Cite as 24 I&N Dec. 475 (BIA 2008) Interim Decision #3605
Matter of S-K-, Respondent
Decided March 11, 2008
U.S. Department of Justice
Executive Office for Immigration Review
Board of Immigration Appeals
(1) Section 691(b) of the Consolidated Appropriations Act, 2008, Division J of Pub. L. No.
110-161, 121 Stat. 1844, 2365 (enacted Dec. 26, 2007), provides that for purposes of
section 212(a)(3)(B) of the Immigration and Nationality Act, 8 U.S.C.A. § 1182(a)(3)(B)
(West 2005), certain groups, including the Chin National Front, “shall not be considered
to be a terrorist organization on the basis of any act or event occurring before the date of
enactment of this section.”
(2) The Attorney General’s remand in Matter of S-K-, 24 I&N Dec. 289 (A.G. 2007), does
not affect the precedential nature of the conclusions of the Board of Immigration Appeals
in Matter of S-K-, 23 I&N Dec. 936 (BIA 2006), regarding the applicability and
interpretation of the material support provisions in section 212(a)(3)(B)(iv)(VI) of the
Act.
FOR RESPONDENT: Edward Neufville III, Esquire, Silver Spring, Maryland
FOR THE DEPARTMENT OF HOMELAND SECURITY: Barbara Cigarroa, Assistant
Chief Counsel
BEFORE: Board Panel: OSUNA, Acting Chairman; FILPPU and PAULEY, Board
Members.
OSUNA, Acting Chairman:
This case was last before us on June 8, 2006, when we upheld an
Immigration Judge’s determination that the respondent, a Christian and ethnic
Chin from Burma, was ineligible for asylum and withholding of removal under
section 241(b)(3) of the Immigration and Nationality Act, 8 U.S.C.A.
§ 1231(b)(3) (West 2005), because she provided “material support” to the Chin
National Front (“CNF”), a group found to be a terrorist organization.1 Matter
of S-K-, 23 I&N Dec. 936 (BIA 2006). We concluded, however, that the
respondent should receive deferral of removal under the Convention Against
See sections 208(b)(2)(A)(v), 212(a)(3)(B)(i)(I), (iii), (iv)(VI) of the Act, 8 U.S.C.A.
§§ 1158(b)(2)(A)(v), 1182(a)(3)(B)(i)(I), (iii), (iv)(VI) (West 2005); see also sections
237(a)(4)(B), 241(b)(3)(B)(iv) of the Act, 8 U.S.C.A. §§ 1227(a)(4)(B), 1231(b)(3)(B)(iv)
(West 2005); 8 C.F.R. § 1208.16(d)(2) (2007).
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1 Cite as 24 I&N Dec. 475 (BIA 2008) Interim Decision #3605
Torture and Other Cruel, Inhuman or Degrading Treatment or Punishment,
adopted and opened for signature Dec. 10, 1984, G.A. Res. 39/46. 39 U.N.
GAOR Supp. No. 51, at 197, U.N. Doc. A/RES/39/708 (1984) (entered into
force June 26, 1987; for the United States Apr. 18, 1988). See 8 C.F.R.
§ 1208.17 (2007).
On March 9, 2007, the Attorney General certified this matter to himself for
review. On September 14, 2007, the Attorney General issued an order
remanding the record to the Board for further proceedings in light of a
determination by the Secretary of Homeland Security, which was effective
February 20, 2007. See Matter of S-K-, 24 I&N Dec. 289 (A.G. 2007).
Specifically, the Secretary decided to exercise his discretionary authority under
section 212(d)(3)(B)(i) of the Act, 8 U.S.C.A. § 1182(d)(3)(B)(i) (West 2005),
to determine that the material support bar did not apply to an alien who
provided material support to the CNF/Chin National Army, if the alien
satisfied certain listed criteria.2 See Exercise of Authority Under Sec.
212(d)(3)(B)(i) of the Immigration and Nationality Act, 72 Fed. Reg. 9957
(Mar. 6, 2007).
Subsequent to the Attorney General’s decision to remand this case, the
President of the United States signed the Consolidated Appropriations Act,
2008, Pub. L. No. 110-161, 121 Stat. 1844, on December 26, 2007. Section
691 of this legislation is entitled “Relief for Iraqi, Montagnards, Hmong and
Other Refugees Who Do Not Pose a Threat to the United States.” Id. Div. J,
§ 691, 121 Stat. at 2364-66. Among other things, that section expanded the
discretionary authority of the Secretary of Homeland Security and the
Secretary of State to determine the applicability of section 212(d)(3)(B)(i) of
the Act, which provides a waiver for certain terrorism-related grounds of
inadmissibility. See id. § 691(a), 121 Stat. at 2364-65. The law further
provides that for purposes of section 212(a)(3)(B) of the Act (setting out
inadmissibility grounds based on terrorist activities, including providing
material support), certain groups “shall not be considered to be a terrorist
organization on the basis of any act or event occurring before the
[December 26, 2007] date of enactment of this section.” Id. § 691(b), 121 Stat.
at 2365 (emphasis added). The groups listed include the CNF/Chin National
Army.3
2 As discussed in our prior decision, neither the Board nor the Immigration Judges had been
given authority to waive the material support bar. See Matter of S-K, 23 I&N Dec. at 941-42
& n.7.
