In the
United States Court of Appeals
For the Seventh Circuit
No. 16‐1112
NASSUMA FOMBA JABATEH,
Petitioner,
v.
LORETTA E. LYNCH, Attorney
General of the United States,
Respondent.
Petition for Review of an Order of the
Board of Immigration Appeals.
No. A099‐075‐385
ARGUED SEPTEMBER 13, 2016 — DECIDED JANUARY 5, 2017
Before BAUER, KANNE, and HAMILTON, Circuit Judges.
BAUER, Circuit Judge. Petitioner Nassuma Fomba Jabateh,
a native and citizen of Liberia, filed a petition with this Court
seeking to vacate an order from the Board of Immigration
Appeals that denied his applications for asylum and withhold‐
ing of removal under 8 U.S.C. § 1231(b)(3) and the Convention
Against Torture, 8 C.F.R. § 1208.16(c). Petitioner’s applications
were denied on the basis that he had provided material
2 No. 16‐1112
support to the Tier III terrorist organization Liberians United
for Reconciliation and Democracy, and thus was rendered
ineligible for any form of relief. Alternatively, the BIA also
denied his applications on the merits. Further, the BIA denied
Petitioner’s request for deferral of removal under CAT,
because he failed to show that it was more likely than not he
would be tortured if returned to Liberia, and Petitioner
challenges that conclusion. Last, Petitioner seeks review of
the BIA’s conclusion that it was jurisdictionally barred from
reviewing his application for an adjustment of status. For the
reasons that follow, we affirm the BIA’s decision.
I. BACKGROUND
A. Factual Background
A civil war engulfed Liberia from 1989 to 1997, claiming the
lives of 200,000 people and displacing a million others into
refugee camps in neighboring countries. A government official
named Charles Taylor led a band of rebels known as the
National Patriotic Front in invading Liberia from the Ivory
Coast at the outset of the war. On July 14, 1989, Taylor’s rebels
attacked Petitioner’s hometown of Barkedu and massacred
fifty‐eight Mandingo Muslims, including Petitioner’s brother,
Abu Jabateh. On this same date, Petitioner was exiled to
Guinea, where he stayed until 2003. The war ended in 1997
with a peace agreement and the election of Taylor to the
presidency.
In July 1999, Liberian exiles formed the military and
political organization Liberians United for Reconciliation and
Democracy in response to dissatisfaction with the implementa‐
tion of the 1997 peace agreement. LURD consisted mostly of
No. 16‐1112 3
Mandingos and Krahns, ethnic groups from northern Liberia
that fought Taylor during the civil war. The group’s primary
objective was to remove Taylor from office. LURD’s leader
was Sekou Conneh, a former Guinean tax collector with close
connections to the group’s financial backers and the president
of Guinea.
In mid‐2000, a civil war once again erupted in Liberia.
LURD launched military operations from across the border
in Guinea in order to unseat Taylor. The war had a religious
undertone in that LURD forces were largely Mandingo
Muslims, while government troops were mostly animists and
Christians. LURD forces failed to stop criminal behavior by
insurgents, such as raping and looting. The forces raped a
young woman in front of her husband and children after
she was accused of supporting the government. They also
reportedly abducted Liberian refugees in Sierra Leone and
forced them to haul weapons and goods under threat of injury
or death. Those who complained of exhaustion, thirst, or
hunger were shot and left to bleed to death.
While Petitioner lived in Guinea, he became close with
Conneh, the head of LURD. Conneh asked Petitioner to
interpret for him at doctor appointments and social activities
because Petitioner spoke French. Petitioner would sometimes
receive monetary compensation for his services, which he
provided to Conneh. He acknowledges that he was aware of
LURD’s status as an armed insurgent group, and that the
group was connected in some way to the Guinean government.
After returning to Liberia in 2003, Petitioner had no further
contact with Conneh. That same year, representatives from
Taylor’s government, LURD, and a second insurgent group
4 No. 16‐1112
negotiated a peace treaty, which became effective on
August 18, 2003. This treaty gave LURD control over several
governmental departments; Taylor resigned his post as
president and was exiled in Nigeria.
In September 2003, Petitioner was appointed to serve as
Liberia’s Director of the Bureau of National Procurement;
several subordinate employees resigned because they did not
wish to work for a Mandingo Muslim. In addition, he received
anonymous phone calls in which the callers threatened to do
everything possible to remove him from his position.
Most alarmingly, Petitioner’s home was burned down by
a large mob as part of a tribal and religious land dispute in
October 2004. The mob was largely comprised of members of
Taylor’s dissolved National Patriotic Front. Petitioner claims
that the homes of several other Mandingo Muslim govern‐
ment officials also were burned down on the same day, and
Petitioner believed that they were targeted because of their
status as Mandingo Muslims. Sometime later, Petitioner’s
office was raided and computers were stolen.
Petitioner entered the United States on May 7, 2005, on an
A‐2 visa, a nonimmigrant visa that allows foreign officials to
enter the country to engage in official duties or activities on
behalf of their national government. Petitioner continued to
serve as director of National Procurement. The purpose of his
visit was to arrange for the purchase of stationery, office
furniture, and equipment.
No. 16‐1112 5
B. Procedural Background
A month after his arrival, Petitioner filed an affirmative
application for asylum. Petitioner contended that he was
eligible for asylum and withholding of removal because he
suffered past persecution and fears future persecution on
account of his status as a Mandingo Muslim, as well as his
political opinion and membership in a particular social
group—“Mandingo Muslims who are governmental officials.”
He also contended that he was eligible for CAT protection
because it was more likely than not that he would be subjected
to torture with the consent or acquiescence of the Liberian
government.
On May 23, 2008, an asylum officer found no basis to grant
Petitioner’s application, and referred his case to Immigration
Court. DHS issued a Notice to Appear to Petitioner, charging
him with removability under 8 U.S.C. § 1227(a)(1)(C)(i), as an
alien who failed to maintain nonimmigrant status. Petitioner
conceded his removability.
On July 16, 2009, Petitioner applied for an adjustment of his
immigration status, pursuant to § 13 of the Act of Septem‐
ber 11, 1957, now codified at 8 U.S.C. § 1255b. An adjustment
under § 13 is available to an alien who, having been admitted
under §§ 101(a)(15)(A)(i) or (ii) or 101(a)(15)(G)(i) or (ii) of the
INA, has performed diplomatic or semi‐diplomatic duties, can
establish compelling reasons why he or she is unable to return
to the country that accredited them as a diplomat, and whose
adjustment of status is in the national interest. See 8 C.F.R.
§ 245.3. Petitioner’s counsel requested that the Immigration
Judge either terminate the proceedings to allow the adjudica‐
6 No. 16‐1112
tion of the petition before the U.S. Citizenship and Immigration
Services, or set a hearing date at which point the IJ could
consider the adjustment application on the merits prior to his
other applications for relief. The government opposed termina‐
tion, so the IJ scheduled a hearing.
