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Barahona v. Holder, No. 11-2046

Decided: August 13, 2012

This case addressed an appeal from a decision by the Board of Immigration Appeals (the “BIA”), affirming the defendant’s ineligibility for a special rule cancellation of removal.  The Material Support Bar prohibits cancellation where a defendant provided material support to a terrorist organization, whether the support was rendered voluntarily or under duress.  In denying Barahona’s petition for review, the Fourth Circuit affirmed the BIA’s conclusion that Barahona was ineligible for cancellation because he involuntarily supported a terrorist organization prior to entering the United States.

Barahona, a native of El Salvador, entered the United States illegally and filed for asylum in 1987 and 1995. A hearing before an immigration judge (“IJ”) on the second asylum petition held in 2009 found that Barahona was removable.  Barahona was permitted to apply for a “special rule” cancellation of removal pursuant to section 203 of the Nicaraguan and Central American Relief Act of 1997 (“the NACARA”), which authorizes cancellation of removal where the inadmissible or deportable alien satisfies certain criteria.  Pursuant to 8 U.S.C. § 1182(a)(3)(B)(i)(I), an alien is inadmissible if he has engaged in “terrorist activity by providing ‘material support’ to a terrorist organization.” Material support is further defined as providing, inter alia, a safe house for members of a terrorist organization.  Prior to arriving in the United States, members of an anti-government Salvadoran guerilla group, known as the “FMLN” (the Frente Farabundo Marti Para la Liberción Nacional), used the kitchen of Barahona’s Salvadoran home.  While noting that Barahona was under duress when he accommodated the FMLN, the IJ found that there was no exception for duress or involuntariness under the Material Support Bar, thus Barahona did not qualify for special rule cancellation.  Barahona appealed to the BIA, which affirmed his ineligibility.  On appeal to the Fourth Circuit, Barahona argued that the BIA erred by deeming him ineligible for NACARA relief.

In this case, Barahona presents a question of law: whether the Material Support Bar excludes involuntary support, or support of a terrorist organization under duress. The BIA examined the Material Support Bar and found no exception for duress or involuntary contributions.  Fourth Circuit afforded deference to the BIA, as it is the agency in charge of interpreting INA statutes, and found that Congress did not intend to create an involuntariness exception to the Material Support Bar.  Congress did, however, created a discretionary waiver provision, vested in the Secretary of State and the Secretary of Homeland Security, for aliens who provided material support, but excepted from such a waiver those who voluntarily provided such support.  There has been no discretionary waiver of Barahona’s material support of the FLMN in this case.  Accordingly, Barahona’s petition for review of the BIA’s decision was denied.

Circuit Judge Wynn dissented on the basis that “passive acquiescence to the crimes of terrorists does not constitute an ‘act’ that ‘affords material support… to a terrorist organization.’”  In characterizing the findings of the IJ and the BIA, Wynn states: “[T]he Immigration Judge and the Board of Immigration Appeals essentially found that — under threat of death — Barahona did not prevent the guerillas from occupying his home and using his kitchen.”  This sort of passive act is not tantamount to committing an act in support of a terrorist organization.

Full Opinion

-Michelle Theret