Khan v. Holder ( 2009 )

FOR PUBLICATION
UNITED STATES COURT OF APPEALS
FOR THE NINTH CIRCUIT
ANJAM PARVEZ KHAN, 
Petitioner, No. 07-72586
v.
 Agency No.
A076-851-013
ERIC H. HOLDER JR., Attorney
General, OPINION
Respondent.

On Petition for Review of an Order of the
Board of Immigration Appeals
Argued and Submitted
February 11, 2009—Stanford, California
Filed September 9, 2009
Before: Dorothy W. Nelson, William A. Fletcher and
Richard C. Tallman, Circuit Judges.
Opinion by Judge William A. Fletcher;
Concurrence by Judge D.W. Nelson
12759
12762 KHAN v. HOLDER
COUNSEL
Robert Bradford Jobe, LAW OFFICES OF ROBERT B.
JOBE, San Francisco, Callifornia, for the petitioner.
Jeffrey Lawrence Menkin, U.S. DEPARTMENT OF JUS-
TICE, Washington, DC, for the respondent.
KHAN v. HOLDER 12763
OPINION
W. FLETCHER, Circuit Judge:
Anjam Parvez Khan petitions for review of a decision of
the Board of Immigration Appeals (“BIA”) affirming the
Immigration Judge’s (“IJ”) denial of his application for asy-
lum and withholding of removal. The BIA adopted the IJ’s
finding that Khan was ineligible for both forms of relief
because he had engaged in terrorist activity. Because we hold
that the IJ properly applied the terrorism bar in the Immigra-
tion and Nationality Act (“INA”), we deny the petition for
review.
I. Background
According to his credible testimony, Khan was born in
Kashmir and is a citizen of India. He has been involved in the
Kashmiri independence movement since about 1967. Begin-
ning in the early 1970s, Khan worked with the Jammu Kash-
mir Liberation Front (“JKLF”), a group dedicated to the
establishment of an independent Kashmir, though he was
never officially a member of the JKLF.
The JKLF had both militant and political factions that, until
approximately 1994, were part of the same organization.
According to Khan, the two factions operated separately but
were “wings of the same organization.” In about 1994, the
two factions split into different organizations when half of the
JKLF renounced violence. Before the split, the political wing
of the organization advocated nonviolently for an independent
Kashmir, while the militant wing operated an armed insur-
gency against the Indian government in Kashmir. The militant
wing took part in killings of politicians, the kidnaping of the
daughter of the Indian Home Minister, and repeated attacks
on the Indian Army, including attacks on military convoys.
Khan testified that he was affiliated with only the political
wing of the JKLF, that his work with the JKLF was entirely
12764 KHAN v. HOLDER
nonviolent in nature, and that he had no knowledge of the
activities of the military wing. However, Khan admitted to
knowing that he was “part of that movement, a part of which
was an arms struggle” and that the militant wing of the JKLF
was carrying out a “war” against the Indian military. But he
claimed to be unaware of any kidnappings, bombings, or
activity targeting civilians by the militant wing of the group.
Khan’s work with the JKLF consisted of planning political
activities for the JKLF, working to distribute aid through a
“central committee” funded by the JKLF, and raising funds
for the political wing of the JKLF. However, Khan testified
that he turned the money he raised over to the JKLF, not
merely to its political wing. He further testified that he was
one of the primary organizers of the political wing of the
JKLF, and that he advised the political wing on how to spend
its funds.
In October 1997, Khan fled India and entered the United
States on a nonimmigrant visitor visa. In March 1998, he
applied for asylum and was referred to an IJ. Before the IJ, he
asserted requests for asylum, withholding of removal, and
relief under the Convention Against Torture (“CAT”).
In June 2005, the IJ issued a written decision denying
Khan’s request for asylum and withholding of removal but
granting Khan’s request for relief under CAT. The IJ found
Khan’s testimony to be credible, but held that Khan was statu-
torily ineligible for asylum or withholding of removal under
8 U.S.C. § 1182(a)(3)(B)(iv)(IV) because he had engaged in
terrorist activity. In July 2005, the IJ issued a supplemental
decision to account for changes made to the INA by the
REAL ID Act, which applied retroactively to cases pending
at the time of its enactment. Rafaelano v. Wilson, 471 F.3d
1091, 1092 (9th Cir. 2006). The IJ held that the REAL ID Act
increased the burden on Khan to show that he had not
engaged in terrorist activity. The IJ held that because Khan
had failed to meet his burden under the old statute, he neces-
sarily failed under the REAL ID Act.
KHAN v. HOLDER 12765
Both the government and Khan appealed to the BIA. The
BIA adopted and affirmed the IJ’s decision on January 17,
2007. Khan timely petitioned for review.
II. Standard of Review
When the BIA affirms and adopts an IJ’s decision, this
court reviews the decision of the IJ. Tapia v. Gonzales, 430
F.3d 997, 999 (9th Cir. 2005). In reviewing the decision of the
IJ, we review constitutional and other questions of law de
novo. Id.; Cerezo v. Mukasey, 512 F.3d 1163, 1166 (9th Cir.