The IJ conducted the hearing on May 6, 2011, during which
Petitioner testified in support of his applications for relief. At
the close of Petitioner’s testimony, the IJ asked the government
if it would be willing to terminate the case without prejudice
to permit the USCIS to adjudicate Petitioner’s application for
adjustment of status. The government contended that Peti‐
tioner was ineligible for such an adjustment because he
provided material support to LURD. The IJ continued the case
and ordered briefing from both parties on the issue, and
offered Petitioner’s counsel an opportunity to file the adjust‐
ment application with USCIS.
At the next hearing on April 6, 2012, Petitioner’s counsel
informed the IJ that Petitioner had not yet received a final
decision on his adjustment application. The government
anticipated that USCIS would recommend a denial, which it
did on April 17, 2012, finding that the record was insufficient
to conclude that Petitioner performed diplomatic or semi‐
diplomatic duties as required by law. Petitioner’s counsel
agreed not to renew the adjustment application before the IJ,
and instead, to defer an appeal of the decision to the BIA,
rather than appeal to the USCIS Administrative Appeals
Office.
The IJ found that Petitioner’s “sporadic, typically unpaid”
interpretation services for Conneh did not constitute material
No. 16‐1112 7
support; nonetheless, the IJ denied Petitioner’s applications
for asylum and withholding of removal, finding that Petitioner
failed to prove past persecution or a well‐founded fear of
future persecution on a protected ground if he returned to
Liberia.
Regarding Petitioner’s application for withholding of
removal under CAT, the IJ found that Petitioner had not
demonstrated that it was “more likely than not” that he would
be tortured. Thus, the IJ denied all of Petitioner’s applications
for relief and ordered him removed. Finally, the IJ found that
Petitioner met the statutory requirements for second stage
voluntary departure under § 240B of the INA, and granted him
60 days to depart the United States, subject to certain condi‐
tions.
Both the government and Petitioner appealed the IJ’s
decision to the BIA. The government challenged the IJ’s grant
of voluntary departure, as well as the determination that
Petitioner had not provided material support to a terrorist
organization. Petitioner challenged the denial of his applica‐
tions for asylum, withholding of removal, and protection
under CAT. He also challenged the IJ’s refusal to consider his
application for adjustment of status.
First, the BIA disagreed with the IJ on the applicability of
the material support bar, finding that the interpretive services
provided by Petitioner to Conneh constituted material support.
Therefore, the BIA determined that Petitioner was ineligible for
asylum or withholding of removal under the INA and CAT.
As a result, Petitioner’s only possible relief was deferral of
8 No. 16‐1112
removal under CAT, for which the BIA found that Petitioner
failed to qualify.
Alternatively, the BIA affirmed the IJ’s ruling on the merits
of the asylum and withholding of removal applications,
finding that he had failed to prove both past persecution due
to a protected ground and a well‐founded fear of future
persecution. In addition, the BIA concluded that neither the IJ
nor the BIA had jurisdiction to consider Petitioner’s § 13
application for adjustment of status, as USCIS retained
exclusive jurisdiction over such applications.
Last, the BIA found that while Petitioner was statutorily
eligible for voluntary departure, he had failed to meet the
conditions set forth by the IJ, and therefore the BIA refused to
reinstate the voluntary departure period. Petitioner now
appeals the BIA’s decision.
II. DISCUSSION
Petitioner raises several arguments on appeal. First, he
contends that both the IJ and BIA erred in refusing to consider
his § 13 application for adjustment. Next, he argues that the
BIA erred in determining that he provided material support to
a terrorist organization. In addition, he contends that he is
entitled to protection under CAT. He also challenges the BIA’s
conclusion that he failed to demonstrate both past and future
persecution. Finally, he argues that the BIA erred in affirming
certain adverse credibility determinations made by the IJ.
“[W]e review the IJ’s decision wherever the Board has not
supplanted it with its own rationale; where the Board has
spoken, we review its opinion.” Sarhan v. Holder, 658 F.3d 649,
No. 16‐1112 9
653 (7th Cir. 2011) (citation omitted). “Where … the Board
relies on the findings of the IJ but adds its own analysis, we
review the IJ’s decision as supplemented by the Board’s
additional reasoning.” Yi Xian Chen v. Holder, 705 F.3d 624, 628
(7th Cir. 2013) (internal citation omitted). We review agency
findings of fact for “substantial evidence” and may reverse the
IJ’s determinations “only if we determine that the evidence
compels a different result.” Abraham v. Holder, 647 F.3d 626, 632
(7th Cir. 2011) (emphasis added) (citing Balogun v. Ashcroft, 374
F.3d 492, 498 (7th Cir. 2004)). We review the BIA’s legal
conclusions de novo, and “owe the Board deference in its
interpretation of the INA.” Duron‐Ortiz v. Holder, 698 F.3d
523, 526 (7th Cir. 2012) (citation omitted). “Thus, we are not at
liberty to overturn the Board’s determination simply because
we would have decided the case differently.” Bueso‐Avila v.
Holder, 663 F.3d 934, 937 (7th Cir. 2011) (quotation marks and
citation omitted).
A. Section 13 Application for Adjustment of Status
Petitioner first argues that the IJ and BIA erred in refusing
to consider his § 13 application for adjustment. The BIA
concluded that it and the IJ had no jurisdiction to consider
Petitioner’s § 13 application because no regulation or statute
explicitly provided such authority. While this is a matter of
first impression for this circuit, the text of the relevant regula‐
tions and statutes provides a useful starting point in resolving
the issue.
As explained above, an adjustment under § 13 is limited to
an alien admitted under §§ 101(a)(15)(A)(i) or (ii) or
101(a)(15)(G)(i) or (ii) of the INA, who has performed diplo‐
10 No. 16‐1112
matic or semi‐diplomatic duties, can establish compelling
reasons why he or she is unable to return to the country that
accredited them as a diplomat, and whose adjustment of status
is in the national interest. See 8 C.F.R. § 245.3. Here, USCIS
determined that Petitioner failed to demonstrate that he had
performed diplomatic or semi‐diplomatic duties. Rather than
appeal to the USCIS AAO, Petitioner sought review before the
BIA.
Petitioner argues that under 8 C.F.R. § 1245.2(a)(1)(i), he
should have been able to renew his application before the IJ
and the BIA because the IJ has exclusive jurisdiction over any
application for adjustment of status. However, the regulation
that Petitioner relies upon is applicable only to adjustment
applications filed pursuant to INA § 245, see 8 U.S.C. § 1255,
not adjustment applications filed pursuant to § 13, see 8 U.S.C.
§ 1255b. The flaw in Petitioner’s argument is his failure to
recognize the distinct administrative process in place for § 13
applications.
8 C.F.R. § 245.3 directs § 13 applicants to file their applica‐
tions with the “director having jurisdiction over the applicant’s
place of residence.” The term “director”, as defined in 8 C.F.R.
