884 F.3d 107
2d Cir.2018Background
- Petitioner Marleny Hernandez, a Colombian national, provided quarterly $100 food packages to FARC over ~2 years after threats; later fled to the U.S. and sought asylum.
- Immigration judge found she would be eligible for asylum but the material support bar rendered her ineligible; she sought a discretionary waiver which DHS denied for failure to fully disclose details.
- The BIA held the INA material support bar contains no implied duress exception; this decision was issued on remand after a 2014 panel remanded to consider duress.
- The central statutory provision is 8 U.S.C. § 1182(a)(3)(B)(iv)(VI) (the material support bar); a separate waiver mechanism exists under 8 U.S.C. § 1182(d)(3)(B)(i).
- The Second Circuit applied Chevron deference to the BIA’s interpretation and affirmed that the material support bar does not except conduct done under duress, and rejected Hernandez’s due process challenge to the waiver process.
Issues
| Issue | Hernandez's Argument | Government's Argument | Held |
|---|---|---|---|
| Whether the material support bar contains an implied duress exception | The statute should be read to allow a duress exception; legislative context and criminal-law analogies support it | The statute is ambiguous; Congress omitted an involuntariness exception elsewhere and provided a post-enactment waiver mechanism, so no implied duress exception | Chevron step two deference to BIA: no implied duress exception; BIA's interpretation is reasonable and entitled to deference |
| Whether the absence of a duress exception conflicts with U.S. treaty (Protocol) obligations | A duress exception is required to comply with non-refoulement under the 1967 Protocol | The Protocol is not self-executing; Article 33.2 allows exclusion where a refugee is a danger to security and Congress may define that exclusion | Court: BIA's interpretation consistent with Protocol and implementing statutes; no treaty conflict established |
| Whether availability of duress as a criminal defense requires a duress exception in immigration law | Criminal-law duress defenses imply similar protection should apply in removal contexts | Immigration proceedings are civil, not criminal; different protections and purposes; duress in criminal law is inapposite | Court: Criminal duress defense does not compel an immigration duress exception |
| Whether the discretionary waiver process violates due process because it lacks procedural safeguards | Denial of adequate process: waiver is discretionary, lacks review, and is the only means to obtain relief for duress cases | Aliens receive full and fair adjudication in immigration court; the waiver is discretionary and not a protected liberty interest, so no due process violation | Held: No due process violation; discretionary waiver need not provide additional procedural rights and denial is not a due-process deprivation |
Key Cases Cited
- Chevron U.S.A., Inc. v. Natural Resources Defense Council, 467 U.S. 837 (administrative deference framework)
- I.N.S. v. Aguirre-Aguirre, 526 U.S. 415 (applying Chevron to immigration agency statutory interpretations)
- Cardoza-Fonseca v. I.N.S., 480 U.S. 421 (statutory construction and interpretation of refugee law)
- Ay v. Holder, 743 F.3d 317 (2d Cir.) (material support bar ambiguity re: duress; remand for agency to decide)
- Sesay v. Attorney General, 787 F.3d 215 (3d Cir.) (material support bar contains no duress exception)
- Annachamy v. Holder, 733 F.3d 254 (9th Cir.) (same conclusion; analysis of statutory context)
- Barahona v. Holder, 691 F.3d 349 (4th Cir.) (same conclusion)
- Alturo v. U.S. Attorney General, 716 F.3d 1310 (11th Cir.) (same conclusion)
- Yuen Jin v. Mukasey, 538 F.3d 143 (2d Cir.) (Protocol non-self-executing; procedural due process precedents in immigration context)