A.Α., Petitioner v. ATTORNEY GENERAL OF THE UNITED STATES OF AMERICA, Respondent
No. 17-1176
UNITED STATES COURT OF APPEALS FOR THE THIRD CIRCUIT
September 2, 2020
PRECEDENTIAL; On Petition for Review of a Final Order of the Board of Immigration Appeals; Agency Number: A208-056-809; Immigration Judge: Mirlande Tadal; Argued: October 15, 2019
Before: CHAGARES, JORDAN, and RESTREPO, Circuit Judges
(Filed: September 2, 2020)
Anwen S. Hughes [ARGUED]
Human Rights First
75 Broad Street
Floor 31
New York, NY 10004
Counsel for Petitioner
Joseph H. Hunt
Ethan B. Kanter
Paul F. Stone [ARGUED]
Office of Immigration Litigation, Appellate Section
United States Department of Justice
P.O. Box 878, Ben Franklin Station
Washington, DC 20044
Counsel for Respondent
CHAGARES, Circuit Judge.
A.A. is a Syrian citizen and national who fled involuntary military service in a government-controlled militia called Jaysh al-Sha‘bi (the “Militia“) and sought refuge in the United States. Upon arriving at New York‘s John F. Kennedy International Airport, A.A. gave himself up to United States Customs and Border Protection and applied for asylum, withholding of removal, and deferral of removal under the Convention Against Torture (“CAT“).
An Immigration Judge (“IJ“) granted A.A.‘s application for deferral of removal under the CAT because the IJ found that A.A. was likely to be tortured if he returned to Syria. But the IJ denied A.A.‘s applications for asylum and for withholding of removal. The IJ determined that the Militia is a “Tier III,” or “undesignated,” terrorist organization under
Although A.A. secured CAT protection, he pursued his applications for asylum and withholding of removal before the Board of Immigration Appeals (“BIA“). A.A. argued before the BIA that the Militia is beyond the scope of the Tier III provision because it is a state actor controlled by a foreign government. The BIA disagreed and dismissed A.A.‘s appeal. A.A. makes the same argument in his petition for review. For the reasons that follow, we will deny the petition.
I.
A.A. was conscripted into the Syrian military in 2011. He initially refused to report for duty because he had heard that the Syrian military was engaging in human rights violations while prosecuting the Syrian Civil War. A.A. was eventually captured by Syrian military police and forced into service. A.A. testified that the military conscription office sent him for various medical tests and examinations over the course of approximately one year. The examining doctors concluded that A.A. suffered from “a chronic infection in the middle ear” and that he should be assigned to “stationary services” rather than active service. Administrative Record (“A.R.“) 92.
A.A. testified that, despite the doctors’ medical assessment, the Militia put A.A. through basic training, where he learned how to use an AK-47 rifle. He was first assigned to guard duty at a power station, then transferred to a soccer field in Damascus, and later reassigned to Tishreen Stadium in Al-Bariqah. At each duty station, A.A. served as an unarmed guard and performed errands for his superiors, who physically and verbally abused him because A.A. repeatedly reminded them that he was only fit for stationary, non-active service.
A.A. testified that, while at Tishreen Stadium, he suffered a “nervous breakdown” and was hospitalized. A.R. 1985. He obtained a one-year medical discharge effective January 1, 2013. Fearing that he would be forced to re-join the Militia or another armed group after his temporary discharge expired, A.A. fled Syria in September or October of 2013 and eventually arrived in the United States.
A.A. was placed in expedited removal proceedings. On September 30, 2019, he passed his credible fear interview. On the same date, he received a Notice to Appear charging that he was inadmissible to the United States. Before an IJ, A.A. conceded inadmissibility under
The IJ granted A.A.‘s application for deferral of removal under the CAT but denied his applications for asylum and for withholding of removal. The IJ noted that the Government submitted evidence that the Militia is “controlled by the Syrian government“; “has conducted . . . operations with [the] Syrian military“; and has “been instrumental in the Assad regime‘s campaign of terror” against the Syrian people. A.R. 106 (quotation marks omitted). The IJ also noted that the Militia receives support from Iran and that the Treasury Department has blocked the Militia‘s assets. The IJ credited A.A.‘s testimony about the Militia‘s use of “abusive and violent military tactics.” A.R. 106. A.A. testified that he saw reports about government soldiers killing civilians and that he heard a story about military police persecuting the family of a deserter, including raping and murdering members of the deserter‘s family.