§ 1.2, refers to a district director for USCIS. See Matter of Sesay,
25 I&N Dec. 431, 432 n.1 (BIA 2011) (noting that USCIS has
authority to adjudicate adjustment of status applications);
USCIS Adjudicator’s Field Manual 23.10(c); see also Chien‐Shih
Wang v. Att’y Gen. of United States, 823 F.2d 1273, 1275 (8th Cir.
1987) (establishing that prior to the transfer of INS functions
from DOJ to DHS in 2003, § 13 applications were filed with the
INS district director). Therefore, it is clear from the text of the
No. 16‐1112 11
regulation that the IJ does not have exclusive jurisdiction over
§ 13 applications.
In support of his argument, Petitioner mistakenly relies
upon 8 C.F.R. § 1245.2, which describes the administrative
process for INA § 245 applications. Section 1245.2(a)(1)(i) states
that “[i]n the case of any alien who has been placed in deporta‐
tion proceedings or in removal proceedings (other than as an
arriving alien), the immigration judge hearing the proceeding
has exclusive jurisdiction to adjudicate any application for
adjustment of status the alien may file.” It is unclear why
Petitioner believes this regulation should supplant the one
specifically written to govern § 13 applications, but we decline
Petitioner’s invitation to do so.
Petitioner argues in the alternative that even if the IJ does
not have exclusive jurisdiction over § 13 applications in
removal proceedings, the IJ and BIA have jurisdiction to
review a renewed application in such proceedings. Petitioner
cites to the U.S. District Court for the District of Columbia’s
decision in Maalouf v. Wiemann, 654 F. Supp. 2d 6 (D.D.C.
2009), in support of his argument. In Maalouf, the court
declined to rule on an alien’s claim that the AAO violated the
Administrative Procedures Act in denying her § 13 application.
The court reasoned that the alien, who had since been placed
in removal proceedings, could renew her application before the
IJ during the removal proceedings, and could appeal an
unfavorable decision to the BIA. 654 F. Supp. 2d. at 9.
We note that appellate jurisdiction over § 13 application
denials is within the purview of the AAO. See USCIS Adjudica‐
tor’s Field Manual 23.10(f)(4). Prior to the creation of the AAO,
12 No. 16‐1112
applicants had the right to appeal to a regional commissioner
of the INS. See, e.g., Matter of Aiyer, 18 I&N Dec. 98 (BIA 1981)
(§ 13 application appeal decided by INS Regional Commis‐
sioner); Matter of Vargas, 14 I&N Dec. 354 (BIA 1973) (same).
Aside from the statement in Maalouf, we cannot find any
support for Petitioner’s contention that appeals of § 13 applica‐
tions are within the purview of the IJ or BIA.
In our view, the Maalouf court made the same error as
Petitioner in that it conflated the administrative process for
adjustment applications under INA § 245 with that of § 13
applications. The two federal circuit court cases that the
Maalouf court relied upon for the proposition that an unsuc‐
cessful applicant for adjustment of status can renew his or her
application in immigration proceedings dealt with INA § 245
applications, rather than § 13 applications. See Pinho v. Gonza‐
les, 432 F.3d 193, 197 (3d Cir. 2005); Howell v. INS, 72 F.3d 288,
289 (2d Cir. 1995). This distinction is crucial.
Under 8 C.F.R. § 245.2(a)(5)(ii), an alien seeking adjustment
of status under INA § 245 has “the right to renew his or her
application in [removal] proceedings under 8 C.F.R. part 240.”
However, 8 C.F.R. § 245.3, the regulation relevant to § 13
applications, contains no such statement, and instead appli‐
cants are directed to appeal to the AAO, as described above.
Therefore, in our view the administrative process for § 13
applications stands in stark contrast to that of INA § 245
applications. This makes sense, given the fact that § 13 is not
part of the codified INA. See Note, 8 U.S.C. § 1255b. Thus, we
are unpersuaded that Petitioner may renew his § 13 application
before the IJ or BIA.
No. 16‐1112 13
The thrust of Petitioner’s argument is that the BIA and IJ
may exercise jurisdiction over § 13 applications barring any
statutory language expressly forbidding it. But this line of
argument has been foreclosed by the Supreme Court, which
found that “the BIA is simply a regulatory creature of the
Attorney General, to which he has delegated much of his
authority under the applicable statutes.” INS v. Doherty, 502
U.S. 314, 327 (1992). The Court held that the Attorney General
“is the final administrative authority in construing the regula‐
tions, and in deciding questions under them.” Id.; see also 8
C.F.R. § 1003.1(d)(1) (“The Board shall function as an appellate
body charged with the review of those administrative adjudi‐
cations under the Act that the Attorney General may by
regulation assign to it.”); id. § 1003(d)(1)(i) (“The Board shall be
governed by the provisions and limitations prescribed by
applicable law, regulations, and procedures, and by decisions
of the Attorney General[.]”). Petitioner’s argument that the IJ
and BIA possess any authority not expressly precluded by
statute is simply at odds with this clear admonishment from
the Court and the express language of the relevant regulations.
The Attorney General has spoken unequivocally on this
issue—authority to review § 13 applications lies not with IJs or
the BIA, but rather with USCIS and its AAO.
Petitioner offers one final argument on this issue: that the
BIA’s failure to review his § 13 application violated his due
process rights. We find this argument unavailing. We have
held that an alien “does not have a due process right to seek
relief from removal that is purely discretionary, such as
adjustment of status, because he has no protected liberty
interest in obtaining such relief.” Cadavedo v. Lynch, 835 F.3d
14 No. 16‐1112
779, 784 (7th Cir. 2016)(citation omitted). Further, we note that
according to the record before us, Petitioner never appealed his
application denial to the AAO. Where an applicant has failed
to avail himself of the administrative process available to him,
we are precluded from considering the argument. Pjetri v.
Gonzales, 468 F.3d 478, 481 (7th Cir. 2006). Accordingly, we find
that the BIA and IJ did not err in refusing to consider Peti‐
tioner’s § 13 application for adjustment.
B. Material Support Bar
Petitioner next argues that the BIA erred in determining
that he provided material support to a terrorist organization.
A portion of the INA provides that any alien who has “en‐
gaged in a terrorist activity” is ineligible for admission into the
United States. 8 U.S.C. § 1182(a)(3)(B)(i)(I). These aliens are
precluded from several forms of relief, including asylum,
withholding of removal, and CAT protection in the form of
withholding. See Khan v. Holder, 766 F.3d 689, 698 (7th Cir.
2014); see also 8 U.S.C. § 1158(b)(2)(A)(v) (stating, in effect, that
an alien who is inadmissible or deportable on terrorism‐related
grounds is ineligible for asylum); 8 U.S.C. § 1231(b)(3)(B)(iv)
(same for withholding of removal); 8 C.F.R. § 1208.16(d)(2)
(same for withholding under CAT); But they remain eligible
for deferral of removal under CAT. See Khan, 766 F.3d at 698;
8 C.F.R. § 1208.17(a) (directing that aliens eligible for CAT
protection but subject to terrorism‐related bars be granted
deferral of removal).
