dissenting.
This country offers its immigrants the chance for a new beginning, but retains the right to revoke the freedom it offers should it discover a past it dislikes, no matter how remote or ancient the offenses. I have no quarrel with that: for the nation’s immigrants, past may always be prologue. I dissent, however, because this awesome power was used here to railroad a man out of our country.
The majority evidently approves of this mistreatment, and, in so doing, commits three significant errors. First, the standard used to conclude that Parlak made a “willful misrepresentation” was incorrect. Second, the majority effectively ignores recent Supreme Court and Circuit precedent when it finds that Parlak is ineligible for withholding of his removal. Third, the immigration judge improperly relied on evidence likely induced through torture by Turkish Security Courts, and the Board and now the majority both claim the supernatural ability to block from the mind’s eye this evidence, which the IJ cited roughly eighty times. This record is replete with error, and unless fixed, we will simply never know if Parlak’s deportation is just. I would therefore remand this *472case to a different immigration judge for a fair adjudication-justice demands no less.
I.
Ibrahim Parlak, a Turkish native, was convicted of Kurdish separatism by the now defunct Turkish “Security Courts.” His conviction stemmed from a 1988 incident in Turkey involving a gun fight between Kurdish separatists and Turkish soldiers where two Turkish soldiers were killed. Parlak was arrested. While there, officials tortured him to obtain admissions of involvement with the Kurdistan Workers Party, known as the PKK, along with admissions of specific terrorist acts. He stated that the Turkish gendarma shocked him with electrodes, beat his genitalia, hung him by the arms, blindfolded him while depriving him of sleep, food, water and clothing, and anally raped him with a truncheon. J.A. 874; 981-82. According to Parlak, after he refused to comply fully (despite this torture), the authorities brought in his seventy-year old father. J.A. 661-62.
After being interned for seventeen months, Parlak was released, though it is unclear whether that was because of a bribe or his cooperation. He left Turkey in 1991 and came to the U.S. where he was granted asylum based on his “well-founded fear of persecution.” In his asylum application, he admitted supporting the PKK and he disclosed his 1988 arrest in Turkey. He adjusted his status in 1994 to lawful permanent resident, and, since 1994, has resided in Harbert, Michigan, where he owns a restaurant and is where his daughter was born. In 1998 he applied for naturalization, which the government denied on November 28, 2001.
The government says that it denied his application because he did not disclose his 1988 Turkish arrest, though it admits that the arrest was the entire basis of his earlier asylum application and thus the reason he had been allowed to live in the U.S. This “fraud” charge became the basis for his removal proceedings, but it was soon joined with others, including accusations of his having aided terrorist organizations and having been convicted of murdering Turkish soldiers “after admission” to the U.S.1 Pending the result of his deportation proceedings, immigration services threw Parlak in jail, where he remained until a district court ordered his release because he was neither a flight-risk nor a threat to his community.
At his removal hearing, the immigration judge, Elizabeth Hacker, ruled against Parlak on every point. She was apparently so convinced of his guilt that her opinion consisted largely of a cut-and-pasted agglomeration of the government’s pre-trial briefs. Her opinion relied heavily on evidence obtained via torture by the Turkish Security Courts; she cited those documents roughly eighty times. On review, the Board of Immigration Appeals professed to affirm all of the IJ’s factual findings and credibility determinations without regard to the Security Court documents, though it did not explain in detail how the IJ’s conclusions could be supported without that evidence. The Board vacated the IJ’s entirely meritless conclusion that Parlak murdered two Turkish soldiers, based wholly upon these same Turkish Security Court documents. But the Board repeated the IJ’s other legal errors, many of which the majority repeats today.
II
A.
Assuming arguendo (and dubitante) that Parlak is removable, the majority nev*473ertheless blunders by approving of an incorrect legal standard for finding an immigrant ineligible for withholding of removal. Its decision effectively guts controlling precedent of the Supreme Court, every other court of appeals to have addressed the issue, and this Court.