The IJ determined that the Militia‘s killing and injuring opposition members and use of terror and violence against Syrian civilians constituted “terrorist activity” under
On December 30, 2016, the BIA dismissed A.A.‘s appeal in an unpublished decision by a single member. A.A. did not challenge the IJ‘s determination that the Militia engaged in terrorist activity or that he had provided the Militia with material support. Instead, A.A. argued that the Militia cannot be a Tier III organization because it is a state actor. The BIA rejected this argument. It agreed with the IJ that, to be a Tier III organization, an entity need only be “a group of two or more individuals, whether organized or not, which engages in, or has a subgroup which engages in” terrorist activity. A.R. 3 (quoting
On January 20, 2017, A.A. filed a petition for review. Proceedings were held in abeyance while United States Citizenship and Immigration Services (“USCIS“) considered whether to grant A.A. a discretionary duress exemption from the material support bar because A.A. was forced to serve in the Militia. USCIS later issued a decision declining to grant A.A. a duress exemption.
II.
We have jurisdiction under
Where, as here, the BIA adopted the findings of the IJ and discussed some of the bases for the IJ‘s decision, we review both decisions. Saravia v. Att‘y Gen., 905 F.3d 729, 734 (3d Cir. 2018). A.A.‘s petition for review is based on an issue of law, over which we exercise plenary review. Id.
The BIA‘s legal determinations involving the INA are entitled to deference under Chevron, U.S.A., Inc. v. Natural Resources Defense Council, Inc., 467 U.S. 837 (1984). See Mahn v. Att‘y Gen., 767 F.3d 170, 173 (3d Cir. 2014). Here, however, ”Chevron deference is inappropriate because we are asked to review an unpublished, non-precedential decision issued by a single BIA member.” Id. As a result, the BIA‘s decision is, “[a]t most,” entitled only to deference based on its persuasive authority. Id. (citing Skidmore v. Swift & Co., 323 U.S. 134, 140 (1944)).
III.
A.A. argues that Congress never intended the Tier III provision “to extend the concept[s] of a terrorist organization[,] and of ‘material support’ to a terrorist organization[,] to the military forces and governments of foreign states.” A.A. Br. 8. For support, A.A. advances a series of arguments based on the text of the Tier III
A.
1.
We begin with relevant legal background. Pursuant to the INA, “an alien seeking asylum must demonstrate either (i) proof of past persecution, or (ii) a well-founded fear of future persecution in his home country ‘on account of race, religion, nationality, membership in a particular social group, or political opinion.‘” Sesay v. Att‘y Gen., 787 F.3d 215, 218–19 (3d Cir. 2015) (quoting
An alien‘s “application for withholding of removal is reviewed under a more stringent standard.” Id. For withholding of removal, “an alien ‘must establish a clear probability, that is, that it is more likely than not that [his] life or freedom would be threatened if returned to [his] country’ because of his protected class.” Id. (alterations in original) (quoting Kaita v. Att‘y Gen., 522 F.3d 288, 296 (3d Cir. 2008)).
The INA contains several exceptions to the mandatory rules governing asylum and withholding of removal. As relevant here,
An alien is not entitled to asylum or withholding of removal if “there are reasonable grounds to believe that [an] alien is a danger to the security of the United States.”