Under the INA, terrorist activity is defined expansively to
include “commit[ting] an act that the actor knows, or reason‐
ably should know, affords material support” to a terrorist
No. 16‐1112 15
organization. 8 U.S.C. § 1182(a)(3)(B)(iv)(VI). This is commonly
referred to as the “material support bar” to relief. The term
“material support” includes providing “a safe house, transpor‐
tation, communications, … material financial benefit, false
documentation or identification, weapons [ ], explosives, or
training[.]” Id.
Terrorist organizations are divided into three tiers: Tier I
and II organizations are determined by the Secretary of State
and published in the Federal Register, while Tier III organiza‐
tions are any others that engage in terrorist activities.1 Id.
§ 1182(a)(3)(B)(vi). If an alien gave material support to a Tier I
or Tier II organization, he is barred from entry regardless of
whether he knew it was a terrorist organization. Compare id.
§ 1182(a)(3)(B)(iv)(VI)(cc), with (dd). However, if a group is
in Tier 3, the alien has an opportunity to “demonstrate by
clear and convincing evidence that [he] did not know, and
should not reasonably have known, that the organization was a
terrorist organization.” § 1182(a)(3)(B)(iv)(VI)(dd). This is
known as the “knowledge exemption” to the material support
bar. See FH‐T v. Holder, 723 F.3d 833, 839 (7th Cir. 2013).
Here, both the IJ and BIA determined that LURD was a Tier
III terrorist organization. Neither party disputes this designa‐
tion. The BIA further determined that Petitioner’s provision of
interpreter services to Conneh, LURD’s leader, constituted
material support under the INA. In this respect, the BIA’s
decision parted ways with that of the IJ. The BIA also found
1
Unlike Tiers I and II, the government does not maintain a formal list of
organizations falling under Tier III.
16 No. 16‐1112
that Petitioner failed to prove by clear and convincing evidence
that he did not know and should not have known that LURD
was a terrorist organization. Consequently, the BIA found that
the knowledge exemption did not apply to Petitioner.
On appeal, Petitioner does not challenge the BIA’s finding
regarding the knowledge exemption. Instead, he argues that
the BIA failed to give deference to the IJ’s factual and legal
determinations. Although we are foreclosed from reviewing
the BIA’s factual determinations on this issue, see 8 U.S.C.
§ 1158(b)(2)(D), we note in passing that the BIA credited the
IJ’s factual determinations, but simply came to a different legal
conclusion. Petitioner also challenges the BIA’s determination
that his interpreter services constitute material support under
the INA. The government contends that this argument is
also unreviewable because it is a factual challenge. However,
Petitioner is challenging the finding that his actions with
respect to LURD met the legal definition of “material support.”
Petitioner asserts a quintessential legal error, one which we are
entitled to consider. See Gutierrez v. Lynch, 834 F.3d 800,
804 (7th Cir. 2016) (“[W]e retain jurisdiction to review ques‐
tions of law and constitutional claims[.]”); see also 8 U.S.C.
§ 1252(a)(2)(D). However, this is as much traction as his
argument gets.
Petitioner contends that the sporadic and infrequent nature
of his interpreter services to a LURD member for medical
appointments and social errands renders his support beyond
the bounds of the material support statute because it occurred
outside the context of the group’s terrorism‐related activities.
Yet Petitioner acknowledges that under circuit precedent, an
individual may offer material support “even if [the] support is
No. 16‐1112 17
confined to the nonterrorist activities of the organization.”
Hussain v. Mukasey, 518 F.3d 534, 538 (7th Cir. 2008); see also
Khan, 766 F.3d at 698. We also note that “communications” is
a form of material support delineated in the statute. Petitioner
argues that his case is distinguishable from Hussain and Khan
because his support was unrelated to LURD.
The BIA rejected this argument, reasoning that terrorist
group leaders “often use social activities to network, to
promote their organization, and to recruit new members or
supporters.” The Hussain and Khan courts employed a similar
analysis in rejecting the petitioners’ argument that supporting
the peaceful arm of a terrorist group could not constitute
material support. See Hussain, 518 F.3d at 538–39; Khan, 766
F.3d at 698. This reasoning has equal force here. The statute
also makes clear that the material support bar prohibits
the provision of material support not only to a terrorist
organization, but also “to any member of such an organiza‐
tion.” 8 U.S.C. § 1182(a)(3)(B)(iv)(VI)(dd). Therefore, the fact
that Petitioner offered support to a LURD member rather than
the organization itself is immaterial.
We note that the Supreme Court has taken a similarly
expansive view of what constitutes material support in the
context of the criminal statute banning material support to
foreign terrorist organizations, stating that “[m]aterial support
meant to promote peaceable, lawful conduct can further
terrorism by foreign groups in multiple ways.” Holder v.
Humanitarian Law Project, 561 U.S. 1, 30 (2010) (internal
quotation marks, alteration, and citation omitted). The Court
observed that terrorist organizations systematically conceal
their activities behind charitable, social, and political fronts. Id.
18 No. 16‐1112
(citation omitted). “Indeed, some designated foreign terrorist
organizations use social and political components to recruit
personnel to carry out terrorist operations, and to provide
support to criminal terrorists and their families in aid of such
operations.” Id. at 30–31 (citation omitted). Accordingly, the
Court found that “seemingly benign support” can constitute
unlawful material support. Id. at 36.
In light of circuit and Supreme Court precedent, we find no
error in the BIA’s conclusion that Petitioner provided material
support to LURD. This finding is fatal to Petitioner’s applica‐
tions for asylum and withholding of removal under both 8
U.S.C. § 1231(b)(3) and CAT. See Khan, 766 F.3d at 698. Conse‐
quently, we find that Petitioner is ineligible for asylum and
withholding of removal.
C. Deferral of Removal under CAT
Petitioner offers a threadbare assertion that, at a minimum,
he is entitled to deferral of removal under CAT. The BIA
denied him this relief. Although we have determined that
Petitioner is ineligible for asylum or withholding of removal,
we may still determine whether Petitioner is entitled to
deferral of removal under CAT. See id.; see also 8 C.F.R.
§ 1208.16(c)(4).
“We review the denial of CAT protection under the highly
deferential substantial evidence test[.]” Rashiah v. Ashcroft, 388
F.3d 1126, 1131 (7th Cir. 2004) (citations omitted). We review
the entire record as a whole and reverse “only if the record
evidence compels a contrary conclusion.” Lenjinac v. Holder,
780 F.3d 852, 855 (7th Cir. 2015) (emphasis added) (citations
omitted). In order to receive CAT protection, the Petitioner has
No. 16‐1112 19
the burden to demonstrate that “it is more likely than not that
[the Petitioner] would be tortured if removed to [Liberia].” 8
C.F.R. § 1208.16(c)(2). “Torture is defined as the intentional
infliction of severe pain or suffering for the purpose of coer‐
cion, punishment, or discrimination,” but it does not include
“lesser forms of cruel, inhuman or degrading treatment or
punishment,” or “suffering inherent to lawful sanctions
imposed for violating the law.” Borovsky v. Holder, 612 F.3d 917,
923 (7th Cir. 2010) (quoting 8 C.F.R. § 208.18) (quotation marks
omitted). In addition, CAT protection requires evidence that
the Petitioner will be tortured by the government, or with the
government’s acquiescence. Khan, 766 F.3d at 698.