Some removable immigrants may avoid deportation because they qualify for “withholding.” An immigrant is ineligible for withholding by the “persecutor bar,” however, if he “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)(B), 1158(b)(2)(A)(i), 1231(b)(3)(B)(i). The Board did not apply this standard, however. Rather, it invented its own, and held that an immigrant is ineligible for withholding of removal whenever he “furthers persecution in some way.”
This inadequate and overbroad statement lacks the well-defined and well-settled requirements that courts have delineated as necessary to satisfy the persecutor bar. Specifically, this Court requires the government to show: first, a “nexus between the alien’s actions and the persecution of others such that the alien can fairly be characterized as having actually assisted or otherwise participated in such persecution,” and second, “if such a nexus is shown, the alien must have acted with scienter; the alien must have had some level of prior or contemporaneous knowledge that persecution was being conducted.” Diaz-Zanatta v. Holder, 558 F.3d 450, 455 (6th Cir.2009) (citing Singh v. Gonzales, 417 F.3d 736, 739 (7th Cir.2005), and Castaneda-Castillo v. Gonzales, 488 F.3d 17, 20 (1st Cir.2007)); see also Balachova v. Mukasey, 547 F.3d 374, 384 (2d Cir.2008). Moreover, we explained in Diaz-Zanatta that, to find an alien ineligible for a withholding, the government must prove that “the alien ... had some level of prior or contemporaneous knowledge that the persecution was being conducted.” 558 F.3d at 455 (“In the present case, the IJ’s opinion did not consider ... whether Diaz-Zanatta had prior or contemporaneous knowledge of any such persecutions.”) (emphasis added).
Instead of applying this precedent, the majority, though conceding (as it must) that the Board’s “furthers persecution in some way standard” was utterly “vague and unhelpful,” Maj. Op. at 469, inexplicably affirms anyway. That is wrong. Among its notable infirmities, this obviously inadequate “furthers the persecution in some way” standard in no way captures the “knowledge” requirement. So the proper result here would be to remand this case so the proper standard could be applied.
Indeed, the Supreme Court, by way of analogy, has repeatedly reinforced the need to remand cases like this one rather than engage in post hoc rationalizations of the Board’s legal errors. In Negusie v. Holder, — U.S. -, 129 S.Ct. 1159, 173 L.Ed.2d 20 (2009), for example, the Court ruled that the Board erred by refusing to consider the possibility that the Immigration and Nationality Act’s persecutor bar might contain a “voluntariness” requirement — i.e. a “duress” exception. The Court ruled that the Board incorrectly assumed that Fedorenko v. United States, 449 U.S. 490, 101 S.Ct. 737, 66 L.Ed.2d 686 (1981), which construed the Displaced Persons Act of 1948, also completely controlled whether the Immigration and National Act contained a duress exception; the Board had determined that Fedorenko made clear that no such requirement existed and so there was no need to analyze the statute’s text. Not so, said the Court: the *474Board’s out-of-hand rejection of the “voluntariness” requirement was based on a “mistaken assumption stem[ing] from a failure to recognize the inapplicability of the principle of statutory construction invoked in Fedorenko, as well as a failure to appreciate the differences in statutory purpose.” Negusie, 129 S.Ct. at 1167. The Court remanded so that the proper inquiry could be conducted.
As did the Negusie Court, we too should remand Parlak’s case so the Board may clarify a “vague and unhelpful,” Maj. Op. at 469, and therefore inadequate, standard. The Negusie Court concluded that, because “the BIA ha[d] not yet exercised its Chevron discretion to interpret the statute in question, the proper course, except in rare circumstances, is to remand to the agency for additional investigation or explanation.” Negusie, 129 S.Ct. at 1167 (quotation marks omitted) (quoting Gonzales v. Thomas, 547 U.S. 183, 186, 126 S.Ct. 1613, 164 L.Ed.2d 358 (2006) (per curiam), and INS v. Orlando Ventura, 537 U.S. 12, 16-17, 123 S.Ct. 353, 154 L.Ed.2d 272 (2002) (per curiam)). Yet today’s majority sweeps aside the Board and IJ’s error, and thus it also sweeps away the Supreme Court’s diktat that a remand for such clarification is unnecessary only in “rare circumstances.” Negusie, 129 S.Ct. at 1167 (quoting Ventura, 537 U.S. at 16-17, 123 S.Ct. 353). Parlak’s case is not so rare, and while I agree that Fedorenko’s line-drawing footnote is instructive, Fedorenko, 449 U.S. at 512 n. 34, 101 S.Ct. 737, it must be instructive for the Board in the first instance.
