New 9th Circuit and BIA Immigration Cases

** Terrorism Bar and Due Process**

IJ properly found Khan subject to the terrorism bar to asylum because he solicited funds for the Jammu Kashmir Liberation Front (“JKLF”).  First,the JKLF is a terrorist organization under the INA and Khan’s interpretation of “terrorist activity,” which excludes legitimate armed resistance against miliary targets, wrongly incorporates international law.  Second, the terrorism bar  does not violate the United State’s international obligations under the United Nations Refugee Protocol and Convention because the INA’s definition of terrorist activity adheres to the non-refoulement exception under Refugee Convention Article 33.2, namely that the United States may refoul an individual “whom there are reasonable grounds for regarding as a danger to the security of the United States.”  The INA provides that an alien who has engaged in terrorist activity will be considered to be a danger to the security of the United States, a definition “which controls in this court” unlike unbinding international law.  Next, the JKLF is a “terrorist organization” because there is evidence that it engaged in political killings.  Khan’s argument that he should not have reasonably known of the organization’s violent acts due to his membership in the nonviolent wing of the group fails because there is evidence in the record of such violent acts, and because he admitted that the wing was fighting the Indian Army. In addition,while the INA’s definition of terrorist activity is broad, it is not unconstitutionally vague.

Regarding Khan’s contention that his due process rights were violated when the IJ refused to conduct a new hearing to allow him to present evidence challenging his ineligibilty under the modified standards in the REAL ID Act, which requires a showing of clear and convincing evidence that he did not know and should not have reasonably known that the JKLF was a terrorist organization (as opposed to the former preponderance of the evidence standard), fails because the new standards only increase his burden.  In addition, he failed to present evidence even under the lower standard.

http://www.ca9.uscourts.gov/datastore/opinions/2009/09/09/07-72586.pdf