Here, the BIA agreed with the IJ that the Petitioner did not
show that it is more likely than not that he would be tortured
if he was removed to Liberia, and therefore denied him relief.
Although neither the BIA nor the IJ provided a robust analysis
on this issue, we have no trouble concluding that their finding
is supported by substantial evidence. It is clear that Petitioner
simply rested on the evidence he offered in support of his
asylum and withholding of removal applications to prove that
he would be subjected to torture. The BIA noted that Petitioner
failed to submit any evidence that he was subjected to torture
in the past, or would likely be subjected to it should he be
returned to Liberia. The IJ similarly found that the evidence
submitted by Petitioner did not rise to the level of torture.
Importantly, record evidence indicates that country
conditions have improved since the end of the civil war and its
aftermath. There is no indication that the government or its
agents have committed arbitrary or unlawful killings. The 2010
State Department Human Rights Report states that Mandingo
20 No. 16‐1112
Muslims hold political office and have not been targeted with
violence. In short, the record lacks evidence to substantiate
Petitioner’s professed fear of torture. Therefore, we agree with
the BIA and the IJ’s conclusion that Petitioner has not met his
burden to establish eligibility for protection under CAT. As a
result, Petitioner is not entitled to deferral of removal.
D. Petitioner’s Remaining Arguments
We briefly turn to Petitioner’s remaining arguments on the
merits of his asylum and withholding of removal applications.
Specifically, Petitioner contends that the BIA erred in its
conclusion that he failed to demonstrate both past and future
persecution in support of his asylum and withholding of
removal applications. However, due to the applicability of the
material support bar as an alternative basis for finding ineligi‐
bility for asylum and withholding of removal, we need not
delve further into this argument. See INS v. Bagamasbad, 429
U.S. 24, 25 (1976) (collecting cases) (“As a general rule courts
and agencies are not required to make findings on issues the
decision of which is unnecessary to the results they reach.”); see
also Achacoso‐Sanchez v. INS, 779 F.2d 1260, 1263 (7th Cir. 1985).
Similarly, it would be futile to analyze Petitioner’s argu‐
ment that the BIA erred in affirming the IJ’s adverse credibility
determinations. The adverse credibility determinations go
toward the merit of Petitioner’s asylum and withholding of
removal applications. Therefore, any analysis regarding errors
in the BIA’s adverse credibility determinations would be
purely academic. Furthermore, the adverse credibility determi‐
nations did not impact our finding that Petitioner had not met
his burden of establishing eligibility for deferral of removal
No. 16‐1112 21
under CAT. The denial of deferral turned on the lack of
torture‐specific evidence, not the BIA’s adverse credibility
determinations. Accordingly, we decline to address Petitioner’s
remaining arguments.
III. CONCLUSION
For the foregoing reasons, Petitioner’s petition is DENIED
and the BIA’s decision is AFFIRMED.
22 No. 16-1112
HAMILTON, Circuit Judge, concurring in part and concur-
ring in the judgment. I agree that Jabateh’s petition should be
denied and that the Board lacked jurisdiction to review Jab-
ateh’s “section 13” application. See 8 U.S.C. § 1255b. I would
deny the rest of his petition on the merits. That would require
only a straightforward application of our deferential standard
of review to factual findings. Jabateh simply did not prove
that if he returns to Liberia, he faces persecution based on his
religion, ethnicity, or any other protected ground, or that he
faces a likelihood of torture. Deciding the case on these
grounds would avoid the difficult “material support of terror-
ism” issue. See INS v. Bagamasbad, 429 U.S. 24, 25 (1976)
(courts and agencies are generally not required to make find-
ings on issues not needed to support result).
Since my colleagues reach the issue of “material support
of terrorism,” I should explain my disagreement with their
view and my agreement with the immigration judge. The oc-
casional translation services Jabateh provided during
Conneh’s medical appointments and a few unspecified social
occasions did not amount to “material support” of terrorism.
LURD qualifies as a so-called Tier III terrorist organization,
see 8 U.S.C. § 1182(a)(3)(B)(vi)(III), one not formally desig-
nated as such. I will assume for purposes of argument that
Jabateh’s translation services provided “support” to a mem-
ber of that organization. Through a chain of statutory defini-
tions, that translation support can amount to “terrorist activ-
ity.” See 8 U.S.C. § 1182(a)(3). I agree with the immigration
judge that Jabateh’s sporadic and largely unpaid “support” in
the form of personal translation for Conneh was not “mate-
rial.”
No. 16-1112 23
Aliens who have provided material support to a terrorist
organization or a member of a terrorist organization are not
eligible for important forms of immigration relief, including
asylum, withholding of removal, and protection under the
Convention Against Torture. See 8 U.S.C. § 1158(b)(2)(A)(v)
(ineligible for asylum); 8 U.S.C. § 1231(b)(3)(B)(iv) (ineligible
for withholding of removal); 8 C.F.R. § 1208.16(d)(2) (ineligi-
ble for withholding under Convention Against Torture); but
see 8 C.F.R. § 1208.17(a) (eligible for deferral of removal under
Convention Against Torture); Khan v. Holder, 766 F.3d 689, 698
(7th Cir. 2014) (eligible for deferral of removal under Conven-
tion Against Torture after showing “that the alien will be tor-
tured by the government or with its acquiescence”) (emphasis
in original).
The Board’s and the majority’s broad construction of the
statutory phrase “material support” effectively reads “mate-
rial” out of the statute. It also fails to take account of the
broader structure of the Immigration and Nationality Act.
Under the broad reading we may well bar people we should
be welcoming to the United States, people who have managed
to escape some of the most chaotic and dangerous places in
the world.
To begin with the statutory text, the critical language is
buried in 8 U.S.C. § 1182(a)(3)(B)(iv)(VI)(dd), which is a clause
of a definition of “engage in terrorist activity”:
As used in this chapter, the term “engage in ter-
rorist activity” means, in an individual capacity
or as a member of an organization—to commit
an act that the actor knows, or reasonably
should know, affords material support, including
a safe house, transportation, communications,
24 No. 16-1112
funds, transfer of funds or other material finan-
cial benefit, false documentation or identifica-
tion, weapons (including chemical, biological,
or radiological weapons), explosives, or train-
ing—to a terrorist organization described in [8
U.S.C. § 1182(a)(3)(B)(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 rea-
sonably have known, that the organization was
a terrorist organization.
Under this definition, a prohibited form of “support” for
Conneh, who was a member and leader of LURD, can amount
to support for terrorism—if it was “material support.”
The Board and majority reason in essence that the statu-
tory list includes “communications” as a form of “material
support” and that translation between languages is a form of
communications, so Jabateh’s sporadic and largely unpaid
help for Conneh with translation at his medical appointments
amounted to material support for terrorism. Also, because the
support need not be tied directly to terrorist acts, Hussain v.