B.
Moreover, Diaz-Zanatta made clear that the persecutor bar’s knowledge requirement cannot be satisfied by a general finding that Parlak might have been aware that the PKK had, at some point, engaged in terrorist activity. Indeed we held it insufficient “that Diaz-Zanatta knew that persecutions were taking place, if information Diaz-Zanatta collected and relayed to the military was not used in those persecutions.” Diaz-Zanatta, 558 F.3d at 460. Similarly, the Seventh Circuit, in Doe v. Gonzales, 484 F.3d 445 (7th Cir.2007), held that an alien had not “assisted” or “participated” in execution style murders of Jesuits in El Salvador despite having carried a rifle and donned camouflage while accompanying the thirty-to-forty other officers that murdered innocents. Doe fired no shots but, upon returning to the base, destroyed log books that would have identified the participating soldiers. Even on an unsympathetic reading of the record Parlak was far less involved than Doe: he did not donate money directly to the PKK, and there is no evidence that the weapons he supposedly carried into Turkey and buried there ever made it into the PKK’s hands or were used by anyone. Thus the persecutor bar should not apply to Parlak, just as it did not apply to Doe or Diaz-Zanatta.2
*475The majority’s only counter-argument is its assertion that “Pai’lak voluntarily and knowingly provided money, which he knew could be used by the PKK for anything,” which is supported with no more than an out-of-context quote from Humanitarian Law Project v. Reno, 205 F.3d 1130, 1136 (9th Cir.2000), a case about a first amendment challenge to a ban on giving aid to organizations involved in terrorist activity. This view that money is different in all respects is overbroad. Specifically, Parlak did not “provide[ ] money” to the PKK; he helped organize musical festivals for Kurds in Germany. These featured line-dancing, folk songs, and a shared sense of community for displaced Kurds unwelcome in Turkey. Although Parlak testified that, if profits remained after paying for the musicians and other entertainment, the remaining money was sent to the ERNK — Parlak had no other involvement. And while it is true that money is fungible, to satisfy the persecutor bar’s scienter or knowledge requirement Parlak would have had to not only know that he was giving money to the PKK itself (not proven in the record), but further that either the money he gave directly led to persecution or freed up other funds to be used for persecution — he still had to intend to assist in persecution. That money is fungible cannot absolve the government of its need to prove an intent to assist in persecution.3 Furthermore, the record here comes nowhere near proving the particularized causal connection mandated by Diaz-Zanatta’s “link” or “nexus” requirement. Here, as with that case, there was no proven “actual connection between [petitioner’s] actions and the persecution(s) in which [he] is alleged to have assisted or otherwise participated.” 558 F.3d at 439 (citing Singh, 417 F.3d at 740). And, as with that case, there was no evidence that any of the acts that supposedly assisted persecution — here, the Kurdish festivals — were “actually used [by the PKK] to persecute some individual or individuals.” Id. at 460. Of course both the IJ and Board labored under the wrong standard; the majority strains to avoid a simple remand where the right questions could be asked and the answers could be properly ascertained.
