26 I. & N. Dec. 757
BIA2016Background
- Respondent, a Colombian business owner, provided recurring supplies to FARC from 1997–1999 after receiving threats; her business was later destroyed and she fled to the U.S.
- Admitted to the U.S. in 2001, she applied for asylum, withholding, and CAT protection; DHS charged removability for overstay.
- Immigration Judge found she provided material support to a terrorist organization and barred her from asylum/withholding; denied CAT relief for deferral.
- The Board earlier affirmed the material-support bar and remanded to determine whether, absent the bar, she would be eligible for asylum so DHS could consider a waiver.
- The Second Circuit remanded to the Board to decide whether the material-support bar includes an implied duress exception.
- On remand the Board concluded the statute contains no duress exception; absent a congressional waiver, material support—even if under duress—bars relief, so the appeal was dismissed.
Issues
| Issue | Respondent's Argument | Government's Argument | Held |
|---|---|---|---|
| Whether the material-support bar in 8 U.S.C. § 1182(a)(3)(B)(iv)(VI) includes an implied duress exception | Duress (threat of death) negates accountability; therefore an exception should apply | Statute is broad and silent on duress; Congress omitted an involuntary/member exception elsewhere and provided a discretionary waiver mechanism instead | No implied duress exception; material support bar applies even if support was provided under duress |
Key Cases Cited
- Negusie v. Holder, 555 U.S. 511 (2009) (Supreme Court guidance that statutory silence on duress is not necessarily conclusive and requires consideration of statutory design)
- Ay v. Holder, 743 F.3d 317 (2d Cir. 2014) (remanded to BIA to decide duress question in first instance)
- Sesay v. Att’y Gen. of U.S., 787 F.3d 215 (3d Cir. 2015) (material-support bar does not distinguish voluntary from involuntary support)
- Annachamy v. Holder, 733 F.3d 254 (9th Cir. 2013) (no implied duress exception to material-support bar)
- Alturo v. U.S. Att’y Gen., 716 F.3d 1310 (11th Cir. 2013) (upheld BIA’s refusal to create duress exception)
- Barahona v. Holder, 691 F.3d 349 (4th Cir. 2012) (material-support bar covers involuntary support; no duress exception)