579 F. App'x 12
2d Cir.2014Background
- Hernandez, a native and citizen of Colombia, petitions for review of an IJ decision resolving asylum eligibility with a material support bar asset.
- IJ found Hernandez eligible for asylum except for disqualifying material support to the FARC.
- BIA remanded to the IJ to make a specific determination on whether the material support bar applies.
- BIA allowed remand for further factfinding; an appeal from the BIA would be interlocutory.
- This court holds jurisdiction based on timely petition from the IJ’s decision, which became final after the time to appeal the BIA lapsed.
- The court remands for further BIA consideration on the duress exception and materiality of Hernandez’s support.
Issues
| Issue | Plaintiff's Argument | Defendant's Argument | Held |
|---|---|---|---|
| Jurisdiction over petition for review | Hernandez challenges IJ’s final order. | BIA remand creates interlocutory status; the final order is the BIA decision. | Jurisdiction proper; IJ decision became final after appeal period. |
| Duress exception to material support bar | Material support bar has an implied duress exception. | No duress exception resolved on remand; BIA should determine. | Remand to BIA to address duress exception in light of Ay v. Holder. |
| Materiality of provided support | Hernandez’s aid was de minimis and involuntary; not material. | Provision of sustained foodstuffs was material and aided FARC goals. | Agency reasonably found material support; Hernandez provided non-de minimis aid. |
Key Cases Cited
- Zaman v. Mukasey, 514 F.3d 233 (2d Cir. 2008) (jurisdictional and standard-of-review framework for agency decisions)
- Chupina v. Holder, 570 F.3d 99 (2d Cir. 2009) (finality of removal orders and jurisdictional concepts)
- Bennett v. Spear, 520 U.S. 154 (U.S. 1997) (interlocutory nature of agency remands and finality considerations)
- Negusie v. Holder, 555 U.S. 511 (U.S. 2009) (duress doctrine in asylum context and remand strategy)
- Ay v. Holder, 743 F.3d 317 (2d Cir. 2014) (duress and materiality standards for asylum-related claims)
- In re S-K-, 23 I. & N. Dec. 936 (B.I.A. 2006) (materiality of support to terrorist organizations)
- Zhao Quan Chen v. Gonzales, 492 F.3d 153 (2d Cir. 2007) (finality and scope of review for removal orders)