Case Information
*1 W ILLIAM J. B AUER , Circuit Judge J OEL M. F LAUM , Circuit Judge D IANE S. S YKES , Circuit Judge No. 12-2471
FH-T,
Petitioner , v.
E RIC J. H OLDER , J R ., A TTORNEY
G ENERAL OF THE U NITED S TATES ,
Respondent. Petition for Review of an Order of the Board of Immigration Appeals. No. 12-2471 O R D E R *2 2 No. 12-2471
On consideration of the petition for rehearing and petition for rehearing en banc filed by petitioner in the above case on [*]
September 6, 2013, a majority of active judges voted to deny rehearing. Chief Judge Wood, Circuit Judges Posner, Rovner and Hamilton voted to grant en banc rehearing. Chief Judge Wood has written an opinion, which Judges Posner, Rovner and Hamilton have joined, dissenting from the denial of the petition.
‐ W OOD , Chief Judge, with whom P OSNER , R OVNER , H AMILTON , Circuit Judges, join, dissenting from the denial rehearing en banc.
One cannot read the panel opinion without appreciating how difficult the are, how troubled the panel was the outcome that it believed it was required to reach. I agree panel’s conclusion that petitioner FH T failed to exhaust argument about “knowledge exception” bar asylum applies to persons who provided material support a terrorist organization. But I cannot subscribe panel’s conclusion powerless do anything about procedural dead end a person like T finds himself—unable receive an answer from Board Immigration Appeals on question whether is eligible asylum apart from what I will call terrorism bar, yet unable obtain determination from Department Homeland Security an application terrorism bar without decision BIA. panel suggests end its opinion (sl. op. at 33) problem can solved only Congress. my view, however, problem regulatory both its creation its solution: we have instance two agencies (the Department Justice, through its Executive Office Immigration Review, Department Security) thwarted congressional scheme through their regulatory apparatus. Legislative intervention necessary empower these two Executive departments solve problem their own making. To *4 4 12 2741 contrary, there are number ways in they could come into compliance statutory framework. I outline few them below. The proper procedure adjudicating terrorism bar is important enough its own justify attention full court. But is more here: case raises general problem (which we seen elsewhere in immigration cases) assuring agency regulations do defeat rights found in statutes. Cf. Kucana v. Holder, U.S. 233 (2010) (refusing extend proscription against judicial review decisions made discretionary statute those made discretionary by regulation). I believe is worth attention en banc court, so I respectfully dissent decision set rehearing.
A quick review underlying facts pertinent legal materials helpful put my concerns context. ‐ T an Eritrean citizen. Here what CIA’s World Factbook has say about Eritrea: UN established Eritrea as autonomous
region within Ethiopian federation 1952. Ethiopia’s full annexation Eritrea province years later sparked violent ‐ year struggle independence ended Eritrean rebels defeating government forces. Eritreans overwhelmingly approved independence referendum. Isaias Afworki been Eritrea’s only president since independence; rule, ‐ particularly since 2001, has been highly autocratic and repressive. His government created a highly militarized society by pursuing unpopular program mandatory conscription into national service, sometimes indefinite length. https://www.cia.gov/library/publications/the ‐ world ‐ factbook/geos/er.html (last visited Jan. 15, 2014). At age 15, FH ‐ T joined Eritrean People’s Liberation Front (EPLF) and was quickly swept up violent war independence. He regretted decision almost immediately, but he discovered he was not free leave, and thus remained EPLF duration war. During time, T’s duties included driving truck distribute food and clothing and transferring calls and requests truck parts.
After war ended, EPLF transformed itself into political party, People’s Front Democracy and Justice (PFDJ), Isaias Afworki named president transitional legislature. Unfortunately, did herald adoption democratic form government. To contrary, “the constitution, ratified May 1997, did enter into effect, pending parliamentary presidential elections; parliamentary elections were scheduled December were postponed indefinitely; currently PFDJ sole legal party controls all national, regional, local political offices.” World Factbook, supra . connection EPLF’s re branding political 12 ‐ 2741 party, FH ‐ T found himself in mandatory national service referenced above, where he was assigned to work transportation supervisor for state ‐ owned company. He repeatedly spoke out against “national service” program, which supposedly required months service, but in reality often amounted to indefinite compulsory work. PFDJ was not amused: imprisoned FH ‐ T in military camp five months horrendous conditions; he became seriously ill and lost pounds. At end period, he was released without having been charged with any wrongdoing. He was forced return to his old job, but he permitted do any work, exchange he received pay. 2007, when he heard possible governmental attempt kill him, fled United States filed asylum. After departure, his father sister were arrested. ‐ T’s asylum application prompted DHS issue Notice Appear August 15, 2007, which had effect putting him into proceedings. It important note DHS (through its Citizenship Immigration Service, CIS) takes care most applications terrorism bar administratively—that say, without involvement Immigration Judge BIA. See statistics at http://www.rcusa.org/uploads/pdfs/TRIG%20stat s%20(only),%206 12.pdf (last visited Jan. 15, 2014) (cited Petition Rehearing En Banc n.8). We are concerned set cases are handled exclusively DHS; our problem smaller, important, group noncitizen been ‐ 7 placed within formal removal proceedings. The latter are handled the Executive Office for Immigration Review the Justice Department.
