Singh-Kaur v. Atty Gen USA

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

Opinion

Opinions of the United 2004 Decisions States Court of Appeals for the Third Circuit

9-23-2004

Singh-Kaur v. Atty Gen USA Precedential or Non-Precedential: Precedential

Docket No. 03-1766

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This decision is brought to you for free and open access by the Opinions of the United States Court of Appeals for the Third Circuit at Villanova University School of Law Digital Repository. It has been accepted for inclusion in 2004 Decisions by an authorized administrator of Villanova University School of Law Digital Repository. For more information, please contact Benjamin.Carlson@law.villanova.edu. PRECEDENTIAL Robert D. McCallum, Jr. UNITED STATES Assistant Attorney General COURT OF APPEALS Michael P. Lindemann FOR THE THIRD CIRCUIT Assistant Director Ethan B. Kanter (ARGUED) Senior Litigation Counsel No. 03-1766 Office of Immigration Litigation Civil Division U.S. Department of Justice CHARANGEET SINGH-KAUR, P.O. Box 878 Petitioner Ben Franklin Station Washington, D.C. 20044 v. ATTORNEYS FOR RESPONDENT JOHN ASHCROFT, ATTORNEY GENERAL UNITED STATES OF AMERICA, Respondent OPINION OF THE COURT

ALDISERT, Circuit Judge. On Petition for Review of an Order of the Charangeet Singh-Kaur, 1 a native Board of Immigration Appeals and citizen of India, petitions this Court to (INS No. A29-932-930) review an order of the Board of Immigration Appeals (“BIA”) that Singh be deported from the United States to Argued: March 30, 2004 India. This appeal requires us to determine whether providing food and Before: Alito, Fisher and Aldisert, setting up shelter for people engaged in Circuit Judges, terrorist activities constitutes affording “material support” within the meaning of (Filed: September 23, 2004) the Immigration and Nationality Act (“INA”) § 212(a)(3)(B)(iv)(VI) (2002), 8 U.S.C. § 1182(a)(3)(B)(iv)(VI) (2000 & Steven A. Morley (ARGUED) 2002 Supp.). For the reasons that follow, Morley Surin & Griffin, P.C. Constitution Place 325 Chestnut Street, Ste. 1305-P 1 At oral argument, the petitioner’s Philadelphia, PA 19106 attorney informed us that the petitioner’s proper surname is “Singh,” and we will ATTORNEY FOR PETITIONER refer to the petitioner by that name. we conclude that it does, and we will deny application for asylum, asserting that if he the petition for review. returned to India he would be arrested and persecuted. He claimed membership in the The BIA had jurisdiction to review “Babbar Khalsa Group,” whose purpose, the decision of the Immigration Judge he said, was “to protect and promote the (“IJ”) pursuant to 8 C.F.R. § 3.1(b) (2002) Sikh faith,” and the “Sant Jarnail Sing (renumbered 8 C.F.R. § 1003.1(b) (2003)). Bhindrawala Militant Group,” whose Because Singh was placed in deportation purpose was “to fight for and protect the proceedings before April 1, 1997, and his religious and political cause of Sikh final order of deportation was issued by community.” Singh stated that he had the BIA after October 31, 1996, we have participated in demonstrations and other jurisdiction under 8 U.S.C. § 1105(a) activities of these two groups. He further (1994), as amended by the transitional claimed to be “on the military and police rules for judicial review in section wanted list because of known and 309(c)(4) of the Illegal Immigration s u s p e c te d a c t i v i ti e s again st th e Reform and Immigrant Responsibility Act government” of India. of 1996, Pub. L. No. 104-208, 110 Stat. 3009-546, 3009-626 (Sept. 30, 1996) In an affidavit supporting his (“IIRIRA”). See also Sandoval v. Reno, asylum application, Singh stated that after 166 F.3d 225, 229 (3d Cir. 1999) (applying the Indian military attacked a Sikh holy IIRIRA transitional rules of jurisdiction). site called the Golden Temple in 1984, he “together with many other young men in I. our village formally took the vows to join Singh entered the United States and follow the militant section of Sant without inspection on September 27, 1989. Jarnail, known as Babbar Khalsa.” He The Immigration and Naturalization said that he participated in “planning Service (“INS”)2 initiated deportation meetings” and “became involved in proceedings. Singh submitted an assisting the freedom fighters in the movement of weapons through my village and other villages, as well as giving shelter 2 The immigration enforcement to militants who were involved in the functions of the former INS were transportation of weapons.” Subsumed in transferred to the Bureau of Citizenship all of this is a statement of military activity and Immigration Services within the against the government of India. Department of Homeland Security. See Singh submitted additional Homeland Security Act of 2002, Pub. L. materials supporting his application for No. 107-296, § 451, 116 Stat. 2135, 2195 asylum, including evidence of active (2002) (codified at 6 U.S.C. § 271 (Supp. membership in the International Sikh 2003)). Because the operative events in Youth Federation and a statement by the this case took place before the name change, INS is used here.