Further, to buttress its de novo application of a standard that neither the IJ nor Board considered, the majority performs its own I-know-persecution-when-I-see-it review. Indeed, the majority does not really approve of the (universally accepted) legal hurdles Diaz-Zanatta requires, as it rather incredibly remarks that this standard could very well be “inapplicable to Parlak,” which is nonsense because the case propounds the standard for all persecutor bar cases. This leads into its conclusory statement that “the plain meaning” of the persecutor bar means that “smuggling weapons across an international border to aid the PKK in committing violent acts against Turks and Turkish-aligned Kurds *476constitutes assistance in persecution.” Let’s unravel this. First, the evidentiary conclusion that Parlak “smuggled” weapons across the border is dubious — the idea that a handful of men carried a complete cache of weapons over mountains over the course of fourteen days is not supported by the evidence. In any event, there is no evidence in the record that Parlak did anything “to aid the PKK in committing violent acts.” Apart from the Security Court documents, it will be recalled that the most Parlak admitted to was that at one time he was part of the ERNK, a group which he admits had ties to the PKK, and that some of his fundraising efforts “might” have found their way to PKK coffers. Even assuming this was somehow sufficient, there was never a finding that the weapons he supposedly smuggled and buried — the actual basis for his supposed persecution of others — made it to the PKK and were used in “violent acts against Turks or Turkish-aligned Kurds,” nor was there a showing that he had knowledge that they would be used in such a way. See Diaz-Zanatta, 558 F.3d at 460 (“It is not enough that information collected by Diaz-Zanatta and relayed by her to the SIE was used to persecute individuals if Diaz-Zanatta had no prior or contemporaneous knowledge of that; neither is it enough that Diaz-Zanatta knew that persecutions were taking place, if information Diaz-Zanatta collected and relayed to the military was not used in those persecutions.”) (emphasis added).
Thus, without additional factfinding, the record is insufficient to sustain the majority’s unique and self-directed analysis which manages the Janus-esque feat of applying a standard for the first time on appeal — and improperly so — while simultaneously casting doubt upon that same standard’s continued validity. Accordingly, at a minimum, a remand is necessary.
III.
Apart from the majority’s misapplication of the persecutor bar in contravention of established precedent, the factual basis underlying the IJ’s and Board’s conclusions was compiled by an immigration judge who repeatedly cited evidence induced by torture. Of course, the IJ made no finding about whether the evidence was the result of torture or not, a sin which the Board and majority treat as a virtue. Yet when has it ever been proper to assume, in the face of strong evidence and testimony to the contrary, that such evidence is untainted? To its credit, even the Board knew it could not (at least publicly) rely on such evidence.
Then again, perhaps the IJ cannot be faulted for such heavy reliance: Most of her references to the torture evidence were apparently cut-and-pasted from the government’s pre-trial briefs, so maybe she simply had not read the underlying documents. See Ayi v. Gonzales, 460 F.3d 876, 884 (7th Cir.2006) (“Troubling to us is the surprising lack of regard for the rich record in this case coupled with the fact that at least parts of the IJ’s opinion appear to be a ‘cut and paste’ job from previous opinions.”). The IJ’s opinion included the same errors as the government’s briefs,4 and this plagiarism makes the IJ’s remark that she had presided over a “long and difficult hearing” ring hollow: *477what went on during the hearing was apparently of little relevance to her ultimate ruling.5
Of course, when the Board writes its own opinion, this Court reviews that decision directly. But the Board’s attempt to uphold the IJ’s various conclusions without regard to the tainted evidence she used to reach them cannot stand. Immigration judges are responsible for compiling the record in immigration cases, and the Board’s evidentiary reconstruction is beyond what courts can or should do. Accordingly, a remand is necessary to fix the record.
In rejecting Parlak’s contention that the record supporting his deportation is tainted, the majority demeans his supposedly “creative effort to import American criminal procedure rules prohibiting use of compelled confessions and harmless error analysis into the immigration context.” Maj. Op. at 466 n. 7. The pot calls the kettle black. Though professing not to reach the question, the majority, citing no case, statute, or treaty, “creatively” muses on the theoretical significance of torture-induced evidence. One footnote asserts that if torture-induced evidence was admitted then Parlak nevertheless waived the right to exclude it, id., and another provides a list of guesses on the proper course of what a domestic court could do with torture evidence, id. at 467 n. 8.
