PUBLISHED
UNITED STATES COURT OF APPEALS
FOR THE FOURTH CIRCUIT
JOSE H. BARAHONA, a/k/a Jose
Herman Barahona, a/k/a Jose
Hernan Barahona,
Petitioner,
v. No. 11-2046
ERIC H. HOLDER, JR., Attorney
General,
Respondent.
On Petition for Review of an Order of
the Board of Immigration Appeals.
Argued: May 15, 2012
Decided: August 13, 2012
Before TRAXLER, Chief Judge, and KING and WYNN,
Circuit Judges.
Petition for review denied by published opinion. Judge King
wrote the majority opinion, in which Chief Judge Traxler
joined. Judge Wynn wrote a dissenting opinion.
2 BARAHONA v. HOLDER
COUNSEL
ARGUED: Kristina Michelle Campbell, UNIVERSITY OF
THE DISTRICT OF COLUMBIA, Washington, D.C., for
Petitioner. Ethan B. Kanter, UNITED STATES DEPART-
MENT OF JUSTICE, Washington, D.C., for Respondent. ON
BRIEF: Tony West, Assistant Attorney General, Civil Divi-
sion, Michael P. Lindemann, Chief, National Security Unit,
UNITED STATES DEPARTMENT OF JUSTICE, Washing-
ton, D.C., for Respondent.
OPINION
KING, Circuit Judge:
Petitioner José H. Barahona, a native and citizen of El Sal-
vador, petitions this Court for review of the final order of the
Board of Immigration Appeals (the "BIA"), dated September
2, 2011, which affirmed his ineligibility for a "special rule"
cancellation of removal under section 203 of the Nicaraguan
and Central American Relief Act of 1997 (the "NACARA").1
Barahona contends that the BIA erred by deeming him ineli-
gible for NACARA relief because he had provided material
support to a terrorist organization in the early 1980s by allow-
ing anti-government Salvadoran guerrillas of the so-called
"FMLN" (the Frente Farabundo Marti para la Liberción
Nacional) the use of the kitchen of his Salvadoran home. As
1
The NACARA, which was enacted in 1997 by Public Law 105-100,
111 Stat. 2160, 2193-96, and amended that year by Public Law 105-139,
111 Stat. 2644, is codified in several titles of the United States Code,
including Title 8. See Peralta v. Gonzales, 441 F.3d 23, 24 (1st Cir. 2006).
The NACARA amended the Illegal Immigration Reform and Immigrant
Responsibility Act of 1996, which had amended the Immigration and
Nationality Act (the "INA") by rendering certain groups of aliens inadmis-
sible. See Cheruku v. Attorney Gen., 662 F.3d 198, 203-04 (3d Cir. 2011).
Thus, the NACARA effectively amended the INA, which constitutes this
country’s basic statutory enactment relating to immigration.
BARAHONA v. HOLDER 3
explained below, we reject Barahona’s contentions and deny
the petition for review.
I.
A.
Barahona entered the United States illegally in 1985. He
filed his first application for asylum in 1987, pursuant to 8
U.S.C. § 1158(a), and it was denied on July 15, 1988.
Barahona was then given thirty days to leave the United
States. Barahona nevertheless remained in this country and
applied again for asylum in 1995. On May 9, 2007, his second
asylum application was referred to an immigration judge
("IJ") for adjudication in removal proceedings. On November
11, 2007, Barahona was arrested in Prince William County,
Virginia, and charged with a state felony for maliciously caus-
ing "bodily injury to Maria Barahona, his wife, with the intent
to maim, disfigure, disable, or kill." J.A. 164-65 (citing Va.
Code Ann. § 18.2-51.2).2 On December 11, 2007, Barahona
pleaded guilty to a misdemeanor offense of domestic assault
and battery, receiving a term of probation.