2008). We apply Chevron deference to the Attorney General’s
interpretations of ambiguous immigration statutes, but need
not defer if the statute is unambiguous. INS v. Aguirre-
Aguirre, 526 U.S. 415, 424 (1999). We review agency factual
findings and determinations of mixed questions of law and
fact for substantial evidence. INS v. Elias-Zacarias, 502 U.S.
478, 481, 483-84 (1992); Dhital v. Mukasey, 532 F.3d 1044,
1050 (9th Cir. 2008) (applying substantial evidence standard
to mixed question).
III. Discussion
The INA precludes aliens who have engaged in terrorist
activity from seeking some forms of relief. In particular, 8
U.S.C. § 1182(a)(3)(B)(i) renders inadmissible certain aliens
who have engaged in terrorist activity, have been members or
representatives of terrorist organizations, or have encouraged
others to engage in terrorist activity. This provision applies to
aliens seeking both asylum or withholding of removal through
other parts of the statute. Section 1158(b)(2)(A)(v) provides
that any alien described in § 1182(a)(3)(B)(i)(I) — i.e., “any
alien” who “has engaged in a terrorist activity”— is ineligible
for asylum Additionally, § 1231(b)(3)(B)(iv) provides that
withholding of removal is unavailable when “there are reason-
able grounds to believe that the alien is a danger to the secur-
ity of the United States.” “Reasonable grounds exist to believe
that an alien is a danger to security if the alien ‘has engaged,
12766 KHAN v. HOLDER
is engaged, or at any time after admission engages in any ter-
rorist activity (as defined in section 1182(a)(3)(B)(iv) . . .).’ ”
Bellout v. Ashcroft, 363 F.3d 975, 978 (9th Cir. 2004) (quot-
ing § 1231(b)(3)(B)(iv) and a former version of
§ 1227(a)(4)(B)). Thus, if an alien “has engaged in a terrorist
activity” under § 1182(a)(3)(B)(iv) at any time, he is ineligi-
ble for both asylum and withholding of removal. It does not
matter that the alien ceased participation in terrorist activity
at some point before seeking admission to or relief in the
United States.
The statute defines “engag[ing] in terrorist activity”
broadly. Section 1182(a)(3)(B)(iv)(IV)(cc) defines “engag-
[ing] in terrorist activity” to include “solicit[ing] funds or
other things of value for . . . a terrorist organization described
in clause (vi)(III), unless the solicitor can demonstrate by
clear and convincing evidence that he did not know, and
should not reasonably have known, that the organization was
a terrorist organization.” An alien’s intention in soliciting
funds only for nonviolent activity is irrelevant to this defini-
tion, even when an organization has separate political and
militant wings, because money donated to an organization’s
political wing is considered to be support for the militant wing
as well. Humanitarian Law Project v. Reno, 205 F.3d 1130,
1136 (9th Cir. 2000) (“[M]oney is fungible; giving support
intended to aid an organization’s peaceful activities frees up
resources that can be used for terrorist acts.”).
The statute also defines “terrorist organization” broadly.
The definition includes “a group of two or more individuals,
whether organized or not, which engages in, or has a sub-
group which engages in, the activities described in subclauses
(I) through (VI) of clause (iv).” 8 U.S.C.
§ 1182(a)(3)(B)(vi)(III). Subclauses (I) through (VI) of clause
(iv) list ways in which an individual or an organization can
“engage in terrorist activity.” These include committing, plan-
ning, soliciting funds for, soliciting individuals for, or provid-
KHAN v. HOLDER 12767
ing material support for a terrorist activity. Id.§ 1182(a)(3)(B)(iv).
The statute defines a “terrorist activity” as
any activity which is unlawful under the laws of the
place where it is committed (or which, if it had been
committed in the United States, would be unlawful
under the laws of the United States or any State) and
which involves any of the following:
(I) The highjacking or sabotage of any con-
veyance (including an aircraft, vessel, or
vehicle).
(II) The seizing or detaining, and threaten-
ing to kill, injure, or continue to detain,
another individual in order to compel a
third person (including a governmental
organization) to do or abstain from doing
any act as an explicit or implicit condition
for the release of the individual seized or
detained.
(III) A violent attack upon an internation-
ally protected person (as defined in section
1116 (b)(4) of title 18) or upon the liberty
of such a person.
(IV) An assassination.
(V) The use of any—
(a) biological agent, chemical agent, or
nuclear weapon or device, or
(b) explosive, firearm, or other weapon
or dangerous device (other than for mere
12768 KHAN v. HOLDER
personal monetary gain), with intent to
endanger, directly or indirectly, the
safety of one or more individuals or to
cause substantial damage to property.
(VI) A threat, attempt, or conspiracy to do
any of the foregoing.
8 U.S.C. § 1182(a)(3)(B)(iii).
Under these provisions, an alien is ineligible for asylum or
withholding of removal if he solicited funds or things of value
for an organization that committed, planned, solicited funds
for, solicited individuals for, or provided material support for
a “terrorist activity,” unless the alien can “demonstrate by
clear and convincing evidence that he did not know, and
should not reasonably have known, that the organization was
a terrorist organization.” The IJ found Khan ineligible for
relief under these provisions because he solicited funds for the
JKLF.
