Circuit Presses BIA on Discretionary Waiver on Removal

, New York Law Journal

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A Kurd who is a Turkish citizen fighting to stay in the United States will have another chance to argue that he was under duress when he aided a terrorist group and should not be deported.

The U.S. Court of Appeals for the Second Circuit on Thursday revived the case of Ramazan Ay, who was ordered removed by an immigration judge for providing material support to the Kurdistan Workers' Party (PKK).

Ay claimed he only gave clothing once and food and water on four or five occasions over 10 years ago to members of the PKK in Turkey because they were armed and he had no choice.

The Board of Immigration Appeals (BIA) affirmed the denial of asylum and withholding of removal for Ay in 2011 because the Immigration and Nationality Act bans people who provide material support to terrorist organizations or individuals, 8 U.S.C. §1182(a)(3)(B)(iv)(VI), (a)(3)(B)(i)(I).

The BIA judge who wrote the order also observed that Ay "may be eligible for an exemption" from the Secretary of the Department of Homeland Security, but added "whether such relief is warranted is outside the scope of the Board's jurisdiction in these removal proceedings."

But the Second Circuit said it was remanding the case to permit the BIA "to make a presidential ruling on whether a duress exception to the material support bar is implicit in the statute."

Saying Ay's "argument presents an important question of statutory interpretation that our Court has not yet addressed," Judges Richard Wesley (See Profile), Peter Hall (See Profile) and Susan Carney (See Profile) ordered the remand by per curium opinion in Ay v. Holder, 11-2102-ag.

The judges said they accepted the immigration judge's conclusion that Ay "knew or should have known" the men he gave food, water and clothing to were terrorists, but made clear that a finding there is an explicit exception to the bar could change the equation.

The judges noted that the U.S. Supreme Court found an implicit exception for duress in another context—the bar to asylum for aliens who participate in the persecution of others, in Negusie v. Holder, 555 U.S. 511 (2009).

Here, as in Negusie, the circuit said the BIA's raising of a discretionary waiver from Homeland Security "does little to enlighten us as to the reasoning behind the agency's apparent view that the statute does not implicitly contain an exception to the bar."

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