Annachamy v. Holder

FOR PUBLICATION

UNITED STATES COURT OF APPEALS
FOR THE NINTH CIRCUIT

SATHEESKUMAR ANNACHAMY, AKA No. 07-70336
Sathees Annachamy,
Petitioner, Agency No.
A200-041-850
v.

ERIC H. HOLDER, JR., Attorney ORDER AND
General, AMENDED
Respondent. OPINION

On Petition for Review of an Order of the
Board of Immigration Appeals

Argued and Submitted
September 2, 2011—San Francisco, California

Filed July 3, 2012
Amended August 19, 2013

Before: Raymond C. Fisher and Johnnie B. Rawlinson,
Circuit Judges, and Richard Mills, District Judge.*

Opinion by Judge Fisher

*
The Honorable Richard Mills, Senior United States District Judge for
the Central District of Illinois, sitting by designation.
2 ANNACHAMY V. HOLDER

SUMMARY**

Immigration

The panel amended its opinion filed on July 3, 2012;
granted a petition for rehearing; denied a petition for
rehearing en banc on behalf of the court; and ordered that no
future petitions will be entertained.

The panel denied a petition for review of the Board of
Immigration Appeals’ denial of asylum and withholding of
removal based on the material support terrorist provision of
8 U.S.C. § 1182(a)(3)(B)(iv)(VI). The panel held that the
material support bar does not include an implied exception
for individuals who assist organizations engaged in legitimate
political violence or who provide support under duress.

In the amended opinion, the panel added a statement that
because Congress updated the totalitarian party membership
provision in the same legislation in which it created the
material support bar, it was appropriate to presume that
Congress was aware of the existing legislation. The panel
also added a statement that the waiver provision is still
relevant in determining earlier congressional intent, even
though the waiver provision was not enacted until 15 years
after the creation of the material support bar.

**
This summary constitutes no part of the opinion of the court. It has
been prepared by court staff for the convenience of the reader.
 ANNACHAMY V. HOLDER 3

COUNSEL

Visuvanathan Rudrakumaran, Law Office of Visuvanathan
Rudrakumaran (argued), New York, New York, for
Petitioner.

Tony West, Assistant Attorney General, United States
Department of Justice; Michael P. Lindemann, Assistant
Director; Ethan B. Kanter (argued), Senior Litigation
Counsel, Office of Immigration Litigation, Washington, D.C.,
for Respondent.

Sean Riordan, ACLU of San Diego & Imperial Counties, San
Diego, California, for Amici Curiae Harvard Immigration and
Refugee Clinic and American Civil Liberties Union of San
Diego & Imperial Counties.

ORDER

The opinion filed July 3, 2012, and reported at 686 F.3d
729 (9th Cir. 2012), is amended. The amended opinion is
filed concurrent with this Order.

With the amended opinion, the panel has voted to
GRANT Petitioner’s petition for rehearing. Judges Fisher
and Rawlinson have voted to deny the suggestion for
rehearing en banc and Judge Mills so recommends.

The full court has been advised of the suggestion for
rehearing en banc and no active judge has requested a vote on
whether to rehear the matter en banc. Fed. R. App. P. 35.
4 ANNACHAMY V. HOLDER

Petitioner’s suggestion for rehearing en banc, filed
September 14, 2012, is DENIED.

No future petitions for rehearing or rehearing en banc will
be entertained.

OPINION

FISHER, Circuit Judge:

Satheeskumar Annachamy petitions for review of a
decision of the Board of Immigration Appeals (BIA) denying
him asylum and withholding of removal because he provided
material support to a terrorist organization, in violation of
8 U.S.C. § 1182(a)(3)(B)(iv)(VI). Annachamy argues that the
BIA erred by applying the material support bar because (1)
the organization he supported was engaged in legitimate
political violence and (2) he provided support under duress.
We hold that the material support bar does not include an
implied exception for individuals who assist organizations
engaged in legitimate political violence or who provide
support under duress. We thus deny Annachamy’s petition
for review.

I.

Annachamy is a native and citizen of Sri Lanka. In a
hearing before an immigration judge (IJ), Annachamy
testified that between 1986 and 2004 he was arrested several
times by the Sri Lankan army on suspicion that he was
involved with the Liberation Tigers of Tamil Eelam (LTTE),
a militant organization that was then at war with the Sri
 ANNACHAMY V. HOLDER 5

Lankan government.1 Each time, the army detained him for
many weeks, interrogated him and tortured him, including
beating him with weapons while he was hung upside down,
inserting a stick in his rectum, placing a bag soaked in
gasoline over his head and forcibly submerging his head into
water.

Annachamy testified that he was never a member of the
LTTE and was opposed to it. On several occasions, however,
he was forced to assist LTTE members. In 1992, for instance,
LTTE members came to his house and demanded that he join
them. Annachamy refused and, upon threat of force,
promised to give them money in the future. In 1996, he paid
LTTE members 2000 rupees (approximately $37). On other
occasions, LTTE members blindfolded Annachamy and took
him to a LTTE camp, where they forced him to cook, dig
trenches, fill sandbags and help build fences. Each time he
was taken to perform these activities, he was kept under strict
watch and there was no possibility of escape. Annachamy
believed that he would have been killed if he tried to escape
or seek help from the police. He has had no contact with the
LTTE since 1997, when he moved from his home town.
Annachamy testified that he was not aware that the LTTE
was considered a terrorist organization when he assisted
them.

