Charangeet Singh-Kaur v. John Ashcroft, Attorney General United States of America

385 F.3d 293, 2004 U.S. App. LEXIS 19943, 2004 WL 2109978

• Court: Court of Appeals for the Third Circuit
• Decided: September 23, 2004
• Docket: 03-1766
• Status: Published

Opinions

ALDISERT, Circuit Judge.

Charangeet Singh-Kaur,¹ a native and citizen of India, petitions this Court to review an order of the Board of Immigration Appeals (“BIA”) that Singh be deported from the United States to India. This appeal requires us to determine whether providing food and setting up shelter for people engaged in terrorist activities constitutes affording “material support” within the meaning of the Immigration and Nationality Act (“INA”) § 212(a)(3)(B)(iv)(VD (2002), 8 U.S.C. § 1182(a)(3)(B)(iv)(VI) (2000 & 2002 Supp.). For the reasons that follow, we conclude that it does, and we will deny the petition for review.

The BIA had jurisdiction to review the decision of the Immigration Judge (“IJ”) pursuant to 8 C.F.R. § 3.1(b) (2002) (renumbered 8 C.F.R. § 1003.1(b) (2003)). Because Singh was placed in deportation proceedings before April 1, 1997, and his final order of deportation was issued by the BIA after October 31, 1996, we have jurisdiction under 8 U.S.C. § 1105(a) (1994), as amended by the transitional rules for judicial review in section 309(c)(4) of the Illegal Immigration Reform and Immigrant Responsibility Act of 1996, Pub.L. No. 104-208, 110 Stat. 3009-546, 3009-626 (Sept. 30, 1996) (“IIRIRA”). See also Sandoval v. Reno, 166 F.3d 225, 229 (3d Cir.1999) (applying IIRIRA transitional rules of jurisdiction).

I.

Singh entered the United States without inspection on September 27, 1989. The Immigration and Naturalization Service (“INS”)² initiated deportation proceedings. Singh submitted an application for asylum, asserting that if he returned to India he would be arrested and persecuted. He claimed membership in the “Bab-bar Khalsa Group,” whose purpose, he said, was “to protect and promote the Sikh faith,” and the “Sant Jarnail Sing Bhindra-wala Militant Group,” whose purpose was “to fight for and protect the religious and political cause of Sikh community.” Singh stated that he had participated in demonstrations and other activities of these two groups. He further claimed to be “on the military and police wanted list because of known and suspected activities against the government” of India.

In an affidavit supporting his asylum application, Singh stated that after the Indian military attacked a Sikh holy site called the Golden Temple in 1984, he “together with many other young men in our village formally took the vows to join and follow the militant section of Sant Jarnail, known as Babbar Khalsa.” He said that he participated in “planning meetings” and “became involved in assisting the freedom fighters in the movement of weapons through my village and other villages, as well as giving shelter to militants who were involved in the transportation of weapons.” Subsumed in all of this is a statement of military activity against the government of India.

Singh submitted additional materials supporting his application for asylum, including evidence of active membership in the International Sikh Youth Federation and a statement by the Khalistan Commando Force that Singh had taken an oath to participate with the Force.

A previous immigration judge in this case referred Singh’s application for asylum to the Department of State for its non-mandatory review and comments. See 8 C.F.R. § 208.11 (1991). In a letter dated January 9, 1992, the State Department’s Bureau of Human Rights and Humanitarian Affairs concluded that the Indian government did not persecute Sikhs such as Singh merely for their faith or membership in certain organizations. Rather, Sikhs targeted for arrest were those who had involvement in specific violent acts.

The State Department further commented:

The applicant, however, admits to membership in the International Sikh Youth Federation, a radical offshoot of the AISSF, as well as the Khalistan Commando Force, a notorious terrorist group responsible for a grisly April 1985 random killing in a Punjab village, and the equally notorious Babbar Khalsa, an even more fundamentalist terrorist group with a reputation for its use of explosives. Many of the bombings resulting in the murder of innocent persons in recent years are attributed to the latter group.

Following the entry of the State Department letter, the administrative record reflects an unexplained gap of nearly four years in the proceedings. On October 23, 1995, the INS moved to recalendar the case for completion of deportation proceedings. Subsequently, Singh informed an immigration judge that he was the beneficiary of an approved skilled worker visa petition enabling him to proceed on an application for adjustment of status.³ He stated that the adjustment of status request would be his principal application.

