No. 12-2471 IN THE UNITED STATES COURT OF APPEALS FOR THE SEVENTH CIRCUIT FH-T, Petitioner, v. ERIC H. HOLDER, JR., Attorney General of the United States, Respondent. ON PETITION FOR REVIEW OF FINAL ORDERS OF THE BOARD OF IMMIGRATION APPEALS RESPONDENT S OPPOSITION TO PETITIONER S PETITION FOR REHEARING AND REHEARING EN BANC STUART F. DELERY Assistant Attorney General MICHAEL P. LINDEMANN Chief, National Security Unit ETHAN B. KANTER Deputy Chief, National Security Unit DANIEL I. SMULOW Counsel for National Security Office of Immigration Litigation U.S. Department of Justice, Civil Division P.O. Box 878, Ben Franklin Station Washington, DC 20044-0878 Tel. (202) 616-9123 Attorneys for Respondent
TABLE OF CONTENTS INTRODUCTION... 1 STATEMENT... 1 ARGUMENT... 7 APPENDIX 1. FH-T s Abandonment of His Challenge to DHS Policy Requires Denial of the Petition... 7 2. Coordination Between the Board and DHS Is Mandated by Neither the Ceta Cases Nor 1182(c)... 8 3. The Terrorism Waiver and its Judicial Review Terms Require no Coordination Between the Board and DHS... 10 4. The Panel s Decision Easily Prevails Over FH-T s Remaining Peripheral Attacks and Speculative Assertions... 15 CERTIFICATE OF SERVICE
TABLE OF AUTHORITIES FEDERAL CASES Annachamy v. Holder, 686 F.3d 729 (9th Cir. 2012), en banc reh'g denied, panel reh'g granted and amended by --- F.3d ----, 2013 WL 4405687 (Aug. 19, 2013)... 14 Barahona v. Holder, 691 F.3d 349 (4th Cir. 2012)... 14 Benslimane v. Gonzales, 430 F.3d 828 (7th Cir. 2005)... 6 Boyanivskyy v. Gonzales, 450 F.3d 286 (7th Cir. 2006)... 6 Ceta v. Mukasey, 535 F.3d 639 (7th Cir. 2008)... 5, passim Easely v. Ruess, 532 F.3d 592 (7th Cir. 2008)... 9 FH-T v. Holder, 723 F.3d 833 (7th Cir. 2013)... 1, passim Holder v. Humanitarian Law Project, 130 S. Ct. 2705 (2010)... 13 INS v. Bagamasbad, 429 U.S. 24 (1976)... 10 INS v. St. Cyr, 533 U.S. 289 (2001)... 9, 10 Jay v. Boyd, 351 U.S. 345 (1956)... 9, 10 North Jersey Media Group, Inc. v. Ashcroft, 308 F.3d 198 (3d Cir. 2002), cert. denied, 538 U.S. 1056 (2003)... 13 Potdar v. Mukasey, 550 F.3d 594 (7th Cir. 2008)... 6 Reno v. American-Arab Anti-Discrimination Committee, 525 U.S. 471 (1999)... 13 ii
Siddiqui v. Holder, 670 F.3d 736 (7th Cir. 2012)... 6 Stone v. INS, 514 U.S. 386 (1995)... 11 Subhan v. Ashcroft, 383 F.3d 591 (7th Cir. 2004)... 6 FEDERAL STATUTES Immigration and Nationality Act of 1952, as amended: Section 212(c) 8 U.S.C. 1182(c)... 9, 10 Section 212(d)(3)(B)(i), 8 U.S.C. 1182(d)(3)(B)(i)... 1, passim Consolidated Appropriations Act of 2008 (CAA), Pub. L. No. 110-161, 121 Stat 1844 Section 691(e)... 12 Section 691(f)... 12 FEDERAL REGULATIONS 8 C.F.R. 212.3(a) (1995)... 9 8 C.F.R. 212.3(b) (1995)... 9 ADMINISTRATIVE PUBLICATIONS Exercise of Authority Under Sec. 212(d)(3)(B)(i) of the Immigration and Nationality Act, 72 Fed. Reg. 9,958 (Mar. 6, 2007)... 2, Appendix Fact Sheet: Department of Homeland Security Implements Exemption Authority for Certain Terrorist-Related Inadmissibility Grounds for Cases with Administratively Final Orders of Removal, October 23, 2008... 2, passim, Appendix iii
INTRODUCTION The Attorney General opposes the petition for panel rehearing and rehearing en banc. The panel correctly interpreted the immigration statute s terrorism waiver provision and related Department of Homeland Security policies in declining petitioner s request to require Board [of Immigration Appeals] adjudication of the merits of asylum claims in every case triggering the material support for terrorism bar. FH-T v. Holder, 723 F.3d 833, 846 (7th Cir. 2013). The panel s opinion is consistent with and supported by circuit precedent, relevant opinions of the Supreme Court, and the only other federal circuit court of appeals decision on the matter, and does not otherwise raise an issue of exceptional importance. Thus, the petition fails to meet the criteria for en banc rehearing specified in Fed. R. App. P. 35, and the en banc petition should be denied. Additionally, because the panel neither overlooked nor misunderstood any relevant fact or point of law, the petition for panel rehearing should also be denied. See Fed. R. App. P. 40(a)(2). STATEMENT 1. The immigration statute provides a terrorism waiver (or exemption ), authorizing the Secretary of Homeland Security to determine in such Secretary s sole unreviewable discretion that the statutory terrorism-related grounds of inadmissibility -- including the material support ground that precluded FH-T s eligibility for asylum in this case -- shall not apply to certain aliens. 8 U.S.C. 1182(d)(3)(B)(i) (reproduced in Appendix). The provision enumerates circumstances under which the exemption 1