After being detained by the Sri Lankan army again in
2004, Annachamy went into hiding. He left Sri Lanka and
arrived in the United States in 2005. Upon his arrival, the
Immigration and Naturalization Service, now the Department
of Homeland Security (DHS), initiated removal proceedings.

1
Because both the IJ and BIA found that Annachamy was a credible
witness, we assume his testimony was true.
6 ANNACHAMY V. HOLDER

Annachamy conceded that he was removable based on his
unlawful presence in the United States, but filed an
application for asylum, withholding of removal and
protection under the Convention Against Torture (CAT).

After a hearing, an IJ granted Annachamy asylum and
withholding of removal. The IJ found that, despite some
inconsistencies, Annachamy testified in a credible manner.
Relying on Annachamy’s application, testimony and State
Department reports on the conditions in Sri Lanka, the IJ
found that Annachamy had demonstrated a well-founded fear
of persecution based on a protected ground. The IJ also
found that Annachamy was not precluded from obtaining
relief even though he gave assistance to the LTTE, because
he was forced to do so. The IJ found that Annachamy’s “life
or freedom would have been threatened” if he had not
assisted the LTTE.

The BIA reversed. In an unpublished opinion, the BIA
accepted the IJ’s credibility determination and found that
there was “no question” that Annachamy had established a
well-founded fear of future persecution that went unrebutted.
The BIA found, however, that the Immigration and
Nationality Act (INA) barred Annachamy from obtaining
asylum or withholding of removal because he had provided
material support to a terrorist organization. The BIA instead
granted Annachamy deferral of removal under CAT and
remanded to the IJ to complete identity, law enforcement or
security examinations required under 8 C.F.R.
 ANNACHAMY V. HOLDER 7

§ 1003.1(d)(6).2 Annachamy petitions for review of that
decision.

II.

We have jurisdiction to review the BIA’s final order
denying asylum and withholding of removal under 8 U.S.C.
§ 1252. See Li, 656 F.3d at 904 (“[W]here the BIA denies
relief and remands pursuant to § 1003.1(d)(6) for background
checks required for alternative relief, we have jurisdiction to
consider an appeal of the final order denying relief.”). “Our
review is confined to the BIA’s decision except to the extent
the BIA incorporated the IJ’s decision.” Id. at 900–01. We
review de novo constitutional and other questions of law. See
Khan v. Holder, 584 F.3d 773, 776 (9th Cir. 2009). We
afford the BIA’s unpublished opinion Skidmore deference,
meaning “we ‘examine the validity of the BIA’s reasoning, its
thoroughness, and overall persuasiveness,’ and give it weight
accordingly.” United States v. Casasola, 670 F.3d 1023,
1030 (9th Cir. 2012) (quoting Garcia-Quintero v. Gonzales,
455 F.3d 1006, 1015 (9th Cir. 2006)).

2
Before granting an application for relief or protection from removal,
DHS must complete certain identity, law enforcement and security
examinations. See 8 C.F.R. § 1003.47. Under 8 C.F.R. § 1003.1(d)(6),
“[w]here background checks are required but have not yet been
completed, the BIA must either issue an order remanding the case to the
IJ with instructions to allow the DHS to complete the background checks,
or provide notice to both parties that the case is on hold pending
completion of the background checks.” Junming Li v. Holder, 656 F.3d
898, 902 (9th Cir. 2011).
8 ANNACHAMY V. HOLDER

III.

An alien who has engaged in terrorist activities is
ineligible for asylum, withholding of removal and
withholding under CAT, but remains eligible for deferral of
removal under CAT. See Haile v. Holder, 658 F.3d 1122,
1125–26 (9th Cir. 2011).3 We have previously recognized
that the INA “defines ‘engag[ing] in terrorist activity’
broadly.” Khan, 584 F.3d at 777 (alteration in original). The
definition includes committing, planning or gathering
information about potential targets for a terrorist activity, and
soliciting funds or individuals for a terrorist activity or
terrorist organization. See 8 U.S.C. § 1182(a)(3)(B)(iv). An
alien also engages in terrorist activity by

commit[ting] an act that the actor knows, or
reasonably should know, affords material
support, including a safe house,
transportation, communications, funds,
transfer of funds or other material financial
benefit, false documentation or identification,
weapons (including chemical, biological, or
radiological weapons), explosives, or training
—

(aa) for the commission of a terrorist activity;

