Yusupov v. Att'l Gen'l (3d Cir. 3/14/08)

AMBRO McKee Ackerman (DistCt)

The 3d Cir overturned part of In re A– H–, 23 I. & N. Dec. 774, 788 (A.G. 2005). It found (a) that it had jurisdiction despite remand to IJ for background checks; (b) that the AG's "reasonable person" standard was reasonable construction of the statute; (c) that the AG's standard of whether someone "may be" a danger is inconsistent with the statutory standard that the person "is" a danger; (d) that Congress intended to adopt int'l law norms for determining asylum eligibility; but (e) danger to security is inherently serious, no need to read that word into the statute.

http://www.ca3.uscourts.gov/opinarch/054232p.pdf

This case sought the overturning of the Attorney General's decision in In re A– H–, 23 I. & N. Dec. 774, 788 (A.G. 2005), relating to material support for terrorism.  The Court upheld most of the AG's decision (though interpreting away some of the worst portions), but struck down one important aspect.

1.  Found that there was a final order of removal, notwithstanding remand for further background checks.

   “[O]rdinarily a remand to an administrative agency is not a final order” for purposes of “appellate jurisdiction.” Dir., Office of Workers’ Comp. Programs v. Brodka, 643 F.2d 159, 161 (3d Cir. 1981). But several of our sister circuit courts of appeals have concluded that an order is final for jurisdictional purposes when a removability determination has been made that is no longer appealable to the BIA, regardless whether a formal order of removal has been entered—see, e.g., Lazo v. Gonzales, 462 F.3d 53, 54 (2d Cir. 2006) (“[T]he statutory requirement of an order of removal is satisfied when—as here—the IJ either orders removal or concludes that an alien is removable.” (emphasis in original)); Solano-Chicas v. Gonzales, 440 F.3d 1050, 1053–54 (8th Cir. 2006) (holding that BIA reversal of IJ’s cancellation of removal created a final order of removal); Nreka v. Att’y Gen., 408 F.3d 1361, 1367 (11th Cir. 2005) (asserting jurisdiction over a BIA determination denying asylum without an express final order of removal because denial of asylum is so closely tied to removal)—and even if the BIA has remanded for limited further proceedings. See, e.g., Saldarriaga v. Gonzales, 402 F.3d 461, 466 n.2 (4th Cir. 2005) (finding jurisdiction when voluntary departure motion still pending before IJ); Del Pilar v. Att’y Gen., 326 F.3d 1154, 1156–57 (11th Cir. 2003) (finding jurisdiction where country of removal at issue before IJ); Castrejon-Garcia v. INS, 60 F.3d 1359, 1361–62 (9th Cir. 1995) (holding that a BIA order reversing an IJ’s decision to grant suspension of removal and remanding “for a determination of voluntary departure in lieu of deportation” was a final order of removal, as nothing was pending before the BIA and “the petitioner had no reason or basis for appealing the [IJ’s] decision in his favor”)

[Note that the 7th cir recently agreed, as well, in Jimenez Viracacha.]

2.  Rejected the argument that "reasonable grounds to believe" = probable cause.

   [I]t is not clear that we should read this phrase through the lens of criminal law. Congress was free to write a standard without considering our criminal law jurisprudence. The statutory context does not indicate that Congress clearly intended to incorporate criminal law standards. For example, immediately before the national security exception, the statute prohibits withholding of removal if “there are serious reasons to believe that the alien committed a serious nonpolitical crime outside the United States.” INA § 241(b)(3)(B)(iii), 8 U.S.C. § 1231(b)(3)(B)(iii). The “serious reasons” standard does not map clearly to any criminal law criterion. This suggests that the statute creates a series of standards that may share surface similarities with those of criminal law, but that need not be reduced to criminal law equivalents. * * *

   Accordingly, we are unpersuaded that the phrase “reasonable grounds to believe,” which is not defined in the INA, is unambiguous. As petitioners note, there are strong arguments that it means “probable cause,” including the fact that Black’s Law Dictionary defines “reasonable grounds” as equivalent to “probable cause.” See Black’s Law Dictionary, supra note 19, at 1239. However, just as a term with multiple definitions may be unambiguous in context, see Brown v. Gardner, 513 U.S. 115, 118 (1994), the existence of a single definition in Black’s Law Dictionary does not preclude a term from being ambiguous in context. Because of the ambiguity we perceive, we pass to the second step of the Chevron analysis.