In December 2007, Barahona’s asylum proceedings were
administratively closed for failure to prosecute. His case was
recalendared in May 2009 for the resolution of allegations
that he was removable under 8 U.S.C. § 1182(a)(6), as an
alien present in the United States without lawful admission or
parole. During the subsequent IJ proceedings, conducted in
late 2009, Barahona was found to be removable, but was
accorded an opportunity to apply for a "special rule" cancella-
tion of removal. Such a cancellation of removal is authorized
by section 203 of the NACARA, as codified in 8 U.S.C.
§ 1229b(b), under which the Attorney General is empowered
to "cancel removal of . . . an alien who is inadmissible or
2
Citations herein to "J.A.___" refer to the contents of the Joint Appen-
dix filed by the parties in this matter.
4 BARAHONA v. HOLDER
deportable from the United States, if the alien" satisfies cer-
tain criteria, including not being either "inadmissible or
deportable" under other provisions of the INA. See 8 U.S.C.
§ 1229b(b), (c)(4). The IJ’s evidentiary hearing was con-
ducted on March 22, 2011, and Barahona was the only wit-
ness to present evidence.
B.
Barahona testified before the IJ that he was born in 1960
in the city of Carolina, in the San Miguel department of El
Salvador. Prior to the outbreak of violence incident to a
twelve-year civil war between the military government of El
Salvador and the FMLN guerillas, Barahona worked on a
small farm in San Miguel. In about 1984, the FMLN guerillas
took control of Carolina, and that seizure gave rise to local
violence. Due to the FMLN’s seizure and frequent labor dis-
putes, Barahona was unable to continue working. For nearly
a year, the FMLN guerillas took control of Barahona’s home
— using it as their needs arose, mainly for preparing food in
its kitchen, but occasionally sleeping overnight when the
weather was unfavorable.
Barahona confirmed that the FMLN guerillas would arrive
at his home and announce that they were going to use the
kitchen. He explained that, if he had refused to allow the
FMLN access and use of his residence, they would have con-
sidered him the enemy. In that event, he would have been
given twelve hours to vacate his home city or be killed.
Indeed, Barahona’s father and cousin had both been executed
by the FMLN guerillas, and his father had not been accorded
the option of leaving. From early 1984 until Barahona’s
departure for the United States in February 1985, as many as
200 FMLN guerillas used Barahona’s kitchen. They generally
utilized the water and cooking facilities of his home, but
always brought their own food. On several occasions,
Barahona gave the guerrillas directions through the jungle to
other locations.
BARAHONA v. HOLDER 5
In early 1985, when he was twenty-four years of age,
Barahona left El Salvador for this country. In doing so, he
travelled by bus through Guatemala and Mexico. Barahona
entered the United States in Texas, without being inspected or
properly admitted.
C.
After his March 22, 2011 evidentiary hearing, the IJ ren-
dered an oral decision (the "IJ Decision") denying Barahona’s
asylum application.3 The IJ Decision credited Barahona’s tes-
timony, and found that the criteria for a special rule cancella-
tion were — except for one — entirely satisfied. The sole
INA provision underlying the IJ’s rejection of the special rule
cancellation specifies that an alien is inadmissible if he has
engaged in terrorist activity by providing "material support"
to a terrorist organization. See 8 U.S.C. § 1182(a)(3)(B)(i)(I).
"Terrorist activity" is defined by the INA, and includes com-
mitting "an act that [the person] knows, or reasonably should
know, affords material support . . . to a terrorist organization."
Id. § 1182(a)(3)(B)(iv)(VI)(cc).4 "Material support" includes
providing "a safe house, transportation, communications,
funds, transfer of funds or other material financial benefit,
false documentation or identification, weapons . . . , explo-
sives, or training." Id. § 1182(a)(3)(B)(iv)(VI) (hereinafter the
"Material Support Bar") (emphasis added).
Acknowledging the difficulty of deciding whether
Barahona, in accommodating the FMLN guerrillas, had pro-
vided material support to a terrorist organization, the IJ Deci-
sion nevertheless ruled against him. In so ruling, the IJ
concluded that Barahona, in allowing the FMLN guerrillas to
use his kitchen for nearly a year, had provided "material sup-
3
The IJ Decision is found at J.A. 322-29.
