Ay v. Holder
743 F.3d 317
| 2d Cir. | 2014Background
- Ay, a Kurdish Turkish citizen, sought asylum, withholding of removal, and CAT relief; IJ found he provided material support to terrorists and was inadmissible; BIA adopted IJ’s findings and noted possible but discretionary duress relief; this court remands for potential duress exception consideration; CAT relief denied.
- IJ found Ay gave food/clothing to individuals he knew or had reason to know were Kurdish terrorist groups (possibly PKK).
- BIA adopted IJ’s factual and legal conclusions, stating Ay is statutorily ineligible for asylum and withholding, and noted potential exemption waivers under 8 U.S.C. § 1182(d)(3)(B).
- Court grants petition on asylum/withholding issues but remands for BIA to address possible duress exception to the material support bar in light of Negusie.
- The case hinges on whether a duress exception exists to the material support bar and the proper scope of the BIA’s analysis; CAT relief is denied.
Issues
| Issue | Plaintiff's Argument | Defendant's Argument | Held |
|---|---|---|---|
| Whether Ay knowingly provided material support to terrorists. | Ay argues he did not knowingly aid terrorists. | Ay knowingly aided terrorists per IJ findings. | Yes; substantial evidence supports knowing provision. |
| Whether the material support bar includes a duress exception. | Statute silent; argues for implicit duress exception. | No duress exception; discretionary waivers exist but not statutory inference. | Remanded to decide if duress exception should be read into the statute. |
| Whether remand to BIA is appropriate for statutory interpretation. | Agency should interpret the statute now. | Remand proper for agency expertise. | Remand granted for BIA to address duress interpretation. |
| Whether Ay qualifies for CAT relief. | Ay could be granted CAT protection if credible future risk shown. | No sufficient likelihood of torture or future harm. | Denied on the record. |
Key Cases Cited
- Negusie v. Holder, 555 U.S. 511 (U.S. 2009) (duress consideration for analogous asylum provisions)
- INS v. Orlando Ventura, 537 U.S. 12 (U.S. 2002) (remand for agency interpretation of statutory questions)
- Rotimi v. Gonzales, 473 F.3d 55 (2d Cir. 2007) (remand when agency has not provided statutory analysis)
- Matter of S-K-, 23 I. & N. Dec. 936 (BIA 2006) (precedential but not addressing duress exception explicitly)
- Annachamy v. Holder, 733 F.3d 254 (9th Cir. 2013) (waiver process for material support bar discussed)
- Liu v. U.S. Dep’t of Justice, 455 F.3d 106 (2d Cir. 2006) (reasons for remand to agency for interpretation)
- Bah v. Mukasey, 529 F.3d 99 (2d Cir. 2008) (standards for de novo review of legal questions)