Section
The Secretaries of State and Homeland Security have the power to exempt certain groups and individuals from3
Since 2005, the Secretaries have announced exemptions in the Federal Register. There are two types of exemptions. “Group-based” exemptions cover classes of aliens, such as those deemed inadmissible because of their association with a particular Tier III organization. See Terrorism-Related Inadmissibility Grounds (TRIG), U.S. Citizenship & Immigr. Servs., https://www.uscis.gov/laws-and-policy/other-resources/terrorism-related-inadmissibility-grounds-trig (last updated Nov. 19, 2019). “Situational exemptions” apply to aliens subject to certain inadmissibility grounds based on their individual conduct. Id. USCIS processes exemptions pursuant to the Secretaries’ delegation of authority.
2.
The INA defines three types of “terrorist organizations” in
describes “Tier I” terrorist organizations that the Secretary of State formally designates according to the procedures set forth in
Clause (III) describes “Tier III,” or “undesignated,” terrorist organizations. No executive agency formally designates Tier III organizations; rather, IJs or the BIA designate them on a case-by-case basis in the course of reviewing individual aliens’ applications for immigration relief. As a
The Attorney General has the power to review IJ and BIA decisions designating Tier III organizations. See
3.
On April 24, 2019, after A.A. filed his opening brief and before the Government filed its response, the Secretary of State published a notice under his discretionary exemption power that exempts all subgroups of foreign governments from Tier III status. Office of the Secretary; Exercise of Authority Under the Immigration and Nationality Act,
[The Tier III provision] shall not apply to any ministry, department, agency, division, or other group or sub-group within any foreign government; except that this exercise of authority shall not apply to any group designated under [
8 U.S.C. § 1189 ] or any group prohibited from benefiting from an exercise of authority under [8 U.S.C. § 1182(d)(3)(B)(i) ] for having engaged in terrorist activity against the United States or another democratic country, or having
purposefully engaged in a pattern or practice of terrorist activity that is directed at civilians. This waiver applies both retroactively and prospectively.
B.
First, A.A. argues that the Tier III provision does not include state actors because it only encompasses an “organization” that meets the Tier III criteria, and the INA‘s general definition of “organization”
In interpreting a statute, “we must begin with the statutory text.” United States v. Moreno, 727 F.3d 255, 259 (3d Cir. 2013) (citing United States v. Gonzales, 520 U.S. 1, 4 (1997)). We “presume[] that Congress expresse[d] its intent through the ordinary meaning of its language,” so “every exercise of statutory interpretation begins with an examination of the plain language of the statute.” Murphy v. Millennium Radio Grp. LLC, 650 F.3d 295, 302 (3d Cir. 2011) (quoting Alston v. Countrywide Fin. Corp., 585 F.3d 753, 759 (3d Cir. 2009)). “[W]here the text of a statute is unambiguous,” we will enforce it “as written,” and we will only depart from that language based on “the most extraordinary showing of contrary intentions in the legislative history.” Id. (quoting In re Phila. Newspapers, LLC, 599 F.3d 298, 314 (3d Cir. 2010)).
A.A. contends that the Tier III provision does not extend to state actors because the INA‘s general definition of “organization” applies to the prefatory language introducing the Tier III provision, and so that definition narrows the scope of the Tier III provision. Specifically, the prefatory language in
A.A. argues that this definition does not encompass state actors because it only consists of a list of terms that refer to non-state actors, and therefore, the definition of “terrorist organization” must only encompass non-state actors as well. A.A. asserts that this is consistent with the dictionary definition of “organization,” which also does not refer to state actors. A.A. Br. 13 (citing Organization, Merriam-Webster.com (defining “organization” as an “(a) association, society” or “(b) an administrative and functional structure, such as a business or a political party“)). Finally, A.A. points out that the INA defines “foreign state” separately, and he argues that this is evidence that Congress did not intend for the definition of “organization” to encompass state actors. See A.A. Br. 13 (citing
The Government responds that the Tier III provision “neither expressly nor impliedly excludes militias” and “provides that an entity need only be ‘a group of two or more individuals, whether organized or not.‘” Gov‘t Br. 25 (quoting
However, the Government argues that even if we apply
We agree with the Government that the Tier III provision encompasses state actors, including the Militia. At the outset, A.A. alternately frames the issue before us as whether the Tier III provision encompasses “national military forces of foreign countries,” A.A. Br. 1, and whether the Tier III provision applies to “state actors” more generally, A.A. Br. 9. The Government tries to limit the question to whether the Tier III provision encompasses state-controlled “militias.” Gov‘t Br. 3, 31-32. Neither party presents any limiting principle for why a state-controlled “militia” is legally distinguishable in this context from any other state-controlled armed or unarmed group, and we perceive none. Therefore, we address the question of whether state actors generally can be designated as Tier III organizations.