The IJ focused on subsections (I), (II), and (III) of
§ 1182(a)(3)(B)(iii) in considering whether the JKLF had “en-
gaged in terrorist activity.” The IJ found that the JKLF had
conducted attacks against the Indian military, including kill-
ings, bombings, and attacks on convoys, as well as the kid-
napping of the daughter of the Indian Home Minister. The IJ
then found that Khan had not met his burden in establishing
that he had not known nor reasonably should have known
about these terrorist activities.
Khan makes several arguments challenging the IJ’s find-
ings. First, Khan argues that his due process rights were vio-
lated when the IJ did not conduct a new hearing to allow him
to present evidence challenging his ineligibility under the
modified standards in the REAL ID Act.
Second, Khan challenges the IJ’s determination on the mer-
its, arguing that the JKLF was not a “terrorist organization,”
KHAN v. HOLDER 12769
that he did not know and reasonably should not have known
about the JKLF’s terrorist activities, and that he is not pres-
ently a threat to national security and thus may not be sub-
jected to refoulement. The core of these arguments is that the
activities of an organization such as the JKLF that is engaged
in armed resistance against an illegitimate government are
permitted under international law, and that the definition of
“terrorist activity” in the INA does not extend to violent activ-
ities in furtherance of such armed resistance so long as those
activities comply with international law.
Third, Khan argues that the statute is unconstitutionally
vague.
We consider each of these arguments below.
A. Due Process Claim
After the IJ’s initial ruling, the IJ issued a supplemental
decision to account for changes made to the INA by the
REAL ID Act. Khan claims that his due process rights were
violated because he was not afforded an opportunity to pres-
ent evidence relevant to his admissibility under the new stan-
dards imposed by the REAL ID Act.
Under the previously applicable standard, an alien was
required to show, by a preponderance of the evidence, that
“he did not know, and should not reasonably have known, that
the solicitation would further the organization’s terrorist
activity.” As we explained above, under the REAL ID Act, an
alien must “demonstrate by clear and convincing evidence
that he did not know, and should not reasonably have known,
that the organization was a terrorist organization.” 8 U.S.C.
§ 1182(a)(3)(B)(iv)(IV)(cc).
[1] Khan’s due process claim fails because the REAL ID
Act served only to increase Khan’s burden. Because Khan
failed to meet the “preponderance of the evidence” standard,
12770 KHAN v. HOLDER
he necessarily failed to meet the more stringent “clear and
convincing evidence” standard. Further, because Khan failed
to show that he should not reasonably have known that his
fundraising would further the JKLF’s terrorist activity, he
necessarily failed to show that he should not reasonably have
known the JKLF was a terrorist organization. As explained
above, the definition of “terrorist organization” encompasses
any group engaged in “terrorist activity.” 8 U.S.C.
§ 1182(a)(3)(B)(vi)(III). If Khan should have known that his
fundraising for the JKLF would further its terrorist activities,
he also should have known that the JKLF was engaged in ter-
rorist activities and was thus a “terrorist organization.”
[2] Because Khan had already presented evidence that
failed to meet the lower standard pre-REAL ID Act, there was
no due process violation in denying him the opportunity to
present evidence to meet the higher standard post-REAL ID
Act.
B. Asylum and Withholding of Removal Claims
Khan challenges the IJ’s holding that he is ineligible for
asylum and withholding of removal because of his work for
the JKLF. The government argues that we lack jurisdiction to
review the IJ’s determination on the asylum claim. It is
uncontested that we have jurisdiction to review whether Khan
is ineligible for withholding of removal because he engaged
in terrorist activity.
1. Jurisdiction over the Asylum Claim
The government argues that this court lacks jurisdiction to
review the BIA’s determination that Khan is statutorily ineli-
gible for asylum because he engaged in terrorist activity. We
have jurisdiction to determine whether jurisdiction exists.
Flores-Miramontes v. INS, 212 F.3d 1133, 1135 (9th Cir.
2000).
KHAN v. HOLDER 12771
[3] Section 1158(b)(2)(D) provides, “There shall be no
judicial review of a determination of the Attorney General
under subparagraph (A)(v).” Section 1158(b)(2)(A)(v),
described above, bars aliens who engage in a terrorist activity
from eligibility for asylum. In Bellout v. Ashcroft, 363 F.3d
975 (9th Cir. 2004), we held that this provision stripped the
court of jurisdiction to review the IJ or the BIA’s determina-
tion that a petitioner was ineligible for asylum because he
engaged in terrorist activity. Id. at 977.
However, after we decided Bellout, Congress passed the
REAL ID Act, which revised this jurisdictional bar. Section
1252(a)(2)(D) provides that “[n]othing . . . in any other provi-
sion of this chapter (other than this section) which limits or
eliminates judicial review, shall be construed as precluding
review of constitutional claims or questions of law raised
upon a petition for review filed with an appropriate court of
appeals in accordance with this section.” The chapter referred
to in § 1252(a)(2)(D) includes § 1158(b)(2)(D), the
jurisdiction-stripping provision upon which we relied in Bell-
out.
In Fernandez Ruiz v. Gonzales, 410 F.3d 585 (9th Cir.