4
The parties agree that the FMLN is a terrorist organization for purposes
of the INA.
6 BARAHONA v. HOLDER
port" under the INA.5 The IJ accepted the fact that Barahona
was under duress when he accommodated the guerrillas, and
the IJ recognized that Barahona had no choice but to allow the
guerrillas to use his kitchen. The IJ reasoned, however, that
there is no exception for duress or involuntariness under the
Material Support Bar. As a result, the IJ Decision denied
Barahona’s application for a special rule cancellation, and
ordered Barahona removed to El Salvador.
D.
Barahona thereafter appealed the IJ Decision to the BIA,
asserting three grounds for relief. First, Barahona claimed that
allowing the FMLN the use of his kitchen constituted support
that was de minimis only, and thus immaterial. Second, he
asserted that he was acting under duress and that his support
of the FMLN was entirely involuntary. Finally, Barahona con-
tended that the IJ Decision contravened international law. The
BIA filed its order on September 2, 2011 (the "BIA Order"),
agreeing with the IJ and affirming the IJ Decision.6
The BIA Order rejected Barahona’s first contention, find-
ing no error in the IJ’s conclusion that Barahona’s support
was material, and agreeing that there is no exception in the
Material Support Bar for de minimis activities on behalf of a
terrorist organization. Similarly, rejecting Barahona’s second
contention, the BIA explained that the Material Support Bar
"does not contain any language to support an exception to ter-
rorist support where an alien can establish duress or involun-
tary contributions, and we decline to find one at this time."
BIA Order 2. Finally, the BIA declined to find a violation of
5
Although the IJ Decision found that material support was provided to
the FMLN by Barahona, the Decision never expressly links that support
to any aspect of the statutory definition of "material support." We assume,
for purposes of our decision today, that such a link includes at least "a safe
house."
6
The BIA Order is found at J.A. 438-40.
BARAHONA v. HOLDER 7
international law. According to the BIA, the INA provides for
a discretionary waiver, subject to some limitations, that autho-
rizes the Secretary of State or the Secretary of Homeland
Security to grant a waiver of the Bar. See 8 U.S.C.
§ 1182(d)(3)(A). Such a waiver may apply in instances where
removal would violate international law. The BIA recognized,
however, that "it is well-established that Congress may enact
statutes that conflict with international law." BIA Order 2. In
the end, the BIA Order dismissed Barahona’s appeal.
II.
Where, as here, the BIA has adopted and supplemented the
IJ’s decision, we review both rulings. See Cervantes v.
Holder, 597 F.3d 229, 232 (4th Cir. 2010); see also
Kourouma v. Holder, 588 F.3d 234, 239-40 (4th Cir. 2009)
("When the BIA and [IJ] both issue decisions in a case, we
review both decisions upon appeal."). Pursuant to section
202(f) of the NACARA, "[a] determination by the Attorney
General as to whether an alien satisfies the requirements of
[cancellation of removal] is final and shall not be subject to
review by any court." 8 U.S.C. § 1101; see Ixcot v. Holder,
646 F.3d 1202, 1213–14 (9th Cir. 2011) (recognizing that
court is precluded from reviewing agency’s factual determina-
tion that alien is ineligible for special rule cancellation of
removal under NACARA). Notwithstanding the foregoing
legal principle, a court of appeals has jurisdiction to review
constitutional claims and questions of law arising from deni-
als of relief under the NACARA, even though such a court
"cannot review discretionary determinations regarding
requests for special rule cancellation of removal under
NACARA, absent legal or constitutional error." Gonzalez-
Ruano v. Holder, 662 F.3d 59, 63 (1st Cir. 2011); see 8
U.S.C. § 1252(a)(2)(D). Barahona’s primary contention in
this case — that the Material Support Bar excludes involun-
tary support, or support of a terrorist organization under
8 BARAHONA v. HOLDER
duress — presents a question of law only, as to which we pos-
sess jurisdiction.7
III.
