Nassuma Jabateh v. Loretta Lynch
845 F.3d 332
| 7th Cir. | 2017Background
- Nassuma Fomba Jabateh, a Liberian national and former Director of the Bureau of National Procurement, entered the U.S. on an A-2 diplomatic visa in 2005 and applied for asylum, withholding of removal, CAT protection, and adjustment of status under § 13 (8 U.S.C. § 1255b).
- While exiled in Guinea (circa 2001–2002) Jabateh occasionally interpreted for Sekou Conneh, leader of LURD (an insurgent Mandingo group); he sometimes received small, sporadic payments and ceased contact after returning to Liberia in 2003.
- LURD fought Charles Taylor’s forces during Liberia’s civil conflict and was deemed a Tier III terrorist organization for INA purposes; petitioner claimed persecution threats as a Mandingo Muslim and government official.
- The IJ denied asylum/withholding/CAT on the merits and found Jabateh’s interpreter services were not material support; the BIA reversed on material-support, holding the services constituted material support and that Jabateh failed the Tier III knowledge exemption, making him ineligible for asylum/withholding; the BIA also denied CAT deferral for lack of torture proof and held USCIS (not IJ/BIA) has exclusive jurisdiction over §13 adjustments.
- The Seventh Circuit affirmed the BIA: (1) IJ/BIA lacked jurisdiction over §13 adjustments; (2) interpreter services were material support to a Tier III organization and Jabateh failed to meet the knowledge exemption; and (3) he failed to show it was more likely than not he would be tortured if returned to Liberia.
Issues
| Issue | Plaintiff's Argument | Defendant's Argument | Held |
|---|---|---|---|
| Whether IJ/BIA had jurisdiction to decide §13 (8 U.S.C. §1255b) adjustment | Jabateh: §1245.2 grants IJ/BIA power to adjudicate renewal of adjustment in removal proceedings | Gov't: §245.3 directs §13 applicants to USCIS; AAO/USCIS has exclusive review authority | BIA/IJ lacked jurisdiction; USCIS/AAO exclusive (affirmed) |
| Whether occasional interpretation for LURD leader constitutes "material support" | Jabateh: sporadic, unpaid, personal services not "material" and unrelated to terrorist acts | Gov't: communications/interpretation can be material; support to a member counts; materiality need not be tied to violent acts | BIA correctly found services were material support to a Tier III org; knowledge exemption not met (affirmed) |
| Whether petitioner is entitled to deferral of removal under CAT | Jabateh: at minimum eligible for CAT deferral because of threats and past targeting | Gov't: record lacks evidence of likelihood of torture by or with acquiescence of Liberian gov't | Substantial-evidence supports BIA/IJ: petitioner failed to show "more likely than not" he would be tortured (affirmed) |
| Merits of asylum/withholding and adverse credibility findings | Jabateh: he suffered/presents a well-founded fear of persecution on protected grounds; IJ erred on credibility | Gov't: even accepting some facts, material-support bar and record deficiencies defeat relief | Court declined to reach merits because material-support bar independently bars asylum/withholding; affirmed adverse credibility as unnecessary to resolve outcome |
Key Cases Cited
- Sarhan v. Holder, 658 F.3d 649 (7th Cir. 2011) (standard of review where BIA has not supplanted IJ)
- Hussain v. Mukasey, 518 F.3d 534 (7th Cir. 2008) (material support can include support confined to non‑terrorist activities)
- Khan v. Holder, 766 F.3d 689 (7th Cir. 2014) (material‑support bar renders alien ineligible for asylum/withholding; CAT deferral still possible)
- FH‑T v. Holder, 723 F.3d 833 (7th Cir. 2013) (procedural issues regarding eligibility for DHS exemption and review)
- Holder v. Humanitarian Law Project, 561 U.S. 1 (2010) (expansive view of what can constitute material support)
- INS v. Doherty, 502 U.S. 314 (1992) (BIA is a regulatory creature; Attorney General/regs govern Board authority)
- INS v. Bagamasbad, 429 U.S. 24 (1976) (agencies/courts need not decide unnecessary issues)