2005), we held that the REAL ID Act restored appellate
review over all “constitutional claims or questions of law.”1
Id. at 587. In Ramadan v. Gonzales, 479 F.3d 646 (9th Cir.
2007), we held that this principle extended to mixed questions
of law and fact. Id. at 648. Mixed questions of law and fact
are those in which “the historical facts are admitted or estab-
lished, the rule of law is undisputed, and the issue is whether
the facts satisfy the statutory standard.” Id. at 656-57 (quota-
tion omitted). We held in Ramadan that whether undisputed
facts constituted “changed circumstances” in a country, as
1
We heard Fernandez-Ruiz en banc and vacated the panel opinion.
Fernandez-Ruiz v. Gonzales, 466 F.3d 1121 (9th Cir. 2006). In our en
banc opinion, we adopted the portion of the panel opinion addressing
jurisdiction over questions of law. Id. at 1124.
12772 KHAN v. HOLDER
defined by the immigration laws, is a mixed question of law
and fact over which we have jurisdiction. Id.Where the facts are undisputed, we have extended Rama-
dan to other jurisdiction-stripping provisions. See, e.g., Ramos
Barrios v. Holder, ___ F.3d ___, 2009 WL 1813469, at *4
(9th Cir. June 26, 2009) (holding that question of whether
petitioner had satisfied threshold requirements to qualify for
special rule cancellation was mixed question over which we
have jurisdiction); Husyev v. Mukasey, 528 F.3d 1172,
1178-79 (9th Cir. 2008) (holding that question of whether
“extraordinary circumstances” exist to justify a delay in the
filing of an application for asylum is a mixed question over
which we have jurisdiction); Ghahremani v. Gonzales, 498
F.3d 993, 998-99 (9th Cir. 2007) (holding that question of
whether petitioner established “due diligence” in discovering
deception, fraud, or error in motion to reopen context is a
mixed question over which we have jurisdiction). Addition-
ally, we have held that even when facts are in dispute we have
jurisdiction to review a mixed question so long as under any
view of the factual record the petitioner has satisfied the rele-
vant legal standard. Khunaverdiants v. Mukasey, 548 F.3d
760, 765 (9th Cir. 2008). Therefore, § 1158(b)(2)(D) does not
completely deprive this court of jurisdiction to review the IJ’s
holding that Khan is ineligible for asylum on account of his
engaging in terrorist activities.
[4] We have jurisdiction to determine the scope and mean-
ing of the statutory terrorism bar, including the definition of
“terrorist organization” and “terrorist activity,” as these pres-
ent purely legal questions. We also have jurisdiction to deter-
mine whether the JKLF meets this standard. This is a mixed
question, because the nature of JKLF’s activities is undis-
puted by the parties, and the question is whether these undis-
puted facts as found by the IJ meet the legal standard of
“terrorist organization.” Finally, because the IJ found Khan’s
testimony credible, whether Khan reasonably should have
known of the JKLF’s terrorist activity presents a mixed ques-
KHAN v. HOLDER 12773
tion of law and fact over which we have jurisdiction. See, e.g.,
Kingman Reef Atoll Invs., L.L.C. v. United States, 541 F.3d
1189, 1195 (9th Cir. 2008) (stating that “what a reasonable
person should have known” presents mixed question); Col-
leen v. United States, 843 F.2d 329, 331 (9th Cir. 1987)
(same).
2. Merits of the Asylum and Withholding Claims
Both the asylum and withholding of removal claim turn on
whether the JKLF is a terrorist organization, and on whether
Khan knew or should have known that it was a terrorist orga-
nization. We discuss these questions in turn.
i. JKLF’s Status as a “Terrorist Organization”
As we noted above, the JKLF is a “terrorist organization”
under the INA if it committed, planned, solicited funds for,
solicited individuals for, or provided material support for “a
terrorist activity.” Khan seeks to limit the definition of “ter-
rorist activity” in a manner that might exclude the JKLF from
the definition of a “terrorist organization.”
Khan argues that the definition of “terrorist activity” under
§ 1182(a)(3)(B)(iii) incorporates international law, and thus
excludes legitimate armed resistance against military targets
from the definition of “terrorist activity.” Under Khan’s pro-
posed definition, actions that are illegal under the laws of the
regime in power in the alien’s country of origin are “unlaw-
ful” within the meaning of § 1108(a)(3)(B)(iii) only if these
actions violate the international law of armed conflict. We
hold that this is not a permissible reading of the statute.
a. Statutory Text
[5] We begin with the text of the statute. As noted above,
§ 1182(a)(3)(B)(iii) defines “terrorist activity” to include vari-
ous violent acts that are “unlawful under the laws of the place
12774 KHAN v. HOLDER
where [they are] committed (or which, if [they] had been
committed in the United States, would be unlawful under the
laws of the United States or any State).” The words “under the
laws of the place where it is committed” directly modify the
word “unlawful,” such that “unlawful” does not just mean
generically unlawful, but rather “unlawful” in this specific
sense. This text is unambiguous, specifying that “unlawful”
actions include actions that are unlawful in the place where
they were committed.