2 Khalistan Commando Force that Singh had Following the entry of the State taken an oath to participate with the Force. Department letter, the administrative record reflects an unexplained gap of A previous immigration judge in nearly four years in the proceedings. On this case referred Singh’s application for October 23, 1995, the INS moved to re- asylum to the Department of State for its calendar the case for completion of non-mandatory review and comments. See deportation proceedings. Subsequently, 8 C.F.R. § 208.11 (1991). In a letter dated Singh informed an immigration judge that January 9, 1992, the State Department’s he was the beneficiary of an approved Bureau of Hum an Rights and skilled worker visa petition enabling him Humanitarian Affairs concluded that the to proceed on an application for Indian government did not persecute Sikhs adjustment of status.3 He stated that the such as Singh merely for their faith or adjustment of status request would be his membership in certain organizations. principal application. Rather, Sikhs targeted for arrest were those who had involvement in specific violent Singh then submitted an affidavit acts. purporting to clarify statements in his asylum application. He asserted that he The State Department further had never been involved in or supported commented: v i o l e n t activities a gains t India n The applicant, however, government officials. He stated that the admits to membership in the Indian police and military merely International Sikh Youth presumed that he, as a Sikh, opposed the Federation, a radical off- government. He said that he had shoot of the AISSF, as well undergone an induction ceremony known as the Khalistan Commando as “Amrit Chakna,” in which he Force, a notorious terrorist committed to remain faithful to his group responsible for a religion, to wear a turban and to keep his grisly April 1985 random hair and beard long. He stated that he was killing in a Punjab village, enrolled as a member of Babbar Khalsa at and the equally notorious the time of this ceremony. Babbar Khalsa, an even more fundamen talist terrorist group with a reputation for its use of 3 explosives. Many of the At a hearing on September 17, 1996, bombings resulting in the the IJ noted that “it is unfortunate to murder of innocent persons observe that from 1990 until the present in recent years are attributed time, 1996, nothing has been done in to the latter group. regard to the respondent’s deportation case.” (A.R. at 80.)

3 He further stated that, having determined that Singh was ineligible for participated in Amrit Chakna, he was adjustment of status pursuant to 8 U.S.C. expected to make charitable contributions §§ 1255(a) and 1182(a)(3)(B)4 : to the community, including “provision of We note that the respondent food and assistance to the poor.” While testified that he was a acknowledging that some members of member of the Babbar Babbar Khalsa had been involved in Khalsa and the Sant Jarnail violence in the 1990s, he stated that he had Singh Bhindra Wala. See been in the United States since 1989 and Tr. at 64. He further did not support militant activities. He did testified that he had helped state, however, that while he was in India members of these groups, there were several killings of Indian police who were fighting the by Muslims in Sikh clothing. Indian governm ent, b y At a hearing on January 22, 1997, giving them food and Singh told the IJ that he assisted with helping to set up tents for meetings of Sant Jarnail Singh followers: them. See Tr. at 65. A person “engages in terrorist “We – I used to help by activities” by providing putting that tent and “any type of material organize the mondo [sic] or support” to “any individual the tent. . . . I never kept any t h e acto r kn ow s, o r weapons. Those Sikhs who reasonably should know, has were baptized, they used to committed or plans to come and they knew that I commit a terrorist activity.” am also baptized and I just See section 212(a)(3)(B)(iii) help them with the – giving of the Act (emphasis added). them food.” On February 18, 1998, the IJ 4 concluded that Singh was eligible for The BIA quoted portions of the INA as adjustment of status and granted his it read prior to enactment of the Uniting application. The IJ determined that even and Strengthening America by Providing though Singh had entered the United Appropriate Tools Required to Intercept States without inspection, his eight-year a n d O b s t r u c t T e r r o r i sm ( “U S A presence gave him “sufficient equity to PATRIOT”) Act of 2001, Pub. L. No. 107- overcome that adverse Immigration 56, § 411(a)(1), 115 Stat. 272, 346-347 conduct.” The INS appealed, and on (2001). Compare INA § 212(a)(3)(B)(iii) February 26, 2003, the BIA vacated the (2000), 8 U.S.C. § 1182(a)(3)(B)(iii) IJ’s order and ordered Singh removed (2000) with INA § 212(a)(3)(B)(iv) from the United States. The BIA (2002), 8 U.S.C. § 1182(a)(3)(B)(iv) (2000 & 2002 Supp.).

4 We find that the described capricious or manifestly contrary to the actions, of offering food and statute.’” Ahmed v. Ashcroft, 341 F.3d helping to arrange shelter 214, 216-217 (3d Cir. 2003) (citations for persons, constitute omitted). “material support,” as III. contemplated by section 212(a)(3)(B)(iii) of the Act. Under the INA, the Attorney The respondent further General has authority to grant adjustments admitted that he had offered of status to aliens who meet certain the described support to requirements. See INA § 245(a); 8 U.S.C. “militan ts w ho were § 1252(a). The question here is whether engaged in terrorist Singh was “admissible to the United States activities.” See Tr. at 65. for permanent residence.” See INA § As these militants were 245(a); 8 U.S.C. § 1252(a). He was members of groups which inadmissible if he “has engaged in a were designated as terrorist t e rr o r i s t a c t iv i t y. ” IN A § organizations, by the United 212(a)(3)(B)(i)(I) (2002); 8 U.S.C. § States Department of State, 1182(a)(3)(B)(i)(I) (2000 & 2002 Supp.). and on account of the The INA definition of engaging in a respondent’s admission that terrorist activity includes the provision of he was aware of their “material support:” terrorist activities, we find As used in this that the respondent did in chapter, the term “engage in fact offer persons, who had terrorist activity” means, in committed and were an individual capacity or as planning to commit terrorist a member of an organization activities, material support. – (A.R. at 3) (footnote omitted). ... Singh timely petitioned for review. (VI) to commit an act that II. t h e a c t o r kno ws , o r reasonably should know, We review the BIA’s factual affords material support, findings to determine whether they are including a safe house, supported by substantial evidence. Von t r a n s p o r t a t i o n , Pervieux v. INS, 572 F.2d 114, 118-119 commu nications, funds, (3d Cir. 1978); Carrillo-Gonzalez v. INS, transfer of funds or other 353 F.3d 1077, 1079 (9th Cir. 2003). We material financial benefit, will uphold the BIA’s interpretation of the false documentation or INA “unless the interpretation is ‘arbitrary,