Although this Court has held that the U.N. Convention Against Torture is not self-executing, Renkel v. United States, 456 F.3d 640, 645 (6th Cir.2006); see also Medellin v. Texas, 552 U.S. 491, 128 S.Ct. 1346, 1367, 170 L.Ed.2d 190 (2008), the United States is nevertheless a signatory and the treaty states that torture induced evidence “shall not be invoked in any proceedings, except against a person accused of torture ...,” 23 U.L.M. 1027, 1031 (1984). Further, “[i]t is well established that the Fifth Amendment entitles aliens to due process of law in deportation proceedings,” Reno v. Flores, 507 U.S. 292, 306, 113 S.Ct. 1439, 123 L.Ed.2d 1 (1993), and so due process and federal policy mandates that the government must shoulder the minimal burden of explaining why a court — federal, state, or immigration— ought to apply an exception to the general international rule of exclusion of torture-induced evidence. Instead, all we get is the majority’s ill-considered dictum that somehow Parlak might be violating this Court’s notion of fairness by requesting that he not be sent packing based on evidence obtained by torture.
IV.
The above assumes that Parlak is removable because he made a “willful misrepresentation” to the government, but I *478do not agree with the standard the IJ and Board used to find that he had, and therefore think that the case should be remanded on this point as well. The majority believes Parlak is removable under 8 U.S.C. 1182(a)(6)(C)(i), which makes an alien removable “who, by fraud or willfully misrepresenting a material fact ... sought to procure ... a benefit under the [INA].”6 The majority holds that while “fraud” would have required the government to prove that Parlak had a “specific intent to deceive,” “willful misrepresentation,” by contrast, would not, and requires only that the government prove by clear and convincing evidence that the allegedly false statement was “deliberate and voluntary.” Maj. Op. at 464 (citing Mwongera v. INS, 187 F.3d 323, 330 (3rd Cir.1999)). This is incorrect.
Although Parlak primarily relies on Singh v. Gonzales, 451 F.3d 400 (6th Cir.2006) to assert that both statutory terms require the government to prove an “intent to deceive,” I agree with the majority that Singh does not control here. That case involved only “fraud” and did not discuss “willful misrepresentations.” Yet, the majority, which outsources its reasoning to the Third Circuit’s opinion in Mwongera, nevertheless creates an unwarranted distinction between these terms where none should be.
At first blush, the majority’s simplistic reading is tempting: statutory terms should be interpreted so as not to render one of them superfluous, see, e.g., United States v. Atlantic Research Corp., 551 U.S. 128, 137, 127 S.Ct. 2331, 168 L.Ed.2d 28 (2007), and willful or intentional misrepresentation can, sort of, be interpreted as literally meaning only the “voluntary” and “deliberate” making of a false statement. But this view collapses under scrutiny.
First, the canon of interpreting statutory terms differently is no help here. Here, the satisfaction of either term leads to the same result (removability), and, under the majority’s overbroad reading, “fraud” becomes a dead letter because it is reduced to a practical subset of “willful misrepresentation” — immigrants may be removed whenever a misrepresentation is voluntary and deliberate; there is no reason for the government to go further and prove “an intent to deceive.”
Second, the majority’s view is at odds with the common law meaning of these terms. They are undefined in the INA, and it is a “settled principle of statutory construction that, absent contrary indications, Congress intend[ed] to adopt the common law definition of statutory terms.” *479United States v. Shabani, 513 U.S. 10, 13, 115 S.Ct. 382, 130 L.Ed.2d 225 (1994); see also United States v. Gagnon, 553 F.3d 1021, 1027 (6th Cir.2009). Traditionally, “willM” misrepresentations were not distinct from “fraudulent” ones. The categories of misrepresentation were limited to “negligent misrepresentation,” “innocent misrepresentation,” and “fraudulent misrepresentation,” for which “willful misrepresentation” is but a synonym. See Restatement (Second) of Torts, § 525-52C (1977); Restatement (Second) of Contracts, § 159-73. “Fraudulent misrepresentation,” or more generally, “fraud,” derives from the general heading of “deceit.” At common law, deceit required the same basic elements as does fraud today:
It is said that a man is liable to an action for deceit if he makes a false representation to another, knowing it to be false, but intending that the other should believe and act upon it, if the person addressed believes it, and is thereby persuaded to act on his own harm.
