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Ay v. Holder

United States Court of Appeals, Second Circuit

February 20, 2014

RAMAZAN AY, Petitioner,
v.
ERIC H. HOLDER, JR., UNITED STATES ATTORNEY GENERAL, Respondent

Argued August 20, 2013.

Petitioner Ramazan Ay seeks review of a Board of Immigration Appeals (" BIA" ) decision finding him ineligible for asylum and withholding of removal based on its finding that he provided " material support," within the meaning of 8 U.S.C. § 1182(a)(3)(B)(iv)(VI), to a terrorist group. The relevant part of section 1182 instructs that " commit[ting] an act that the actor knows, or reasonably should know, affords material support... to a terrorist organization" constitutes " engag[ing] in a terrorist activity." Any alien who " has engaged in a terrorist activity" is inadmissible under 8 U.S.C. § 1182(a)(3)(B)(i)(I), subject only to certain narrow statutory exceptions. Ay argues that: (1) the material support bar created by these provisions does not apply to individuals who provided such support under duress; (2) the support that he provided was not " material" ; and (3) he is entitled to deferral of removal under the Convention Against Torture (" CAT" ). Ay's petition for review is GRANTED in part, to permit the BIA to make a precedential ruling on whether a duress exception to the material support bar is implicit in the statute, and DENIED in part, as to Ay's other claims.

W. JOHN VANDENBERG (M. Umar Rahman, on the brief), Hogan & Vandenberg LLC, Bala Cynwyd, PA, for Ramazan Ay.

AARON R. PETTY (Tony West, Assistant Attorney General, Ethan B. Kanter, Senior Litigation Counsel, on the brief), Office of Immigration Litigation, Civil Division, Washington, D.C., for Eric H. Holder, Jr., United States Attorney General.

Before: WESLEY, HALL, AND CARNEY, Circuit Judges.

OPINION

Page 318

Per Curiam:

Petitioner Ramazan Ay, a Kurdish ethnic and a native and citizen of Turkey, seeks review of an April 26, 2011 decision of the BIA affirming the April 13, 2009 decision of an Immigration Judge (" IJ" ) denying him asylum, withholding of removal, and protection under the Convention Against Torture (" CAT" ). In re Ramazan Ay, No. A089 203 937 (B.I.A. Apr. 26, 2011), aff'g No. A089 203 937 (Immig. Ct. N.Y. City Apr. 13, 2009). We assume the parties' familiarity with the underlying facts and procedural history in this case.

Because the BIA opinion briefly adopted and affirmed the decision of the IJ, we consider both the oral decision of the IJ and the BIA's opinion together. Secaida-Rosales v. INS, 331 F.3d 297, 305 (2d Cir. 2003). The agency's administrative findings of fact " are conclusive unless any reasonable adjudicator would be compelled to conclude to the contrary," and a decision that an alien is not eligible for admission to the United States " is conclusive unless manifestly contrary to law." 8 U.S.C. § 1252(b)(4)(B), (C). We " review

Page 319

de novo questions of law and the [BIA's] application of law to undisputed fact." Bah v. Mukasey, 529 F.3d 99, 110 (2d Cir. 2008).

I. Asylum and Withholding of Removal

As to Ay's challenges to the agency's denial of asylum and withholding of removal, we grant the petition. We find no error in the agency's factual conclusion that Ay provided material support to a terrorist organization. We remand, however, to permit the BIA to address in a precedential decision whether the Immigration and Nationality Act (the " Act" ) should be construed to include a duress exception to the admissibility bar--commonly called the " material support bar" --that the Act otherwise establishes for those who have provided material support to a terrorist organization.

In provisions that together comprise the material support bar, the Act defines " engag[ing] in a terrorist activity" to include providing " material support" to terrorist organizations or individuals. 8 U.S.C. ยง 1182(a)(3)(B)(iv)(VI), (a)(3)(B)(i)(I). In Ay's removal proceedings, the IJ concluded that on " four or five occasions" Ay gave food and, " on at least one occasion," clothing, to individuals whom Ay knew, or had reason to know, to be members of Kurdish terrorist groups, possibly including the Kurdistan Workers' Party (" PKK" )--a designated terrorist organization. IJ Dec. at 14-15. These actions, the IJ found, constituted providing " ...


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