[6] Khan argues that the BIA’s reading of the statute is so
broad that it includes within the definition of “terrorist activi-
ty” many actions that we generally do not consider to be ter-
rorist in nature. For example, Khan argues that under the
BIA’s reading, it would include armed resistance by Jews
against the government of Nazi Germany. This may be true,
but the text does not make an exception for actions that are
lawful under international law. An action would be lawful
within the meaning of § 1182(a)(3)(B)(iii) if the law of the
country in question incorporates international law such that
the conduct in question is no longer “unlawful” under the
country’s domestic law, but Khan has made no argument that
that is the case here.
We note that the statute includes a discretionary waiver of
the terrorism bar for relief from removal that can be exercised
by the Secretary of State or the Secretary of Homeland Secur-
ity. Section 1182(d)(3)(B)(i) provides
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) of this section shall not apply with respect
to an alien within the scope of that subsection or that
subsection (a)(3)(B)(vi)(III) of this section shall not
KHAN v. HOLDER 12775
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) of this section, no such waiver may
be extended to an alien who is a member or repre-
sentative 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) of this section, and no such waiver may
be extended to a group that has engaged terrorist
activity against the United States or another demo-
cratic country or that has purposefully engaged in a
pattern or practice of terrorist activity that is directed
at civilians.
This waiver weakens Khan’s argument that the BIA’s reading
of the statutory language is overly broad, because the broad
statutory definition is combined with a discretionary waiver
by executive branch officials. These officials are in a position
to judge the characteristics of particular groups engaging in
armed resistance in their home countries, as well as the impli-
cations for our foreign relations in determining whether the
actions of these groups are terrorist activities.
b. Refugee Protocol and Convention
[7] Khan also argues that the international law obligations
of the United States under the 1967 United Nations Protocol
Relating to the Status of Refugees (“the Protocol”) compel a
narrower definition of “terrorist activity.” 19 U.S.T. 6223,
606 U.N.T.S. 268 (Jan. 31, 1967). “The Protocol [binds] par-
ties to comply with the substantive provisions of Articles 2
through 34 of the United Nations Convention Relating to the
Status of Refugees [(“Refugee Convention”)] . . . with respect
to ‘refugees’ defined in Article 1.2 of the Protocol.” INS v.
12776 KHAN v. HOLDER
Stevic, 467 U.S. 407, 416 (1984). Article 1.2 of the Protocol
defines “refugee” as an individual who
owing to a well-founded fear of being persecuted for
reasons of race, religion, nationality, membership of
a particular social group or political opinion, is out-
side the country of his nationality and is unable or,
owing to such fear, is unwilling to avail himself of
the protection of that country; or who, not having a
nationality and being outside the country of his for-
mer habitual residence, is unable or, owing to such
fear, is unwilling to return to it.
UN Protocol, Article 1.2 (relying on Refugee Convention,
Article 1A(2)). The Refugee Convention excepts from cover-
age
any person with respect to whom there are serious
reasons for considering that:
(a) He has committed a crime against
peace, a war crime, or a crime against
humanity, as defined in the interna-
tional instruments drawn up to make
provision in respect of such crimes;
(b) He has committed a serious non-
political crime outside the country of
refuge prior to his admission to that
country as a refugee;
(c) He has been guilty of acts contrary to
the purposes and principles of the
United Nations.
Refugee Convention, Article 1F, 189 U.N.T.S. 150 (Jul. 28,
1951) (adopted in the Protocol, Article 1.2). The Refugee
KHAN v. HOLDER 12777
Convention includes the duty of non-refoulement in Article
33.1, providing that
No Contracting State shall expel or return
(“refouler”) a refugee in any manner whatsoever to
the frontiers of territories where his life or freedom
would be threatened on account of his race, religion,
nationality, membership of a particular social group
or political opinion.
Refugee Convention, Article 33.1. Article 33.2 of the Refugee
Convention provides an exception from this duty:
The benefit of the present provision may not, how-
ever, be claimed by a refugee whom there are rea-
sonable grounds for regarding as a danger to the
security of the country in which he is, or who, hav-
ing been convicted by a final judgement of a particu-
larly serious crime, constitutes a danger to the
community of that country.
Refugee Convention, Article 33.2.
Khan argues that Article 33.2 and Article 1F provide the
only permissible grounds on which a country can refoul a ref-
ugee. Therefore, he contends that the INA’s terrorism bar to
relief from removal can only apply to individuals who (1)
have been implicated in a crime against peace, a war crime,
or a crime against humanity; (2) have committed a serious
non-political crime; (3) have been guilty of acts contrary to
the purposes or principles of the United Nations; (4) may con-
stitute a danger to the security of this country; or (5) having
been convicted by a final judgment of a particularly serious
crime, constitute a danger to the community. He argues that
the IJ’s interpretation of “terrorist activity” covers actions that
do not satisfy any of these five criteria, and that such a broad
bar to relief from removal therefore violates the United
States’ international obligations under the Protocol.
12778 KHAN v. HOLDER
[8] The United States acceded to the Protocol in 1968,
though it did not sign the Convention itself. Stevic, 467 U.S.
at 416 & n.9. However, the Protocol is not self-executing.
Barapind v. Reno, 225 F.3d 1100, 1107 (9th Cir. 2000) (citing
Stevic, 467 U.S. at 428 n.22). A “self-executing” treaty has
“automatic domestic effect as federal law upon ratification.