cannot be granted, but none requiring such a grant. Id. It further provides no jurisdiction to review such a determination except in a proceeding for review of a final removal order, and except for legal and constitutional claims. Id. No regulations govern the waiver. However, the DHS Secretary has exercised his waiver authority in a series of Federal Register notices, one of which the panel examined. See, FH-T, 723 F.3d at 845 (discussing with citation to SA 46 -- Exercise of Authority Under Sec. 212(d)(3)(B)(i) of the Immigration and Nationality Act, 72 Fed. Reg. 9,958 (Mar. 6, 2007) (authorizing exemptions from the material support bar in cases of duress) (set forth in Appendix). The Secretary provided that his waiver authority applies, inter alia, to an alien who is seeking a benefit or protection... and has been determined to be otherwise eligible for the benefit or protection. Id. The Secretary s notice also declared that this implementation of the statutory waiver is not intended to create any substantive or procedural right or benefit that is legally enforceable by any party. Id. Another DHS publication examined by the panel, entitled, Fact Sheet, reflected the agency s criteria for processing exemption cases, noting, in part: DHS will consider a case for an exemption only after an order of removal is administratively final.... By adjudicating the exemption at this stage, all parties will have a chance to litigate the merits of the case up through the BIA, and DHS will be able to focus its resources on cases where the possible exemption is the only issue remaining in the individual s case. Fact Sheet, p. 1, at Appendix. [E]xemption consideration, DHS further stated, is available only if relief or protection was denied solely on the basis of one of the 2
grounds of inadmissibility for which exemption authority has been exercised by the Secretary. Id. (emphasis in original). 2. FH-T entered the United States and sought asylum after working for nine years in the Eritrean People s Liberation Front (EPLF), first as a radio operator and then a truck driver. 732 F.3d at 836. In removal proceedings, an immigration judge denied FH-T asylum as a matter of discretion, and further denied relief alternatively because FH-T (1) lacked credibility, (2) failed to show statutory eligibility for asylum and withholding of removal on the merits, and (3) was statutorily ineligible for having provided material support to a terrorist organization. Id. at 837. The Board affirmed based upon the material support finding without reaching the other grounds for denial. See id. at 838. Before the Board, FH-T conceded that EPLF was a terrorist organization and that he had provided it with material support, but he claimed eligibility for a statutory knowledge exception for aliens who establish that their provision of material support was unwitting. In holding that FH-T failed to satisfy the exception, the Board relied on the very same findings of inconsistent evidence and testimony that had formed the basis of the immigration judge s earlier adverse credibility ruling. Id.; see Certified Administrative Record ( AR ) 5-6, 140-41. Of the 1182(d)(3)(B)(i) terrorism waiver, the Board observed that the Secretary had sole authority to grant this waiver, and thus the provision did not affect the disposition of the [case]. AR 6. 3
3. A unanimous panel of this Court upheld the Board s decision. 1 See 732 F.3d 833. The panel rejected FH-T s contention that even assuming the material support bar rendered him ineligible for asylum relief, the Board s failure to decide the merits of his application and to find him eligible but for the material support bar, improperly blocked him from obtaining consideration by DHS for a waiver of the bar under 1182(d)(3)(B)(i). Id. at 842. FHT s argument rested on three assumptions: (1) DHS policy (in the Fact Sheet ) precludes consideration of a waiver until after the Board has favorably adjudicated an alien s non-terrorism-related eligibility for a benefit or protection such as asylum; (2) Congress s provision of the waiver possibility in 1182(d)(3)(B)(i) demonstrates its intention to afford all terrorist aliens an opportunity to seek the waiver, and (3) Congress s provision of judicial review over waiver determinations guarantees aliens in removal proceedings an opportunity to obtain such determinations prior to seeking judicial review of a removal order. The panel rejected FH-T s argument and each of his assumptions. First, the