Singh then submitted an affidavit purporting to clarify statements in his asylum application. He asserted that he had never been involved in or supported violent activities against Indian government officials. He stated that the Indian police and military merely presumed that he, as a Sikh, opposed the government. He said that he had undergone an induction ceremony known as “Amrit Chakna,” in which he committed to remain faithful to his religion, to wear a turban and to keep his hair and beard long. He stated that he was enrolled as a member of Babbar Khal-sa at the time of this ceremony.

He further stated that, having participated in Amrit Chakna, he was expected to make charitable contributions to the community, including “provision of food and assistance to the poor.” While acknowledging that some members of Babbar Khalsa had been involved in violence in the 1990s, he stated that he had been in the United States since 1989 and did not support militant activities. He did state, however, that while he was in India there were several killings of Indian police by Muslims in Sikh; clothing.

At a hearing on January 22, 1997, Singh told the IJ that he assisted with meetings of Sant Jarnail Singh followers:

“We — I used to help by putting that tent and organize the mondo [sic] or the tent.... I never kept any weapons. Those Sikhs who were baptized, they used to come and they knew that I am also baptized and I just help them with the — giving them food.”

On February 18, 1998, the IJ concluded that Singh was eligible for adjustment of status and granted his application. The IJ determined that even though Singh had entered the United States without inspection, his eight-year presence gave him “sufficient equity to overcome that adverse Immigration conduct.” The INS appealed, and on February 26, 2003, the BIA vacated the IJ’s order and ordered Singh removed from the United States. The BIA determined that Singh was ineligible for adjustment of status pursuant to 8 U.S.C. §§ 1255(a) and 1182(a)(3)(B):⁴

We note that the respondent testified that he was a member of the Babbar Khalsa and the Sant Jarnail Singh Bhin-dra Wala. See Tr. at 64. He further testified that he had helped members of these groups, who were fighting the Indian government, by giving them food and helping to set up tents for them. See Tr. at 65. A person “engages in terrorist activities” by providing “any type of material support” to “any individual the actor knows, or reasonably should know, has committed or plans to commit a terrorist activity.” See section 212(a)(3)(B)(iii) of the Act (emphasis added). We find that the described actions, of offering food and helping to arrange shelter for persons, constitute “material support,” as contemplated by section 212(a)(3)(B)(iii) of the Act. The respondent further admitted that he had offered the described support to “militants who were engaged in terrorist activities.” See Tr. at 65. As these mili-, tants were members of groups which were designated as terrorist organizations, by the United States Department of State, and on account of the respondent’s admission that he was aware of their terrorist activities, we find that the respondent did in fact offer persons, who had committed and were planning ■ to commit terrorist activities, material support.

(A.R. at 3) (footnote omitted).

Singh timely petitioned for review.

II.

We review the BIA’s factual findings to determine whether they are supported by substantial evidence. Von Pervieux v. INS, 572 F.2d 114, 118-119 (3d Cir.1978); Carrillo-Gonzalez v. INS, 353 F.3d 1077, 1079 (9th Cir.2003). We will uphold the BIA’s interpretation of the INA “unless the interpretation is ‘arbitrary, capricious or manifestly contrary to the statute.’ ” Ahmed v. Ashcroft, 341 F.3d 214, 216-217 (3d Cir.2003) (citations omitted).

III.

Under the INA, the Attorney General has authority to grant adjustments of status to aliens who meet certain requirements. See INA § 245(a); 8 U.S.C. § 1252(a). The question here is whether Singh was “admissible to the United States for permanent residence.” See INA § 245(a); 8 U.S.C. § 1252(a). He was inadmissible if he “has engaged in a terrorist activity.” INA § 212(a)(3)(B)(i)(I) (2002); 8 U.S.C. § 1182(a)(3)(B)(i)(I) (2000 & 2002 Supp.). The INA definition of engaging in a terrorist activity includes the provision of “material support:”

As used in this chapter, the term “engage in terrorist activity” means, in an individual capacity or as a member of an organization -

(VI) to commit 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 chemical, biological, or radiological weapons), explosives of training -

(aa) for the commission of a terrorist activity;

(bb) to any individual who the actor knows, or reasonably should know, has committed or plans to commit a terrorist activity;⁵

INA § 212(a)(3)(B)(iv) (2002), 8 U.S.C. § 1182(a)(3)(B)(iv) (2000 & 2002 Supp.) (emphasis added).