In his petition for review, Barahona maintains that his con-
tacts with the FMLN guerrillas do not fall under the Material
Support Bar. He asserts that the use of his kitchen by the
FMLN guerrillas "occurred under duress, and as such do[es]
not rise to the level of providing ‘material support.’" Br. of
Pet’r 13. Restated, Barahona’s position is that he did not pro-
vide material support to the FMLN because he was forced,
under threat of execution, to allow the guerrillas to use his
kitchen.
Barahona admits that the Material Support Bar is silent on
whether voluntariness is a requirement thereof. He asserts,
however, that such silence renders the statute ambiguous.
Relying on Negusie v. Holder, 555 U.S. 511 (2009), Barahona
argues that we must decide whether a lack of voluntariness is
relevant to the Material Support Bar determination. If it is rel-
evant, Barahona argues, the fact that his support of the FMLN
was provided under duress precludes the Bar from applying
to him.
In its Negusie decision, the BIA rejected the claim of an
alien that there was a duress exception to the so-called "Perse-
cutor Bar." See 8 U.S.C. § 1101(a)(42). The Persecutor Bar
prevents an alien from obtaining immigration relief if he par-
ticipated in the persecution of another person. The BIA’s
Negusie ruling had relied on an earlier Supreme Court deci-
7
In his petition for review, Barahona appears to have abandoned his ear-
lier claim of a violation of international law. Barahona reiterates, however,
that his support of the FMLN guerrillas was de minimis and that, as such,
it could not amount to material support. Inasmuch as this contention chal-
lenges a finding of fact, we lack jurisdiction to reach or address it. See
Ixcot, 646 F.3d at 1213–14.
BARAHONA v. HOLDER 9
sion, Fedorenko v. United States, 449 U.S. 490 (1981), which
declined to read an involuntariness exception into the Dis-
placed Persons Act. The result of the BIA’s Negusie ruling
was to render inadmissible European refugees after World
War II who had served as guards at Nazi concentration
camps. The Supreme Court’s Negusie decision was that the
BIA had erred in relying on Fedorenko to reject the alien’s
asserted duress exception to the Persecutor Bar. That is, the
Negusie Court held that "[t]he BIA is not bound to apply the
Fedorenko rule that motive and intent are irrelevant to the
[Persecutor Bar]." Negusie, 555 U.S. at 522-23. As a result,
the Court reversed the BIA and remanded for further proceed-
ings.
Unlike the situation in Negusie, however, the BIA in this
case did not rely on precedent interpreting a different statute
when it dismissed Barahona’s appeal. Rather, the BIA care-
fully examined the Material Support Bar and determined that
it "does not contain any language to support an exception to
terrorist support where an alien can establish duress or invol-
untary contributions." BIA Order 2. Remaining faithful to the
statutory scheme, the BIA declined to read such an exception
into the Material Support Bar.
Because the issue before us turns on an interpretation of the
INA, we must "afford the BIA deference under the familiar
Chevron standard." Midi v. Holder, 566 F.3d 132, 136 (4th
Cir. 2009) (citing Chevron U.S.A., Inc. v. NRDC, Inc., 467
U.S. 837, 844 (1984)). Under the Chevron standard, "we ini-
tially examine the statute’s plain language; if Congress has
spoken clearly on the precise question at issue, the statutory
language controls. If, however, the statute is silent or ambigu-
ous, we defer to the agency’s interpretation if it is reason-
able." Midi, 566 F.3d at 136-37 (citations omitted).
The Material Support Bar contains no express exception for
material support provided to a terrorist organization either
involuntarily or under duress. Congress has created, however,
10 BARAHONA v. HOLDER
a general waiver provision for aliens who are otherwise inad-
missible. Under § 1182(d)(3)(A) of Title 8, an alien who is
inadmissible may seek approval for admission from the Secre-
tary of State or the Secretary of Homeland Security despite
his inadmissibility. A statutory limitation is placed on the use
of that waiver, however, in that it may not be extended to an
alien who has voluntarily supported terrorist activities. See 8
U.S.C. § 1182(d)(3)(B). Thus, Barahona, or any similarly sit-
uated alien who has supported a terrorist organization under
duress, possesses an alternative avenue of relief from inadmissi-
bility.8 Notably, Congress included voluntary support of ter-
rorist activities in its exception to the waiver provision
contained in § 1182(d)(3)(B), but made no distinction
between voluntary and involuntary conduct in the Material
Support Bar. We therefore assume that Congress did not
intend to create an involuntariness exception to the Material
Support Bar, otherwise the voluntary support exception to the
waiver provision would be rendered superfluous. See Bilski v.