panel held that FH-T misconstrued DHS policy by misinterpreting the Fact Sheet. It was not clear, the panel wrote, that FH-T s interpretation of the Fact Sheet is correct, or that the Fact Sheet is in any sense binding upon the Board or DHS. Id. at 846. The DHS policy stipulated that waivers would not be decided for aliens subject to removal in the absence of a final removal order because the waiver would be unnecessary if removal were ordered on the basis of a non-terrorism and non-waivable 1 The panel held that FH-T s challenge to the Board s knowledge-exception ruling was precluded by his failure to exhaust administrative remedies. FH-T does not challenge that holding here. See Petitioner s Petition for Rehearing or Rehearing En Banc ( Pet. ) at 2 & n.3. 4
ground. But as to the disposition of non-terrorism issues in a removal case, the panel found, the Fact Sheet did not explicitly require the Board to adjudicate the merits in any particular fashion. Id. [M]ore significantly, the panel observed, it is not clear from the language of the Fact Sheet that the Board alone possesses the ability to determine whether an alien would be otherwise eligible for the benefit or protection. Id. Its use of the passive voice... suggests that other officials or agencies, perhaps including DHS itself, could theoretically determine that an alien would be otherwise eligible for relief. Id. (citing the Government s Br. at 56 n.15). Thus, the panel concluded that the Fact Sheet hardly established that the Board s decision not to adjudicate the merits of [FH-T s] asylum claim... deprive[d] him of the opportunity to be considered for a waiver. Id. Second, the panel held that the mere existence of a waiver provision did not necessarily equate with an alleged statutory right to consideration for an exemption. Id. Indeed, addressing FH-T s contention that the Board s adjudication of the nonterrorism merits of his claims was necessary to effectuate that alleged right, the panel found no compelling evidence that Congress... intended the waiver provision to require Board adjudication of the merits of asylum claims in every case triggering the material support for terrorism bar. Id. For FH-T, classifying the waiver as a statutory right was indispensable to his claim that the Court should follow the Ceta line of cases, id. at 845, a series of this Court s rulings requiring coordination among various executive agencies in particular circumstances. But those cases, the panel observed, did not concern a purported right to a waiver determination in the context of the material 5
support for terrorism bar, but rather statutory rights to apply for adjustment of status (Ceta, Subhan, Benslimane), or to present evidence in a removal hearing (Boyanivskyy), or to seek legalization (Potdar, Siddiqui). Id. at 844. 2 The panel reasoned that several additional factors set the terrorism waiver apart from the Ceta line: (1) the adjustment of status and legalization statutes invite aliens to apply for relief, but the language of the waiver provision... does not, instead simply empowering the Secretaries with sole unreviewable discretion to grant a waiver, id. at 845; (2) unlike petitioners in the Ceta cases, FH T was not making an affirmative request for a continuance or the approval of an application for a benefit, but instead had already been determined ineligible on terrorism grounds and now sought the equivalent of a pardon to remove the material support for terrorism designation, id.; and (3) requiring a specific method of Board adjudication would only prolong the resolution of cases in an already strained system, and doing so would be far more intrusive than any of our past mandates (such as instructing the Board to issue continuances) on the basis of a far less certain statutory right, if such a right exists at all. Id. at 845-46. Having differentiated the terrorism exemption process both substantively and procedurally from the claims and procedures addressed in the Ceta cases, the panel concluded that it did not warrant the same treatment. Third, and finally, the panel rejected FH-T s assertion that the judicial review provision requires that waiver determinations be made before the issuance of a removal order, so that all such determinations can be reviewed. See id. at 847-48. As a textual 2 Full citations to the Ceta cases are provided in the Table of Authorities. 6