5 identification, weapons .... ( i n c lu d i n g c h e m i c a l, INA § 212(a)(3)(B)(iv) (2002), 8 U.S.C. § biological, or radiological 1182(a)(3)(B)(iv) (2000 & 2002 Supp.) weapons), explosives of (emphasis added). training – (aa) for the commission of a terrorist activity; condition for the release of (bb) to any individual who the individual seized or t h e acto r kn ow s, o r detained. reasonably should know, has committed or plans to (III) A violent attack upon commit a terrorist activity; 5 an internationally protected person (as defined in section 1116(b)(4) of Title 18) or 5 The INA defines “terrorist activity:” upon the liberty of such a person. As used in this chapter, the term (IV) An assassination “terrorist activity” means any activity (V) The use of any – which is unlawful under the laws of the place where it is committed (or which, if ( a ) biologic a l a ge nt, committed in the United States, would be chemical agent, or nuclear unlawful under the laws of the United weapon or device, or States or any State) and which involves (b) explosive, firearm or any of the following: other weapon or dangerous device (other than for mere (I) The hijacking or personal monetary gain), sabotage of any conveyance with intent to endanger, (including an air craft, directly or indirectly, the vessel, or vehicle). safety of one or more individuals or to cause (II) The seizing or detaining, substantial dama ge to and threatening to kill, property. injure, or continue to detain, another individual in order (VI) A threat, attempt, or to compel a third person conspiracy to do any of the (including a governmental foregoing. organization) to do or abstain from doing any act INA § 212(a)(3)(B)(iii) (2002); 8 U.S.C. § as an explicit or implicit 1182(a)(3)(B)(iii) (2000 & 2002 Supp.).

6 The BIA stated that the Department or “to any individual who the actor knows, of State had designated Babbar Khalsa as or reasonably should know, has committed a terrorist organization. None of the or plans to commit a terrorist activity.” organizations to which Singh belonged, INA § 212(a)(3)(B)(iv)(VI)(aa) and (bb); including Babbar Khalsa, are among the 8 U.S.C. § 1182(a)(3)(B)(iv)(VI)(aa) and thirty-six Foreign Terrorist Organizations (bb). This is so because inadmissibility (“FTO”) designated by the United States results from provision of material support Department of State in accordance with either to those who have committed or INA § 219, 8 U.S.C. § 1189. See 31 plan to commit terrorist activity or to C.F.R. Ch. V, App. A. Babbar Khalsa and terrorist organizations. See INA § the International Sikh Youth Federation, 212(a)(3)( B )(iv)(VI), 8 U .S.C . § however, were named by the Department 1182(a)(3)(B)(iv)(VI). The BIA based its of the Treasury on June 27, 2002, as decision on the former. Specially Designated Global Terrorist We must first determine whether (“SDGT”) organizations in accordance the type of activity in which Singh with an asset-freezing program authorized engaged comes within the statutory in 2001 by Presidential Executive Order definition of “material support” as a matter 13224. See 31 C.F.R. Ch. V, App. A; see of law. If we conclude that it does, we also Audrey Kurth Cronin, “The ‘FTO must then decide whether Singh’s conduct L ist’ and Congress: Sa nction ing constituted “material support” as a matter Designated Foreign T errorist of fact. Organizations,” CRS Report for Congress (Oct. 21, 2003). IV. We need not, however, determine We turn now to the statute. We whether the BIA erred in retroactively start with “the language employed by applying the SDGT designations to the Congress, . . . and we assume that the organizations with which Singh interacted legislative purpose is expressed by the in India prior to 1989. Nor do we need to ordinary meaning of the words used.” INS consider whether Babbar Khalsa, Sant v. Phinpathya, 464 U.S. 183, 189 (1984) Jarnail Singh, the International Sikh Youth (internal quotations and citations omitted). Federation or any other group was a The word “material” means “[h]aving terrorist organization within the meaning some logical connection with the of INA § 212(a)(3)(B)(iv)(VI)(cc) or (dd), consequential facts.” Black’s Law 8 U.S.C. § 1182(a)(3)(B)(iv)(VI)(cc) or Dictionary 991 (7th ed. 1999). It also (dd). Rather, our task tracks the narrow means “significant” or “essential.” Id. compass of determining whether Singh’s Support is defined as: “[s]ustenance or conduct in providing food and setting up maintenance; esp., articles such as food tents constituted “material support” either and clothing that allow one to live in the “for the commission of terrorist activity”