The IJ denied FH ‐ T’s applications for asylum and withholding removal, he did grant deferral removal Article III the U.N. Convention Against Torture, U.N.T.S. (1984), which the United States signed. The IJ found that FH ‐ T’s account his knowledge the EPLF’s activities was not credible, that FH ‐ T had failed establish his eligibility for asylum, and that he was statutorily ineligible withholding because he had provided material support the EPLF, the IJ characterized Tier III terrorist organization purposes U.S.C. § 1182(a)(3)(B)(vi)(III). (As the panel points out, sl. op. 9–10, terrorist organizations fall into several tiers: DHS designates Tier I groups, the Department State designates Tier II groups. Tier III is more flexibly defined is no formal list such organizations; among others, IJs authority decide if group fits Tier III definition.)
It BIA’s opinion affirming IJ’s ultimate conclusions that critical our purposes. BIA noted FH T did not challenge finding EPLF was Tier III terrorist organization; I agree both Board panel issue before us. T stressed instead assertions support he provided EPLF material had knowledge group’s terrorist activities. Like IJ, BIA found merit these arguments. The BIA concluded with the following statement and footnote (emphasis added):
As the respondent [FH T] barred asylum withholding of removal [because of the terrorism bar], we need address the other arguments on appeal regarding the merits of respondent’s claim of persecution Eritrea account actual imputed political opinion. [Footnote 1: To extent respondent has argued possible eligibility waiver section 212(d)(3)(B)(i) Act [8 U.S.C. § 1182(d)(3)(B)(i)], we note Secretary State sole authority grant waiver, provision does affect disposition instant proceedings.] fact, Board’s assumption only Secretary
State empowered grant waiver terrorism bar incorrect. The statute provides follows: Secretary State, after consultation Attorney General Secretary Security, Secretary Homeland
Security , after consultation Secretary State Attorney General, may determine such Secretary’s sole unreviewable discretion … [that should granted]. U.S.C. § 1182(d)(3)(B)(i) (emphasis added). fact, the Secretary of State loses his power grant once removal proceedings have begun, see id. , Secretary of Homeland Security takes responsibility for
many, if most, of these waivers. On October 23, 2008, Homeland Security, through CIS, issued document entitled “Fact Sheet: Department Homeland Security Implements Exemption Authority for Certain Terrorist Related Inadmissibility Grounds for Cases Administratively Final Orders Removal.” The Fact Sheet indicates Secretary Security had begun September 8, 2008, implement exemption authority § 1182(d)(3)(B)(i) “for issued administratively final orders removal by Department Justice (DOJ), Executive Office for Immigration Review (EOIR).” Fact Sheet sets out two prerequisites for Secretary’s consideration: (1) order must be “administratively final”—in other words, BIA must have affirmed order period seeking review before BIA must expired; (2) those custody, exemption petition will be forwarded CIS “if relief protection denied solely basis grounds inadmissibility exemption authority been exercised Secretary.” For those custody, Fact Sheet similarly states individual must “otherwise [be] eligible consideration.” It mystery why DHS would choose insist all other resolved before Secretary considers exemption petition; is need him to waste resources if petitioner could still be removed on independent grounds.
Proper resolution of also requires us to look key statutes. First is U.S.C. § 1182(a)(3)(B) (§ 212(a)(3)(B) of Act), which designates “ineligible receive visas ineligible admitted United States” any alien who has engaged in terrorist activities. Section 1182(a)(3)(B)(vi) defines term “terrorist organization” classifying such organizations into three tiers. The relevant here subsection III, which speaks of “an organization … group two or more individuals, whether organized not, which engages in, or subgroup engages in, activities described in subclauses (I) through (VI) clause (iv). Those activities range murder, gathering information, soliciting funds terrorist organization, solicitation membership in group. rule § 1182(a)(3)(B) absolute, however. Section 1182(d)(3)(B)(i) confers authority either Secretary State, consultation with Attorney General Secretary Homeland Security, Secretary Security, consultation with other two, “determine such Secretary’s sole unreviewable discretion subsection (a)(3)(B) section shall apply respect alien within scope subsection … .” And, critically our case, Congress provided judicial review legal may arise conjunction determinations: 12 2741 11
Notwithstanding any other provision of law (statutory or nonstatutory), including section of Title 28, or any other habeas corpus provision, sections of Title 28, court shall jurisdiction review such determination revocation except in proceeding review of final order of removal pursuant section of this title, review shall be limited extent provided in section 1252(a)(2)(D) this title. Secretary State may exercise discretion provided clause with respect an alien any time during alien subject pending removal proceedings section 1229a title. U.S.C. § 1182(d)(3)(B)(i) (emphasis added). summary,
Congress has (1) created rule forbidding certain aliens who are were associated terrorist activities from being admitted United States; (2) created an exemption rule, awarded solely discretion Executive Branch; (3) permitted judicial review legal might arise connection exercise exemption authority. Indeed, could argue last sentence excerpt just above indicates Secretary State (and inference also Secretary Security) must await conclusion proceedings before making exemption decision. At minimum, final sentence means only Secretary Security may act once removal proceedings commenced.