The plain text of the Tier III provision answers the question before us: a Tier III terrorist organization is any “group of two or more individuals, whether organized or not” that “engage[s] in terrorist activity” as described in
Even if we read
The ordinary meaning of the terms “group” and “organization” both include multiple individuals organized into military units. A.A. asks us to categorically exclude state actors from the scope of the Tier III provision and
C.
A.A. next argues that the structure, context, and revision history of the INA is inconsistent with reading the Tier III provision to encompass state actors. Again, we disagree.
1.
A.A. contends that various amendments to the INA exhibit Congress‘s intent to treat state and non-state actors differently, at least with respect to the INA‘s terrorism provisions. A.A. points out that the Uniting and Strengthening America by Providing Appropriate Tools Required to Intercept and Obstruct Terrorism Act of 2001 (the “USA PATRIOT Act“) “eliminated from the definition of ‘engage in terrorist activity’ any reference to ‘the acts of a foreign government.‘”
activity‘... the reference to providing material support to ‘any individual, organization or government in conducting a terrorist activity.‘” A.A. Br. 17 (emphasis added) (citing
The Government claims that Congress‘s elimination of the INA‘s references to “government” and “terrorist government” actually broadened the scope of the term “terrorist organization” “to ‘account for the complex and often mutating nature of terrorist groups by expanding the class of inadmissible’ aliens. Gov‘t Br. 34 (quoting 147 Cong. Rec. S10990-2, S11016 (daily ed. Oct. 25, 2001) (statement of Sen. Hatch)). In the Government‘s view, the USA PATRIOT Act did nothing to narrow the terrorism-related inadmissibility provisions generally and did nothing to exclude state actors specifically.
We agree. A.A. focuses too narrowly on the USA PATRIOT Act‘s removal of references to “government” from the definition of “engage in terrorist activity.” That Act did much more than excise the word “government” from
2.
A.A. also asserts that, if the Tier III provision encompasses state actors, then designating a state actor controlled by a foreign government as a Tier III organization effectively designates that entire foreign government as a terrorist organization. For support, A.A. points to the language of the Tier III provision, which encompasses “any organization of two or more persons, whether organized or not, that engages in or has a subgroup that engages in” terrorist activity. A.A. Br. 17 (citing
The Government responds that the BIA‘s power to designate foreign governments as Tier III organizations should not impact the plain meaning of the Tier III provision. It asserts that the subgroup clause is further evidence that Congress desired to broaden the definition of “terrorist organization.” In any case, the Government claims that the Secretary of State‘s Exemption for subgroups of most foreign governments “diminishes the impact of a determination” that such a subgroup is a Tier III organization. Gov‘t Br. 50 (citing
A.A.‘s arguments are unavailing. First, until an IJ or the BIA designates an organization as a Tier III organization, that organization is not covered by the Tier III provision, even if the provision‘s text appears applicable to it. And designating a subgroup as a Tier III organization does not infect the controlling, parent entity with the same label. See
Second, at base — both here, and in other parts of his brief — A.A. argues that our interpreting the Tier III provision in a way that permits IJs and the BIA to designate state actors as Tier III organizations will inject IJs and the BIA into the conduct of foreign policy, which is firmly the president‘s constitutional prerogative. A.A. asserts that Congress could not have intended such “absurd results.” A.A. Reply Br. 1. The Government responds that Congress
Although “it is ... a ‘basic tenet of statutory construction ... that courts should interpret a law to avoid absurd or bizarre results,‘” Encompass Ins. v. Stone Mansion Rest. Inc., 902 F.3d 147, 152 (3d Cir. 2018) (second alteration in original) (quoting In re Kaiser Aluminum Corp., 456 F.3d 328, 338 (3d Cir. 2006)), our interpretation of the Tier III provision does not “def[y] rationality or render[] the statute nonsensical and superfluous,” id. (quoting United States v. Moreno, 727 F.3d 255, 259 (3d Cir. 2013)). A.A.‘s argument has surface-level appeal, but ultimately founders when examining the Tier III provision in the context of the INA as a whole.
