Adriano de Almeida VIEGAS, Petitioner, v. Eric H. HOLDER, Jr., Attorney General, Respondent.
No. 11-1689.
United States Court of Appeals, Fourth Circuit.
Argued: Sept. 19, 2012. Decided: Nov. 19, 2012.
699 F.3d 798
Before MOTZ, KING, and WYNN, Circuit Judges.
Petition denied by published opinion. Judge WYNN wrote the opinion, in which Judge MOTZ and Judge KING concurred.
OPINION
WYNN, Circuit Judge:
Adriano de Almeida Viegas, a native and citizen of the Republic of Angola, seeks
I.
A.
In February 2005, Viegas entered the United States with a fraudulent French passport. A few months later, he filed an application for asylum, claiming it was not safe for him to return home to Angola. Viegas‘s application was referred to Immigration Court.
In the asylum proceeding, Viegas stated he was born in Cabinda, an Angolan exclave. Cabinda has suffered from secessionist conflict since 1975. Viegas testified that in 1999, he became a card-carrying member of the FLEC, an organization dedicated to Cabindan independence from Angola. Between 1999 and 2003, he paid a monthly membership fee of fifty Angolan kwanzas to his FLEC contact, Bonga Bonga. Viegas testified that Bonga Bonga supplied him with posters and fliers advocating for Cabindan independence, which
Viegas further testified that in 2003, he participated in a peaceful protest against the Angolan government.1 At the protest, he was arrested and subsequently imprisoned, interrogated, and beaten by Angolan government officials. Viegas stated that he was released from custody in December of 2004. Two months later, he left Angola for the United States.
The Department of Homeland Security (“Homeland Security“) argued that Viegas was ineligible for asylum or withholding of removal under the INA, which bars aliens who are members of terrorist organizations or who have engaged in terrorist activity, including providing material support to terrorist organizations (“Material Support Bar“), from receiving various forms of relief from removal.
B.
The Immigration Judge found Viegas‘s testimony credible but determined that he is ineligible for asylum and withholding of removal. Specifically, the Immigration Judge concluded that the INA‘s Material Support Bar applies because Viegas paid dues to the FLEC and hung FLEC posters. The Immigration Judge also concluded that the mandatory bar for membership in a terrorist organization applies because Viegas was a member of the FLEC. Nevertheless, the Immigration Judge granted Viegas‘s request for deferral of removal under the Convention Against Torture,
On appeal to the BIA from the Immigration Judge‘s order, Viegas argued that neither the membership nor the material support bar applies to him because he belonged to an independent, peaceful faction of the FLEC, not a terrorist organization. Viegas also argued that the Material Support Bar does not apply to him because his participation in the FLEC was de minimis.
Rejecting Viegas‘s arguments, the BIA found that the Immigration Judge correctly determined that Homeland Security met its initial burden to show that the FLEC qualifies as a terrorist organization and that Viegas was unable to provide countervailing evidence about a separate faction. The BIA also found that Viegas‘s activities “aided the FLEC in continuing its fight against the Angolan government” such that they constituted material support for terrorism. J.A. 15. The BIA stated, “[W]here a group mandated an amount as a membership fee, we would not classify it as de minimis.” J.A. 15. The BIA noted
II.
When “the BIA has adopted and supplemented [the Immigration Judge]‘s decision, ... we review both rulings and accord them appropriate deference.” Cervantes v. Holder, 597 F.3d 229, 232 (4th Cir. 2010). We review factual findings for substantial evidence, which exists unless the record would compel any reasonable adjudicator to conclude the contrary. Djadjou v. Holder, 662 F.3d 265, 273 (4th Cir. 2011); see also
III.
A.
In his petition, Viegas first contends that the BIA and the Immigration Judge erred in finding that Homeland Security met its burden to show the FLEC qualifies as a terrorist organization. The Immigration Judge credited Viegas‘s assertion that the FLEC contains many factions, some more violent than others. Although Viegas concedes membership in a faction, Viegas failed to set forth evidence identifying the specific faction to which he belonged.
Viegas argues the BIA erred by placing the burden of proof on him to identify the FLEC faction to which he belonged. Viegas correctly points out that Homeland Security had to present evidence indicating that the membership bar or the material support bar applied. If Homeland Security met this evidentiary burden, however, the burden properly shifted to Viegas to prove that the INA‘s bars did not apply to him. See
The INA defines a “terrorist organization” as a group so designated by the Secretary of State or an undesignated group (“Tier III“) that “engages in, or has a subgroup which engages in” terrorist activity.
(I) The hijacking or sabotage of any conveyance (including an aircraft, vessel, or vehicle).