7 degree of comfort to which one is list of examples does not lead to the accustomed.” Id. at 1453. c o n c l u s io n t ha t I N A s e c t i o n 212(a)(3)(B)(iv)(VI) must be read as an In illustrating the concept of exhaustive list. We are familiar with the “material support” to those engaged in canon of statutory construction urged on us t e r r o r is t a ct iv it ie s, IN A sec tio n by Singh: “where Congress includes 212(a)(3)(B)(iv)(VI) provides various particular language in one section of a examples that broadly cover the areas of statute but omits it in another section of lodging, communications, transportation, the same Act, it is generally presumed that financing, weapons and provision of other Congress acts intentionally and purposely means to accomplish terrorist activities. in the disparate inclusion or exclusion.” The list presented in INA section INS v. Cardozo-Fonseca, 480 U.S. 421, 212(a)(3)(B)(iv)(VI), supra, is not 432 (1987) (internal quotation and citation exhaustive. No language in the statute omitted). limits “material support” to th e enumerated examples. Use of the term This canon, however, is not “including” suggests that Congress applicable in this case. First, the two intended to illustrate a broad concept statutes were not enacted by the same rather than narrowly circumscribe a term Congress. The INA provision was adopted with exclusive categories. See In re SGL in 1990 and revised in 2001, and the Carbon Corp., 200 F.3d 154, 160 (3d Cir. criminal provision was adopted in 1994. 1999) (stating that a statute in which the See Immigration Act of 1990, Pub. L. No. word “including” was followed by a list of 101-649, § 601(a), 104 Stat. 4978, 5067- factors “strongly suggests those factors are 5070 (1990); Uniting and Strengthening not exhaustive”). America by Providing Appropriate Tools Required to Intercept and Obstruct That the f e de ra l s ta t u te Terrorism (“USA PATRIOT”) Act of criminalizing the provision of “material 2001, Pub. L. No. 107-56, §411(a)(1), 115 support or resources” to terrorists, 18 Stat. 272, 345-347 (2001); Violent Crime U.S.C. section 2339A,6 includes a longer Control and Law Enforcement Act of 1994, Pub. L. No. 103-322, § 120005(a), 108 Stat. 1796, 2022 (1994). Thus, we 6 “In this section, the term ‘material cannot say that the differences in the two support or resources’ means currency or statutes are “significantly highlighted by monetary instrum ents or finan cial the fact that the same Congress securities, financial services, lodging, simultaneously drafted” them. Cardozo- training, expert advice or assistance, safehouses, false documentation or identification, communications equipment, other physical assets, except medicine or facilities, weapons, lethal substances, religious materials.” 18 U.S.C. § explosives, personnel, transportation, and 2339A(b).

8 Fonseca, 480 U.S. at 432. Second, it In response to questioning from the would be incongruous to conclude that a IJ at a hearing on January 22, 1997, Singh person who provides food and sets up tents described his role in meetings of Sant for terrorists could be jailed for up to life Jarnail Singh followers: under 18 U.S.C. section 2339A, but the Q.W ell, but in this same conduct could not prohibit admission statement, sir, that I just to the United States under INA section read to you, you say there 212. See United States v. Hodge, 321 F.3d were known activities that 429, 434 (3d Cir. 2003) (stating avoidance you took against the Indian of “unintended or absurd results” is a government. What were “dee ply rooted rule of statutory those activities? construction”) (internal quotations and citation omitted). A.Sant Jarna il Singh organized meetin gs in For the reasons described above, dif ferent villages to the BIA’s conclusion that Congress propagate religion. intended INA section 212(a)(3)(B)(iv)(VI) to include provision of food and setting up Q.So, in other words you’re tents within the definition of “material telling me that you attended support” was not “arbitrary, capricious or these meetings, correct? manifestly contrary to the statute.” A.Yes. We used to have Ahmed, 341 F.3d at 216-217; see also those people to arrange our McMullen v. INS, 788 F.2d 591, 599 (9th tents and put some – some Cir. 1988) (rejecting as “too narrow” the sort of – arrange preparation petitioner’s argument that the nonpolitical of the food and also arrange crimes exception to withholding of to bring people to these deportation in the former INA section gatherings and then take 243(h), 8 U.S.C. section 1253(h), applied them back to their places. “only to those who actually ‘pulled the trigger’” and holding instead that it (A.R. at 115-116.) encompassed those who provide “the Later in the same hearing, Singh physical and logistical support that enable, responded to questions from the INS modern terrorist groups to operate”). attorney: V. Q.So, in other words, you We must now apply the foregoing were helping the militants precepts to the facts in this case. who were involved in terrorist activities? Isn’t A. that true?

9 A.When we came from far with them, the members of the various away to this (indiscernible) militant Sikh organizations opposed to the congregation, then we may Indian government had committed or have some contact. We planned to commit terrorist activity. never help in any other way Although Singh stated that the than giving them food. Yes. purpose of the meetings at which he (A.R. at 124.) provided food and shelter was to propagate the teachings of Sant Jarnail Singh, he did Taking Singh’s statement of not elaborate at the January 22, 1997 minimal participation, it is beyond cavil hearing on the content of those teachings. that Singh furnished food and shelter to In his first affidavit, however, Singh Sant Jarnail Singh followers participating stated: “Sant Jarnail Singh Bhindrawala in meetings. The sole remaining issue is was never inclined to be militant. whether the individuals to whom Singh However, after his death his group became provided food and shelter come within the militant because of the violence rubric of INA section 212(a)(3)(B)(iv). perpetrated upon him and his and his [sic] B. followers by the Indian Military.” We must now decide whether A 1985 Amnesty International substantial evidence supports the BIA’s Report submitted by Singh as part of his determination that Singh provided food asylum application related a June 5, 1984 and shelter to individuals who he knew or battle, where “heavy fighting ensued reasonably should have known had between the army and the followers of committed or planned to commit terrorist Sant Jarnail Singh Bhindranwale, the Sikh activity. fundamentalist leader who had taken refuge in the temple and who the We begin with the statutory government blamed for directing much of definition of “terrorist activity” as “any the violence in the Punjab in recent years.” activity which is unlawful under the laws of the place where it is committed” and Although Babbar Khalsa and the involving, among other things, “[t]he use International Sikh Youth Federation, of any . . . explosive, firearm or other groups to which Singh belonged, were not weapon or dangerous device (other than named Specially Designated Global for mere personal monetary gain), with Terrorist organizations until 2002, it does intent to endanger, directly or indirectly, not follow that members of those groups the safety of one or more individuals or to were not involved in terrorist activities cause substantial damage to property.” prior to 1989. In commenting on Singh’s INA § 212(a)(3)(B)(iii), 8 U.S.C. § asylum application in 1992, the State 1182(a)(3)(B)(iii). The evidence is clear D e p ar tm e nt conclu ded th at: th e that at the time of Singh’s participation International Sikh Youth Federation was a