The INA empowers the Secretaries of State and Homeland Security and the Attorney General to intervene in immigration proceedings to prevent absurd or bizarre results. As the Government points out, because the Exemption clearly applies to most subgroups of foreign governments, it will significantly narrow IJs’ powers to apply the Tier III provision to foreign governments at all. See
Finally, we note that the BIA already rules on issues that could impact the United States’ relations with other countries. See, e.g., Matter of Vides Casanova, 26 I. & N. Dec. 494, 495, 501–02 (BIA 2015) (recognizing that the Salvadoran military and related militias were responsible for civilian killings and torture). And, at least in the past, the BIA has refrained from ruling on issues that go to the very heart of a foreign state‘s legitimacy. See, e.g., Matter of S-K-, 23 I. & N. Dec. 936, 940 (BIA 2006) (declining to “determine that a foreign sovereignty would not be recognized by the United States Government“). So our interpretation of the Tier III provision does not thrust IJs or the BIA into any unintended new or greatly expanded role of influence over American foreign policy.8
A.A. further claims that applying the Tier III provision to state actors would render the extrajudicial killing and child soldier inadmissibility grounds superfluous. A.A. Br. 18–20 (citing Milner v. Dep‘t of the Navy, 562 U.S. 562, 575 (2011) (noting that courts should avoid interpreting statutes in ways that render provisions superfluous)).
The extrajudicial killing inadmissibility ground, enacted in 2004, bars aliens who have committed “under color of law of any foreign nation, any extrajudicial killing.”
The Government responds that actions can be “under the color of law even where [state officials] act without state sanction.” Gov‘t Br. 53 (quoting Ramirez-Peyro v. Holder, 574 F.3d 893, 901 (8th Cir. 2009) (holding that the use of official authority does not require state sanction)); see also Kadic v. Karadzic, 70 F.3d 232, 245 (2d Cir. 1995) (“A private individual acts under color of law within the meaning of section 1983 when he acts together with state officials or with significant state aid.“)). According to the Government, the alien “need not commit the act in association with an organization” and need not have “organizational authorization” for it. Gov‘t Br. 53 (citing Uddin v. Att‘y Gen., 870 F.3d 282, 290 (3d Cir. 2017) (holding that “Tier III status cannot be assigned to a group” unless “the specified terrorist acts were actually authorized” by that group)). As a result, the Government contends, applying the Tier III provision to state actors would not result in the terrorism grounds swallowing the extrajudicial killing ground because the latter would apply where an alien commits a killing, under color of law, without authorization from the foreign state.
A.A. also argues that if state militaries can be Tier III organizations, then the child soldier inadmissibility ground would be superfluous. Enacted in 2008, the child soldier provision bars aliens who have “engaged in the recruitment or use of child soldiers.”
A.A.‘s arguments are unpersuasive. The Government has identified plausible situations in which either the extrajudicial killing or child soldier inadmissibility ground could apply, and the terrorism inadmissibility grounds through the Tier III provision would not. As a result, neither the extrajudicial killing ground nor the child
D.
A.A. then argues that the executive branch‘s own actions cut against the Government‘s argument that the Tier III provision should apply to state actors. First, A.A. argues that terrorism law and policy treat state actors differently, so we should restrict the Tier III provision to non-state actors as a means of abiding by this general norm of differential treatment. A.A. specifically points to the United States’ sanctions against Syria as evidence that it does not treat the Syrian government as a terrorist organization, but rather as a state sponsor of terrorism.
