Viegas v. Holder, No. 11-1689

Decided:  November 19, 2012

The Fourth Circuit denied Adriano de Almeida Viegas’s petition for review of the Board of Immigration Appeals’ (“BIA”) denial of Viagas’s petition to obtain relief from removal under the Immigration and Nationality Act (“INA”).  For the reasons discussed below, the court concluded “that the BIA did not err in deeming Viegas statutorily ineligible for asylum and withholding of removal under the INA’s Material Support Bar.”

In this case, Viegas, a native and citizen of the Republic of Angola who entered the United States in 2005 using a fraudulent French passport, argued that the BIA and Immigration Judge erred in finding that the Front for the Liberation of the Enclave of Cabinda (“FLEC”), an organization that Viegas belonged to, is a terrorist organization.  Additionally, Viegas argued that his financial contributions to the FLEC did not qualify as “material” support for the organization.  In reviewing Viegas’s petition, the Fourth Circuit applied a highly deferential standard to its review of the decisions made by the BIA and Immigration Judge.

The Fourth Circuit first addressed the INA’s requirement that DHS present evidence that the organization that Viegas was a member of, the FLEC, qualifies as a terrorist organization.  Because the court found that DHS presented sufficient evidence establishing that the FLEC qualifies as a terrorist organization under the INA, and because there was no dispute that Viegas was a member of at least a part of the FLEC, the court concluded that the BIA and Immigration Judge did not error in their burden of proof determinations.

Next, Viegas argued that because he knew nothing about the activities carried out by the faction of the FLEC to which he belonged, the INA’s “Material Support Bar” should not apply to make him ineligible for asylum or withholding of removal.  This bar prohibits aliens who provide material support to terrorist organization “from receiving various forms of relief from removal.”  Viegas relied on a provision in the INA stating that this bar “does not apply if the alien ‘can demonstrate by clear and convincing evidence that [he] did not know, and should not reasonably have known, that the organization was a terrorist organization.’”  The court found Viegas’s claim that he lacked information about his faction’s activities to be unpersuasive and concluded that even if Viegas did not know that he belonged to a terrorist organization, “substantial evidence indicates that Viegas reasonably should have known that the organization he belonged to engaged in terrorist activities.”  Thus, the court determined that actual knowledge of the terrorist activities is not required in order to apply the Material Support Bar.

Viegas then turned to his personal involvement in the FLEC and argued that “the BIA erred in concluding that his activities constituted material support under the INA.”  He claimed that his activities “were insignificant and not the type of support that advances terrorism” such that they would qualify as “material support” of the organization.  The court rejected this argument and found that Viegas’s voluntary monthly payments of dues to the FLEC, and his voluntary choice to hang posters for the FLEC, constituted sufficient support of the FLEC such that the BIA’s material support determination was not arbitrary and capricious.

Finally, the court addressed Viegas’s assertion “that the mandatory bar for membership in a terrorist organization should not apply because he is no longer a member of the FLEC.”  While noting that this statutory “bar does not apply to aliens who are no longer members of terrorist organizations,” the court found that any error made by the BIA or Immigration Judge on this matter would amount to harmless error because “the Material Support Bar is an independently sufficient ground for denying Viegas relief.”

Full Opinion

– Allison Hite

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