The BIA stated that the Department of State had designated Babbar Khalsa as a terrorist organization. None of the organizations to which Singh belonged, including Babbar Khalsa, are among the thirty-six Foreign Terrorist Organizations (“FTO”) designated by the United States Department of State in accordance with INA § 219, 8 U.S.C. § 1189. See 31 C.F.R. Ch. V, App. A. Babbar Khalsa and the International Sikh Youth Federation, however, were named by the Department of the Treasury on June 27, 2002, as Specially Designated Global Terrorist (“SDGT”) organizations in accordance with an asset-freezing program authorized in 2001 by Presidential Executive Order 13224. See 31 C.F.R. Ch. V, App. A; see also Audrey Kurth Cronin, “The ‘FTO List’ and Congress: Sanctioning Designated Foreign Terrorist Organizations,” CRS Report for Congress (Oct. 21, 2003).

We need not, however, determine whether the BIA erred in retroactively applying the SDGT designations to the organizations with which Singh’ interacted in India prior to 1989. Nor do we need to consider whether Babbar Khalsa, Sant Jarnail Singh, the International Sikh Youth Federation or any other group was a terrorist organization within the meaning of INA § 212(a)(3)(B)(iv)(VI)(ce) or (dd), 8 U.S.C. § 1182(a)(3)(B)(iv)(VI)(cc) or (dd). Rather, our task tracks the narrow compass of determining whether Singh’s conduct in providing food and setting up tents constituted “material support” either “for the commission of terrorist activity” or “to any individual who the actor knows, or reasonably should know, has committed or plans to commit a terrorist activity.” INA § 212(a)(3)(B)(iv)(VI)(aa) and (bb); 8 U.S.C. § 1182(a)(3)(B)(iv)(VD(aa) and (bb). This is so because inadmissibility results from provision of material support either to those who have committed or plan to commit terrorist activity or to terrorist organizations. See INA § 212(a)(3)(B)(iv)(VD, 8 U.S.C. § 1182(a)(3)(B)(iv)(VI). The BIA based its decision on the former.

We must first determine whether the type of activity in which Singh engaged comes within the statutory definition of “material support” as a matter of law. If we conclude that it does, we must then decide whether Singh’s conduct constituted “material support” as a matter of fact.

IV.

We turn now to the statute. We start with “the language employed by Congress, ... and we assume that the legislative purpose is expressed by the ordinary meaning of the words used.” INS v. Phinpathya, 464 U.S. 183, 189, 104 S.Ct. 584, 78 L.Ed.2d 401 (1984) (internal quotations and citations omitted). The word “material” means “[h]aving some logical connection with the consequential facts.” Black’s Law Dictionary 991 (7th ed.1999). It also means “significant” or “essential.” Id. Support is defined as: “[s]ustenance or maintenance; esp., articles such as food and clothing that allow one to live in the degree of comfort to which one is accustomed.” Id. at 1453.

In illustrating the concept of “material support” to those engaged in terrorist activities, INA section 212(a)(3)(B)(iv)(VI) provides various examples that broadly cover the areas of lodging, communications, transportation, financing, weapons and provision of other means to accomplish terrorist activities. The list presented in INA section 212(a)(3)(B)(iv)(VI), supra, is not exhaustive. No language in the statute limits “material support” to the enumerated examples. Use of the term “including” suggests that Congress intended to illustrate a broad concept rather than narrowly circumscribe a term with exclusive categories. See In re SGL Carbon Corp., 200 F.3d 154, 160 (3d Cir.1999) (stating that a statute in which the word “including” was followed by a list of factors “strongly suggests those factors are not exhaustive”).

That the federal statute criminalizing the provision of “material support or resources” to terrorists, 18 U.S.C. section 2339A,⁶ includes a longer list of examples does not lead to the conclusion that INA section 212(a)(3)(B)(iv)(VI) must be read as an exhaustive list. We are familiar with the canon of statutory construction urged on us by Singh: “where Congress includes particular language in one section of a statute but omits it in another section of the same Act, it is generally presumed that Congress acts intentionally and purposely in the disparate inclusion or exclusion.” INS v. Cardoza-Fonseca, 480 U.S. 421, 432, 107 S.Ct. 1207, 94 L.Ed.2d 434 (1987) (internal quotation and citation omitted).

