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Hernandez v. Sessions

United States Court of Appeals, Second Circuit

February 28, 2018

Marleny Hernandez, Petitioner,
v.
Jefferson B. Sessions III, United States Attorney General, Respondent.

          Argued: November 30, 2017

         Marleny Hernandez petitions for review of a precedential decision of the Board of Immigration Appeals ("BIA") finding her ineligible for asylum under the Immigration and Nationality Act ("INA") on the ground that she provided "material support" to a terrorist organization, notwithstanding that she acted under duress. See 8 U.S.C. §§ 1158(b)(2)(A)(v), 1182(a)(3)(B)(i)(I), 1182(a)(3)(B)(iv)(VI). A 2014 Summary Order of this Court identified no error in the BIA's conclusion that Hernandez provided material support to a terrorist organization, but the Order remanded for the BIA to determine in the first instance whether the so-called "material support bar, " which makes no explicit mention of duress, nevertheless has an implied duress exception that might exempt Hernandez. See Hernandez v. Holder, 579 Fed.Appx. 12, 15 (2d Cir. 2014). The principal question presented by this petition is whether the agency's determination on remand that the material support bar contains no such exception is entitled to deference under Chevron, U.S.A., Inc. v. Natural Resources Defense Council, Inc., 467 U.S. 837 (1984). We conclude that Chevron deference is warranted and join several other circuits in holding that the material support bar does not except aliens who acted under duress. We also reject the petitioner's argument that aliens who are rendered ineligible for relief from removal by the material support bar have a due process right to some means of obtaining an exemption based on duress, other than the currently-available procedure for obtaining a discretionary waiver from the Department of State or the Department of Homeland Security. See 8 U.S.C. § 1182(d)(3)(B)(i). Accordingly, we deny the petition.

          Gregory Silbert (with Kevin Meade and Melanie Conroy on the brief), Weil, Gotshal & Manges LLP, New York, NY and Boston, MA; Anne Pilsbury and Heather Yvonne Axford, Central American Legal Assistance, Brooklyn, NY, for Petitioner.

          Jeffrey L. Menkin, Senior Counsel for National Security, Office of Immigration Litigation (with Chad A. Readler, Acting Assistant Attorney General, and Ethan B. Kanter, Deputy Chief, on the brief), United States Department of Justice, Washington, D.C., for Respondent.

          Before: Jacobs, Raggi, and Droney, Circuit Judges.

          DENNIS JACOBS, CIRCUIT JUDGE

         Petitioner Marleny Hernandez, a native and citizen of Colombia, seeks review of a June 9, 2016 published decision of the Board of Immigration Appeals ("BIA") finding her ineligible for asylum on the ground that she provided "material support" to a terrorist organization, notwithstanding that she acted under duress. See Matter of M-H-Z-, 26 I. & N. Dec. 757 (B.I.A. 2016).

         The Immigration and Nationality Act ("INA") deems ineligible for asylum any alien who has "engaged in a terrorist activity." 8 U.S.C. §§ 1158(b)(2)(A)(v), 1182(a)(3)(B)(i)(I). In a provision known as the "material support bar, " the INA defines "[e]ngag[ing] in [a] terrorist activity" to include committing an act that "the actor knows, or reasonably should know, affords material support" to a terrorist organization. Id. § 1182(a)(3)(B)(iv)(VI). A 2014 Summary Order of this court identified no error in the BIA's conclusion that Hernandez provided material support to a terrorist organization by providing the Revolutionary Armed Forces of Colombia $100 packages of foodstuffs every three months for more than two years. See Hernandez v. Holder, 579 Fed.Appx. 12, 15 (2d Cir. 2014). But the Order remanded the matter for the BIA to determine in the first instance whether the material support bar, which makes no explicit mention of duress, nevertheless has an implied duress exception that might exempt Hernandez. See id. (citing Ay v. Holder, 743 F.3d 317, 320 (2d Cir. 2014) (explaining that the material support bar is "silent on the question" of whether "a duress exception is implicit in its terms")). The agency decision resulting from that remand is the subject of the petition before us.