3 The other groups are the Karen National Union/Karen National Liberation Army, the Chin
National League for Democracy, the Kayan New Land Party, the Arakan Liberation Party,
the Mustangs, the Alzados, the Karenni National Progressive Party, and appropriate groups
affiliated with the Hmong and the Montagnards.
476 Cite as 24 I&N Dec. 475 (BIA 2008) Interim Decision #3605
The effective date provision for section 691 states the following:
The amendments made by this section shall take effect on the date of enactment of
this section, and these amendments and sections 212(a)(3)(B) and 212(d)(3)(B) of the
Immigration and Nationality Act . . . , as amended by these sections, shall apply to–
(1) removal proceedings instituted before, on, or after the date of enactment
of this section; and
(2) acts and conditions constituting a ground for inadmissibility, excludability,
deportation, or removal occurring or existing before, on, or after such date.
Id. § 691(f), 121 Stat. at 2366.
In light of this legislation, the Department of Homeland Security (“DHS”)
has filed a statement acknowledging that the respondent is no longer ineligible
for asylum and withholding as a result of her support of the CNF. The
Immigration Judge in this case initially found that the respondent had
established a well-founded fear of persecution on account of political opinion
in order to qualify for asylum. The DHS has not challenged this particular
determination, and we see no basis for disturbing it. We also find that the
respondent deserves a favorable exercise of discretion in the absence of any
notable adverse factors. See Matter of Pula, 19 I&N Dec. 467, 474 (BIA
1987); see also 8 C.F.R. § 1003.1(d)(3)(ii) (2007) (providing that the Board
retains de novo review authority over discretionary determinations). In its
recent submission, the DHS has advised us that the respondent has undergone
and passed relevant background and security checks and that they are current.
In consideration of the aforementioned factors, the respondent will be granted
asylum. There is accordingly no need to address the issue of withholding of
removal. Further, the grant of deferral of removal will be vacated.
Before concluding this case, however, we address the effect of the
aforementioned legislation on our decision in Matter of S-K-, 23 I&N Dec.
936, which set out parameters for addressing the material support bar for
asylum and withholding of removal. In Matter of E-L-H-, 23 I&N Dec. 814
(BIA 2005), we held that a precedent decision of the Board applies to all
proceedings involving the same issue unless and until vacated, modified, or
overruled by the Attorney General, the Board, Congress, or a Federal court.
When the Attorney General remanded this case, he specifically stated that his
decision to remand did not affect the precedential nature of our conclusions in
Matter of S-K- regarding the applicability and interpretation of the material
support provisions in section 212(a)(3)(B)(iv)(VI) of the Act. See Matter of
S-K-, 24 I&N Dec. at 290-91.
Congress has now expressly determined that the CNF, and the
other named groups, are not considered terrorist organizations for purposes
of section 212(a)(3)(B) of the Act. We accordingly clarify that our
decision in Matter of S-K- still applies to determinations involving the
applicability and interpretation of the material support provisions in
477Cite as 24 I&N Dec. 475 (BIA 2008) Interim Decision #3605
section 212(a)(3)(B)(iv)(VI) of the Act. However, in applying this case, it
must be recognized that section 691(b) of the Consolidated Appropriations
Act, 2008, 121 Stat. at 2365, expressly states that certain groups, such as the
CNF, are not to be classified as “terrorist organizations” for aliens covered by
the provision. Therefore, the material support bar will not apply to the
specified aliens who provided “material support” for one of these designated
groups.
In conclusion, the respondent is no longer barred from asylum and will be
granted that form of relief. The grant of deferral of removal will be vacated.
ORDER: The appeal is sustained and the respondent is granted asylum.
FURTHER ORDER: The grant of deferral of removal is vacated.
NOTICE TO ALIEN TO CONTACT DHS/USCIS: The Board of
Immigration Appeals has issued a final decision in your case. Depending on
the type of relief or protection from removal that you have been granted, you
may be entitled to documents evidencing your status allowing you to remain
in the United States or you may be eligible to work in this country. However,
in order to receive any documentation, you need to contact the U.S.
Citizenship and Immigration Services (“USCIS”) of the Department of
Homeland Security, which is the agency responsible for the issuance of
documents evidencing your status and/or work authorization. Information
regarding the specific USCIS instructions on procedures for obtaining status
documentation or work authorization may be found at the USCIS website at
www.uscis.gov. You may also call the USCIS national customer service
number at 1-800-375-5283.
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