3
See also 8 U.S.C. § 1182(a)(3)(B)(i)(I) (providing that an alien who
has “engaged in terrorist activity” is inadmissible); id. § 1158(b)(2)(A)(v)
(providing that an alien described in § 1182(a)(3)(B)(i)(I) is ineligible for
asylum); id. §§ 1227(a)(4)(B), 1231(b)(3)(B)(iv) (same for withholding of
removal); 8 C.F.R. § 1208.16(d)(2) (same for withholding under the
CAT); 8 C.F.R. § 1208.17(a) (providing that an alien eligible for CAT
protection but ineligible for CAT withholding shall be granted deferral of
removal).
 ANNACHAMY V. HOLDER 9

(bb) to any individual who the actor knows, or
reasonably should know, has committed or
plans to commit a terrorist activity;

(cc) to a terrorist organization described in
subclause (I) or (II) of clause (vi) or to any
member of such an organization; or

(dd) to a terrorist organization described in
clause (vi)(III), or to any member of such an
organization, unless the actor can demonstrate
by clear and convincing evidence that the
actor did not know, and should not reasonably
have known, that the organization was a
terrorist organization.

Id. § 1182(a)(3)(B)(iv)(VI).

“The statute also defines ‘terrorist organization’ broadly.”
Khan, 584 F.3d at 777. The definition includes organizations
designated as a “terrorist organization” by the Secretary of
State, in consultation with the appropriate officials, see
8 U.S.C. § 1182(a)(3)(B)(vi)(I)–(II) — often referred to as
Tier I and Tier II terrorist organizations — and any “group of
two or more individuals, whether organized or not, which
engages in, or has a subgroup which engages in, [terrorist
activities],” id. § 1182(a)(3)(B)(vi)(III) — referred to as Tier
III terrorist organizations.

Annachamy does not dispute that he materially assisted
the LTTE, and the parties agree that the LTTE qualified as a
10 ANNACHAMY V. HOLDER

Tier III organization at the time he assisted it.4 Annachamy
challenges the BIA’s decision on two grounds, however. He
argues, first, that the material support bar does not apply to
him because the LTTE was engaged in legitimate political
violence; and, second, that the bar does not apply to him
because he supported the LTTE under duress. We consider
each argument in turn.

A. Political Offense Exception.

Annachamy contends that the material support bar does
not apply to him because the LTTE was engaged in
“legitimate political violence.” Our decision in Khan
forecloses this argument. See 584 F.3d at 781–85.

In that case, the BIA found an alien ineligible for asylum
and withholding of removal because he had engaged in
terrorist activities by soliciting funds for a terrorist
organization, in violation of 8 U.S.C. § 1182(a)(3)(B)(iv)(IV).
See id. at 776. The alien argued on appeal that he did not
assist a “terrorist organization” because “the definition of
‘terrorist activity’ under § 1182(a)(3)(B)(iii) incorporates
international law, and thus excludes legitimate armed
resistance against military targets.” Id. at 781. We rejected
this argument because the plain language of the INA allowed
for no such exception. See id.

Annachamy advances the same argument we rejected in
Khan, except he concedes the LTTE is a terrorist organization

4
Annachamy does not argue that his support of the LTTE was not
“material,” so we need not resolve the issue of whether Annachamy’s
actions constitute “material support” of the LTTE within the meaning of
the statute.
 ANNACHAMY V. HOLDER 11

and thus that it engaged in terrorist activity. Rather than
arguing there is a “political offense” exception to the
definition of “terrorist activity,” Annachamy would have us
locate the exception in the material support bar. We decline
to do so.

The material support bar provides that any alien who
“commit[s] an act that the actor knows, or reasonably should
know, affords material support, including a safe house,
transportation, communications, funds, transfer of funds or
other material financial benefit, false documentation or
identification, weapons (including chemical, biological, or
radiological weapons), explosives, or training” to a terrorist
organization has engaged in terrorist activity. 8 U.S.C.
§ 1182(a)(3)(B)(iv)(VI). Annachamy provides no textual
hook for his argument that the material support bar does not
apply to political offenses. He argues only that denying relief
to aliens who have participated in political offenses would
violate the United States’ obligations under international law
and would lead to troubling results, whereby, for instance,
individuals who resisted the Nazis would be barred from
obtaining asylum. We considered and rejected both of these
arguments in Khan. See 584 F.3d at 781–84; see also In re S-
K-, 23 I. & N. Dec. 936, 941 (B.I.A. 2006) (“[W]e find that
Congress intentionally drafted the terrorist bars to relief very
broadly, to include even those people described as ‘freedom
fighters,’ and it did not intend to give us discretion to create
exceptions for members of organizations to which our
Government might be sympathetic.”). We therefore hold that
12 ANNACHAMY V. HOLDER

there is no political offense exception to the material support
bar.5

B. Duress Exception.

Annachamy also argues that he is not barred from
obtaining asylum or withholding of removal because the
material support bar does not apply to aliens who supported
terrorist activities or organizations under duress. We do not
believe that is a permissible reading of the statute.