3.  Finds AG's standard similar to probable cause, and reasonable under Chevron Step 2.

   We know of no basis for doubting the reasonableness of the Attorney General’s interpretation of “reasonable grounds for regarding” as being satisfied “if there is information that would permit a reasonable person to believe.” Although we conclude that the statutory language does not demonstrate a clear congressional intent to adopt a probable cause standard, the Attorney General’s adoption of a standard akin to probable cause in criminal cases is also reasonable, and thus “a permissible construction of the statute.” See Chevron, 467 U.S. at 843–44 & n.11.

4.  Finds that the proper standard is whether the alien "is" a danger to the U.S., not whether they "may" be a danger.

   Although we defer to the Attorney General’s interpretation of the phrases “reasonable grounds to believe” and (as discussed below) “danger to the security of the United States,” we do not defer to his reading of “is a danger.” “Is” does not mean “may,” as suggested by the Attorney General’s formulation that the national security exception “is satisfied if there is information that would permit a reasonable person to believe that the alien may pose a danger to the national security.” In re A–H–, 23 I. & N. Dec. at 789 (emphasis added). This interpretation accords with neither the plain wording nor the ordinary meaning of the statutory text, which does not refer to belief in a mere possibility. In other words, “is”—and its subjunctive form “would”—connote a more certain determination than that “the alien ‘might’ or ‘could’ be” a danger for the national security exception to apply. See INS v. Stevic, 467 U.S. 407, 422 (1984) (“The section [‘would be threatened’] literally provides for withholding of deportation only if the alien’s life or freedom ‘would’ be threatened in the country to which he would be deported; it does not require withholding if the alien ‘might’ or ‘could’ be subject to persecution.”).

   Instead, we must take the statute to mean what it says: “is” indicates that Congress intended this exception to apply to individuals who (under a reasonable belief standard) actually pose a danger to U.S. security. It did not intend this exception to cover aliens who conceivably could be such a danger or have the ability to pose such a danger (a category nearly anyone can fit).24 Accordingly, the Attorney General’s interpretation of “is a danger” as “may pose a danger” fails at the first step of the Chevron analysis.

   The introduction of “may” in the statement of the standard in In re A–H– perhaps is no more than an unintentional and inartful articulation on the part of the Attorney General. Indeed, in remanding the case, the Attorney General directed the BIA to inquire whether “the evidence would support a reasonable belief that respondent poses a danger to our national security interests.” In re A–H–, 23 I. & N. Dec. at 790 (emphasis added). However, as discussed below, the BIA quoted the former, incorrect phrasing in petitioners’ cases. Thus we cannot conclude that the error of In re A–H– reflects nothing more than the specific posture of that case and that it could not have affected petitioners.

FN24 As noted below, courts in other countries also have interpreted the national security exception to require a serious danger that is actual, not theoretical.

5.  Noted that foreign courts and int'l law experts recognize that "danger" must be "serious" to bar asylum [Note useful language regarding Congressional intent to adhere to int'l law norms] - but found that "danger to security" involves inherent seriousness component, no need to read the word into the statute.

   Foreign courts28 and international law scholars29 appear to be unanimous in viewing the Article 33.2 exception as referring to a serious danger. The legislative history30 of the Refugee Act of 1980 makes clear that Congress intended to protect refugees to the fullest extent of our Nation’s international obligations.31 Indeed, petitioners appear to be correct that Congress intended to allow exceptions to our nonrefoulement obligations only in a narrow set of circumstances.