Kappos, 130 S. Ct. 3218, 3228 (2010) (recognizing "canon
against interpreting any statutory provision in a manner that
would render another provision superfluous"); Russello v.
United States, 464 U.S. 16, 23 (1983) ("[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 pre-
sumed that Congress acts intentionally and purposely in the
disparate inclusion or exclusion." (internal quotation marks
omitted)).
This proceeding bears several similarities to the recent situ-
ation faced by the First Circuit in Gonzalez v. Holder, 673
F.3d 35 (1st Cir. 2012). Gonzalez petitioned the court of
appeals for review of the BIA’s denial of a special rule can-
cellation under the NACARA. The BIA had ruled that Gonza-
lez was barred from NACARA relief because he had last
8
Barahona’s lawyer advised at oral argument that her client had already
applied for relief under the waiver provision, and that such relief was
denied by the Secretary of Homeland Security in March 2012.
BARAHONA v. HOLDER 11
entered the United States as a crewman, and section 240A(c)
of the INA (the "Crewman Bar") renders an alien who entered
as a crewman ineligible for cancellation of removal. Gonzalez
contended in the court of appeals that the Crewman Bar does
not apply to an alien who has established eligibility for
NACARA relief prior to entering this country as a crewman.
As relevant here, the First Circuit declined to read into the
Crewman Bar any such exception, holding that "the statute
simply does not contain any exceptions. . . . We cannot
rewrite the statute." Gonzalez, 673 F.3d at 40.
Put simply, the terms of the Material Support Bar encom-
pass both voluntary and involuntary support and, like those of
the Crewman Bar, fail to provide for the exception under
which Barahona seeks relief. See De Osorio v. INS, 10 F.3d
1034, 1042-43 (4th Cir. 1993) (deferring to BIA’s permissible
statutory construction where statute was silent with respect to
exception to "Aggravated Felony Bar").9 Moreover, Congress
has vested discretionary waiver authority in the Secretary of
State and the Secretary of Homeland Security for an alien
who has provided material support, but has excepted from
such a waiver those who voluntarily provided material sup-
port. By excepting only voluntary supporters from the waiver
authorization, Congress has created an alternative avenue of
relief for an alien who is inadmissible because he involuntar-
ily provided material support to a terrorist organization. It was
thus reasonable for the BIA, in its decision here, to decline to
create an involuntariness exception from the Material Support
Bar. We therefore defer to the BIA’s interpretation of the Bar,
as we must under Chevron. See Asika v. Ashcroft, 362 F.3d
9
Section 1182(a)(3)(D) of Title 8, which bars the admission of any
immigrant who has been affiliated with the Communist or another totali-
tarian party, contains an exception for aliens who "establish[ ] . . . that the
membership or affiliation is or was involuntary." § 1182(a)(3)(D)(ii). The
inclusion of this exception in a bar to admissibility, titled "Exception for
involuntary membership," provides further support for the proposition that
Congress never intended to create an involuntariness exception in the
Material Support Bar.
12 BARAHONA v. HOLDER
264, 270 (4th Cir. 2004) (recognizing that "we are bound by
Chevron to defer to the [BIA’s] construction of the Act so
long as it is reasonable").