Oliver Wendell Holmes, Jr., The Common Law, Iv. Fraud, Malice, and Intent — The Theory of Torts (1881) (emphasis added).7
Consistent with this common law understanding, “willful misrepresentation” first appeared as a synonym for “fraudulent misrepresentation,” which had come into use to distinguish fraud and deceit from “negligent” or “innocent” falsehoods. And, until today, this Court has always treated willful and fraudulent misrepresentation as one in the same, with both requiring a showing of “an intent to deceive.” See, e.g., Trice v. Comm'l Union Assurance Co. Ltd., 334 F.2d 673, 676 (6th Cir.1964) (“To constitute false swearing and willful misrepresentation ... it must appear undisputed that misstatements in the proof of loss were knowingly made with the intent to deceive or defraud the insurer.”). In light of this common law history, had Congress wanted to create the subcategory that the majority recognizes today, it would have chosen some other term besides “willful misrepresentation.”
So the better reading of the statute is that Congress used synonymous terms that encompass the same wrongdoing: fraud. Like the majority’s, this reading suffers from the problem of reading two different terms alike. But it has the (rather essential) merit of comporting with the terms’ traditional understanding and thus also Congressional intent. See Shabani 513 U.S. at 13, 115 S.Ct. 382. It also reserves the drastic penalty of deportation for only fraudulent, intentional conduct.
This reading is no bolt out of the blue; it was the Board’s long-standing view:
Since the penalty is the same for actions accomplished by either fraud or willful misrepresentation, we believe the use of the word “fraud” and use of the term “willful misrepresentation” present two alternatives that are not substantially dissimilar. Therefore, the phrase concerning willful misrepresentation should be read as requiring the misrepresentation to be of the same quality as does fraud. This result can be readily reached if it is required that the misrepresentation be made with knowledge of its falsity and with actual intent to deceive so that an advantage under the immigration laws might be gained to which the alien would not have otherwise been entitled....
Our belief that fraud and misrepresentation — the actions prohibited — both re*480late to substantially similar acts finds reinforcement in the severity of the penalty visited upon one who violates ... the act.
Matter of G-G, 7 I & N. Dec. 161, 164 (1956) (citations omitted and emphases added). It was this seminal interpretation that we recently cited in Singh.8
The IJ and Board thus erred in not requiring the government to prove by clear and convincing evidence that Parlak had an “intent to deceive” when it found he committed a “willful misrepresentation,” and so we should remand so the proper standard may be applied. I need not wade into whether the Board’s decision is supportable by substantial evidence (though the majority’s strained efforts are unpersuasive). But I note that it seems implausible that Parlak had the requisite “intent to deceive” considering he had already disclosed his Turkish arrest in his request for asylum (which had been granted largely on that ground), and he was represented by counsel at the time of his naturalization application.
V.
The IJ, the Board, and now the majority have committed significant legal errors in adjudicating Parlak’s removal proceedings. As a result, he will be deported without a fair determination of his legal status— three flawed opinions do not equal one correct one. Thus, there is something unreal about the majority’s attempt to characterize its decision as the most straightforward of applications of immigration law when the foregoing proceedings have been anything but ordinary. There is nothing ordinary about the majority’s blanket approval of an admittedly “vague and unhelpful” legal standard. And there is nothing ordinary (or proper) about a proceeding infected from the start by extensive reliance on evidence likely induced by torture, particularly where the IJ could not be bothered to do more than copy and paste swaths of the government’s briefs. Those errors cannot be wished away by imaginative reconstruction — immigrants deserve better. See, e.g., Benslimane v. Gonzales, 430 F.3d 828 (7th Cir.2005) (Posner, J.); Alexandrov v. Gonzales, 442 F.3d 395, 404 (6th Cir.2006); N’Diom v. Gonzales, 442 F.3d 494, 500 (6th Cir.2006) (Martin, J., concurring).