   However, petitioners’ argument ignores that “danger to the security of the United States” includes an inherent seriousness requirement. It does not easily accord acceptable gradations, as almost any “danger” to U.S. security is serious. Congress did not announce a clear intent that the danger to U.S. security be “serious” because such a modifier likely would be redundant.

FN28 Foreign courts uniformly have read the national security exception (in equivalent wording) to require reasonable belief in a danger that is serious and actual. See Zaoui v. Attorney General, [2005] 1 N.Z.L.R. 690, ¶ 135–36 (C.A.) (interpreting the phrase “danger to the security of New Zealand”); Suresh v. Canada (Minister of Citizenship & Immigration), [2002] 1 S.C.R. 3, ¶ 90, 92 (interpreting the phrase “danger to the security of Canada”); NSH v. Sec’y of State, (1998) Imm. A.R. 389, 395 (Eng. C.A.) (interpreting the phrase “danger to the security of the country”).

FN29 International law scholars agree (unanimously so far as we can tell) that Article 33.2 carves out a limited exception to mandatory withholding, and that the “danger” sufficient to threaten national security encompasses only serious acts. See, e.g., James C. Hathaway, The Rights of Refugees Under International Law 346 (2005); Sir Elihu Lauterpacht & Daniel Bethlehem, The Scope & Content of the Principle of Non- Refoulement, ¶¶ 170, 191 (UNHCR 2001); Atle Grahl-Madsen, Commentary on the Refugee Convention 1951, 236 (UNHCR 1963) (that “danger” encompasses “acts of a rather serious nature”); Paul Weis, The Refugee Convention, 1951: The Travaux Preparatoires Analysed with a Commentary 342-43 (1995).

   It is worth noting that the Supreme Court has cited Grahl-Madsen and Lauterpacht as authoritative. See, e.g., INS v. Cardoza-Fonseca, 480 U.S. 421, 440 n.24 (1987) (Grahl- Madsen); Alfred Dunhill of London, Inc. v. Cuba, 425 U.S. 682, 710 n.3 (1976) (Lauterpacht); id. at 728 n.14 (Marshall, J., dissenting) (Lauterpacht).

FN30 We recognize that courts often look to legislative history because it can be a useful aid to statutory construction, and to international law to the extent that it has been incorporated into our law. See Cardoza-Fonseca, 480 U.S. at 432–33 & n.12.

FN31 “The principal motivation for the enactment of the Refugee Act of 1980 was a desire to revise and regularize the procedures governing the admission of refugees into the United States,” Stevic, 467 U.S. at 425, and to make “U.S. statutory law clearly reflect[] our legal obligations under international agreements.” Id. at 426 n.20 (internal quotation marks omitted); see also Haitian Centers Council, 509 U.S. at 178 (pointing out that the “history of the 1980 Act does disclose a general intent to conform our law to Article 33 of the Convention”); Cardoza- Fonseca, 480 U.S. at 436 (noting that “one of Congress’ primary purposes was to bring United States refugee law into conformance with” the 1967 U.N. Protocol); Marincas v. Lewis, 92 F.3d 195, 198 (3d Cir. 1996) (“[T]he Refugee Act was enacted to fulfill our treaty obligations under the [1967] U.N. Protocol for the benefit of aliens . . . who claim to be fleeing persecution in their homelands.”).

   The adoption of essentially identical language to that contained in Article 33 of the 1967 U.N. Protocol is important because it is one of the strongest indicators that Congress intended to incorporate the understanding of the Protocol developed under international law into the U.S. statutory scheme. See Haitian Centers Council, 509 U.S. at 180 & n.36; Cardoza-Fonseca, 480 U.S. at 429, 432, 437.

Attys: Lawrence Rudnick, Philadelphia

Paul A. Engelmayer, Bassina Farbenblum, Wilmer Cutler (pro bon)

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