This canon, however, is not applicable in this case. First, the two statutes were not enacted by the same Congress. The INA provision was adopted in 1990 and revised in 2001, and the criminal provision was adopted in 1994. See Immigration Act of 1990, Pub.L. No. 101-649, § 601(a), 104 Stat. 4978, 5067-5070 (1990); Uniting and Strengthening America by Providing Appropriate Tools Required to Intercept and Obstruct Terrorism (“USA PATRIOT”) Act of 2001, Pub.L. No. 107-56, § 411(a)(1), 115 Stat. 272, 345-347 (2001); Violent Crime Control and Law Enforcement Act of 1994, Pub.L. No. 103-322, § 120005(a), 108 Stat. 1796, 2022 (1994). Thus, we cannot say that the differences in the two statutes are “significantly highlighted by the fact that the same Congress simultaneously drafted” them. Cardozcir-Fonseca, 480 U.S. at 432, 107 S.Ct. 1207. Second, it would be incongruous to conclude that a person who provides food and sets up tents for terrorists could be jailed for up to life under 18 U.S.C. section 2339A, but the same conduct could not prohibit admission to the United States under INA section 212. See United States v. Hodge, 321 F.3d 429, 434 (3d Cir.2003) (stating avoidance of “unintended or absurd results” is a “deeply rooted rule of statutory construction”) (internal quotations and citation omitted).

For the reasons described above, the BIA’s conclusion that Congress intended INA section 212(a)(3)(B)(iv)(VI) to include provision of food and setting up tents within the definition of “material support” was not “arbitrary, capricious or manifestly contrary to the statute.” Ahmed, 341 F.3d at 216-217; see also McMullen v. INS, 788 F.2d 591, 599 (9th Cir.1986) (rejecting as “too narrow” the petitioner’s argument that the nonpolitical crimes exception to withholding of deportation in the former INA section 243(h), 8 U.S.C. section 1253(h), applied “only to those who actually ‘pulled the trigger’ ” and holding instead that it encompassed those who provide “the physical and logistical support that enable, modern terrorist groups to operate”).

V.

We must now apply the foregoing precepts to the facts in this case.

A.

In response to questioning from the IJ at a hearing on January 22, 1997, Singh described his role in meetings of Sant Jar-nail Singh followers:

Q. Well, but in this statement, sir, that I just read to you, you say there were known activities that you took against the Indian government. What were those activities?

A. Sant Jarnail Singh organized meetings in different villages to propagate religion.

Q. So, in other words you’re telling me that you attended these meetings, correct?

A. Yes. We used to have those people to arrange our tents and put some — some sort of — arrange preparation of the food and also arrange to bring people to these gatherings and then take them back to their places.

(A.R. at 115-116.)

Later in the same hearing, Singh responded to questions from the INS attorney:

Q. So, in other words, you were helping the militants who were involved in terrorist activities? Isn’t that true?

A. When we came from, far away to this (indiscernible) congregation, then we may have some contact. We never help in any other way than giving them food. Yes.

(A.R. at 124.)

Taking Singh’s statement of minimal participation, it is beyond cavil that Singh furnished food and shelter to Sant Jarnail Singh followers participating in meetings. The sole remaining issue is whether the individuals to whom Singh provided food and shelter come within the rubric of INA section 212(a)(3)(B)(iv).

B.

We must now decide whether substantial evidence supports the BIA’s determination that Singh provided food and shelter to individuals who he knew or reasonably should have known had committed or planned to commit terrorist activity.

We begin with the statutory definition of “terrorist activity” as “any activity which is unlawful under the laws of the. place where it is committed” and involving, among other things, “[t]he use of any ... explosive, firearm or other weapon or dangerous device (other than for mere personal monetary gain), with intent to endanger, directly or indirectly, the safety of one or more individuals or to cause substantial damage to property.” INA § 212(a)(3)(B)(iii), 8 U.S.C. § 1182(a)(3)(B)(iii). The evidence is clear that at the time of Singh’s participation with them, the members of the various militant Sikh organizations opposed to the Indian government had committed or planned to commit terrorist activity.

Although Singh stated that the purpose of the meetings at which he provided food and shelter was to propagate the teachings of Sant Jarnail Singh, he did not elaborate at the January 22, 1997 hearing on the content of those teachings. In his first affidavit, however, Singh stated- “Sant Jarnail Singh Bhindrawala was never inclined to be militant. However, after his death his group became militant because of the violence perpetrated upon him and his' and his [sic] followers by the Indian Military.”

A 1985 Amnesty International Report submitted by Singh as part of his asylum application related a June 5, 1984 battle, where “heavy fighting ensued between the army and the followers of Sant Jarnail Singh Bhindranwale, the Sikh fundamentalist leader who had taken refuge in the temple and who the government blamed for directing much of the violence in the Punjab in recent years.”