In sum, Barahona’s support of the FMLN guerrillas falls
under the Material Support Bar and his petition for review
must be denied, even though that support was rendered invol-
untarily and was provided to the FMLN guerrillas under
duress — namely, the threat of execution. As such, we recog-
nize that our ruling today could be reasonably viewed as
yielding a harsh result. Barahona’s testimony before the IJ,
taken at face value and accepted as credible by the IJ, is com-
pelling in many ways. We are constrained in our disposition
of this proceeding, however, by the terms of the Material Sup-
port Bar and the BIA’s reasonable interpretation thereof. As
the First Circuit recently explained, "[w]e cannot rewrite the
statute," see Gonzalez, and the fact that the BIA has reached
a seemingly harsh result does not vitiate the clear statutory
provisions. If the governing legal principles are to be altered,
that obligation rests with the legislative branch of our govern-
ment, rather than with the judiciary.
IV.
Pursuant to the foregoing, we deny Barahona’s petition for
review.
PETITION FOR REVIEW DENIED
WYNN, Circuit Judge, dissenting:
Per the majority opinion, Petitioner José Barahona is ineli-
gible for relief from an order of deportation because over
twenty-five years ago, during the twelve-year civil war in El
Salvador, he was "forced . . . under threat of execution, to
allow the guerrillas to use his kitchen." I, however, would
hold that this passive acquiescence to the crimes of terrorists
does not constitute an "act" that "affords material support . . .
BARAHONA v. HOLDER 13
to a terrorist organization" under the plain language of 8
U.S.C. § 1182(a)(3)(B)(iv)(VI) (the "Material Support Bar").
Accordingly, I must respectfully dissent.
I.
Under the Material Support Bar, an alien is inadmissible if
he has engaged in terrorist activity by providing "material
support" to a terrorist organization. See 8 U.S.C.
§ 1182(a)(3)(B)(i)(I). "Terrorist activity" is in turn defined to
include the commission of "an act that [the person] knows, or
reasonably should know, affords material support . . . to a ter-
rorist organization." Id. § 1182(a)(3)(B)(iv)(VI)(cc) (emphasis
added).
As noted by the majority opinion, the statute does not pro-
vide any type of "duress" exception for an "act" committed
under the type of violence and intimidation all parties
acknowledge Barahona faced in this case. Ante at 9-10. How-
ever, the requirement of an "act"—"something done or per-
formed," Black’s Law Dictionary 27 (9th ed. 2009),1 should
not be conflated with an excuse for conduct for which an indi-
vidual would otherwise be liable:
If a person manipulates the hand of another in such
a way as to cause a crime to be committed, the latter
person is guilty of no crime because he has per-
formed no act. On the other hand, if a person threat-
ens another with harm unless he commits a crime,
and thereby causes the crime to be committed, the
coerced person has performed an act, [though duress
may excuse the act].
1
Other relevant legal definitions of act include: (1) from criminal law,
"a bodily movement whether voluntary or involuntary," Model Penal Code
§ 1.13; and from civil law, "an external manifestation of the actor’s will,"
Restatement (Second) of Torts § 2.
14 BARAHONA v. HOLDER
1 Charles E. Torcia Wharton’s Criminal Law § 52 (15th ed.
2011) (emphasis added). Moreover, our justice system has
long distinguished between committing an act and failing to
act. See, e.g., 1 Wayne R. LaFave, Substantive Criminal Law
§ 6.2 (2d ed. 2008) ("For criminal liability to be based upon
a failure to act it must be found that there is a duty to act—a
legal duty and not simply a moral duty."); Restatement (Sec-
ond) of Torts § 314 ("The fact that the actor realizes or should
realize that action on his part is necessary for another’s aid or
protection does not of itself impose upon him a duty to take
such action.").
Here, the Immigration Judge, whose decision was adopted
and supplemented by the Board of Immigration Appeals,
made the following factual findings:
The material support at issue in this particular case
. . . is [Barahona] has testified that the guerrillas did
make use of his kitchen to cook their food . . . during
approximately one year. I will state also that he did
state that he gave guerrillas directions and showed
them shortcuts, but it is the opinion of the Court that
would not have constituted material support to the
guerrillas. There is no evidence he was trying to help
them on any military missions. . . . I will make a fac-
tual finding that [Barahona] was living in occupied
territory of the guerrillas, that he had no choice as to
whether or not to let them use his house . . . and,
therefore, I would find, as a factual matter, that there
was duress in this case.