We begin with the text of the statute. Notably,
the material support bar itself does not provide an
exception for material support that is involuntary or coerced.
Although silence is certainly not conclusive as to whether
an exception exists, see Negusie v. Holder, 555 U.S. 511,
518 (2009); cf. Holder v. Gutierrez, 132 S. Ct. 2011,
2019 (2012) (“We cannot read a silent statute as requiring
(not merely allowing) imputation just because that rule would
be family-friendly.”), the statutory framework makes clear
that no exception was intended. First, in the material support
bar Congress explicitly carved out an exception, in the case
of Tier III terrorist organizations, for aliens who
“demonstrate by clear and convincing evidence that the actor
did not know, and should not reasonably have known, that the

5
In Khan, we acknowledged that there may be an exception to the
definition of “terrorist activity” where “the law of the country in question
incorporates international law such that the conduct in question is no
longer ‘unlawful’ under the country’s domestic law.” 584 F.3d at 781.
Annachamy argues that this case should be remanded to the BIA to
consider whether Sri Lanka has incorporated international law, such that
the LTTE’s activities were not unlawful under Sri Lankan domestic law.
Because Annachamy has not provided any evidence that Sri Lanka has
incorporated such international law, we decline his invitation to remand.
 ANNACHAMY V. HOLDER 13

organization was a terrorist organization.” 8 U.S.C.
§ 1182(a)(3)(B)(iv)(VI)(dd). That Congress included this
express exception within the provision is some indication that
it would have likewise expressly excepted involuntary
support if it intended to do so.6

6
In support of Annachamy’s petition for rehearing, amici Harvard
Immigrant Rights Clinic and the American Civil Liberties Union argue
that the word “unlawful” from the statute’s definition of “terrorist activity”
creates an implicit duress exception because “unlawful” means
“criminally culpable” and duress is a defense to criminal liability. We
disagree. First, “unlawful” (which is not defined in the statute) merely
means contrary to law, not necessarily contrary to criminal law. Many
areas of law, including immigration, use the word unlawful without
denoting criminal liability. Compare 8 U.S.C. § 1182(a)(9)(B)(ii)
(deeming aliens to be unlawfully present if they remain in the United
States after the expiration of their authorized period) with Arizona v.
United States, 132 S. Ct. 2492, 2505 (2012) (noting that “it is not a crime
for a removable alien to remain present in the United States”); see also
29 U.S.C. § 623 (making it “unlawful,” but not criminal, to discriminate
on the basis of age); 5 U.S.C. § 706(2) (providing that agency action that
is arbitrary or capricious is “unlawful”).

Second, even assuming “unlawful” means “criminally culpable,” the
word appears in the definition of “terrorist activity,” but the material
support bar appears in the definition of “engage in terrorist activity,” and
this subsection does not include the word unlawful. See 8 U.S.C.
§ 1182(a)(3)(B)(i), (iii). “Terrorist activity” defines acts of terrorism, such
as hijacking, assassination, etc., but “engage in terrorist activity” describes
actions an individual might take, directly or indirectly, to aid in terrorism.
Reading the entire statutory scheme together reveals that although the
generic act of terrorism must be an unlawful act, the alien’s commission
of or support for that act of terrorism or terrorist organization need not be
criminally liable for the material support bar to apply.

Finally, even if criminal culpability were required for the material
support bar to apply, duress does not excuse the majority of acts listed in
the definition of “terrorist activity.” Duress does not excuse murder or
even reduce murder to manslaughter. See United States v. LaFleur,
14 ANNACHAMY V. HOLDER

Second, as the BIA observed, Congress created an explicit
involuntariness exception in a neighboring subsection.
Section 1182(a)(3)(D)(i) provides that “[a]ny immigrant who
is or has been a member of or affiliated with the Communist
or any other totalitarian party (or subdivision or affiliate
thereof), domestic or foreign, is inadmissible.” Congress
specified that the bar is inapplicable “if the alien
establishes . . . that the membership or affiliation is or was
involuntary.” Id. § 1182(a)(3)(D)(ii). “‘[W]here Congress
includes particular language in one section of a statute but
omits it in another section of the same Act, it is generally
presumed that Congress acts intentionally and purposely in
the disparate inclusion or exclusion.’” INS v. Cardoza-
Fonseca, 480 U.S. 421, 432 (1987) (alteration in original)
(quoting Russello v. United States, 464 U.S. 16, 23 (1983));
see also Fedorenko v. United States, 449 U.S. 490, 512
(1981) (holding, where Congress had included a voluntariness
requirement in one subsection of the statute, but not another,
that “the deliberate omission of the word ‘voluntary’ . . .

