion did “not address that issue further.” Still, stated the BIA, it had to decide whether material support “contains a quantitative requirement,” i.e., whether insignificant, de minimissupport provided to a terrorist organization would not equate to “material” support, as argued by respondent and the dissent. The Board held that no such limitation exists in the bar. In support of this position, the decision noted that it is unlikely that Congress intended to impose the bar on one who was coerced into providing material support but to exempt one “who willingly provided such assistance, even if it was small in degree.”
Additionally, stated the BIA, “material support” is a term of art relating to the type of aid provided, e.g., support of a material and tangible nature, and it is not quantitative. The Third Circuit has defined it as anything with a “logical connection” to the aims of a terrorist organization, although the act need not be done for the specific purpose of aiding terrorism. Thus, concluded the Board, one provides the requisite support, regardless of whether it was intended to aid the terrorist organization, “if the act has a logical and reasonably foreseeable tendency to promote, sustain, or maintain the organization, even if only to a de minimis degree.” Further, emphasized the opinion, if providing an insignificant level of support did not constitute “material support,” DHS would not have promulgated a waiver for this type of circumstance: “The fact that the waiver covers such situations is clear evidence that the DHS regards the bar as extending to the provision of even ‘insignificant support,’ contrary to the contention of the respondent and the dissent.”
The BIA went on to find that despite the sympathetic facts of a particular case, it could find no support for concluding that Congress intended “a quantitative exclusion” from the bar, holding that respondent afforded material support when she aided guerrillas in continuing their mission of armed and violent opposition to the Salvadorean Government. Because several Federal courts of appeal have found material support in all types of activities, such as providing food and shelter and performing physical labor, the bar applies here and respondent’s cross-appeal on this point was dismissed, the BIA agreeing with the IJ that, but for the support bar, respondent would have been eligible for asylum on humanitarian grounds per Matter of Chen, 20 I&N Dec. 16 (BIA 1989).
As to the CAT claim, the decision briefly noted that DHS claimed the IJ erred by granting deferral of removal under CAT because respondent had not demonstrated it is more likely than not she will be tortured if returned to El Salvador. The Board agreed that the IJ’s opinion had not provided sufficient fact-finding and analysis, preventing it from meaningfully addressing DHS’s arguments. It was also unclear, held the BIA, that the IJ had applied the correct legal standard in assessing respondent’s CAT claim; her analysis was “conclusory, stating only that the respondent met her burden to show that she was subject to torture and that deferral of removal was warranted.” The record was thus ordered remanded so the IJ could provide the necessary analyses and the parties could supplement the record.
In her dissent, Board Member Wendtland concurred with the majority to the extent it held that a remand for further proceedings was in order concerning respondent’s eligibility for CAT relief but would not join the other two Members’ conclusion that respondent is subject to the material support bar and would have sustained her cross-appeal. To the dissent, the main issue is “whether the respondent’s activities are of the kind and magnitude that would meet the threshold requirement of ‘material.’”
According to Board Member Wendtland, had Congress intended the word “material to add little or nothing to the threshold requirement, it would presumably have simply prohibited “support” to a terrorist organization. While the dissent admitted that the list of examples of material support found at INA §212(a)(3)(B)(iv)(VI) is not exhaustive, the acts mentioned clearly “imply that certain kinds and levels of support are required”; the “menial and incidental tasks that the respondent performed” are not of the “same class” as those mentioned in the statute, which all involve items that either can directly be used to plan or carry out terrorist activities or, as with funds, are liquid and fungible and therefore readily diverted to such use. Respondent’s services “cannot validly be placed in the same category.”
Further, the dissent could not conclude that the incidental assistance respondent provided the guerrillas afforded them “material” support in the logical sense of “having at least some importance to promoting, sustaining, or maintaining the organization’s goals,” citing to Ninth Circuit case law. Contrary to the majority’s findings, Board Member Wendtland could not conclude that Congress intended for any support, no matter how small or immaterial, to implicate the bar to asylum. This interpretation, she warned, would “lead to absurd results,” citing to the majority opinion. Nor did Board Member Wendtland believe that one who, like respondent, did not render material support to a terrorist group, should be relegated to the statutory waiver process of INA §212(d)(3)(B)(i), which applies only to “those individuals whose support did meet the threshold materiality requirement.” Given this view, she did not reach the question whether respondent reasonably should have known that the guerrillas were a terrorist organization. Matter of A-C-M-, 27 I&N Dec. 303 (BIA 2018).