F. H.-T. v. Eric Holder, Jr.
723 F.3d 833
| 7th Cir. | 2013Background
- Petitioner FH-T joined the EPLF at ~15 (1982), served nine years in non-combat roles (communications, driving), and later worked for a government transport company in Eritrea.
- After criticizing Eritrea’s compulsory National Service in 2005–06, FH-T was arrested, imprisoned ~5 months in harsh conditions, released without charge, remained under surveillance, and fled to the U.S.; he sought asylum and withholding of removal.
- The Immigration Judge denied relief on alternative grounds: (1) adverse credibility findings; (2) failure to prove persecution on account of a protected ground; and (3) statutory ineligibility under the material-support-for-terrorism bar for having provided material support to the EPLF, which was treated as a Tier III terrorist organization.
- The BIA affirmed the material-support bar determination, concluding FH-T failed to prove by clear and convincing evidence that he did not know (and reasonably should not have known) the EPLF engaged in terrorist/unlawful activities; the Board did not reach the merits of FH-T’s asylum claim because the bar rendered him ineligible.
- On appeal FH-T argued (a) he falls within the statutory “knowledge exemption” because he knew only of lawful warfare for independence, not unlawful terrorist acts; and (b) procedural flaws in the interagency waiver process (DHS/State/AG) and the Board’s refusal to adjudicate merits curtailed his opportunity to obtain a discretionary waiver and judicial review.
Issues
| Issue | Plaintiff's Argument | Defendant's Argument | Held |
|---|---|---|---|
| Whether FH-T exhausted and proved entitlement to the "knowledge exemption" to the material-support bar (8 U.S.C. §1158(b)(2)(A)(v)) | FH-T: He knew only of lawful wartime violence by EPLF (independence fighting), not unlawful/terrorist acts; thus he should qualify for the knowledge exemption. | Gov't: FH-T did not present the lawful-vs-unlawful legal theory or statutory definition below; he thus failed to exhaust administrative remedies; Board’s factual finding that he knew of attacks is independently dispositive. | Court: Affirmed — FH-T failed to exhaust the novel lawful-vs-unlawful legal theory before the BIA; claim fails on exhaustion (and Board’s factual finding would be dispositive). |
| Whether the Board erred by not deciding whether FH-T would be eligible for asylum "but for" the material-support bar (impacting DHS waiver consideration) | FH-T: The Board should have adjudicated the merits so DHS could consider a waiver; its refusal nullifies statutorily authorized waiver consideration. | Gov't: The waiver is discretionary for Secretaries; statute does not create a right to apply or a mandatory role for the BIA; DHS policy is non-binding and the Board lacks authority to grant the waiver. | Court: Rejected FH-T’s challenge — statutory text and practical concerns counsel against imposing the requested adjudicative coordination; Board did not legally err in declining to reach merits. |
| Whether the timing (Board issues final removal order before DHS waiver decision) thwarts judicial review of waiver determinations | FH-T: Current bifurcated process likely denies meaningful judicial review of DHS waiver decisions; Board should withhold finality or otherwise coordinate so waiver decisions can be reviewed on appeal from a final removal order. | Gov't: Statute contemplates judicial review only in petitions from final removal orders; statute does not require DHS to decide before removal orders; imposing coordination would improperly rewrite procedure. | Court: Denied relief — though the process may frustrate review, remedy would require congressional action; courts should not compel the requested interagency coordination. |
| Jurisdictional / procedural claim that Board’s practices nullify statutory waiver review and warrant judicial intervention | FH-T: Cites Seventh Circuit precedents requiring minimal coordination when denial of process nullifies statutory rights (cases like Ceta, Subhan). | Gov't: Those cases address statutory application rights (adjustment/legalization); the waiver provision creates no enforceable "apply" right and is discretionary. | Court: Court distinguishes precedent and finds present statute/procedure too nebulous to require intervention; petition denied. |
Key Cases Cited
- Yi Xian Chen v. Holder, 705 F.3d 624 (7th Cir. 2013) (review of BIA opinion that supplements IJ reasoning)
- Issaq v. Holder, 617 F.3d 962 (7th Cir. 2010) (administrative exhaustion requirement for arguments before the BIA)
- El-Gazawy v. Holder, 690 F.3d 852 (7th Cir. 2012) (arguments that are unformed below are insufficient for exhaustion)
- Ceta v. Mukasey, 535 F.3d 639 (7th Cir. 2008) (coordination among agencies required where denial of continuance would nullify statutory opportunity)
- Subhan v. Ashcroft, 383 F.3d 591 (7th Cir. 2004) (jurisdiction to review procedural denials that effectively nullify statutory rights)
- Benslimane v. Gonzalez, 430 F.3d 828 (7th Cir. 2005) (denial of continuance cannot be used to thwart congressionally created application rights)
- Zivotofsky ex rel. Zivotofsky v. Clinton, 132 S. Ct. 1421 (U.S. 2012) (recognizing judicial role where disputes involve aggrandizement of executive power)