The only saving grace for Parlak has been that, contra to the government’s wishes, he did not have to sit in jail awaiting the result of these dodgy proceedings. See Parlak, 374 F.Supp.2d at 561-62 (granting Parlak habeas corpus relief against indefinite detention). The district court’s decision proved prescient, as, four years later, his case has been neither swift nor error-free, despite the government’s assurances.
One can only hope that the majority is correct that conditions in Turkey have changed enough that a Kurd like Parlak, who will be ordered to leave his life in the United States behind him and to start anew, does not have to fear being beaten or slain upon his return.9 And what has *481all this sound and fury been about? It all remains hazy. I agree though with Judge Cohn’s best-guess as to why a supposedly straightforward immigration case became such a cause célebre within the halls of those entrusted with removing him:
Stepping back, the Court is left with the impression that the vigor with which [the authorities] ha[ve] given this case, and particularly the manner in which it is pursing Petitioner’s detention, stems from the introduction of the moniker “terrorist.”
Parlak, 374 F.Supp.2d at 562 n. 11. The majority thinks itself modest, but there is nothing modest about approving the clandestine and questionable proceedings that led here. This case should be remanded to a new immigration judge so that a proper record could be compiled and the right standards applied to the relevant issues.
I remain hopeful, nevertheless, that this case is but a sad remnant of an era of paranoid, overzealous, error-riddled, and misguided anti-terrorism and immigration enforcement now gone by the wayside. It is just a shame that, even if my hope proves true, it is too late for Ibrahim Parlak.
I respectfully dissent.
. The Turkish Security Courts that convicted him are were shut down due to their deserved infamy as havens of torture and injustice. See J.A. 974.
. Incidentally, Parlak's dubious Security Court conviction for murder, which the IJ inexplicably treated with deference more appropriate for a legitimate domestic court judgment, was based on the Security Court’s finding not that Parlak personally engaged in wrongdoing, but instead merely on his association with others who supposedly killed two Turkish soldiers. J.A. 1016 (“That although no evidence was found indicating that Defendants/Respondents Ibrahim PARLAK and Bektas YUKSELEN fired upon the military police during an armed confrontation that took place on 05/21/1988 while crossing into Turkey from Syria ... the presence of these Defendants/Respondents as armed militants of the outlawed PKK organization at the scene of the event gives strength to the argument of subjects being actual offenders in the crime and thus according to their acts, according to section 125 of the TCK, they shall be PUNISHED BY THE DEATH PENALTY.”); Cf. Doe, 484 F.3d at 451.
. The majority’s quote from Humanitarian Law Project — "[M]oney is fungible; giving support intended to aid an organization’s peaceful activities frees up resources that can be used for terrorist acts,” 205 F.3d at 1136— while true, is irrelevant because it does not address scienter. Again, that is no surprise because Humanitarian Law Project was about a first amendment challenge to a blanket ban on providing aid to any group involved with terrorist activity; Congress had made a finding that “foreign organizations that engage in terrorist activity are so tainted by their criminal conduct that any contribution to such an organization facilitates that conduct.” Anti-terrorism and Effective Death Penalty Act of 1996, Pub.L. No. 104-132, 110 Stat. 1214; AEDPA § 301(a)(7), 110 Stat. at 1247. That does not approach the persecutor bar's requirement that the government prove particularized facts regarding knowledge of or an intent to assist in persecution; and it is a far cry from requiring a causal connection with “actual persecution” and knowledge or intent of such persecution, as the persecutor bar does.