971 F.2d 200, 206 (9th Cir. 1991). And in many jurisdictions, duress does
not excuse attempted murder or aiding and abetting murder either. See,
e.g., People v. Vieira, 106 P.3d 990, 1005–07 (Cal. 2005); State v.
Mannering, 48 P.3d 367, 371 (Wash. Ct. App. 2002). All of the acts listed
in the definition of “terrorist activity” involve either murder or a situation
where an innocent person’s life is placed in grave danger, see 8 U.S.C.
§ 1182(a)(3)(B)(iii), so even if the alien’s support for the terrorist act had
to be criminally culpable, duress would not necessarily negate that
culpability. In short, the single, undefined use of the word “unlawful” in
a different subsection cannot withstand the weight amici place on it: the
importation of the entire doctrine of criminal law, including the
opportunity to present all affirmative defenses.
 ANNACHAMY V. HOLDER 15

compels the conclusion” that Congress did not intend to adopt
a voluntariness requirement in the latter subsection).7

Third, the existence of an administrative waiver provision
in the INA “weakens [Annachamy’s] argument that the BIA’s
reading of the statutory language is overly broad, because the
broad statutory definition is combined with a discretionary
waiver by executive branch officials.” Khan, 584 F.3d at
782. The waiver provision states:

The Secretary of State, after consultation with
the Attorney General and the Secretary of
Homeland Security, or the Secretary of
Homeland Security, after consultation with
the Secretary of State and the Attorney
General, may determine in such Secretary’s
sole unreviewable discretion that subsection
(a)(3)(B) of this section [defining “terrorist
activities”] shall not apply with respect to an
alien within the scope of that subsection or
that subsection (a)(3)(B)(vi)(III) of this
section [defining Tier III terrorist
organization] shall not apply to a group within
the scope of that subsection, except that no
such waiver may be extended to an alien who

7
Annachamy points out that the totalitarian bar was enacted several
years before the material support bar, as the BIA acknowledged, but we
must “assume that Congress is aware of existing law when it passes
legislation.” See Miles v. Apex Marine Corp., 498 U.S. 19, 32 (1990).
Presuming congressional awareness of existing legislation is particularly
appropriate here because Congress updated the totalitarian party
membership provision in the same legislation in which it created the
material support bar. See H.R. Conf. Rep. No. 101-955, 1990 WL
201613, at § 601.
16 ANNACHAMY V. HOLDER

is within the scope of subsection
(a)(3)(B)(i)(II) [i.e. an alien who the executive
knows, or has reasonable ground to believe, is
engaged in or likely to engage in terrorist
activity after entry], no such waiver may be
extended to an alien who is a member or
representative of, has voluntarily and
knowingly engaged in or endorsed or
espoused or persuaded others to endorse or
espouse or support terrorist activity on behalf
of, or has voluntarily and knowingly received
military-type training from a terrorist
organization that is [designated as a Tier I or
II terrorist organization], and no such waiver
may be extended to a group that has engaged
terrorist activity against the United States or
another democratic country or that has
purposefully engaged in a pattern or practice
of terrorist activity that is directed at civilians.

8 U.S.C. § 1182(d)(3)(B)(i).8 As we recognized in Khan, this
delegation of authority to the specified Secretaries reflects

8
The waiver provision was originally passed as part of the Real ID Act
of 2005. See Pub. L. No. 109-13, § 104, 119 Stat. 231, 309 (2005). It was
amended to its current form by the Consolidated Appropriations Act,
2008. See Pub. L. No. 110-161, § 691(a), 121 Stat 1844 (2007). Although
the waiver provision was not enacted until 15 years after the creation of
the material support bar, the waiver provision is still relevant in
determining the earlier congressional intent. See Red Lion Broadcasting
Co. v. FCC, 395 U.S. 367, 380–81 (1969) (“Subsequent legislation
declaring the intent of an earlier statute is entitled to great weight in
statutory construction.”); see also Barahona v. Holder, 691 F.3d 349, 355
(4th Cir. 2012) (considering the waiver provision in its analysis of the
material support bar).
 ANNACHAMY V. HOLDER 17

Congress’ determination that executive branch officials are in
a position to judge the characteristics of particular groups
engaging in terrorist activities, see 584 F.3d at 782, perhaps
taking into account whether the groups have a practice of
forcing innocent civilians to support their causes under threat
of force.

Indeed, the relevant officials here have exercised their
authority to create a mechanism by which aliens who have
provided material support under duress may be exempted
from the material support bar. In March 2007, Secretary of
Homeland Security Michael Chertoff, after appropriate
consultations, exercised his discretion under the waiver
provision to exempt from the material support bar aliens who
provided support to several specific organizations. See
Exercise of Authority Under Sec. 212(d)(3)(B)(i) of the
Immigration and Nationality Act, 72 Fed. Reg. 9954-01 to
9957-02 (Mar. 6, 2007) (exempting aliens who provide
material support to the Alzados, Kayan New Land Party,
Karenni National Progressive Party, Karen National
Union/Karen National Liberation Army, Mustangs, Arakan
Liberation Party, Chin National Front/Chin National Army
and Chin National League for Democracy). He also
exercised his discretion by creating a mechanism by which
certain aliens who provided material support to a Tier III
terrorist organization under duress could be exempted from
the material support bar. See Exercise of Authority Under
Sec. 212(d)(3)(B)(i) of the Immigration and Nationality Act,
72 Fed. Reg. 9958-01 (Mar. 6, 2007). He set forth specific
criteria an alien must meet to qualify for a duress exception
and delegated to U.S. Citizenship and Immigration Services,
in consultation with U.S. Immigration and Customs
Enforcement, the authority to make individual
determinations. See id. Shortly thereafter, the Secretary
18 ANNACHAMY V. HOLDER

extended the mechanism for duress waivers to aliens who
provided support to Tier I and Tier II organizations. See
Exercise of Authority Under Section 212(d)(3)(B)(i) of the
Immigration and Nationality Act, 72 Fed. Reg. 26138-02
(May 8, 2007).9