10 “radical off-shoot” of another group; that militants who had committed or planned to the Khalistan Commando Force, to which commit terrorist activity. 7 Singh had taken an oath, was “a notorious Although Singh himself denied terrorist group responsible for a grisly participating directly in any violence, April 1985 random killing in a Punjab substantial evidence supports the BIA’s village”; and that Babbar Khalsa was determination that he knew or should have “equally notorious,” was “an even more known the militant Sikhs to whom he fundamentalist terrorist group with a provided food and shelter had committed reputation for its use of explosives” and or planned to commit terrorist activities was responsible for bombings that killed within the meaning of the statute. That is innocent people. sufficient to render Singh inadmissible The activities described by the State under INA § 212(a)(3)(B)(iv)(VI)(bb). Department come within the meaning of Because he was inadmissible, Singh did the INA’s definition of terrorist activities not meet the requirements for adjustment because they involved assassinations and of status. INA § 245(a), 8 U.S.C. § use of explosives “with intent to endanger, 1252(a). directly or indirectly, the safety of one or The petition for review will be m o r e i n d i v i d u a l s .” IN A § denied. 212(a)(3)(B)(iii)(IV) and (V) (2002); 8 U.S.C. § 1182(a)(3)(B)(iii)(IV) and (V) (2000 & 2002 Supp.). The Amnesty International Report and Singh’s own statements provide evidence that the 7 followers of Sant Jarnail Singh also Although other matters were presented engaged in terrorist activities within the b y a f f i d a v it a n d tes tim on y a t meaning of the INA. administrative hearings, our review is confined to the bases upon which the BIA Even in light of the recantations relied for its order. See Securities and made in his second affidavit, Singh’s self- Exchange Comm’n v. Chenery Corp., 332 described activities in conjunction with his U.S. 194, 196 (1947) (“[W]e emphasized membership in various militant Sikh a simple but fundamental rule of organizations consisted of: (1) providing administrative law. That rule is to the food to militant Sikhs who had committed effect that a reviewing court, in dealing or planned to commit terrorist activity; and with a determination or judgment which an (2) setting up tents for meetings of 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.”

11 FISHER, Circuit Judge, dissenting. tents. See Maj. Op. at 11 n.7.8 Indeed, the BIA, in reversing the order of the Finding that Singh-Kaur helped Immigration Judge (“IJ”), did not recite or members of Sikh militant groups “by rely upon the 1991 asylum application at giving them food and helping to set up all. And although we do not review the tents,” the Board of Immigration Appeals findings of the IJ, he accepted Singh- (“BIA”) held that Singh-Kaur “engaged in Kaur’s testimony disclaiming the asylum terrorist activities.” However, Singh-Kaur application in finding Singh-Kaur eligible testified that the meetings were for for adjustment of status. Thus, our scope religious purposes, and the BIA did not of review is limited to the BIA’s stated find Singh-Kaur’s testimony to lack basis of “offering food and helping to credibility. The issue here is therefore arrange shelter” for these meetings. See straightforward – whether providing food also Ernesto Navas v. INS, 217 F.3d 646, and tents for such meetings, without more, 658 n.16 (9th Cir. 2000) (we “cannot constitutes “engag[ing] in terro rist affirm the BIA on a ground upon which it activity” through provision of “material did not rely”).9 support.” The acts here are not of the degree and kind contemplated by the It must be further noted that Singh- “material support” provision – material Kaur testified that the food and tents were acts in support of terrorism. Because the set up for religious meetings. Neither the majority’s holding ignores the plain language of the statute by reading “material” out of “material support,” I 8 As acknowledged in the footnote, the respectfully dissent. majority concedes that “[a]lthough other matters were presented by affidavit and I. testimony at the administrative hearings, Before addressing the statute, it is our review is confined to the bases upon necessary to clarify the scope and standard which the BIA relied for its order.” Maj. of our review. The majority does not at Op. at 11 n.7 (citing SEC v. Chenery first restrict its discussion to the BIA’s Corp., 332 U.S. 194, 196 (1947)). findings, and recites in detail material from 9 Singh-Kaur’s 1991 asylum application. “The final order we normally review is See Maj. Op. at 2-5. Although those facts the decision of the BIA, unless the BIA cast Singh-Kaur in an unfavorable light, defers to the IJ’s findings.” Miah v. the majority ultimately concedes in a Ashcroft, 346 F.3d 434, 439 (3d Cir. 2003) footnote that Singh-K aur’s asylum (citing Abdulai v. Ashcroft, 239 F.3d 542, application was not relevant to the BIA’s 549 n.2 (3d Cir. 2001)). Here, the BIA did decision, which rested solely on food and not defer, expressly or by necessary implication, to the IJ’s findings. Accordingly, we review the order of the BIA.