Mukasey, 518 F.3d 534, 538 (7th Cir. 2008), the Board and ma-
jority reason that supporting Conneh in his personal endeav-
ors meets the material support bar.
This reasoning seems to me a little too mechanical and
sweeps too broadly. It loses sight of two key principles of stat-
utory interpretation: first, avoid interpretations that reduce
some statutory terms to surplusage (here, “material”), and
second, interpret statutory language with an eye toward its
broader statutory context and purpose. See, e.g., Williams v.
Taylor, 529 U.S. 362, 404 (2000); King v. Burwell, 576 U.S. —,—
No. 16-1112 25
, 135 S. Ct. 2480, 2489 (2015); Antonin Scalia and Bryan A. Gar-
ner, Reading Law: The Interpretation of Legal Texts 167, 174
(2012) (“whole-text” and “surplusage” canons).
“Material” is a common term in federal law. It conveys
some sense of both importance and relevance. For example,
misrepresentations or omissions concerning issuance, pur-
chase, or sale of securities may be unlawful if they are “mate-
rial” but not if they are immaterial. See, e.g., 15 U.S.C. §§ 77k
and 77l; 17 C.F.R. § 240.10b–5. Criminal fraud, such as in the
federal statutes on mail, wire, bank, and tax fraud and fraud
on the government, requires that the deception be “material.”
See Neder v. United States, 527 U.S. 1, 16, 22–25 (1999).
The standard for materiality is not always high, but it does
exist. It calls for courts and agencies to distinguish the minor
from the material. In fraud cases, it requires that the deception
involve something that has “a natural tendency to influence”
or is “capable of influencing” the relevant decision. Id. at 16,
quoting United States v. Gaudin, 515 U.S. 506, 509 (1995), quot-
ing in turn Kungys v. United States, 485 U.S. 759, 770 (1988); see
also TSC Industries, Inc. v. Northway, Inc., 426 U.S. 438, 449
(1976) (“An omitted fact is material if there is a substantial
likelihood that a reasonable shareholder would consider it
important in deciding how to vote.”). In fraud cases, materi-
ality filters out the trivial or minor. See TSC Industries, 426 U.S.
at 463 (reversing summary judgment for plaintiff; omissions
not material, at least as a matter of law, so materiality pre-
sented factual dispute).
In other statutory contexts, materiality requirements are
even more substantial. For instance, the False Claims Act uses
a similar definition of material: “having a natural tendency to
influence, or be capable of influencing, the payment or receipt
26 No. 16-1112
of money or property.” 31 U.S.C. § 3729(b)(4). The Supreme
Court recently said that this “materiality standard is demand-
ing.” Universal Health Services, Inc. v. United States ex rel. Esco-
bar, 579 U.S. —, —, 136 S. Ct. 1989, 2003 (2016) (materiality
requirement not met when violation is “minor or insubstan-
tial”).
In Universal Health Services, the Court also pointed out the
broader use of materiality in the common law. In tort law, a
matter is material only “(1) ‘[if] a reasonable man would at-
tach importance to [it] in determining his choice of action in
the transaction’; or (2) if the defendant knew or had reason to
know that the recipient of the representation attaches im-
portance to the specific matter ‘in determining his choice of
action,’ even though a reasonable person would not.” Id., cit-
ing Restatement (Second) of Torts § 538, at 80. Similarly, in
contract law, a common and important issue is whether a
party’s breach is “material,” which may excuse the other
party from further performance. See generally Restatement
(Second) of Contracts §§ 237 and 241; Canada Dry Corp. v. Nehi
Beverage Co., 723 F.2d 512, 517 & n.3 (7th Cir. 1983).
Materiality also plays important roles in constitutional
law. For instance, the Fourteenth Amendment’s Due Process
Clause forbids prosecutors from failing to disclose “material”
exculpatory evidence. Brady v. Maryland, 373 U.S. 83, 87
(1964). Omitted evidence is “material” when it “creates a rea-
sonable doubt that did not otherwise exist.” United States v.
Agurs, 427 U.S. 97, 112 (finding no Brady violation, in part, be-
cause undisclosed evidence was not “material”); see also Har-
ris v. Thompson, 698 F.3d 609, 627–28 (7th Cir. 2012) (Brady
standard of materiality applies to compulsory process clause).
No. 16-1112 27
While the precise meaning of “material” depends on its
context, it always has the effect of raising the threshold of the
word it modifies. In all of these contexts, courts make clear
that the word must be reckoned with. In fact, when “material”
modifies a statutory term, it is often regarded as an express
“requirement.” See, e.g., United States v. Seidling, 737 F.3d
1155, 1158, 1160 (7th Cir. 2013) (discussing mail fraud statute’s
“materiality requirement” or “materiality element”).
When the materiality requirement is absent from a statute,
the Supreme Court takes notice and enforces the unmodified
statutory term more literally.1 The Court has used this ap-
proach with the Immigration and Nationality Act itself. In
Kungys v. United States, the Court reviewed 8 U.S.C.
§ 1101(f)(6), which states that a person will not be considered
of good moral character if she has “given false testimony for
the purpose of obtaining benefits under this chapter.” The
Court held that the false testimony provision did not contain
an implicit materiality requirement:
On its face, § 1101(f)(6) does not distinguish be-
tween material and immaterial misrepresenta-
tions. Literally read, it denominates a person to
be of bad moral character on account of having
given false testimony if he has told even the
most immaterial of lies with the subjective in-
tent of obtaining immigration or naturalization
1 At times the Supreme Court has read an implicit materiality require-
ment into a statute that does not expressly contain one. For instance, when
a statute contains a term with a well-established meaning in the common
law, the Supreme Court turns to the history of the term to see if it contains
an implicit materiality requirement. See Neder, 527 U.S. at 20-23.
28 No. 16-1112
benefits. We think it means precisely what it
says.
Kungys, 485 U.S. at 779–80. If the absence of the word “mate-
rial” has such a significant impact in the Immigration and
Naturalization Act, then its presence must mean something.
This approach is further bolstered by the statute’s exam-
ples of material support, which are all activities that advance
the goals of terrorism. They include providing “a safe house,
transportation, communications, funds, transfer of funds or
other material financial benefit, false documentation or iden-
tification, weapons (including chemical, biological, or radio-
logical weapons), explosives, or training.”
§ 1182(a)(3)(B)(iv)(VI); see also Singh-Kaur v. Ashcroft, 385 F.3d
293, 304 (3d Cir. 2004) (Fisher, J., dissenting) (arguing that
“material” requires the support to be “relevant to the speci-
fied terrorist goal, terrorist persons, or terrorist organizations,
which in sum means that the support must be relevant to ter-
rorism”). These examples reinforce the plain-language read-
ing that support is “material” when it is relevant to advancing
terrorism.