Subsequent legislative action helps clarify Congress’
intent. Only months after Secretary Chertoff issued his
directive exempting specified groups from the material
support bar and creating a mechanism for processing duress
waivers, Congress passed the Consolidated Appropriations
Act, 2008. See Pub. L. No. 110-161, 121 Stat 1844 (Dec. 26,
2007). That Act created a statutory exemption from the
material support bar for the eight groups the Secretary had
previously excepted from the bar. See id. In response to the
mechanism for duress waivers, the Act also required the
Secretary to report to Congress on an annual basis:

9
We acknowledge that several commentators have questioned the
adequacy of the Secretary’s waiver mechanism. See, e.g., Steven H.
Schulman, Victimized Twice: Asylum Seekers and the Material-Support
Bar, 59 Cath. U. L. Rev. 949, 953-54 (2010) (describing “pronounced”
delays associated with the waiver process); Human Rights First, Denial
and Delay: The Impact of the Immigration Law’s “Terrorism Bars” on
Asylum Seekers and Refugees in the United States, 7–8 (2009), available
at http://www.humanrightsfirst.org/wp-content/uploads/pdf/
RPP-DenialandDelay-FULL-111009-web.pdf (last visited May 28, 2012).
We express no opinion as to the efficacy of the waiver mechanism. That
determination has been delegated solely to the Secretaries of State and of
Homeland Security and, as we discuss below, Congress appears to be
monitoring the mechanism in an effort to strike the appropriate balance
between the United States’ humanitarian obligations and national security.
We rely on the waiver provision only insofar as it informs our
understanding of the statutory structure.
 ANNACHAMY V. HOLDER 19

(1) the number of individuals subject to
removal from the United States for having
provided material support to a terrorist group
who allege that such support was provided
under duress;

(2) a breakdown of the types of terrorist
organizations to which the individuals
described in paragraph (1) have provided
material support;

(3) a description of the factors that the
Department of Homeland Security considers
when evaluating duress waivers; and

(4) any other information that the Secretary
believes that the Congress should consider
while overseeing the Department’s application
of duress waivers.

Id. These legislative reactions indicate that Congress was
deliberate in delegating to the Secretary the sole authority to
waive the applicability of terrorist-related bars, and has paid
specific attention to duress waivers.

Moreover, the Act amended the waiver provision itself,
significantly expanding the Secretaries’ authority to grant
waivers.10 Among the amendments was an express

10
Prior to the Act, the Secretary was given authority to issue waivers
with respect to only three specific terrorism bars. See 8 U.S.C.
§ 1182(d)(3)(B)(i) (2006) (permitting waivers for aliens who were
members of a political group that endorsed terrorist activity, themselves
endorsed terrorist activities or provided material support to a terrorist
20 ANNACHAMY V. HOLDER

prohibition on waivers to aliens who “voluntarily and
knowingly” support or receive training from Tier I and II
organizations, again indicating that Congress has appreciated
the distinction between voluntary and involuntary conduct
when amending the INA and has been express when it seeks
to distinguish between the two. In light of all this legislative
activity, we should defer to Congress’ chosen method to try
to strike the correct balance between the United States’
humanitarian obligations and national security.11

activity). The Act amended the waiver provision to permit the Secretary
to waive almost all of the terrorism-related bars. See id.
§ 1182(d)(3)(B)(i) (2008) (permitting waiver for any part of subsection
(a)(3)(B), except where executive official has reasonable grounds to
believe the alien is engaged in or is likely to engage after entry in terrorist
activity or the alien has voluntary and knowingly espoused support for,
received military training from or engaged in terrorist activity on behalf
of a Tier I or II terrorist organization). This amendment made eligible for
waivers several classes of aliens who were previously ineligible, including
members and representatives of Tier III organizations, persons who
themselves have “engaged in terrorist activity,” provided that it was not
on behalf of a Tier I or II organization, and persons who “engaged in
terrorist activity” on behalf of a Tier I or II group, provided that they did
not do so voluntarily and knowingly.
11
At oral argument, Annachamy urged us not to rely on the executive
waiver provision when interpreting the material support bar in this
instance because the Secretary lacks the authority to grant him a waiver.
Specifically, he points to an exception to the waiver provision that says
“no . . . waiver may be extended to a group that has engaged terrorist
activity against the United States or another democratic country,”
8 U.S.C. § 1182(d)(3)(B)(i), and Sri Lanka is a democratic country.
Annachamy misreads the statute. By its own terms, the exception limits
only the Secretaries’ authority to extend waivers to groups. See id.
(delegating the authority to “determine . . . that subsection
(a)(3)(B)(vi)(III) of this section [defining Tier III terrorist organizations]
shall not apply to a group within the scope of that subsection” (emphasis
added)). The exception does not apply to the Secretaries’ authority to
 ANNACHAMY V. HOLDER 21