Although Babbar Khalsa and the International Sikh Youth Federation, groups to which Singh belonged, were not named Specially Designated Global Terrorist organizations until 2002, it does not follow that members of those groups were not involved in terrorist activities prior to 1989. In commenting on Singh’s asylum application in 1992, the State Department concluded that: the International Sikh Youth Federation was a “radical off-shoot” of another group; that the Khalistan Commando Force, to which Singh had taken an oath, was “a notorious terrorist group responsible for a grisly April 1985 random killing in a Punjab village”; and that Bab-bar Khalsa was “equally notorious,” was “an even more fundamentalist terrorist group with a reputation for its use of explosives” and was responsible for bombings that killed innocent people.

The activities described by the State Department come within the meaning of the INA’s definition of terrorist activities because they involved assassinations and use of explosives “with intent to endanger, directly or indirectly, the safety of one or more individuals.” INA § 212(a)(3)(B)(iii)(IV) and (V) (2002); 8 U.S.C. § 1182(a) (S) (B )(iii) (IV) and (V) (2000 & 2002 Supp.). The Amnesty International Report and Singh’s own statements provide evidence that the followers of Sant Jarnail Singh also engaged in terrorist activities within the meaning of the INA.

Even in light of the recantations made in his second affidavit, Singh’s self-described activities in conjunction with his membership in various militant Sikh organizations consisted of: (1) providing food to militant Sikhs who had committed or planned to commit terrorist activity; and (2) setting up tents for meetings of militants who had committed or planned to commit terrorist activity.⁷

Although Singh himself denied participating directly in any violence, substantial evidence supports the BIA’s determination that he knew or should have known the militant Sikhs to whom he provided food and shelter had committed or planned to commit terrorist activities within the meaning of the statute. That is sufficient to render Singh inadmissible under INA § 212(a)(3)(B)(iv)(VI)(bb). Because he was inadmissible, Singh did not meet the requirements for adjustment of status. INA § 245(a), 8 U.S.C. § 1252(a).

The petition for review will be denied.

1 . At oral argument, the petitioner’s attorney informed us that the petitioner’s proper surname is "Singh,” and we will refer to the petitioner by that name.

2 . The immigration enforcement functions of the former INS were transferred to the Bureau of Citizenship and Immigration Services within the Department of Homeland Security. See Homeland Security Act of 2002, Pub.L. No. 107-296, § 451, 116 Stat. 2135, 2195 (2002) (codified at 6 U.S.C. § 271 (Supp. 2003)). Because the operative events in this case took place before the name change, INS is used here.

3 . At a hearing on September 17, 1996, the IJ noted that "it is unfortunate to observe that from 1990 until the present time, 1996, nothing has been done in regard to the respondent's deportation case.” (A.R. at 80.)

4 . The BIA quoted portions of the INA as it read prior to enactment of the Uniting and Strengthening America by Providing Appropriate Tools Required to Intercept and Obstruct Terrorism ("USA PATRIOT") Act of 2001, Pub.L. No. 107-56, § 411(a)(1), 115 Stat. 272, 346-347 (2001). Compare INA § 212(a)(3)(B)(iii) (2000), 8 U.S.C. § 1182(a)(3)(B)(iii) (2000) with INA § 212(a)(3)(B)(iv) (2002), 8 . U.S.C. § 1182(a)(3)(B)(iv) (2000 & 2002 Supp.).

5 . The INA defines "terrorist activity:”

As used in this chapter, the term "terrorist activity" means any activity which is unlawful under the laws of the place where it is committed (or which, if 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 hijacking or sabotage of any conveyance (including an aircraft, vessel, or vehicle).

(II) The seizing or detaining, and threatening 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 internationally 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 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.

INA § 212(a)(3)(B)(iii) (2002); 8 U.S.C. § 1182(a)(3)(B)(iii) (2000 & 2002 Supp.).

6 . "In this section, the term ‘material support or resources' means currency or monetary instruments or financial securities, financial services, lodging, training, expert advice or assistance, safehouses, false documentation or identification, communications equipment, facilities, weapons, lethal substances, explosives, personnel, transportation, and other physical assets, except medicine or religious materials.” 18 U.S.C. § 2339A(b).

7 . Although other matters were presented by affidavit and testimony at administrative hearings, our review is confined to the bases upon which the BIA relied for its order. See Securities and Exchange Comm'n v. Chenery Corp., 332 U.S. 194, 196, 67 S.Ct. 1575, 91 L.Ed. 1995 (1947) ("[W]e emphasized a simple but fundamental rule of administrative law. That nt is to the effect that a reviewing court, in dealing with a determination or judgment which an administrative agency alone is authorized to make, must judge the propriety of such action solely by the grounds invoked by the agency.”). Here, the grounds are "offering food and helping to arrange shelter.”