matter, the panel found, the statute guaranteed neither a determination nor judicial review. Id. at 847. It merely identifies where (on petition for review of a removal order) and when (after a determination or revocation) judicial review may occur, assuming such a determination takes place. Id. at 848 (citing 1182(d)(3)(B)(i)). That no determination or review is promised by the statute, was consistent with the absence of any timeframe or deadline for considering terrorism waivers. By contrast, the panel observed, Congress had automatically stayed removal for individuals presenting prima facie legalization claims, illustrating that Congress knows how to solve this predicament when it so chooses. Id. at 848. Thus, the panel rejected FH-T s claim, concluding that to instruct the Board to automatically stall the issuance of its opinions... while awaiting exemption determinations from DHS which may or may not ever issue would not only grind the levers of the immigration system to a near halt, but would constitute an impermissible judicial encroachment upon agency authority. Id. (emphasis in original). ARGUMENT The panel s decision is correct and conflicts with no other decision of this Court, or any other court of appeals. Further review is therefore unwarranted. 1. FH-T s Abandonment of His Challenge to DHS Policy Requires Denial of the Petition Standing alone, FH-T s failure to challenge the panel s ruling on the DHS policy reflected in the Fact Sheet defeats his petition. His core contention before the panel was that the Fact Sheet cast the Board as the exclusive arbiter of an alien s non- 7
terrorism-related eligibility for relief, and that unless the Board reached the merits and decided the alien s eligibility but for the terrorism bar, he would be precluded from any waiver consideration. But, the panel determined [i]t s not clear that FH-T s interpretation of the Fact Sheet is correct, or that the Fact Sheet is in any sense binding upon the Board or DHS, 723 F.3d at 846, and FH-T does not dispute that ruling here. See Pet. at 1-15. Indeed, he fails even to mention it. See id. This failure is telling, because it highlights that FH-T s dispute has never been with the Board. It is with a statute that created a purely discretionary waiver with no right of application, or guarantee of consideration. And it is with DHS itself, for not considering him for a waiver. Neither of those disputes require the Court to intrude on the Board s adjudication of removal orders. As the panel correctly found, the DHS policy was not binding upon the Board or DHS. 723 F.3d at 846. Accordingly, FH-T s abandonment of the only theory that positioned the Board as the central player or gate-keeper in processing exemption claims requires denial of the petition, without need of addressing his remaining arguments. 2. Coordination Between the Board and DHS Is Mandated by Neither the Ceta Cases Nor 1182(c) Even assuming FH-T had not abandoned the linchpin of his claim, his remaining arguments lack merit. He reiterates that the Ceta cases require some minimal level of interagency coordination between the Board and DHS in order to protect his purported right to be considered for a terrorism waiver. Pet. at 10; see id. at 5-10. Brushing off the panel s Ceta-analysis as mere textual distinctions and procedural 8
disparities, FH-T instead raises an entirely new argument relating to the former section 1182(c) waiver. Pet. at 9; see id. at 5-10; and compare Pet. Opening Br. at 9-46. But the Court will not entertain arguments raised for the first time in a petition for rehearing. ). Easely v. Ruess, 532 F.3d 592, 593-94 (7th Cir. 2008). Assuming the Court can hear it for the first time on rehearing, his 1182(c)- related proposition is groundless. FH-T posits that former 1182(c) and 1182(d)(3)(B)(i) share the same passive authorization to waive grounds of inadmissibility, and argues that where the Supreme Court in INS v. St. Cyr, 533 U.S. 289 (2001), acknowledged a right to seek the former 1182(c) waiver, interpreting the passive tense grant of waiver authority as implying no right to seek it would be inconsistent with St. Cyr itself. Pet. at 10. This attempt at transitive logic is flawed from start to finish. First, the two waivers do not share the same passive tense grant of waiver authority. That grammatical description may apply to 1182(c) ( Aliens... may be admitted in the discretion of the Attorney General.... ), but not to 1182(d)(3)(B)(i) s active delegation ( The Secretary... may determine... in such Secretary s sole unreviewable discretion that subsection (a)(3)(b) shall not apply.... ). Second, claiming a statutory entitlement to terrorism waiver consideration by analogizing it to 1182(c) is equally inapt, because the right to seek the former 1182(c) waiver emanated from regulation, not statute. Compare 8 C.F.R. 212.3(a) & (b) (1995) ( An application for the exercise of discretion under section 212(c) of the Act [8 U.S.C. 1182(c)]... may be filed... at any time.... ) and 8 U.S.C. 1182(c) (repealed). Indeed, this is confirmed by St. Cyr s reliance upon Jay v. Boyd, 351 U.S. 345 9