Nowhere this statutory scheme can find a command from Congress that authorizes compels BIA to refrain from deciding issues that might influence removability an alien before it. Normally, it up BIA decide how many it should reach on an appeal from an IJ, just as this court often chooses not reach arguments that a party made if can rest on another ground. But “normally” does mean always. If operation a different statute depends on a finding fact a conclusion law from BIA, then it up BIA devise administrative procedures that will assure that performs its duty. No statute, my knowledge, forbids Board from creating a structure that will ensure that Board does effectively deprive a noncitizen T’s position from seeking a before DHS.
It point, my view, that considerable line disapproving agency procedures defeat an alien’s right obtain merits determination ground withholding becomes relevant. Subhan v. Ashcroft, F.3d (7th Cir. 2004), noncitizen had applied adjustment status statute permitted him receive benefit if certified eligible employment United States. He received two continuances, then IJ denied him third. We held denial had effect barring him relief Congress had authorized: “When request adjustment status denied there no judicial review because denial one the discretionary orders expressly made nonreviewable by section 1252(a)(2)(B). But discretion was exercised here deny a requested adjustment status; instead, denial continuance prevented alien from obtaining action on his request.” We found it “unlikely Congress, intending, it clearly did, entitle illegal aliens seek adjustment status upon receipt certificates state and federal labor departments, at same time also intended section 1252(a)(2)(B)(ii) place beyond judicial review decisions by immigration authorities nullified statute.” Id. at 595.
Benslimane v. Gonzales , F.3d (7th Cir. 2005), offers another application same principle. Benslimane had originally entered a visitor’s visa overstayed, later his spouse applied on his behalf a spousal visa sought adjustment status. His proceeding went forward nonetheless, at point his lawyer erred by failing submit adjustment status request IJ (thinking it could be filed until it had been adjudicated). IJ denied a continuance ordered Benslimane removed. This court ruled decision deny continuance reviewable because “had effect substantive ruling on application adjust status … .” Id. 832. Writing more broadly, we said “[a]n immigration judge cannot permitted, arbitrarily denying motion continuance without which alien cannot establish ground Congress determined that he eligible to remain in country, to thwart congressional design.” Id.
Finally, in Ceta v. Mukasey, F.3d (7th Cir. 2008), we faced a situation in an Albanian citizen was seeking asylum United States. He was concededly removable, his application for asylum had been denied, but he was also seeking adjustment of status basis of his marriage to an American citizen. Under regulations force when he applied, he ineligible for adjustment of status, but during pendency his appeal BIA, DHS Attorney General issued interim rule providing applicants adjustment had apply CIS whether they were proceedings. IJ, however, denied Ceta a continuance would permitted him pursue avenue. This court found “BIA’s affirmation [the denial of] Mr. Ceta’s request a continuance amounts, circumstances case, a denial his statutory right apply adjustment status.” Id. 646. He had become, we said, “trapped within regulatory interstice” because he had statutory right apply adjustment status would be removed before CIS could adjudicate application.
I recognize are distinctions drawn between these T’s, such procedural posture details statutory language. But none these differences overcomes relevant similarity: each these three cases, alien had statutory right seek form relief, immigration agencies erected ‐ regulatory barrier to the opportunity to seek the relief question. same situation exists here. FH ‐ T has a statutory right to seek a the terrorism bar, between them, EOIR and DHS have created regulatory barriers that made it impossible him to place his before Secretary Security and obtain a “yes” “no” answer. I am not persuaded panel’s opinion that we can should accept that answer.
I conclude two points. First, it is premature worry about relieving FH ‐ T from any consequences that flow from existence a “final removal order.” Finality is one criteria that DHS has identified necessary before it will entertain an exemption request. Just because is a final order does not mean that bag ‐ baggage letter is coming along imminently. Those letters are within control DHS anyway, I would hope that arm agency can find way ensure that does nullify what another arm agency doing. T, extent, asking more than we need address right now. If such letter were arrive before obtains his answer from DHS, I presume that attorney would seek an emergency stay, we would have better record consider facts equities. Second, although I believe that agencies here have stumbled into system impermissibly nullifies rights Congress created, I am suggesting solution courts micromanage proper fix. One possible answer would insist BIA adjudicate all might stand way exemption terrorism bar, cases where it is issue; another possible “fix” would be DHS change policy expressed Fact Sheet state it will adjudicate all exemption requests where there final BIA order (or its equivalent), regardless how many BIA reached. And may others; up agencies decide how they want solve problem. thing they cannot do, however, adopt system flies face statutory rights.
For these reasons, I dissent decision hear en banc .
[*] Circuit Judge Ann Claire Williams did not participate in the consideration of this petition.