Conversely, a ‘non-self-executing’ treaty does not by itself
give rise to domestically enforceable federal law.” Medellin v.
Texas, 128 S. Ct. 1346, 1356 n.2 (2008). Therefore, the Proto-
col does not have the force of law in American courts.
Instead, the Supreme Court and our court have both stated
that the Protocol “serves only as a useful guide in determining
congressional intent in enacting the Refugee Act” of 1980,
which sought to bring United States refugee law into confor-
mity with the Protocol. Barapind, 225 F.3d at 1106-07; see
also INS v. Cardoza-Fonseca, 480 U.S. 421, 436-37 (1987);
Stevic, 467 U.S. at 428 n. 22; United States v. Aguilar, 883
F.2d 662, 680 (9th Cir. 1989), superseded by statute on other
grounds, P.L. No. 99-603, 100 Stat. 3359, as stated in United
States v. Gonzalez-Torres, 309 F.3d 594 (9th Cir. 2002).
[9] These cases do not discuss whether the Protocol is also
a “useful guide” in interpreting provisions of the INA that
were not enacted with the Protocol in mind, such as the terror-
ism bars to relief from removal. However, we follow the gen-
eral rule of the Charming Betsy canon that “an act of
Congress ought never to be construed to violate the law of
nations, if any other possible construction remains.” Murray
v. The Schooner Charming Betsy, 6 U.S. 64, 118 (1804).
Under Charming Betsy, we should interpret the INA in such
a way as to avoid any conflict with the Protocol, if possible.
Khan’s argument that the terrorism bar violates the obliga-
tions of the United States in the Protocol fails because the
Protocol does not conflict with the INA’s definition of “ter-
rorist activity.”
The Protocol, through Refugee Convention Article 33.2,
allows the United States to refoul an individual” whom there
KHAN v. HOLDER 12779
are reasonable grounds for regarding as a danger to the securi-
ty” of the United States. Neither the Refugee Convention nor
the Protocol defines “danger to the security” of the United
States. Relying on law review articles, publications of the
Office of the High Commissioner for Refugees, and a Cana-
dian Supreme Court opinion, Khan argues that the meaning of
“danger to the security” must be limited in three ways. He
contends that (1) “danger to the security” can only apply to
individuals who pose a present danger to the United States;
(2) the danger must be a serious threat to national security;
and (3) the danger must be proved, not simply assumed. He
further argues, using similar sources, that refoulement is an
act of last resort that the United States can employ only after
attempting to contain an individual’s danger to the country’s
security through criminal prosecution or removal to a third
country.
[10] We disagree. We have already stated that “the determi-
nation of refugee status . . . is incumbent upon the Contracting
State in whose territory the refugee finds himself.” Aguilar,
883 F.2d at 680 (quoting the Office of the United Nations
High Commissioner for Refugees, Handbook on Procedures
and Criteria for Determining Refugee Status (Geneva 1979),
which “provides significant guidance in construing the Proto-
col” (internal quotations omitted)); see also Maximov v.
United States, 373 U.S. 49, 53 (1963). The INA provides that
“an alien who [has engaged in a terrorist activity] shall be
considered to be an alien with respect to whom there are rea-
sonable grounds for regarding as a danger to the security of
the United States.” 8 U.S.C. § 1231(b)(3) (indirectly referenc-
ing 8 U.S.C. § 1182(a)(3)(B)). This definition, not that
expressed in legal commentary or by the courts of other
nations, controls in this court. Therefore, the INA’s definition
of “terrorist activity” not only does not violate the Protocol,
but adheres to its specific non-refoulement exception.
[11] Even if it did conflict, the administrative discretion in
the INA, § 1182(a)(3)(B)(i)(II), might resolve the conflict. In
12780 KHAN v. HOLDER
Stevic, the Supreme Court held that, to the extent there were
differences between American statutory refugee law and the
Protocol, it was acceptable that such differences be accommo-
dated by administrative discretion. Stevic, 467 U.S. at 428 n.
22.
c. Summary
[12] Given both the text of the statute and Khan’s failure
to point to any binding international law which would alter
our understanding of that text, we hold that the definition of
“terrorist activity” under the INA does not provide an excep-
tion for armed resistance against military targets that is per-
mitted under the international law of armed conflict. Our
reading of the statute accords with the interpretation of both
the BIA and the Third Circuit, which have both considered
similar questions. In In re S-K-, 23 I & N Dec. 936 (BIA
2006), the petitioner had been a member of the Chin National
Front (“CNF”), which was involved in armed struggle against
the Burmese government and undisputedly had committed
violent acts that were unlawful within Burma. Id. at 937-38.