(1956). Quoting exclusively from Jay, the St. Cyr Court observed that relief governed by specific statutory standards provided a right to a ruling on an applicant s eligibility, even though the actual granting of relief was a matter of grace. St. Cyr, 533 U.S. at 308 (quoting Jay, 351 U.S. at 353 354). But the Court in INS v. Bagamasbad, 429 U.S. 24, 26 (1976), explained that Jay s discussion of entitlement to an eligibility ruling arising from specific statutory standards is dictum, because it followed a reference to immigration regulations which then expressly required a determination of eligibility in each case. Bagamasbad, 429 U.S. at 26. Moreover, the terrorism waiver is not governed by specific statutory standards, but is instead dispensed at the sole unreviewable discretion of the Secretary. In sum, FH-T s 1182(c) argument is unavailing, because he failed to make it before now, and the terrorism waiver is governed by neither specific statutory standards, nor regulation. FH-T s argument fails to rebut any of the panel s reasons for declining to extend the Ceta cases, or detract from the panel s conclusion that unlike the circumstances presented in those cases, no statutory rights are nullified by the Board s appellate review of removal orders. 3. The Terrorism Waiver and its Judicial Review Terms Require no Coordination Between the Board and DHS The panel correctly rejected FH-T s assertion that the mere existence of the terrorism waiver equates with a statutory entitlement to it, as well as his claim that the waiver s inclusion of judicial review necessitates that waiver determinations precede 10
the opportunity to seek such review. The panel s contrary conclusions were proper and need not be reheard. FH-T s general characterizations of the statute ( Congress specifically legislated to permit such review, Pet. at 11 (original emphasis)), and his reliance on the general presumption favoring judicial review of administrative action, see Pet. at 10-12, cannot displace the statutory terms: Notwithstanding any other provision of law (statutory or nonstatutory), including section 2241 of title 28, or any other habeas corpus provision, and sections 1361 and 1651 of such title, no court shall have jurisdiction to review such a determination or revocation except in a proceeding for review of a final order of removal pursuant to section 1252 of this title, and review shall be limited to the extent provided in section 1252(a)(2)(D). 8 U.S.C. 1182(d)(3)(B)(i). As the text demonstrates, FH-T s general description that the statute permits review blurs the congressional meaning. Indeed, FH-T has recharacterized as an affirmative grant ( to permit review ) a statute written in negative terms. Those terms, moreover, reflect an effort to limit rather than expand review. The panel s recognition that the text merely identifies where (on petition for review of a removal order) and when (after a determination or revocation) judicial review may occur, assuming such a determination takes place, id. at 848, is thus true to the structure and meaning of the jurisdictional provision. And it is well-settled that general presumptions favoring review do not override express language. See Stone v. INS, 514 U.S. 386, 405 (1995) ( Judicial review provisions... are jurisdictional in nature and must be construed with strict fidelity to their terms. ). 11
Assuming, arguendo, any doubts remain concerning congressional intent to require coordination between Executive Branch terrorism waiver determinations and judicial review on the one hand, and removal proceedings involving aliens barred from relief based on waivable terrorism grounds on the other, they are removed by two sections of the 2008 public law The Consolidated Appropriations Act of 2008 which amended and expanded the terrorism waiver to its present form. First, in the 2008 law, Congress directed DHS to report to it annually regarding the number of individuals subject to removal from the United States for having provided material support to a terrorist group who allege that such support was provided under duress. Consolidated Appropriations Act of 2008 ( CAA ), Pub. L. No. 110 161, 691(e), 121 Stat 1844 (December 26, 2007). This demonstrates, at