S-K
23 I. & N. Dec. 936 (2006)
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Rule of Law:
The statutory definition of “terrorist activity” under the Immigration and Nationality Act is applied strictly and does not permit a “totality of the circumstances” analysis; therefore, an alien’s intent in providing support, the goals of the recipient organization, and the nature of the regime opposed are irrelevant in determining whether the alien provided “material support” to a terrorist organization.
Facts:
- S-K-, a Christian and member of the ethnic Chin minority, is a native and citizen of Burma, a country ruled by a military dictatorship.
- The Burmese military arrested S-K-'s brother and killed her fiancé.
- In 2001, S-K- became sympathetic to the Chin National Front (CNF), an organization seeking freedom for the Chin people through armed resistance against the Burmese government.
- Over an 11-month period, S-K- donated a total of S$1100 (Singapore dollars) to the CNF.
- S-K- also attempted to donate a camera and binoculars to the CNF, but the items were confiscated.
- An undercover CNF agent warned S-K- that the Burmese military had discovered her support for the group and that she should flee.
- Fearing persecution and torture if she returned to Burma, S-K- fled to the United States to seek asylum.
Procedural Posture:
- S-K- applied for asylum, withholding of removal, and protection under the Convention Against Torture.
- An Immigration Judge found that S-K- had a well-founded fear of persecution but denied her application for asylum and withholding of removal.
- The Immigration Judge ruled that S-K- was statutorily barred from relief because her contributions to the Chin National Front constituted 'material support to a terrorist organization' under the Immigration and Nationality Act.
- The Immigration Judge also denied her application for protection under the Convention Against Torture.
- S-K- (the respondent) appealed the Immigration Judge's decision to the Board of Immigration Appeals (BIA).
- The BIA granted oral argument to address the definitions of 'material support' and 'terrorist organization'.
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Issue:
Does providing monetary contributions to an armed group opposing an oppressive foreign regime, regardless of the donor's intent or the group's pro-democratic goals, constitute providing 'material support to a terrorist organization' under the strict definition in section 212(a)(3)(B) of the Immigration and Nationality Act, thereby barring an individual from asylum?
Opinions:
Majority - Pauley, Board Member
Yes. Providing monetary contributions to an armed group opposing a foreign regime constitutes providing 'material support to a terrorist organization' under the plain language of the Act, which bars an individual from asylum. The statute's definitions of 'terrorist organization' and 'material support' are intentionally broad and do not allow for judicial discretion to create exceptions for 'freedom fighters' or to consider the donor's intent, the group's pro-democratic goals, or the illegitimacy of the opposed regime. The court's authority does not extend to making foreign policy determinations about the legitimacy of other governments. The monetary amount provided by S-K-, representing one-eighth of her income, was sufficiently substantial to be 'material.' The only remedy for the harshness of this statutory bar lies in a waiver, which only the Secretary of Homeland Security, not the Board, has the authority to grant.
Concurring - Osuna, Acting Vice Chairman
Yes. The specific language of the statute compels the denial of asylum, although this result is likely not what Congress intended. The statute's definition of 'terrorist activity' is 'breathtaking in its scope' and sweeps in conduct and organizations not commonly associated with terrorism, including pro-democratic groups whose activities may align with U.S. foreign policy. It creates a paradoxical outcome where an individual fleeing a repressive regime is barred from asylum for supporting a group that resists that very regime. Barring S-K-, who poses no threat to the U.S., does not further the legislative goal of preventing terrorists from exploiting asylum laws. The Department of Homeland Security should consider granting S-K- a waiver.
Analysis:
This decision establishes a rigid, textualist interpretation of the 'material support' bar, precluding any equitable or context-based analysis by immigration adjudicators. It solidifies that the statutory definitions are to be applied literally, even if it leads to results that seem contrary to U.S. foreign policy or notions of justice. The case shifts the resolution for such harsh outcomes from judicial interpretation to executive discretion, emphasizing the role of the DHS waiver process as the sole remedy. This precedent significantly narrows the path to asylum for individuals who have supported armed resistance groups, regardless of the cause.