12 IJ nor the BIA made an adverse credibility Op. at 7. Thus, as the majority appears to finding. Because the BIA did not adopt or agree, the BIA’s holding cannot be upheld defer to the IJ’s finding on credibility, we on the basis that Singh-Kaur provided “must proceed as if [petitioner’s] “material support ” to a terrorist testimony were credible and determine organization. Rather, the BIA’s holding whether the BIA's decision is supported by rests solely on the narrow ground that the substantial evidence in the face of his provision of food and tents prior to 1989 to assumed (but not determined) credibility.” unnamed members of the Babbar Khalsa Kayembe v. Ashcroft, 334 F.3d 231, 235 and Sant Jarnail organizations was the (3d Cir. 2003); see also Lim v. INS, 224 provision of “material support . . . to any F.3d 929, 933 (9th Cir. 2000) (where individual the actor knows, or reasonably neither IJ nor BIA make express credibility should know, has committed or plans to findings, court must accept testimony as commit a terrorist activity.” However, the true). Therefore, we must assume Singh- record does not contain any evidence as to Kaur’s testimony before the IJ to be true. what terrorist acts, if any, these unnamed individuals committed or planned to In addition, it must be noted – as commit. the majority implicitly concedes – that the BIA erred in finding that the Babbar Regarding our standard of review, Khalsa and Sant Jarnail Singh Bhindra the BIA’s interpretation of the statute Wala (hereinafter, “Sant Jarnail”) groups cannot be upheld under any standard. The had been designated terrorist organizations majority appears to apply Chevron by the Department of State.10 See Maj. deference, see Maj. Op. at 5, but as the statute is unambiguous and its meaning is plain, unbridled agency deference is 10 As noted by the majority, see Maj. Op. unwarranted. As the Supreme Court held at 7, neither organization has been in INS v. St. Cyr, 533 U.S. 289 (2001), we d e s i g n a te d a F o r e i g n T e r r o r i s t only defer “to agency interpretations of Organization by the Department of State in statutes that, applying the normal ‘tools of accordance with INA § 219, 8 U.S.C. § statutory construction,’ are ambiguous.” 1189. See 31 C.F.R. Ch. V, App. A. The Id. at 320 n.45 (quoting Chevron U.S.A. majority correctly notes that Babbar Inc. v. Natural Resources Defense Khalsa was designated as a Specially Council, Inc., 467 U.S. 837, 843 n.9 Designated Global Terrorist organization (1984)); see also Steele v. Blackman, 236 in accordance with an asset-freezing F.3d 130, 133 (3d Cir. 2001) (“Where the program authorized by Presidential language of a statute is clear, however, the Executive Order 13224 in 2001. See 31 C.F.R. Ch. V, App. A. However, the Specially Designated Global Terrorist designation was done by the Department State, and is not the same as Foreign of Treasury and not the Department of Terrorist Organization designation.

13 text of the statute is the end of the otherwise reads “material” out of “material matter.”).11 support” and treats half of the statutory term as surplusage. Such a result is II. inconsistent with the plain language of the Examining the statute’s plain statute and with the normal tools of language and employing the “normal tools statutory construction. of statutory construction,” I conclude that Section 245 of the Immigration and Congress did not intend “material support” Nationality Act (“INA”) provides that an to embrace acts that are not of importance alien may be eligible for adjustment of or relevance to terrorism. To hold status, if, among other things, he is “admissible to the United States for permanent residence.” INA § 245(a), 8 11 In any case, the conclusion does not U.S.C. § 1255(a). Section 212, in turn, hinge upon the standard of review. As the provides that any alien who “has engaged majority states in reciting the standard for in a terrorist activity” is inadmissible. INA Chevron deference, “[w]e will uphold the § 212(a)(3 )(B)( i)(I), 8 U.S .C. § BIA’s interpretation of the INA unless the 1182(a)(3)(B)(i)(I). Thus, we must interpretation is arbitrary, capricious or determine whether the BIA properly found manifestly contrary to the statute.” Maj. that Singh-Kaur had “engaged in a terrorist Op. at 5 (quoting Ahmed v. Ashcroft, 341 activity.” Under INA § 212, “engage in F.3d 214, 216-217 (3d Cir. 2003) (citations terrorist activity” means, among other omitted)) (quo tations omitted and things: emphasis added). Here, the BIA’s (VI) to commit an act that the construction is manifestly contrary to the actor knows, or reasonably should statute’s plain meaning because it reads know, affords material support, “material” out of “material support,” so i n c l u d in g a s a f e h o u s e , under any standard of review, the transportation, communications, majority’s conclusion cannot stand. funds, transfer of funds or other Indeed, even where Chevron deference is material financial benefit, false applicable, we nevertheless consider the documentation or identification, “thoroughness evident in [the agency’s] weapons (including chemical, consideration” and “the validity of its b i o l o g ic a l , o r r a d i o l o g i c a l reasoning.” Sierra v. Romaine, 347 F.3d weapons), explosives, or training– 559, 569 (3d Cir. 2003), pet. for cert. filed, (U.S. Jan 27, 2004) (No. 03-8662). Here, (aa) for the commission of a the BIA supplies no reasoning beyond the terrorist activity; bare assertion that food and tents (bb) to any individual who the constitute “material support.” Thus, under actor knows, or reasonably should any standard, the conclusion remains the same.