a minimum, that Congress was mindful of potentially exemption-worthy terrorist aliens in removal proceedings, but made no provision for staggered procedures, or coordinated determinations. Second, upon enacting the revised waiver, Congress applied it retroactively to aliens in removal proceedings. See CAA 691(f) ( The amendments made by this section shall take effect on the date of enactment of this section, and... shall apply to removal proceedings instituted before, on, or after the date of enactment of this section.... ). Thus, again, rather than directing that DHS adjudications be coordinated with Board-administered removal proceedings, Congress expressly activated the revised waiver with respect to aliens who might because of the advanced stage of their removal proceedings be deprived of the opportunity to seek waiver consideration (e.g., on the eve of removal), or, assuming an alien denied an exemption 12
after judicial review of his removal order, the opportunity to seek review of any waiver denial. Thus, the panel correctly concluded that requiring a specific method of Board adjudication would not only prolong the resolution of cases in an already strained system, but doing so would be far more intrusive than any of our past mandates... on the basis of a far less certain statutory right, if such a right exists at all. Id. at 845-46. Notably, in declining to intervene in the processing of terrorism exemptions, the panel s decision is consistent with Supreme Court jurisprudence on Executive Branch national security determinations. In the waiver context, foreign policy and national security considerations may counsel delay or even withholding of a decision in a particular case, particularly if the consequences of either a decision to grant or deny would be prejudicial to the interests of the United States. See Reno v. American-Arab Anti-Discrimination Committee, 525 U.S. 471, 491 (1999) ( The Executive should not have to disclose its real reasons for deeming nationals of a particular country a special threat -- or indeed for simply wishing to antagonize a particular foreign country by focusing on that country s nationals -- and even if it did disclose them a court would be ill equipped to determine their authenticity and utterly unable to assess their adequacy. ); Holder v. Humanitarian Law Project, 130 S. Ct. 2705, 2727 (2010) ( when it comes to collecting evidence and drawing factual inferences in [the national security] area, the lack of competence on the part of the courts is marked ) (internal quotations omitted) (HLP); North Jersey Media Group, Inc. v. Ashcroft, 308 F.3d 198, 219 (3d Cir. 2002), cert. denied, 538 U.S. 1056 (2003) ( national security is an area where courts have traditionally extended great deference to Executive expertise. ). Because these factors 13
may control the extension of a given terrorism exemption, the absence of any guarantee of waiver consideration is consistent with the nature of the provision itself. Moreover, the panel s decision is fully consistent with the only other federal court of appeals to address a similar request to intervene in agency processing of the terrorist waiver. See Annachamy v. Holder, 686 F.3d 729, 736 n.7 (9th Cir. 2012), en banc reh g denied, panel reh g granted and amended by --- F.3d ----, 2013 WL 4405687 at *6 & n.9 (Aug. 19, 2013). In Annachamy, the Ninth Circuit declined to regulate the process for considering waiver claims. It expressed no opinion as to the efficacy of the waiver mechanism, because it found that the waiver determination had been delegated solely to the Secretaries of State and of Homeland Security and... Congress appears to be monitoring the mechanism in an effort to strike the appropriate balance between the United States humanitarian obligations and national security. Id.; cf. Barahona v. Holder, 691 F.3d 349, 356 (4th Cir. 2012) ( [T]he fact that the BIA has reached a seemingly harsh result does not vitiate the clear statutory provisions. If the governing legal principles are to be altered, that obligation rests with the legislative branch of our government, rather than with the judiciary. ). In sum, rehearing is not warranted because the panel properly construed the applicable statute, and its decision is fully consistent with relevant Supreme Court and federal circuit case law. 14