J.A. 327-28. The Immigration Judge concluded that because,
"[u]nfortunately, the law as it stands today, provides no
defense for duress," Barahona had violated the Material Sup-
port Bar and was, consequently, ineligible for relief.2 The
2
The Immigration Judge further remarked that: "I want to make clear
were it not for this material support issue I would have found the respon-
dent meets the criteria of relief under [section] 203 of NACARA, and I
would urge whoever is making the decision, Department of Homeland
Security, to allow the duress exception." J.A. 328.
BARAHONA v. HOLDER 15
Board of Immigration Appeals agreed and ruled that, due to
the lack of a duress exception or voluntariness requirement,
Barahona violated the Material Support Bar by allowing the
guerrillas to use his kitchen. It is this legal conclusion,
affirmed by the majority opinion, with which I take issue, as
I find that Barahona need not plead either duress or involun-
tariness when he can be "guilty of no crime because he has
performed no act." Torcia, supra § 52. Nowhere in the record
before this Court is there any suggestion that Barahona took
any affirmative step, or otherwise performed or did any deed,
that he "kn[ew], or reasonably should [have known], afford-
[ed] material support" to the guerillas. 8 U.S.C.
§ 1182(a)(3)(B)(iv)(VI)(cc).
Rather, the Immigration Judge and the Board of Immigra-
tion Appeals essentially found that—under threat of
death—Barahona did not prevent the guerillas from occupy-
ing his home and using his kitchen to prepare their meals for
approximately a year. Yet the plain language of the statute
refers only to whether the individual "commit[s] an act," 8
U.S.C. § 1182(a)(3)(B)(iv)(VI)(cc) (emphasis added). A fail-
ure to act should not be equated with—or read into—that
phrase. See e.g., Midi v. Holder, 566 F.3d 132, 136-37 (4th
Cir. 2009) (noting that under the standard from Chevron v.
Natural Resources Defense Council, Inc., 467 U.S. 837, 844
(1984), "we initially examine the statute’s plain language; if
Congress has spoken clearly on the precise question at issue,
the statutory language controls.").
To apply the Material Support Bar to a failure to act, such
as in Barahona’s case, runs contrary both to our justice sys-
tem’s longstanding distinction between committing an act and
failing to act, discussed above, and to the well-established
tenet that we should construe statutes to avoid absurd results.
Griffin v. Oceanic Contractors, Inc., 458 U.S. 564, 575
(1982) ("[I]nterpretations of a statute which would produce
absurd results are to be avoided if alternative interpretations
consistent with the legislative purpose are available.").
16 BARAHONA v. HOLDER
Consider, for example, that the majority opinion’s holding
would still bar Barahona from relief even had he immediately
fled his home and never returned, and the guerillas had used
his home in his absence, yet he reasonably should have
known they would occupy and use his home once he left.
Likewise, he would not be eligible for relief even if he had
taken some sort of action to prevent the guerillas from being
able to prepare meals, such as sabotaging his stove, if they
instead used his fireplace. Such cannot be the intent of Con-
gress, when the statute specifically provides that an individual
must "commit an act" that "affords material support."3
II.
José Barahona lost his home, members of his family, and
his homeland to guerilla terrorists. Under today’s ruling, he
will now lose his adopted country. Because I find that the
plain language of the Material Support Bar requires that
Barahona have "commit[ted] an act"—beyond simply being
the unfortunate victim of terrorists—to deny the relief he
seeks, I must respectfully dissent.
3
Indeed, every case cited by the Board of Immigration Appeals, in sup-
port of its duress analysis or otherwise, involves the commission of an act.
See, e.g., Arias v. Gonzales, 143 F. App’x 464, 466-68 (3d Cir. 2005)
(making voluntary payments); Matter of S-K-, 23 I&N Dec. 936, 937 (BIA
2006) (donating money); Singh-Kauer v. Ashcroft, 385 F.3d 293, 298 (3d
Cir. 2004) (providing food).