The Government responds that sanctions against state sponsors of terrorism are not the executive branch‘s exclusive means of punishing state actors that engage in terrorist activity. Sanctions are economic and targeted at states, whereas the INA‘s terrorist activity provisions impose immigration consequences on individuals. A terrorist organization designation under
A.A. also argues that since the USA PATRIOT Act created the Tier III provision, neither the Department of Homeland Security (“DHS“) nor the BIA has applied it to “the armed forces of a national government,” or any other state actor. A.A. Br. 26. Instead, A.A. claims, in cases involving state actors, DHS has pursued the so-called persecutor bar. The persecutor bar is a statutory exception to the INA definition of “refugee.” That exception provides: “The term ‘refugee’ does not include any person who ordered, incited, assisted, or otherwise participated in the persecution of any person on account of race, religion, nationality, membership in a particular social group, or political opinion.”
We disagree with A.A.‘s argument. In enforcing the law, DHS has prosecutorial discretion to pursue (or not pursue) whatever combination of inadmissibility grounds that it chooses in enforcing the country‘s immigration laws. See, e.g., Heckler v. Chaney, 470 U.S. 821, 831 (1985) (“[A]n agency‘s decision not to prosecute or enforce, whether through civil or criminal process, is a decision generally committed to an agency‘s absolute discretion.“); Reno v. Am.-Arab Anti-Discrimination Comm., 525 U.S. 471, 483–84 (1999) (noting the long history of executive branch discretion to pursue or abandon removal proceedings); Texas v. United States, 106 F.3d 661, 667 (5th Cir. 1997) (noting the State of Texas‘s concession that
A.A. makes a similar argument that the Government has never classified a state actor as a Tier I or Tier II organization, and therefore, it would be incongruous to interpret the Tier III provision to encompass state actors. However, on April 15, 2019, after A.A. filed his opening brief and before the Government filed its response brief, the Secretary of State designated the Iranian Revolutionary Guard (“IRG“) as a Tier I terrorist organization. See In the Matter of the Designation of the Islamic Revolutionary Guard Corps (and Other Aliases) as a Foreign Terrorist Organization,
We are again unconvinced by A.A.‘s argument. A.A. is correct that the executive‘s assertion of statutory authority is not determinative of whether it has such power. See Rucho v. Common Cause, 139 S. Ct. 2484, 2494 (2019) (“[I]t is ‘the province and duty of the judicial department to say what the law is.‘” (quoting Marbury v. Madison, 1 Cranch 137, 177 (1803))). However, the plain meaning of the Tier III provision encompasses state actors. See supra Part III.B. The Government has discretion to invoke one ground
E.
A.A. next claims that interpreting the Tier III provision to encompass state actors conflicts with the United States’ treaty obligations under the Convention Relating to the Status of Refugees, July 28, 1951, 189 U.N.T.S. 150 (the “Convention“), and the 1967 United Nations Protocol relating to the Status of Refugees, Jan. 31, 1967, 606 U.N.T.S. 267 (the “Protocol“), which “[binds] parties to comply with the substantive provisions of Articles 2 through 34” of the Convention. Khan, 584 F.3d at 782 (alteration in original) (quoting INS v. Stevic, 467 U.S. 407, 416 (1984)). A.A. argues that the Protocol only permits exceptions to mandatory asylum for aliens for whom there are “reasonable grounds for regarding ... as a danger to the security of the country where he is.” A.A. Br. 40 (quoting Convention, Article 33(2)). A.A. asserts that Congress incorporated the Protocol into domestic law through the
We recognize that “one of Congress’ primary purposes in passing the Refugee Act was to implement the principles agreed to in the [Protocol].” INS v. Aguirre-Aguirre, 526 U.S. 415, 427 (1999) (quotation marks omitted). But we ultimately conclude that the Protocol plays no role in our interpretation of the Tier III provision.