4. The Panel s Decision Easily Prevails Over FH-T s Remaining Peripheral Attacks and Speculative Assertions Rather than confront its detailed analysis as a whole, FH-T quibbles with the panel s observations that (1) exemptions are exceedingly rare, and (2) by automatically staying removal for individuals presenting prima facie legalization claims, Congress illustrated that it knows how to solve this predicament when it so chooses. See Pet. at 12-15. Both objections fail. Regarding the frequency of exemptions, FH-T s meandering argument winds up in agreement with the panel: that exemptions are rare in removal proceedings. Pet. at 13 (original emphasis). Regarding the automatic stay, FH-T s observation that staying removal does not necessarily stay judicial review proceedings is beside the point. The panel was correct that Congress knows how to coordinate adjudications in one agency (DHS) with the removal process administered by another (the Board) when it so chooses. 723 F.3d at 848. Finally, FH-T s assertion that the Board s adjudication of his asylum eligibility would have facilitated DHS consideration of a waiver application is purely speculative. At bottom, he can no more establish that the Board would have overturned any of the multiple and independently sufficient grounds for the denial of his claim on the merits than he can predict, as the panel noted, an exemption determination from DHS which may or may not ever issue. Id. The result of adopting his position would not only grind the levers of the immigration system to a near halt, but would constitute an impermissible judicial encroachment upon agency authority. Id. (emphasis in original). In sum, no further review of the panel s decision is warranted. 15
Respectfully submitted, STUART F. DELERY Assistant Attorney General Civil Division MICHAEL P. LINDEMANN Chief, National Security Unit Dated: October 10, 2013 /s/ Ethan B. Kanter ETHAN B. KANTER Deputy Chief, National Security Unit DANIEL I. SMULOW Counsel for National Security Office of Immigration Litigation U.S. Department of Justice, Civil Division P.O. Box 878, Ben Franklin Station Washington, DC 20044-0878 Tel. (202) 616-9123 Attorneys for Respondent 16
APPENDIX 1. 8 U.S.C. 1182(d)(3)(B)(i) 2. Exercise of Authority Under Sec. 212(d)(3)(B)(i) of the Immigration and Nationality Act, 72 Fed. Reg. 9,958 (Mar. 6, 2007) 3. Fact Sheet: Department of Homeland Security Implements Exemption Authority for Certain Terrorist-Related Inadmissibility Grounds for Cases with Administratively Final Orders of Removal, October 23, 2008
Appendix 1 8 U.S.C. 1182(d)(3)(B)(i): The Secretary of State, after consultation with the Attorney General and the Secretary of Homeland Security, or the Secretary of Homeland Security, after consultation with the Secretary of State and the Attorney General, may determine in such Secretary s sole unreviewable discretion that subsection (a)(3)(b) shall not apply with respect to an alien within the scope of that subsection or that subsection (a)(3)(b)(vi)(iii) shall not apply to a group within the scope of that subsection, except that no such waiver may be extended to an alien who is within the scope of subsection (a)(3)(b)(i)(ii), no such waiver may be extended to an alien who is a member or representative of, has voluntarily and knowingly engaged in or endorsed or espoused or persuaded others to endorse or espouse or support terrorist activity on behalf of, or has voluntarily and knowingly received military-type training from a terrorist organization that is described in subclause (I) or (II) of subsection (a)(3)(b)(vi), and no such waiver may be extended to a group that has engaged terrorist activity against the United States or another democratic country or that has purposefully engaged in a pattern or practice of terrorist activity that is directed at civilians. Such a determination shall neither prejudice the ability of the United States Government to commence criminal or civil proceedings involving a beneficiary of such a determination or any other person, nor create any substantive or procedural right or benefit for a beneficiary of such a determination or any other person. Notwithstanding any other provision of law (statutory or nonstatutory), including section 2241 of title 28, or any other habeas corpus provision, and sections 1361 and 1651 of such title, no court shall have jurisdiction to review such a determination or revocation except in a proceeding for review of a final order of removal pursuant to section 1252 of this title, and review shall be limited to the extent provided in section 1252(a)(2)(D). The Secretary of State may not exercise the discretion provided in this clause with respect to an alien at any time during which the alien is the subject of pending removal proceedings under section 1229a of this title.
