S-K-, 24 I&N Dec. 289 (A.G. 2007)

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In re S-K-, Respondent
Decided by Attorney General September 14, 2007
U.S. Department of Justice
Office of the Attorney General
The Attorney General remanded the case for the Board of Immigration Appeals to consider
if further proceedings are appropriate in light of the February 20, 2007, determination of the
Secretary of Homeland Security that section 212(a)(3)(B)(iv)(VI) of the Immigration and
Nationality Act, 8 U.S.C.A. § 1182(a)(3)(B)(iv)(VI) (West 2005), shall not apply with
respect to material support provided to the Chin National Front/Chin National Army by an
alien who satisfies certain specified criteria.
FOR RESPONDENT: Edward Neufville III, Esquire, Silver Spring, Maryland
AMICI CURIAE: James Feroli, Alexandria, Virginia; Thomas Hutchins, Esquire,
Alexandria, Virginia; Annigje J. Buwalda, Esquire, Fairfax, Virginia
FOR THE DEPARTMENT OF HOMELAND SECURITY: Stephen M. Ruhle, Assistant
Chief Counsel; David Landau, Chief Appellate Counsel
BEFORE THE ATTORNEY GENERAL
(September 14, 2007)
On March 9, 2007, pursuant to 8 C.F.R. § 1003.1(h)(1)(i) (2007), I directed
the Board of Immigration Appeals to refer this matter to me, along with three
other matters involving similarly situated aliens. The Board’s decision was
stayed pending my review. For the reasons set forth in the accompanying
opinion, I remand this matter for further proceedings.
OPINION
The respondent is a native and citizen of Burma who is an ethnic Chin. She
applied for asylum and withholding of removal on the ground that she fears
persecution by the Burmese Government if she is returned to her native
country. An Immigration Judge found that the respondent had established a
well-founded fear of persecution, but denied her application after finding that
she had provided “material support” to the Chin National Front (“CNF”), an
organization engaged in armed conflict with the Burmese Government.
Section 212(a)(3)(B)(iv)(VI) of the Immigration and Nationality Act,Cite as 24 I&N Dec. 289 (A.G. 2007) Interim Decision #3581
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8 U.S.C.A. § 1182(a)(3)(B)(iv)(VI) (West 2005), defines “terrorist activity”
to include commission of “an act that the actor knows, or reasonably should
know, affords material support . . . to a terrorist organization.” An alien who
has engaged in a “terrorist activity” is inadmissible under section
212(a)(3)(B)(i)(I) of the Act and is also ineligible for asylum, see section
208(b)(2)(A)(v) of the Act, 8 U.S.C.A. § 1158(b)(2)(A)(v) (West 2005), or
withholding of removal, see section 241(b)(3)(B)(iv) of the Act, 8 U.S.C.
§ 1231(b)(3)(B)(iv) (2000). The Immigration Judge found that the CNF
constitutes a “terrorist organization” under section 212(a)(3)(B)(vi) of the Act.
The respondent appealed to the Board of Immigration Appeals, which affirmed
the decision of the Immigration Judge with respect to respondent’s statutory
ineligibility for asylum and withholding of removal. See Matter of S-K-,
23 I&N Dec. 936 (BIA 2006).
After the Board issued its decision, the Secretary of Homeland Security
(“Secretary”) made a determination pursuant to his discretionary authority
under section 212(d)(3)(B)(i) of the Act that the material support bar on
asylum would not apply to certain aliens who have provided material support
to the CNF. The Secretary’s notice of determination, which was signed and
became effective on February 20, 2007, provides:
[S]ubsection 212(a)(3)(B)(iv)(VI) of the Act shall not apply with respect to material
support provided to the Chin National Front/Chin National Army . . . by an alien who
satisfies the agency that he:
(a) Is seeking a benefit or protection under the Act and has been determined to
be otherwise eligible for the benefit or protection;
(b) Has undergone and passed relevant background and security checks;
(c) Has fully disclosed, in all relevant applications and interviews with U.S.
Government representatives and agents, the nature and circumstances of each
provision of such material support; and
(d) Poses no danger to the safety and security of the United States.
Exercise of Authority Under Sec. 212(d)(3)(B)(i) of the Immigration and
Nationality Act, 72 Fed. Reg. 9957 (Mar. 6, 2007).
On March 9, 2007, I directed the Board to refer to me for review its decision
in this matter and three other cases involving similarly situated aliens. See
8 C.F.R. § 1003.1(h)(1)(i) (2007). The Board’s decision was automatically
stayed pending my review.
I now remand this matter to the Board so that it may consider what, if any,
further proceedings are appropriate in light of the Secretary’s February 20,
2007, determination. In accordance with the settled treatment of orders that
do not expressly negate the precedential effect of Board decisions, my action
here does not affect the precedential nature of the Board’s conclusions inCite as 24 I&N Dec. 289 (A.G. 2007) Interim Decision #3581
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Matter of S-K-, supra, regarding the applicability and interpretation of the
material support provisions in section 212(a)(3)(B)(iv)(VI) of the Act. See
Matter of E-L-H-, 23 I&N Dec. Dec. 814 (BIA 2005).