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Annachamy v. Holder

July 3, 2012

SATHEESKUMAR ANNACHAMY, AKA SATHEES ANNACHAMY, PETITIONER,
v.
ERIC H. HOLDER JR., ATTORNEY GENERAL, RESPONDENT.



On Petition for Review of an Order of the Board of Immigration Appeals Agency No. A200-041-850

The opinion of the court was delivered by: Fisher, Circuit Judge

FOR PUBLICATION

Argued and Submitted September 2, 2011-San Francisco, California

Before: Raymond C. Fisher and Johnnie B. Rawlinson, Circuit Judges, and Richard Mills, District Judge.*fn1

OPINION

Satheeskumar Annachamy petitions for review of a decision of the Board of Immigration Appeals (BIA) denying him asylum and withholding of removal because he provided material support to a terrorist organization, in violation of 8 U.S.C. § 1182(a)(3)(B)(iv)(VI). Annachamy argues that the BIA erred by applying the material support bar because (1) the organization he supported was engaged in legitimate political violence and (2) he provided support under duress. We hold that the material support bar does not include an implied exception for individuals who assist organizations engaged in legitimate political violence or who provide support under duress. We thus deny Annachamy's petition for review.

I.

Annachamy is a native and citizen of Sri Lanka. In a hearing before an immigration judge (IJ), Annachamy testified that between 1986 and 2004 he was arrested several times by the Sri Lankan army on suspicion that he was involved with the Liberation Tigers of Tamil Eelam (LTTE), a militant organization that was then at war with the Sri Lankan government.*fn2

Each time, the army detained him for many weeks, interrogated him and tortured him, including beating him with weapons while he was hung upside down, inserting a stick in his rectum, placing a bag soaked in gasoline over his head and forcibly submerging his head into water.

Annachamy testified that he was never a member of the LTTE and was opposed to it. On several occasions, however, he was forced to assist LTTE members. In 1992, for instance, LTTE members came to his house and demanded that he join them. Annachamy refused and, upon threat of force, promised to give them money in the future. In 1996, he paid LTTE members 2000 rupees (approximately $37). On other occasions, LTTE members blindfolded Annachamy and took him to a LTTE camp, where they forced him to cook, dig trenches, fill sandbags and help build fences. Each time he was taken to perform these activities, he was kept under strict watch and there was no possibility of escape. Annachamy believed that he would have been killed if he tried to escape or seek help from the police. He has had no contact with the LTTE since 1997, when he moved from his home town. Annachamy testified that he was not aware that the LTTE was considered a terrorist organization when he assisted them.

After being detained by the Sri Lankan army again in 2004, Annachamy went into hiding. He left Sri Lanka and arrived in the United States in 2005. Upon his arrival, the Immigration and Naturalization Service, now the Department of Homeland Security (DHS), initiated removal proceedings. Annachamy conceded that he was removable based on his unlawful presence in the United States, but filed an application for asylum, withholding of removal and protection under the Convention Against Torture (CAT).

After a hearing, an IJ granted Annachamy asylum and withholding of removal. The IJ found that, despite some inconsistencies, Annachamy testified in a credible manner. Relying on Annachamy's application, testimony and State Department reports on the conditions in Sri Lanka, the IJ found that Annachamy had demonstrated a well-founded fear of persecution based on a protected ground. The IJ also found that Annachamy was not precluded from obtaining relief even though he gave assistance to the LTTE, because he was forced to do so. The IJ found that Annachamy's "life or freedom would have been threatened" if he had not assisted the LTTE.

The BIA reversed. In an unpublished opinion, the BIA accepted the IJ's credibility determination and found that there was "no question" that Annachamy had established a well-founded fear of future persecution that went unrebutted. The BIA found, however, that the Immigration and Nationality Act (INA) barred Annachamy from obtaining asylum or withholding of removal because he had provided material support to a terrorist organization. The BIA instead granted Annachamy deferral of removal under CAT and remanded to the IJ to complete identity, law enforcement or security examinations required under 8 C.F.R. § 1003.1(d)(6).*fn3 Annachamy petitions for review of that decision.

II.

We have jurisdiction to review the BIA's final order denying asylum and withholding of removal under 8 U.S.C. § 1252. See Li, 656 F.3d at 904 ("[W]here the BIA denies relief and remands pursuant to § 1003.1(d)(6) for background checks required for alternative relief, we have jurisdiction to consider an appeal of the final order denying relief."). "Our review is confined to the BIA's decision except to the extent the BIA incorporated the IJ's decision." Id. at 900-01. We review de novo constitutional and other questions of law. See Khan v. Holder, 584 F.3d 773, 776 (9th Cir. 2009). We afford the BIA's unpublished opinion Skidmore deference, meaning "we 'examine the validity of the BIA's reasoning, its thoroughness, and overall persuasiveness,' and give it weight accordingly." United States v. Casasola, 670 F.3d 1023, 1030 (9th Cir. 2012) (quoting Garcia-Quintero v. Gonzales, 455 F.3d 1006, 1015 (9th Cir. 2006)).

III.

[1] An alien who has engaged in terrorist activities is ineligible for asylum, withholding of removal and withholding under CAT, but remains eligible for deferral of removal under CAT. See Haile v. Holder, 658 F.3d 1122, 1125-26 (9th Cir. 2011).*fn4 We have previously recognized that the INA "defines 'engag[ing] in terrorist activity' broadly." Khan, 584 F.3d at 777 (alteration in original). The definition includes committing, planning or gathering information about potential targets for a terrorist activity, and soliciting funds or individuals for a terrorist activity or terrorist organization. See 8 U.S.C. § 1182(a)(3)(B)(iv). An alien also engages in terrorist activity by

commit[ting] an act that the actor knows, or reasonably should know, affords material support, including a safe house, transportation, communications, funds, transfer of funds or other material financial benefit, false documentation or identification, weapons (including ...


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