First, the Protocol is not self-executing; that is, it does not have any independent force absent implementing legislation. See Medellin v. Texas, 552 U.S. 491, 534 n.2 (2008) (Stevens, J., concurring) (citing a 1992 Senate declaration of non-self-execution with respect to the Protocol); United States v. Pinto–Mejia, 720 F.2d 248, 259 (2d Cir. 1983) (“[I]n enacting statutes, Congress is not bound by international law.“); United States v. Merkt, 794 F.2d 950, 964 n.16 (5th Cir. 1986) (similar). Cf. Khan, 584 F.3d at 783 (discussing differences between United States law and the Protocol). Second, because the Protocol lacks independent force in United States courts, we look to the text of the relevant statutes to determine what Congress intended. Even where one of Congress‘s purposes in enacting a law was to execute one of the United States’ international obligations, courts are bound by the relevant statutes, not by sources of international law. See, e.g., id. at 784 (holding that the INA‘s definition of “terrorist activity” controls in asylum determinations).
IV.
The INA contains no statutory exception for individuals, like A.A., who are forced to provide material support to terrorist organizations. Sesay, 787 F.3d at 222–24 (“Congress has ‘delegat[ed] to the Secretary the sole authority to waive the applicability of terrorist-related bars, ... paid specific attention to duress waivers,’ and ‘has appreciated the distinction between voluntary and involuntary conduct.‘” (quoting Annachamy v. Holder, 733 F.3d 254, 263–64 (9th Cir. 2013))). The only recourse for aliens forced to serve a terrorist organization and ensnared by the material support bar is a possible administrative duress exemption. A.A. was denied such an exemption. We asked the parties to submit supplemental briefing on how the exemption process works and why A.A. did not qualify for one.
Under
- Is seeking a benefit or protection under the [INA] and [but for the material support bar] has been determined to be otherwise eligible for the benefit or protection;
- Has undergone and passed relevant background and security checks;
- Has fully disclosed, in all relevant applications and interviews with U.S. Government representatives and agents, the nature and circumstances of each provision of such material support; and
- Poses no danger to the safety and security of the United States.
USCIS will only consider whether an alien should receive an exemption after the alien‘s order of removal becomes final. See Department of Homeland Security Implements Exemption Authority for Certain Terrorism-Related Inadmissibility Grounds for Cases with Administratively Final Orders of Removal, U.S. Citizenship and Immigr. Servs. (Oct. 23, 2008), https://www.uscis.gov/sites/default/files/USCIS/Laws/TRIG/USCIS_Process_Fact_Sheet_-_Cases_in_Removal_Proceedings.pdf
A.A.‘s removal order became administratively final on December 30, 2016. His case was then submitted to USCIS for evaluation. On December 18, 2018, USCIS declined to grant A.A. an exemption. USCIS concluded that A.A. failed to “fully disclose in all relevant applications and interviews . . . the nature and circumstances of each provision of material support to the” Militia. Notice of Determination, Gov‘t Supp. Br. Ex. C, at 3 (Dec. 18, 2018). USCIS noted that A.A. “initially lied about [his] travel pattern out of fear that [he] would have been immediately deported.” Id. at 6. USCIS also noted that A.A. provided more comprehensive information to the immigration court than he did during his interview at the airport immediately after he arrived in the United States. Because of these purported inconsistencies and USCIS‘s uncertainty about the details of A.A.‘s military service, and because A.A.‘s “positive factors are insufficient to overcome the negative factors,” USCIS refused to grant A.A. an exemption. Id. at 7. As a result, while the administrative duress exemption might have afforded A.A. the relief he desired, it ultimately did not, and A.A. has no right to judicial review of this decision.10
V.
For these reasons, we will deny A.A.‘s petition for review.
Notes
As used in this section, the term “terrorist organization” means an organization—
(I) designated under section
(II) otherwise designated, upon publication in the Federal Register, by the Secretary of State in consultation with or upon the request of the Attorney General or the Secretary of Homeland Security, as a terrorist organization, after finding that the organization engages in the activities described in subclauses (I) through (VI) of [
(III) that is a group of two or more individuals, whether organized or not, which engages in, or has a subgroup which engages in, the activities described in subclauses