72 FR 9958-01, 2007 WL 648239 (F.R.) Page 1 Appendix 2 NOTICES DEPARTMENT OF HOMELAND SECURITY Office of the Secretary Exercise of Authority Under Sec. 212(d)(3)(B)(i) of the Immigration and Nationality Act Tuesday, March 6, 2007 AGENCY: Office of the Secretary, DHS. *9958 ACTION: Notice of determination. DATES: This determination is effective February 26, 2007. Authority: 8 U.S.C. 1182(d)(3)(B)(i). Following consultations with the Secretary of State and the Attorney General, I hereby conclude, as a matter of discretion in accordance with the authority granted to me by Sec. 212(d)(3)(B)(i) of the Immigration and Nationality Act ( the Act ), considering the national security and foreign policy interests deemed relevant in these consultations, that subsection 212(a)(3)(B)(iv)(VI) of the Act shall not apply with respect to material support provided under duress to a terrorist organization as described in subsection 212(a)(3)(B)(vi)(III) if warranted by the totality of the circumstances. This exercise of authority as a matter of discretion shall apply to 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. 2013 Thomson Reuters. No Claim to Orig. US Gov. Works.
72 FR 9958-01, 2007 WL 648239 (F.R.) Page 2 Implementation of this determination will be made by U.S. Citizenship and Immigration Services (USCIS), in consultation with U.S. Immigration and Customs Enforcement (ICE). USCIS has discretion to determine whether the criteria are met. When determining whether the material support was provided under duress, the following factors, among others, may be considered: whether the applicant reasonably could have avoided, or took steps to avoid, providing material support, the severity and type of harm inflicted or threatened, to whom the harm was directed, and, in cases of threats alone, the perceived imminence of the harm threatened and the perceived likelihood that the harm would be inflicted. When considering the totality of the circumstances, factors to be considered, in addition to the duress-related factors stated above, may include, among others: the amount, type and frequency of material support provided, the nature of the activities committed by the terrorist organization, the alien's awareness of those activities, the length of time since material support was provided, the alien's conduct since that time, and any other relevant factor. I may revoke this exercise of authority as a matter of discretion and without notice at any time with respect to any and all persons subject to it. Any determination made under this exercise of authority as set out above shall apply to any subsequent benefit or protection application, unless it has been revoked. This exercise of authority shall not be construed to prejudice, in any way, the ability of the U.S. Government to commence subsequent criminal or civil proceedings in accordance with U.S. law involving any beneficiary of this exercise of authority (or any other person). This exercise of authority is not intended to create any substantive or procedural right or benefit that is legally enforceable by any party against the United States or its agencies or officers or any other person. This exercise of authority does not affect the continued applicability of any other security-related ground of inadmissibility in section 212 of the Act, including subsections 212(a)(3)(B)(iv)(I) through (V), which continue to render inadmissible those who have engaged in terrorist activity as enumerated by those subsections. In accordance with Sec. 212(d)(3)(B)(ii) of the Act, a report on the aliens to whom this exercise of authority is applied, on the basis of case-by-case decisions by the U.S. Department of Homeland Security shall be provided to the specified congressional committees not later than 90 days after the end of the fiscal year. This determination is based on an assessment related to the national security and foreign policy interests of the United States as they apply to the particular aliens described herein and shall not have any application with respect to other persons or to other provisions of U.S. law. Dated: February 26, 2007. Michael Chertoff, Secretary of Homeland Security. [FR Doc. E7-3914 Filed 3-5-07; 8:45 am] 2013 Thomson Reuters. No Claim to Orig. US Gov. Works.
72 FR 9958-01, 2007 WL 648239 (F.R.) Page 3 BILLING CODE 4410-10-P 72 FR 9958-01, 2007 WL 648239 (F.R.) END OF DOCUMENT 2013 Thomson Reuters. No Claim to Orig. US Gov. Works.
Case: 12-2471 Document: 50 RESTRICTED Filed: 10/10/2013 Pages: 28
CERTIFICATE OF SERVICE I hereby certify that on October 10, 2013, I filed the foregoing answer to the petition for rehearing and rehearing en banc with the U.S. Court of Appeals for the Seventh Circuit via the appellate CM/ECF system. Counsel for the petitioner and Amici are registered CM/ECF users and will be served via the appellate CM/ECF system. /s/ Ethan B. Kanter ETHAN B. KANTER U.S. Department of Justice