. The most egregious example of this was the IJ's complete copying of the terrorism section of the government’s pre-trial briefs. Anyone who has ever graded a paper can tell you that the repetition of errors is the surest sign of plagiarism: here, the IJ's opinion improperly cites the 2004 Security Court document (properly cited as Exhibit A), as "Trial Exhibit 2, Tab A,” which was actually Parlak’s asylum application. In each instance, the IJ’s error duplicates the same error by the government. Compare, e.g., IJ at 51, J.A. 75, "Propaganda” with Gov't Pre-Trial Br. at 27, J.A. 1076.
. Further, it is not clear why the immigration judge thought the documents from the Turkish Security Court deserved deference or were at all reliable. See, e.g., Doe v, 484 F.3d at 451 ("[I]t is not true in a case in which the proceeding that resulted in the conviction was demonstrably, and it is fair to say admittedly, a travesty — a parody — of justice.”). The European Union forced Turkey to close these courts if it desired to join the union because of their history of torture and injustice. These documents were part of these courts’ final, midnight actions, on the eve of their extinction. They were produced in absientia, a solid sixteen years after the events in question. See U.S. Department of State, 2004 Country Report On Human Rights Practices In Turkey, available at http://www.state.gOv/g/drl/ rls/hrrpV2004/41713.htm ("Legislative amendments abolished the State Security Courts.... [Sjecurity forces applied torture and ill-treatment widely.... The Constitution prohibits such practices; however, members of the security forces continued to torture, beat, and otherwise abuse persons regularly, particularly in the southeast. Security forces most commonly tortured leftists and Kurdish rights activists.”). Why give deference or weight to that?
. There is some irony to Parlak now being removed for only this charge. As the district court in his habeas proceeding observed:
[T]he Court observes what appears to be a piling on of removability charges against Petitioner. He was initially charged with removability essentially for false statements regarding his conviction in Turkey; neither charge subjected him to mandatory detention and ICE did not see fit to detain him. Then, he was charged with being an aggravated felon. [The IJ found that he was such a felon but the BIA vacated this ruling.] Even assuming a 1990 conviction [in absentia ] may even be the predicate for being an aggravated felon, his bond review proceedings before the immigration judge focused on whether there is a reason to believe he is removable based on engaging in terrorist activity. At the time, Petitioner had not yet been charged as removable for being a terrorist. After the immigration judge’s decision, Petitioner was formally charged as removable for engaging in terrorist activity. The manner in which Petitioner's case has proceeded, or rather escalated, raises suspicion as to the actions of ICE under the circumstances. Once Petitioner was labeled a terrorist, the proceedings took on a decidedly more complex, if not high-profile, aura.
Parlak v. Baker, 374 F.Supp.2d 551, 561-62 (E.D.Mich.2005). After all this, the government ends where it started.
. "The elements of deceit which throw the risk of his conduct upon a party are these. First, making a statement of facts purporting to be serious. Second, the known presence of another within hearing. Third, known facts sufficient to warrant the expectation or suggest the probability that the other party will act on the statement .... Fourth, the falsehood of the statement.” Id. (emphasis added); see also Restatement (Second) of Torts, § 525.
. If there is any difference between "fraud” and "willful misrepresentation,” it is the one the Board relied on for decades: The Board’s view has been that the two differ in that, with willful misrepresentation, the government need not prove that it or anyone else in fact relied on false statements made with the intent to deceive. Matter of G-G, 7 I & N. Dec. at 164 ("In this way, the misrepresentation would be differentiated from an act committed in fraud only in that proof would not be necessary that the person to whom the misrepresentation was made was motivated to action because of the misrepresentation.”). That distinction is irrelevant here, however, as the Board made a more fundamental error in not requiring the government to prove that Parlak had an "intent to deceive.”
. At the time of this opinion, bills are pending in both the House and the Senate that, if *481passed, would designate Ibrahim Parlak a lawful permanent resident of the United States. S. 403 111th Cong. (2009); H.R. 976, 111th Cong. (2009).