Asylum Appeal – Board of Immigration Appeals Decision

Asylum Appeal

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Asylum Appeal – Board of Immigration Appeals (BIA) Decision: “Material Support” to a Terrorist Organization

Motion to Reconsider – Unpublished Board of Immigration (BIA) Appeals Decision:  BIA Dec. 5-18-17_Redacted

Asylum Appeal / Motion to Reconsider with BIA:  A motion to reconsider is a request that the Board of Immigration Appeals (BIA) reexamine its decision in light of additional legal arguments, a change of law, or perhaps an argument or aspect of the case that was overlooked. See section 240(c)(6) of the Immigration and Nationality Act, 8 U.S.C. § 1229a(c)(6) ; 8 C.F.R. § 1003.2(b); Matter of O-S-G-, 24 I&N Dec. 56, 57 (BIA 2006) see also Ma v. Ashcroft, 361 F.3d 553, 558 (9th Cir. 2004).

A motion to reconsider filed with the Board of Immigration Appeals (BIA) must be accompanied by a statement of reasons and supported by pertinent authority. See 8 U.S.C. § 1229a(c)(6)(C); 8 C.F.R. § 1003.2(b)(1); see also Iturribarria v. INS, 321 F.3d 889, 895-96 (9th Cir. 2003).

Asylum Appeal / Motion to Reconsider with Board of Immigration Appeals (BIA)

In this case, the Board’s last decision concluded that the respondent was barred from receiving asylum and withholding of removal because he provided “material support” to a terrorist organization. In making this conclusion, the Board agreed with the DHS that the material support bar does not contain a de minimis exception. Accordingly, the Board found that the respondent’ s one-time payment of $50.00 to Al-Shabaab as part of an agreement made to secure his release from kidnapping, constituted “material support” and prevented the respondent from being granted asylum or withholding of removal. See section 212(a)(3)(B)(iv)(VI) of the Act, 8 USC § 1182(a)(3)(B)(iv)(VI).2

In his motion to reconsider, the respondent states that he is not arguing that there is an “exception” to the material support bar for de minimis support. Instead, he states that “material support” must always be, in fact, ” material.” According to the respondent, the plain language of the statute requires ” material support” to be something other than de minimis. The respondent further observes that the United States Court of Appeals for the Third Circuit, the controlling circuit in this matter, has held that the word “material” in “material support” must be “ascribed some meaning.” Sesay v. Att’y General, 787 F.3d 215,222 (3d Cir. 2015), (citing Singh-Kaur v. Ashcroft, 385 F.3d 293, 298 (3d Cir. 2004) (examining Black’ s Law Dictionary definition of the word)). The respondent correctly argues that the Board’s last decision conflicts with the controlling law of the Third Circuit.

Asylum Appeal / Motion to Reconsider with Board of Immigration Appeals (BIA)

Accordingly, we now reconsider our decision insofar as it held that any amount of funds provided to a terrorist organization constitutes “material support” of that organization. We conclude that it was error to give no meaning to the word “material” in “material support.” The question that follows is whether the respondent’s one-time payment of $50.00 shortly before fleeing Somalia, is sufficient to be material.

The Board has previously indicated that a packed lunch and the equivalent of $4.00 in United States funds would not be material. See Sesay v. Att’y General, supra, at 221-22, (citing with approval an unpublished Board decision from 2009). In contrast, the Board has determined that the equivalent of $685 in United States funds made in multiple payments over several months was sufficiently substantial by itself to have some effect on the ability of a terrorist organization to accomplish its goals. Matter of S-K-, 23 I&N Dec. 936, 945-46 (BIA 2006) (finding it unnecessary to decide whether a small amount of money provided to a terrorist organization would be material support).

The Immigration Judge in this case did not conduct fact-finding concerning the amount the respondent paid to Al-Shabaab and specifically whether it would be sufficiently substantial by itself to have some effect on the ability of the terrorist organization at issue to accomplish its goals. Id. Accordingly, we find it necessary to remand the record to the Immigration Judge for further fact-finding. Therefore, we will grant the respondent’ s motion to reconsider our decision dated January 23, 2017. We will vacate that decision insofar as it found the respondent provided material support to Al-Shabaab, and we will remand the record to the Immigration Judge for further proceedings. On remand, both parties will be given the opportunity to submit additional evidence.

Asylum Appeal / Motion to Reconsider with Board of Immigration Appeals (BIA)

Motion to Reconsider Filed with the Board of Immigration Appeals (BIA)
ORDER: The motion to reconsider is granted.  BIA Dec. 5-18-17_Redacted

 

Asylum Appeal / Motion to Reconsider with Board of Immigration Appeals (BIA)

Any appeal, motion or petition filed with the Board of Immigration Appeals (BIA) must comply with the Board of Immigration Appeals (BIA) Practice Manual.  An experienced immigration attorney must be very familiar and knowledgeable about the Board of Immigration Appeals (BIA) Practice Manual.

 

Los Angeles Immigration Attorney, Nikki Jacobson, Attorney at Law, Experienced Immigration Lawyers

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