At times the Board has considered whether Congress in-
tended to include a “de minimis” exception in the “material
support” bar but has left this question unanswered. See, e.g.,
In re S–K–, 23 I. & N. Dec. 936, 945 (BIA 2006). With respect,
this is the wrong question. Congress included a materiality
requirement in the statute. The question that the Board and
we should be asking is about the scope of that requirement.
The reader of the majority opinion can fairly ask whether
its approach leaves any meaning for the word “material,” at
No. 16-1112 29
least if it treats as material support of terrorism Jabateh’s oc-
casional and largely unpaid translation for a leader’s medical
appointments and a few other unspecified social errands. Cf.
In re ***, 2009 WL 9133770 (BIA 2009) (non-precedential) (find-
ing support for terrorist organization was not material where
it consisted of about four dollars and a packed lunch, and dis-
tinguishing In re S–K–, where petitioner donated about $685
over eleven months to non-terrorist activities of group).
The majority’s approach also loses sight of important sig-
nals from the statutory context and purpose of the “material
support” bar. The INA was amended in 1990 to bar certain
forms of immigration relief to those engaged in terrorist ac-
tivities. See Immigration Act of 1990, Pub. L. No. 101–649, 104
Stat. 4978 (1990). This provision has been amended several
times since then, most notably in the PATRIOT Act and the
REAL ID Act. See USA PATRIOT Act, Pub. L. No. 107-56,
§ 411, 115 Stat. 272 (2001); REAL ID Act of 2005, Pub. L. 109-
13, § 103, 119 Stat. 243, 306 (2005).
The INA strikes a balance of sorts for handling asylum-
seekers who come from parts of the world where terrorist or-
ganizations are active or even ascendant. It tries to distinguish
between those who perpetrate terror and those who suffer
from it. We bar the former. 8 U.S.C. § 1182(a)(3)(B). We offer
asylum and CAT protection to at least some of the latter.
§ 1158; 8 C.F.R. § 1208.16(c). This sorting creates tension. A
door open too wide would admit perpetrators; a closed door
would deny deserving asylum-seekers. As the material sup-
port bar has been construed, the door is just barely ajar. The
majority’s reading threatens to close it entirely.
The material support bar already encompasses a broad
range of groups, people, and activities. Tier I and II terrorist
30 No. 16-1112
organizations are those officially designated by statute or oth-
erwise. 8 U.S.C. § 1182(a)(3)(B)(vi). Tier III terrorist organiza-
tions are other, undesignated groups that prepare for, plan, or
commit terrorist activity. § 1182(a)(3)(B)(vi)(III). “Terrorist ac-
tivity” is defined as “any activity which is unlawful under the
laws of the place where it is committed … and which involves
… [t]he use of any … explosive, firearm, or other weapon or
dangerous device … with intent to endanger, directly or indi-
rectly, the safety of one or more individuals or to cause sub-
stantial damage to property.” § 1182(a)(3)(B)(iii).
As one Board member put it: “Any group that has used a
weapon for any purpose other than for personal monetary
gain can, under this statute, be labeled a terrorist organiza-
tion.” In re S–K–, 23 I. & N. Dec. at 948 (Osuna, concurring)
(applying law to Chin National Front, which opposed mili-
tary dictatorship in Burma that U.S. government had con-
demned as illegitimate, and where Christian members of
Chin minority had well-founded fear of being persecuted by
Burmese dictatorship). 2 To call these results surprising is an
understatement. For instance,
DHS [has] conceded … that an individual who
assisted the Northern Alliance in Afghanistan
against the Taliban in the 1990s would be con-
sidered to have provided “material assistance”
2 While thebroader precedent of In re S–K– still stands, its application
to the Chin National Front was later modified. In 2007, then-Secretary of
Homeland Security Chertoff exercised his discretionary authority to cre-
ate limited exemptions for the Chin National Front, the Chin National
Army, and the Chin League for Democracy. See Exercise of Auth. Under
Sec. 212(d)(3)(B)(i) of the Immigration and Nationality Act, 72 Fed. Reg.
9957 (Mar. 6, 2007).
No. 16-1112 31
to a terrorist organization under this statute and
thus would be barred from asylum. This despite
the fact that the Northern Alliance was an or-
ganization supported by the United States in its
struggle against a regime that the United States
and the vast majority of governments around
the world viewed as illegitimate.
Id. This broad definition could bar Syrians who provided sup-
port to those opposing the current Assad regime before flee-
ing their county. See Theodoric Meyer, U.S. Is Arming Syrian
Rebels, But Refugees Who’ve Aided Them Are Considered Terror-
ists, ProPublica, https://www.propublica.org/article/us-is-
arming-syrian-rebels-refugees-whove-aided-them-consid-
ered-terrorists (Sept. 30, 2013) (U.S. Citizenship and Immigra-
tion Services stated that “any Syrians who do apply for refu-
gee or asylum status could be subject” to the material support
bar). This is remarkable, given that the United States itself has
supported select Syrian opposition groups. See Carla E. Hu-
mud et al., Congressional Research Service, Armed Conflict in
Syria: Overview and U.S. Response 20–27 (2016).
As noted, we have interpreted the material support bar to
include support for a terrorist organization’s non-terrorist ac-
tivities. See Hussain v. Mukasey, 518 F.3d 534, 538 (7th Cir.
2008) (“If you provide material support to a terrorist organi-
zation, you are engaged in terrorist activity even if your sup-
port is confined to the nonterrorist activities of the organiza-
tion.”); accord, In re S–K–, 23 I. & N. Dec. at 943–44. This is
because some forms of support like money are fungible. Such
support to a terrorist organization’s non-terrorist activities
frees up resources for its terrorist activities. In re S–K–, 23 I. &
N. Dec. at 944. In addition, this type of support, even though
32 No. 16-1112
not directly supporting terrorist acts, may bolster a terrorist
organization by giving it greater legitimacy or influence.
Many terrorist organizations “operate on two tracks: a violent
one and a peaceful one (electioneering, charity, provision of
social services). If you give money (or raise money to be
given) for the teaching of arithmetic to children in an elemen-
tary school run by [a terrorist organization], you are provid-
ing material support to a terrorist organization even though
you are not providing direct support to any terrorist acts.”
Hussain, 518 F.3d at 538.
In addition, duress does not seem to be an available de-
fense for an asylum-seeker who provided material support to
a terrorist or terrorist organization. See Matter of M–H–Z, 26
I. & N. Dec. 757, 760 (BIA 2016) (collecting cases from several
circuits). People who are threatened or coerced by terrorists
into providing material support will likely be barred from im-
migration relief.
As Board Vice Chair Osuna wrote in his concurrence in In
re S–K–, therefore, “the statutory language is breathtaking in
its scope.” 23 I. & N. Dec. at 948. For example, the government
took the position at oral argument in this case that the mate-
rial support bar would apply to a doctor or nurse who pro-
vided emergency medical care to a person she “should have
known” was affiliated with a group that uses violence. Given
the Board’s approach to duress in M–H–Z, the bar would ap-
ply even if she provided the medical care at gunpoint. Really?