The petitioner argued, as Khan does here, that the definition
of unlawful action as applied to certain regimes and in certain
conflicts should not be based solely on the domestic laws of
the country where the acts were committed, but should
account for whether the regime is in fact “legitimate” under
international law or norms. Id. at 938. The BIA rejected this
argument, holding that the language in the statute was clear:
As noted by the DHS during oral argument, the fact
that Congress included exceptions elsewhere in the
Act for serious nonpolitical offenses and aliens who
have persecuted others, even where persecuted them-
selves, and that it has not done so in section
212(a)(3)(B), indicates that the omission of an
exception for justifiable force was intentional. In
fact, having reviewed the statutory sections, we find
that Congress intentionally drafted the terrorist bars
KHAN v. HOLDER 12781
to relief very broadly, to include even those people
described as “freedom fighters,” and it did not intend
to give us discretion to create exceptions for mem-
bers of organizations to which our Government
might be sympathetic. Rather, Congress attempted to
balance the harsh provisions set forth in the Act with
a waiver, but it only granted the power to make
exemptions to the Attorney General and the Secre-
taries of State and Homeland Security, who have not
delegated such power to the Immigration Judges or
the Board of Immigration Appeals. . . . [T]here is no
exception in the Act to the bar to relief in cases
involving the use of justifiable force to repel attacks
by forces of an illegitimate regime.
Id. at 941. We need not defer under Chevron because the text
of the statute itself is unambiguous. Based on that fact, we
agree with the BIA.
In the only published applicable circuit opinion on this
question, McAllister v. Attorney General, 444 F.3d 178 (3d
Cir. 2006), the Third Circuit has also agreed, holding that the
definition of “terrorist activity” under the INA does not con-
template international laws that distinguish between types of
conflicts, purposes of resistance groups, and whether citizens
were targeted. Id. at 187-88.
[13] Under our reading of the statute, the IJ’s holding that
the JKLF meets the definition of a “terrorist organization” is
supported by substantial evidence. There is documentary evi-
dence in the record, at least some of which is corroborated by
Khan’s testimony, that members of the JKLF killed politi-
cians, kidnapped the daughter of the Indian Home Minister,
and attacked Indian Army convoys. Each of these activities
constitutes “terrorist activity” under § 1182(a)(3)(B)(iii).
Therefore, substantial evidence supports the IJ’s finding that
the JKLF, during Khan’s affiliation with the organization,
constituted a “terrorist organization” under the statute.
12782 KHAN v. HOLDER
ii. “Know or Reasonably Should Have Known”
Khan argues that, even if the JKLF was a terrorist organiza-
tion, he did not know and should not have reasonably known
this fact.
Khan admitted that he knew that a wing of the JKLF was
dedicated to armed struggle against the Indian government
and that he knew that this wing was fighting the Indian Army.
Attacks by dissidents on the military of a country constitute
terrorist activity under § 1182(a)(3)(B)(iii). Additionally, the
record contains many newspaper reports of terrorist attacks
attributed to the JKLF. The IJ found these reports credible and
that, given these reports, Khan had not demonstrated that he
did not know and reasonably should not have known about
the JKLF’s terrorist activities. For these reasons, the IJ’s find-
ing is supported by substantial evidence.
iii. Summary
[14] The IJ’s findings that the JKLF was a terrorist organi-
zation, that Khan solicited funds for the JKLF, and that Khan
knew or reasonably should have known that the JKLF was a
terrorist organization are supported by substantial evidence.
We therefore decline to upset the BIA’s holding that Khan is
ineligible for asylum or withholding of removal.
C. Vagueness Claim
[15] Khan argues that if the definition of “terrorist activity”
as written in the INA is not limited in some way, the statute
is unconstitutionally vague. This argument fails. The statute
elaborates in great detail what constitutes “terrorist activity.”
This definition is broad, but it is not unconstitutionally vague.
See McAllister, 444 F.3d at 186-87. We recognize that the
statute includes a discretionary waiver at § 1182(d)(3)(B)(i),
and that the statute does not guide the execution of this discre-
tion. However, the issue is whether the terrorist activity bar is
KHAN v. HOLDER 12783
unconstitutionally vague, not whether the criteria for a discre-
tionary waiver of that bar are vague. Such discretion is rou-
tinely found throughout the immigration statutes and has been
upheld repeatedly. See, e.g., INS v. Stevic, 467 U.S. 407, 428
n.22 (1984).
Conclusion
The IJ applied the terrorism bars in the INA properly and
the IJ’s factual findings are supported by substantial evidence.
Khan’s due process and vagueness challenges also fail. There-
fore, we DENY the petition for review.
D.W. NELSON, Circuit Judge, concurring:
I agree with the majority that the petition should be denied:
Khan solicited funds for the JKLF, an organization he reason-
ably should have known was a terrorist organization. See 8
U.S.C. § 1182(a)(3)(B)(iv). I write separately, however,
because I believe that Khan has sufficiently raised the issue
of international law and deem it worthy of consideration.
1. Statutory Framework
Because it has not been specifically designated as such, the
JKLF can only qualify as a terrorist organization under
§ 1182(a)(3)(B)(vi)(III). Such a “Tier III” terrorist organiza-
tion is defined as “a group of two or more individuals,
whether organized or not, which engages in, or has a sub-
group which engages in, . . . [terrorist] activities.” Id.
§ 1182(a)(3)(B)(vi)(III). “Terrorist activity,” in turn, is “any
activity which is unlawful under the laws of the place where
it is committed” and which involves conduct proscribed by
subsections (I)-(VI). Id. § 1182(a)(3)(B)(iii).