(II) The seizing or detaining, and threatening to kill, injure, or continue to detain, another individual in order to compel a third person (including a governmental organization) to do or abstain from doing any act as an explicit or implicit condition for the release of the individual seized or detained.
(III) A violent attack upon an internationally protected person (as defined in section 1116(b)(4) of Title 18) or upon the liberty of such a person.
(IV) An assassination.
(V) The use of any—
(a) biological agent, chemical agent, or nuclear weapon or device, or
(b) explosive, firearm or other weapon or dangerous device (other than for mere personal monetary gain), with intent to endanger, directly or indirectly, the safety of one or more individuals or to cause substantial damage to property.
(VI) A threat, attempt, or conspiracy to do any of the foregoing.
Here, it is undisputed that at the time of Viegas‘s membership, many FLEC factions engaged in violence against the Angolan government and civilians and destroyed government property. Nonetheless, Viegas argues that because the FLEC is comprised of factions, it cannot be considered a terrorist organization as a whole. But even Viegas‘s own expert testified that “Cabindans ... rarely distinguished between FLEC factions, rather they attributed most activities in support of independence to a generalized FLEC.” J.A. 655. Further, Homeland Security‘s submissions “indicate that most, if not all, of the FLEC factions include military wings [that] engaged in violence....” J.A. 17.
This evidence sufficiently establishes that Homeland Security met its initial burden to show that the FLEC qualifies as a terrorist organization. Further, there is no dispute that Viegas was a member of at least some component of the FLEC. This is sufficient to meet Homeland Security‘s burden to present evidence indicating that Viegas was a member of a terrorist organization. Therefore, the burden shifted to Viegas to establish that the INA‘s bars did not apply to him because he belonged to a separate, nonviolent organization. See
B.
Viegas also argues that the BIA erred in finding that Viegas knew or should have known the FLEC faction to which he belonged was a terrorist organization. For Tier III (undesignated) terrorist organizations, the Material Support Bar does not apply if the alien “can demonstrate by clear and convincing evidence that [he] did not know, and should not reasonably have known, that the organization was a terrorist organization.”
At the asylum proceeding, Viegas testified “[I]f the FLEC is a violent organization or not, I cannot tell you. I ... never heard. I was—I am against violence.” J.A. 206. Viegas repeatedly stated that he knew nothing about his faction‘s activities. Viegas and his expert testified that fear of the Angolan government prevents Cabindans from openly discussing the FLEC.
Viegas‘s lack of information about his faction‘s activities, however justified, does not provide a reasonable basis for
Given that Viegas admitted to hearing reports about the FLEC‘s violent activities, his personal opposition to violence and lack of specific information about his faction‘s methods are unavailing. Even if we were to accept Viegas‘s contention that he did not know he belonged to a terrorist organization, substantial evidence indicates that Viegas reasonably should have known that the organization he belonged to engaged in terrorist activities.
C.
Next Viegas contends that even if the FLEC is a terrorist organization, the BIA erred in concluding that his activities constituted material support under the INA. The INA defines engaging in terrorist activity to include acts the alien “knows, or reasonably should know, afford[] material support” to a terrorist organization.
There is no question that the type of activity in which Viegas engaged comes within the statutory definition of material support. The issue is whether Viegas‘s activities qualify as “material.” Viegas argues that the BIA abused its discretion in diverging from an earlier unpublished decision defining “material support,” Matter of L-H- (B.I.A. July 10, 2009). In Matter of L-H-, the BIA defined “material support” as conduct that advances terrorism. Viegas contends that his activities cannot qualify under Matter of L-H- because they were insignificant and not the type of support that advances terrorism. We disagree.
We first note that because Matter of L-H- is unpublished, neither the BIA nor this Court is bound by the decision. See, e.g., Matter of Echeverria, 25 I. & N. Dec. 512, 519 (B.I.A. 2011) (stating that unpublished decisions by the BIA “are not binding precedent“). Moreover, Viegas‘s conduct is distinguishable from the alien‘s in that case. Matter of L-H- involved a single exchange of a small amount of food and money, which the BIA deemed insufficient to constitute material support for terrorism. Here, every month for four years, Viegas voluntarily paid dues and hung posters for the FLEC. As the BIA concluded, the sum of Viegas‘s dues “was sufficiently substantial standing alone to have some effect on the ability of the FLEC to accomplish its goals.” J.A. 15. Accordingly, we reject Viegas‘s argument that the BIA‘s material support finding was arbitrary and capricious.
D.
Finally, Viegas argues that the mandatory bar for membership in a terrorist organization should not apply because
IV.
In sum, we conclude that the BIA did not err in deeming Viegas statutorily ineligible for asylum and withholding of removal under the INA‘s Material Support Bar. We therefore deny Viegas‘s petition for review.
PETITION DENIED.