         The principal question presented by the petition is whether the agency's determination that the material support bar contains no implied duress exception is entitled to deference under Chevron, U.S.A., Inc. v. Natural Resources Defense Council, Inc., 467 U.S. 837 (1984). We conclude that Chevron deference is warranted and join several other circuits in holding that the material support bar does not except aliens, like Hernandez, who acted under duress.[1] We also reject Hernandez's argument that aliens who are rendered ineligible for relief from removal by the material support bar have a due process right to some means of obtaining an exemption based on duress, other than the currently available procedure for obtaining a discretionary waiver from the Department of State or the Department of Homeland Security--a waiver that Hernandez sought but did not receive. See 8 U.S.C. § 1182(d)(3)(B)(i). Accordingly, we deny the petition.

         The facts and procedural course of this case are set out in the BIA's published decision and in our 2014 Summary Order. We review only the BIA's decision issued on remand. See Belortaja v. Gonzales, 484 F.3d 619, 623 (2d Cir. 2007).

         I

         The INA's material support bar, 8 U.S.C. § 1182(a)(3)(B)(iv)(VI), is construed by the BIA to have no implied exception for duress. When, as here, the BIA construes "the statute which it administers, " we apply the familiar principles of deference outlined originally in Chevron. INS v. Aguirre-Aguirre, 526 U.S. 415, 424 (1999). "At the first step" of the two-step Chevron framework, we "determine whether Congress has directly spoken to the precise question at issue, " and if it has, we "give effect to [Congress's] unambiguously expressed intent . . . . If, however, the statute [is] ambiguous . . ., we proceed to a second step of analysis to [determine] whether the agency's interpretation is reasonable, " and if it is, "we must defer to it." Adams v. Holder, 692 F.3d 91, 95 (2d Cir. 2012) (internal quotation marks and citations omitted).

         The inquiry here begins at Chevron step two, because we have already concluded that the material support bar is ambiguous as to whether duress is an exception.[2] See Hernandez, 579 Fed.Appx. at 15 (citing Ay, 743 F.3d at 320). At Chevron step two, we conclude that the BIA's construction of the material support bar is reasonable and therefore entitled to Chevron deference. In doing so, we join several of our sister circuits in holding that the material support bar does not contain an implied duress exception. See Sesay v. Att'y Gen., 787 F.3d 215, 217-18 (3d Cir. 2015); Barahona v. Holder, 691 F.3d 349, 355-56 (4th Cir. 2012); Annachamy v. Holder, 733 F.3d 254, 260, 267 (9th Cir. 2013), overruled on other grounds by Abdisalan v. Holder, 774 F.3d 517 (9th Cir. 2014) (en banc); Alturo v. U.S. Att'y Gen., 716 F.3d 1310, 1314 (11th Cir. 2013).

         Hernandez argues that the BIA's construction is not reasonable in view of (1) the context, purpose, and legislative history of the INA; (2) United States treaty obligations; and (3) the availability of a duress defense in criminal proceedings. For the reasons that follow, we reject these arguments.

         1. The BIA reasonably determined that the nonexistence of a duress exception can be inferred from the language and design of the INA as a whole. See Adams, 692 F.3d at 95. The text of the material support bar itself is "silent" as to conduct taken under duress.[3]See Ay, 743 F.3d at 320. Elsewhere in the INA, the bar to relief from removal for members or affiliates of communist or totalitarian political parties contains an explicit exception for individuals who can establish that their "membership or affiliation is or was involuntary." 8 U.S.C. § 1182(a)(3)(D)(i)-(ii). The omission of such an express exception in the material support bar supports the inference drawn by the BIA that no exception was intended. See INS v. Cardoza-Fonseca, 480 U.S. 421, 432 (1987) ("[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." (internal quotation marks and citation omitted)). Other circuits agree. See Alturo, 716 F.3d at 1314 (observing that the lack of an explicit duress exception in the ...


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