14 know, has committed or plans to for “material” in this context – “[h]aving commit a terrorist activity; some logical connection with the consequential facts,” and “significant” or (cc) to a terrorist organization “essential.” Id. (quoting Black’s, supra, at described in clause (vi)(I) or 991). Similarly, Webster’s defines (vi)(II); or “material” in part as “being of real (dd) to a terrorist organization importance or great consequence.” described in clause (vi)(III), unless Webster’s Third New Int’l Dict. 1392 the actor can demonstrate that he (1981). did not know, and should not Even a cursory examination of the reasonably have known, that the act “material support” provision makes it clear would further the organization’s that both meanings of “material” – terrorist activity. relevance and importance – are embraced INA § 212(a)(3)(B)(iv)(VI), 8 U.S.C. § by the statute. Regarding relevance, the 1182(a)(3)(B)(iv)(VI). statute’s express language requires an act that “affords material support” that is I agree with the majority’s either “for the commission of a terrorist threshold canon that “‘we assume that the activity,” “to any individual who the actor legislative purpose is expressed by the knows, or reasonably should know, has ordinary meaning of the words used.’” committed or plans to commit a terrorist Maj. Op. at 7 (quoting INS v. Phinpathya, activity,” or “to a terrorist organization.” 464 U.S. 183, 189 (1984) (internal Thus, the support must be relevant to the quotations and citations om itted)). specified terrorist goal, terrorist persons, or Employing that canon, I have no doubt that terrorist organizations, which in sum the term “support,” in isolation, could means that the support must be relevant to embrace food and tents. As noted by the terrorism. Regarding importance, the majority, support is defined as: statute recites a laundry list of types of “Sustenance or maintenance; esp., articles “material support” that are relevant to such as food and clothing that allow one to terrorism – safe house, transportation, live in the degree of comfort to which one communications, funds, transfer of funds is accustomed.” Id. (quoting Black’s Law or other material financial benefit, false Dictionary 1453 (7th ed. 1999)). Had the documentation or identification, weapons statute referred to mere “support,” I might (including chemical, bio logical, or concur with my colleagues, as substantial radiological weapons), explosives, or evidence shows that “support” was training. All are plainly important to afforded. terroris m , terrorists, o r terroris t But the analysis does not end there organizations. Thus, the support must be because “material” qualifies “support.” important to terrorism. The majority correctly notes two meanings

15 Therefore, even under the broadest each word in a statutory provision is to be possible reading, “material” in this context given meaning and not to be treated as must mean both “important” and surplusage.” Acceptance Ins. Co. v. Sloan, “relevant” to terrorism. “Material 263 F.3d 278, 283 (3d Cir. 2001) support,” by its plain language, means that (quotation marks omitted); see also Ki Se the act affording support must be of a kind Lee v. Ashcroft, 368 F.3d 218, 223 (3d and degree that has relevance and Cir. 2004) (“we should adopt a importance to terrorist activity, terrorists, construction which recognizes each or terrorist organizations. Put another element of the statute”). 12 Here, way, an act “affording material support” “material” has an obvious meaning and is must move the ball down the field for not surplusage. terrorism. This is not to say that under Second, the examples of “material certain circumstances, food and shelter support” provided in the statute all regard could not be “material support.” But as acts of importance and relevance to these are normal types of “support,” the terrorism, terrorists, an d terro rist facts must show that they are more than organizations – safe houses, transportation, mere support – i.e., they must be of communications, funds, transfer of funds relevance and importance to terrorism. or other material financial benefit, false The conclusion that “material” documentation or identification, weapons means both importance and relevance is (including chem ical, biological, or underscored by further examination of the radiological weapons), explosives, or statute. First, mere “support” cannot be training. This reinforces the conclusion “material support.” As noted, “support” means “sustenance or maintenance.” There is no doubt that sustenance, such as food and water, or maintenance, such as shelter, are necessary for life, but they are 12 not per se necessary for terrorism. To hold Food and shelter indeed could be, differently would – in cases like this one, under certain circumstances, important and involving food and tents – automatically relevant to terrorism. It is not impossible transmute mere “support” into “material to imagine a hypothetical situation where support.” This would eviscerate the a dying terrorist begs an alien for a glass of statute. Had Congress intended the mere water so that he can survive long enough provision of food and shelter, without to walk the last half-mile to complete his more, to be “engag[ing] in terrorist terrorist aim. Under those circumstances, activity,” there would have been no need the support would be more than mere to include the term “material” in the support, as it had relevance and statute. An indisputable axiom of statutory importance to terrorism under those construction is that “whenever possible circumstances. But as discussed in Part III, infra, that situation is not before us.