Annachamy argues that interpreting the material support
bar to include aliens who provided support under duress is
inconsistent with Fedorenko v. United States, 449 U.S. 490
(1981), and Negusie v. Holder, 555 U.S. 511 (2009). We
disagree. In Fedorenko, the Court interpreted the Displaced
Persons Act of 1948 (DPA), which Congress enacted “to
enable European refugees driven from their homelands by
[World War II] to emigrate to the United States without
regard to traditional immigration quotas.” 449 U.S. at 495.
“The DPA incorporated the definition of ‘refugees or
displaced persons’ contained in Annex I to the Constitution
of the International Refugee Organization of the United
Nations” (IRO Constitution). Id. at 495 n.3. Section 2 of the
IRO Constitution, as codified by Congress, excluded any
individual “who can be shown: (a) to have assisted the enemy
in persecuting civil populations of countries, Members of the
United Nations; or (b) to have voluntarily assisted the enemy
forces since the outbreak of the second world war in their
operations against the United Nations.” Id. at 495 n.4
(quoting Annex I, Part II, 62 Stat. 3037, 3051–52 (1946))
(internal quotation marks omitted). The Fedorenko Court
held that “an individual’s service as a concentration camp
armed guard — whether voluntary or involuntary — made
him ineligible for a visa” under § 2(a) of the IRO
Constitution. Id. at 512. The Court observed, “[t]hat
Congress was perfectly capable of adopting a ‘voluntariness’
limitation where it felt that one was necessary is plain from
comparing § 2(a) with § 2(b), which excludes only those
individuals who ‘voluntarily assisted the enemy forces . . . in
their operations.’” Id. (alteration in original) (emphasis in

“determine . . . that subsection (a)(3)(B) of this section [which includes the
material support bar] shall not apply with respect to an alien within the
scope of that subsection.” Id. (emphasis added).
22 ANNACHAMY V. HOLDER

original). “Under traditional principles of statutory
construction, the deliberate omission of the word ‘voluntary’
from § 2(a) compels the conclusion that the statute made all
those who assisted in the persecution of civilians ineligible
for visas.” Id. (emphasis in original).

In Negusie, the BIA held that it was constrained by
Fedorenko to read an implied involuntariness exception into
the INA’s persecutor bar. See 555 U.S. at 518.12 The
Supreme Court held that the BIA erred by assuming that
Fedorenko controlled without considering the differences
between the statutory frameworks at issue in Fedorenko and
Negusie. In particular, “[t]he textual structure of the statute
in Fedorenko (‘voluntary’ is in one subsection but not the
other) [was] not part of the statutory framework considered”
in Negusie. Id. at 519. The Court remanded to allow the BIA
to exercise its interpretive authority to construe the persecutor
bar. See id. at 522–23.

Fedorenko and Negusie are consistent with our
conclusion here. As with the IRO Constitution in Fedorenko,
Congress’ express distinction between voluntary and
involuntary conduct in § 1182 compels the conclusion that it
deliberately omitted a voluntariness requirement from the
material support bar. Furthermore, we are not faced with a
situation in which the BIA mistakenly based its decision on
precedent that was not controlling. Rather, the BIA engaged
in an independent interpretation of the statute, employing

12
The persecutor bar states: “The term ‘refugee’ does not include any
person who ordered, incited, assisted, or otherwise participated in the
persecution of any person on account of race, religion, nationality,
membership in a particular social group, or political opinion.” 8 U.S.C.
§ 1101(a)(42).
 ANNACHAMY V. HOLDER 23

some of the same canons of statutory interpretation that we
have applied above, and concluded that the material support
bar contains no exception for duress.13

We also reject Annachamy’s suggestion that construing
the material support bar to include involuntary support
conflicts with the United States’ obligations under the United
Nations Protocol Relating to the Status of Refugees
(“Protocol”) and the United Nations Convention Relating to
the Status of Refugees (“Convention”). Although
Annachamy does not identify the provisions of the
Convention or Protocol that support his argument, he
apparently relies on the Convention’s limited exceptions to
refugee status and its nonrefoulement provision. The
Convention excepts from the definition of refugee:

13
Annachamy also argues that the criminal law presumption of a duress
exception should be imported into immigration law. In Negusie, the
Supreme Court did not decide whether the INA’s persecutor bar imports
this principle of criminal culpability. See 555 U.S. at 517–18 (declining
to address the issue). Some Justices were divided on the issue. Compare
id. at 526 (Scalia, J., joined by Alito, J., concurring) (providing several
reasons a duress defense based on principles of criminal culpability should
not necessarily be read into the INA’s persecutor bar) and id. at 549 n.3
(Thomas, J., dissenting) (arguing that “[t]here is no warrant to read
criminal-law requirements into” the INA) with id. at 536–37 (Stevens, J.,
joined by Breyer, J., concurring in part and dissenting in part) (arguing
that principles of criminal culpability should apply to the persecutor bar).
Unlike Negusie, however, where the statutory structure surrounding the
persecutor bar did not inform the provision’s silence as to duress, the
statutory structure surrounding the material support bar would be strong
enough to defeat the criminal law presumption that there is a duress
exception. Thus, we need not reach the more general question of whether
Congress should be presumed to have legislated with a duress exception
in mind.
24 ANNACHAMY V. HOLDER

any person with respect to whom there are
serious reasons for considering that:

(a) he has committed a crime against peace, a
war crime, or a crime against humanity, as
defined in the international instruments drawn
up to make provision in respect of such
crimes;

(b) he has committed a serious non-political
crime outside the country of refuge prior to
his admission to that country as a refugee;

(c) he has been guilty of acts contrary to the
purposes and principles of the United Nations.

Convention, art. 1F, reprinted in 19 U.S.T. 6223.

The Convention also includes a duty of nonrefoulement,
which provides that “[n]o Contracting State shall expel or
return (‘refouler’) a refugee in any manner whatsoever to the
frontiers of territories where his life or freedom would be
threatened on account of his race, religion, nationality,
membership of a particular social group or political opinion.”
Id. at art. 33.1. The Convention also states, however, that the
benefit of nonrefoulement may not “be claimed by a refugee
whom there are reasonable grounds for regarding as a danger
to the security of the country in which he is.” Id. at art. 33.2.

In Khan, we rejected the argument that Article 1F and the
duty of nonrefoulement compelled a narrow reading of the
INA’s terrorist bars that would exclude legitimate armed
resistance. Although the United States acceded to the
Protocol in 1968, the Protocol is not self-executing and
 ANNACHAMY V. HOLDER 25

therefore does not have the force of law in American courts.
See Khan, 584 F.3d at 783. We nonetheless “follow[ed] the
general rule of the Charming Betsy canon that ‘an act of
Congress ought never to be construed to violate the law of
nations, if any other possible construction remains.’” Id.
(quoting Murray v. The Schooner Charming Betsy, 6 U.S. (2
Cranch) 64, 118 (1804)). We observed that “[t]he Protocol,
through Refugee Convention Article 33.2, allows the United
States to refoul an individual ‘whom there are reasonable
grounds for regarding as a danger to the security’ of the
United States” and that, according to the United Nations High
Commissioner for Refugees, “‘the determination of refugee
status . . . is incumbent upon the Contracting state in whose
territory the refugee finds himself.’” Id. at 783–84 (second
alteration in original). Thus, Congress’ determination in the
INA that “an alien who [has engaged in a terrorist activity]
shall be considered to be an alien with respect to whom there
are reasonable grounds for regarding as a danger to the
security of the United States,” 8 U.S.C. § 1231(b)(3), adhered
to the Protocol’s nonrefoulement provision and controlled our
decision. See id. at 784. The same reasoning applies here.
Under the Protocol and Convention, Congress is free to
decide that an alien who provided material support to a
terrorist organization, even if under duress, is a danger to the
security of the United States.14,15

14
Although neither party cites them, we note that the U.N. Guidelines
on the application of Article 1F specify that “[f]actors generally
considered to constitute defences to criminal responsibility,” including
duress, “should be considered.” UNHCR, Guidelines on International
Protection: Application of the Exclusion Clauses: Article 1F of the 1951
Convention relating to the Status of Refugees § II.E.22 (2003)
(“Guidelines”). We presume that these Guidelines, like the U.N.
Handbook, “may be a useful interpretive aid,” but they are “not binding
on the Attorney General, the BIA, or United States courts.” INS v.
26 ANNACHAMY V. HOLDER

IV.

For the foregoing reasons, we hold that the material
support bar does not include an implied exception for
individuals who assist organizations engaged in legitimate
political violence or who provide support under duress.

PETITION DENIED.

Aguirre-Aguirre, 526 U.S. 415, 427 (1999). In any event, the Guidelines
do not conflict with our interpretation. An individual ineligible for asylum
due to the material support bar is excluded because he is a “danger to the
security of the United States,” as permitted by Article 33.2 of the
Convention. Khan, 584 F.3d at 784 (quoting 8 U.S.C. § 1231(b)(3)). The
Guidelines do not apply to Article 33.2. See Guidelines § I.B.4 (“[T]he
exclusion clauses are not to be confused with Articles 32 and 33(2) of the
Convention which deal respectively with the expulsion of, and the
withdrawal of protection from refoulement from, recognised refugees who
pose a danger to the host State (for example, because of serious crimes
they have committed there). Article 33(2) concerns the future risk that a
recognised refugee may pose to the host State.”).
15
Furthermore, as we noted in Khan, even if there were a conflict, the
administrative waiver provision, by granting the executive the discretion
to waive applicability of the terrorist bars as to aliens who are not a danger
to the United States, is probably sufficient to resolve the conflict. See
Khan, 584 F.3d at 784 (citing INS v. Stevic, 467 U.S. 407, 428 n.22
(1984)).