If the Board and the courts apply the material support bar
so broadly to non-terrorist activities and even to support pro-
vided under duress, it is especially important to give meaning
to the statutory limit of “material.” That term calls for immi-
gration judges, the Board, and the courts to strike a balance
No. 16-1112 33
written into the Act. It does so by preventing application of
the bar to people arriving in the United States from some of
the most dangerous and chaotic places on earth. They may
not have been able to avoid all contact with terrorist groups
and their members, but we should not interpret the statute to
exclude on this basis those who did not provide “material”
support to them.
Many deserving asylum-seekers could be barred other-
wise. For example, the grocer who sells groceries to a known
rebel fighter who is shopping for dinner would be providing
support to terrorism. The taxi driver, the plumber, the den-
tist—anyone who has even minor commercial contact with a
known terrorist, even in a setting that does not advance the
goals of a terrorist organization—has supported terrorism.
This broad approach could bar people simply because the
places they have escaped from are ones where terrorists were
active. Congress opted against that blanket approach.
At oral argument the government attempted to minimize
this concern by raising the possibility of discretionary relief
under 8 U.S.C. § 1182(d)(3)(B). Such relief is possible, and
DHS has issued several group-based and situational-based
exemptions under this provision. See, e.g., supra at 30 n.2
(group-based exemptions for Chin groups); Exercise of Auth.
Under Sec. 212(d)(3)(B)(i) of the Immigration and Nationality
Act, 79 Fed. Reg. 6913 (Feb. 5, 2014) (permitting limited ex-
emptions for “insignificant material support” of terrorism).
The possibility of discretionary relief elsewhere in the stat-
ute does not change the plain language of the statute. We do
not read the “materiality” requirement out of the criminal
fraud statutes because there is the possibility of a presidential
pardon. Nor should we do so here. “Material” should have
34 No. 16-1112
some meaning. Also, as a practical matter due to the way
§ 1182(d)(3)(B) has been implemented, some applicants are
precluded from even being considered for this form of discre-
tionary relief and most will receive no judicial review of that
decision. 3
To back its broad reading of “material support,” the ma-
jority also relies on the Supreme Court’s interpretation of that
phrase in Holder v. Humanitarian Law Project, 561 U.S. 1 (2010).
3 In FH-T v. Holder, 743 F.3d 833 (7th Cir. 2013), we addressed why
some petitioners are precluded from relief under § 1182(d)(3)(B). DHS will
consider an exemption only for a petitioner who has been deemed “other-
wise eligible” for immigration relief. See id. at 843, citing U.S. Citizenship
and Immigration Services, Fact Sheet (Oct. 23, 2008). As a result, if the
Board affirms an immigration judge’s finding that a petitioner is barred
due to material support of terrorism but does not proceed to address the
merits, DHS will not consider an exemption. It’s a catch-22: the petitioner
may be “unable to seek a waiver [from DHS] because no final finding of
asylum eligibility ‘but for the bar’ has been issued [by BIA], and unable to
receive a full adjudication of asylum eligibility [from BIA] on the basis that
he is subject to the material support bar.” Id. at 843; see also FH-T v. Holder,
743 F.3d 1077 (7th Cir. 2014) (Wood, C.J., dissenting from denial of rehear-
ing en banc).
Congress “expressly provided for federal judicial review over exemp-
tion determinations,” 743 F.3d at 847, yet many petitioners will be pre-
cluded from receiving this review due to interagency timing problems.
This is because DHS will consider providing an exemption only after an
order of final removal. The Board’s removal order, however, triggers a 30-
day window for the petitioner to seek federal judicial review. Since “it is
unlikely that Congress intended DHS waiver decisions themselves to con-
stitute separately reviewable decisions,” we noted that the “current
agency practices will in all likelihood frustrate the opportunity for review
because the Board decisions will issue more quickly than DHS exemptions
(and the period for appealing a removal order will otherwise lapse).” Id.
at 847–48.
No. 16-1112 35
Ante at 17–18. That decision makes clear that truly material
support for terrorism can include support for non-terrorist ac-
tivities of terrorist organizations, but it did not address any
issue of the minimal limits to materiality. The Court wrote
that “‘Material support’ is a valuable resource by definition.”
561 U.S. at 30. The value that Jabateh’s translation services for
Conneh’s medical appointments and other social matters
might have had to LURD’s terrorist activities is not at all clear.
Indeed, Jabateh was generally unpaid, only occasionally re-
ceiving “a few dollars, a few francs.” App. at 12 n.5.
The challenging question is of course what level of sup-
port meets the threshold of materiality. Identifying the “ma-
terial” floor may be difficult, but such is the nature of judicial
line-drawing. See Bank of Markazi v. Peterson, 578 U.S. —, —,
136 S. Ct. 1310, 1336 (2016) (Roberts, C.J., dissenting) (“I read-
ily concede, without embarrassment, that it can sometimes be
difficult to draw the line between legislative and judicial
power.”). The statute’s use of the word “material” requires
such a line. As we review specific immigration cases such as
Jabateh’s, just as in fraud cases, we should not shy away from
this judicial task. See also Basic Inc. v. Levinson, 485 U.S. 224,
236 n.14 (agreeing that “materiality concept is judgmental in
nature and it is not possible to translate this into a numerical
formula” and should be assessed on a “case-by-case basis”).
In Jabateh’s case, three key factors lead me to find that the
Board erred by holding his “support” was “material.” First,
and most important, Jabateh provided a very small amount of
support. The translation service was sporadic and generally
unpaid. App. 18. The arrangement appears to have been ra-
ther ad hoc: Jabateh was “called in sometimes” between 2001
36 No. 16-1112
and 2002 to translate during doctor appointments and social
errands. Id. This went on “Just a few months.” Id. at 13 n.6.
Second, Jabateh provided support only for Conneh’s per-
sonal, non-terrorist activities. Jabateh testified, and the immi-
gration judge found him credible, that he never interpreted
for Conneh’s business meetings or any events involving
LURD. Id. at 12, 18. He was not translating battle commands,
communicating with LURD confederates, or recruiting new
members. Nor did he carry weapons or provide security for
Conneh. Id. Also, the type of “support” he provided—trans-
lation during Conneh’s personal outings—is not fungible like
money, nor did it bolster LURD’s legitimacy or influence.
Third, Jabateh provided translation services to a member
of LURD, not to the organization itself. If Jabateh had been
translating for LURD itself, even in LURD’s non-terrorist ca-
pacity (such as a charitable arm of the organization), there
would be a stronger case to consider the support “material.”
In such a case, his support might have been more relevant to
advancing the goals of terrorism.
Here, the combination of these three factors leads me to
conclude that the immigration judge was right and the Board
erred by finding Jabateh’s support was material. He provided
a small amount of non-fungible services to a Tier III terrorist
member in only his personal non-terrorist activities. If we
treat that as material support of terrorism, we may bar too
many people from dangerous parts of the world who had
only minimal contact with the terrorist organizations in their
midst. It would bar the doctor, nurse, grocer, taxicab driver,
plumber, and dentist. That result is not consistent with the
statute.