564 F. App'x 625
2d Cir.2014Background
- Ayvaz, a Turkish citizen, seeks review of a BIA decision (Oct. 12, 2012) affirming an IJ ruling (Feb. 14, 2011) denying a continuance and refusing asylum, withholding, and CAT relief.
- Court reviews IJ as supplemented by the BIA under 8 U.S.C. § 1252(b)(4)(B) and related standards, focusing on withholding, continuance, and CAT issues.
- Ayvaz provided one meal to seven PKK members; the case centers on whether this constitutes material support for a terrorist organization.
- BIA had not addressed whether de minimis aid or aid given under duress qualifies as material support; remand requested for precedential clarification.
- The court grants the petition in part and denies in part, remanding certain questions to the BIA while upholding some agency determinations.
- Continuance denial: IJ/BIA denial of a second continuance for a discretionary duress waiver is reviewed for abuse of discretion and affirmed as in Morgan/Singh.
Issues
| Issue | Plaintiff's Argument | Defendant's Argument | Held |
|---|---|---|---|
| Whether minimal or involuntary aid can be material support for withholding. | Ayvaz argues de minimis/under duress aid cannot be material. | Holder contends any material aid is within the statute's scope. | Remand to clarify materiality by the BIA |
| Whether the duress defense creates a separate exception to material support. | Ayvaz contends there is an implicit duress exception. | Holder opposes a duress exception outside case law. | Remand to address the duress issue |
| Whether the denial of a second continuance for a discretionary duress waiver was an abuse of discretion. | Ayvaz seeks another continuance to pursue his duress waiver. | Agency had already granted two continuances and warned no further delays would be granted. | Affirmed denial of the continuance |
| Whether Ayvaz is eligible for CAT deferral and related withholding relief. | Ayvaz fears torture and seeks deferral and withholding. | Agency found no likelihood of torture and that CAT deferral was not warranted. | CAT relief denied; deferral denied and no remand for CAT if terrorist bar persists |
Key Cases Cited
- Rosario v. Holder, 627 F.3d 58 (2d Cir. 2010) (legal questions of materiality and law regarding terrorist activity bar)
- Negusie v. Holder, 555 U.S. 511 (2009) (duress and related statutory interpretation considerations)
- In re S-K-, 23 I. & N. Dec. 936 (BIA 2006) (discussion of material support definitions (non-precedential context emphasized))
- Rotimi v. Gonzales, 473 F.3d 55 (2d Cir. 2007) (remand for BIA to issue precedential interpretation of an ambiguous statute)
- Singh-Kaur v. Ashcroft, 385 F.3d 293 (3d Cir. 2004) (deference considerations in materiality/aid cases)
- Haile v. Holder, 658 F.3d 1122 (9th Cir. 2011) (consideration of de minimis and related materiality issues)
- Khouzam v. Ashcroft, 361 F.3d 161 (2d Cir. 2004) (administrative relief standards in asylum/removal context)
- Singh v. U.S. Dep’t of Homeland Sec., 526 F.3d 72 (2d Cir. 2008) (continuance discretion and calendar management)
- Morgan v. Gonzales, 445 F.3d 549 (2d Cir. 2006) (wide latitude in calendar management for continuances)
- INS v. Orlando Ventura, 537 U.S. 12 (U.S. 2002) (per curiam decision regarding immigration relief and duress considerations)