12784 KHAN v. HOLDER
2. The Relevance of International Law
In my view, whether conduct is “unlawful under the laws
of the place where it is committed” will, under certain circum-
stances, depend on whether and to what extent the foreign
nation at issue has incorporated tenets of international law
into its domestic legal regime, for example by acceding to an
international agreement with binding obligations.1 The
Geneva Conventions, to which nearly every country in the
world is a party, are a prime example. The protections and
obligations of the Geneva Conventions are triggered when-
ever there is an armed conflict, either international or non-
international in character, involving a state party. See Geneva
Convention Relative to the Treatment of Prisoners of War
arts. 2, 3, Aug. 12, 1949, 6 U.S.T. 3316, 75 U.N.T.S. 135. In
such a situation, the Geneva Conventions are part of “the laws
of the place” where the conflict is occurring. See 8 U.S.C.
§ 1182(a)(3)(B)(iii).
Thus, while a group is not automatically a terrorist organi-
zation simply by virtue of engaging in an armed conflict, nei-
ther would its participation in such a conflict shield it from
the terrorist label. The answer would depend on whether the
group had engaged in unlawful conduct. Deliberately target-
ing noncombatants, for example, is unlawful under the
Geneva Conventions and would constitute terrorist activity.
It is worth emphasizing that my view is not premised on
carving out an “exception” to the terrorist activity definition
for groups engaged in legitimate armed conflict. See Maj. op.
at 12780 (“[W]e hold that the definition of ‘terrorist activity’
under the INA does not provide an exception for armed resis-
1
The majority appears to recognize this possibility when it notes that
“[a]n action would be lawful within the meaning of § 1182(a)(3)(B)(iii) if
the law of the country in question incorporates international law such that
the conduct in question is no longer ‘unlawful’ under the country’s domes-
tic law.” Maj. op. at 12774.
KHAN v. HOLDER 12785
tance against military targets that is permitted under the inter-
national law of armed conflict.”). My analysis, like that of the
majority, turns on whether the conduct in question is unlaw-
ful.
The majority recognizes the possibility that an interpreta-
tion of “terrorist activity” that ignores international law could
lead to some bizarre outcomes, including classifying as terror-
ists Jews engaged in armed resistance against the Nazis. Maj.
op. at 12774. But such anomalous results are not merely
hypothetical: the United States military, whose invasions of
Afghanistan and Iraq were indisputably “unlawful” under the
domestic laws of those countries, would qualify as a Tier III
terrorist organization. Accordingly, any individual or group
who assisted the U.S. military in those efforts would be ineli-
gible for asylum or withholding of removal. See 8 U.S.C.
§ 1182(a)(3)(B)(iv). This could discourage sympathetic
groups from lending support to the U.S. military, knowing it
would preclude them from seeking refuge in the U.S. in the
future.
The majority contends that such concerns are overblown,
pointing to a provision in the statute allowing the Secretaries
of State and Homeland Security, in consultation with each
other and the Attorney General, to waive the terrorism bar.
See Maj. op. at 12774-75; see also 8 U.S.C.
§ 1182(d)(3)(B)(i). I hope my colleagues are correct. I, how-
ever, am less sanguine than they are about the efficacy of this
waiver provision. First, the waiver is entirely discretionary
and unreviewable. See 8 U.S.C. § 1182(d)(3)(B)(i). Second,
the waiver requires the assent of three separate agencies, pos-
ing a daunting bureaucratic obstacle to implementation. Third,
even without this high administrative hurdle, a waiver seems
to me a haphazard and inefficient means of avoiding
outcomes—such as classifying the U.S. military as a terrorist
organization—that Congress clearly never intended. Finally,
because India is a democracy, the waiver provision is not
even available in this case. See id. (“[N]o . . . waiver may be
12786 KHAN v. HOLDER
extended to a group that has engaged [in] terrorist activity
against . . . another democratic country.”).
In sum, it is foreseeable that interpreting the statute without
reference to international law occasionally will lead to anoma-
lous, and unintended, results, and the availability of individual
waivers is, at best, an inadequate piecemeal solution. Conse-
quently, I agree with Khan that international law will some-
times be relevant in determining whether to apply the terrorist
bar.
3. Application to Khan’s Case
Recourse to international law, however, does not help Khan
in this case. Although India has ratified the Geneva Conven-
tions, and the JKLF is arguably engaged in a qualifying con-
flict, substantial evidence supports the conclusion that the
JKLF has exceeded the bounds of permissible conduct under
the international law of armed conflict. The record indicates
that the JKLF has killed moderate politicians, detonated
bombs in public places, and claimed responsibility for high-
profile kidnapings. Such activities violate the Geneva Con-
ventions, which prohibit the targeting of noncombatants or the
taking of hostages. See Geneva Conventions art. 3. Accord-
ingly, this conduct is “unlawful” for purposes of
§ 1182(a)(3)(B)(iii) and constitutes terrorist activity. The
JKLF, therefore, qualifies as a Tier III terrorist organization.
Because Khan has failed to demonstrate by clear and convinc-
ing evidence that he should not reasonably have known that
the JKLF is a terrorist organization, I agree with the majority
that he is ineligible for asylum or withholding of removal.