16 that “material support” means exactly that, construction’ is that the ‘specific governs support that is material. 13 the general.’” Ki See Lee, 368 F.3d at 223 (quoting Doe v. Nat’l Bd. of Medical That fact that the listing of types of Examiners, 199 F.3d 146, 154–55 (3d Cir. “material support” is not exhaustive does 1999)) (alteration in original). Here, the not transform any type of support into enumerated examples, consistent with the material support. I do not disagree with plain language of the term “material the majority that the use of “including” support,” are all acts that can be of before the laundry list means that the importance and relevance to terrorism. enumerated listing is not exhaustive. See Any unenumerated act that is alleged to In re SGL Carbon Corp., 200 F.3d 154, constitute “material support” must 160 (3d Cir. 1999) (use of “including” therefore be measured by the plain followed by a listing of factors “strongly language of the term “material support” suggests those factors are not exhaustive”). and the nature of the enumerated However, it does not follow that any kind examples. Even the enumerated act that is of support is material support. Indeed, the arguably the closest to the facts at hand majority ignores the canon that “[a]nother here – provision of a “safe house” 14 – is ‘commonplace [rule] of statutory plainly of a degree and kind that is important and relevant to terrorism and far 13 different from the mere provision of food In its decision, the BIA recited the and tents.15 prior version of INA § 212. This provision was amended and expanded in 2001 pursuant to the PATRIOT Act. See 14 Strangely, the majority states that the Uniting and Strengthening America by express language of the statute embraces Providing Appropriate Tools Required to “lodging.” Maj. Op. at 8. However, the Intercept and Obstruct Terrorism, Pub. L. statute does not include the term No. 107-56, § 411(a)(1)(F), 115 Stat. 272 “lodging,” but only “safe house.” By (2001) (“PATRIOT Act”). Petitioner asserting that “lodging” is “material concedes the current version applies, so support” without explanation, the majority the analysis above focuses on the law as it begs the question before us – whether tents exists now. Under either version, the and food are “material support” in the first BIA’s conclusion does not comport with place. Safe houses by definition aid and the plain language. It should be noted that abet in terrorism, whereas lodging might in the PATRIOT Act, Congress added not. “chemical, biological, or radiological 15 weapons” to the laundry list of activities Thus, I disagree with my colleagues constituting “material support.” The that the mere fact that the listing is not gravity of such activities reinforces the exhaustive means that “the BIA’s conclusion that “material support” is not conclusion that Congress intended INA § “immaterial support.” 212(a)(3)(B)(iv)(VI) to include provision

17 Third, my conclusion is further other things of value for a terrorist activity confirmed by the statute’s surrounding or organization; and (5) soliciting any provisions. In determining Congress’ individual to engage in terrorist activity or intent, “we look to the statute’s language, to join a terrorist organization. INA § structure, subject matter, context, and 212(a)(3)(B)(iv)(I)-(V), 8 U.S.C. § history–factors that typically help courts 1182(a)(3)(B)(iv)(I)-(V). determine a statute’s objectives and As the majority rightly suggests in thereby illuminate its text.” Almendarez- a different context, avoiding “unintended Torres v. United States, 523 U.S. 224, 228 or absurd results” is a “deeply rooted rule (1998); Beecham v. United States, 511 of statutory construction.” United States v. U.S. 368, 372 (1994) (“The plain meaning Hodge, 321 F.3d 429, 434 (3d Cir. 2003). that we seek to discern is the plain It would be absurd for five of the meaning of the whole statute, not of definitions of “engage in terrorist activity” isolated sentences.”). Here, “afford[ing] to be of import and gravity, but for the material support” is but one of six sixth definition to be otherwise. “Statutory examples of “engaging in terrorist construction is a holistic endeavor ... and, activity.” INA § 212(a)(3)(B)(iv), 8 at a minimum, must account for a statute’s U.S.C. § 1182(a)(3)(B)(iv). These other full text, language as well as punctuation, examples of “engaging in terrorist structure, and subject matter.” Tineo v. activity” are all grievous forms of conduct Ashcroft, 350 F.3d 382, 391 (3d Cir. 2003) whose relevance and importance to (parenthetically quoting United States terrorism are indisputable: (1) committing Nat’l Bank of Or. v. Indep. Ins. Agents of or inciting terrorist activity; (2) preparing America, Inc., 508 U.S. 439, 455 (1993)) or planning terrorist activity; (3) gathering (alteration in original). As each information on potential targets for disjunctive example of “engage in terrorist terrorist activity; (4) soliciting funds or activity” is a significant form of conduct that materially furthers the goals of terrorism, so does “material support.” 16 of food and setting up tents within the See Beecham, 511 U.S. at 371 (“That definition of ‘material support’ was not ‘arbitrary, capricious or manifestly 16 contrary to the statute.’” Maj. Op. at 9. Further examination of the For one thing, Chevron deference is not surrounding portions of INA § 212 only warranted as the plain language compels reinforces this conclusion. The definitions the opposite conclusion from that reached of “terrorist activity” and the ultimate ban by the BIA. For another, even under on admissibility for those engaging in such Chevron, the BIA’s reading is “manifestly activity both recite conduct of extreme contrary” to the statute to the extent the gravity. See INA § 212(a)(3)(B), BIA concluded that food and tents, without 212(a)(3)(B )(iii), 8 U .S.C . § more, constitute “material support.” 1182(a)(3)(B), 1182(a)(3)(B)(iii).

18 several items in a list share an attribute 212, the definition of “material support or counsels in favor of interpreting the other resources” in § 2339A includes both safe items as possessing that attribute as houses and lodging. well.”). I disagree with Singh-Kaur, who As a final matter, I turn briefly to argues that under the maxim of expressio the criminal material support statute, 18 unius est exclusio alterius, the presence of U.S.C. § 2339A. Both Singh-Kaur and the “lodging” in § 2339A, and its absence in majority argue that the statute supports INA § 212, means that Congress did not their respective positions. The statute, intend “lodging” to be “material support” entitled “Providing material support to for purposes of § 212. As noted above, the terrorists,” prohibits the provision of listing in INA § 212 is not exhaustive. “material support or resources” for Thus, the real question, as discussed preparing or carrying out any of a list of enumerated terrorist and other significant crimes.17 Unlike INA § violation, or attempts or conspires to do such an act, shall be fined under this title, imprisoned not 17 18 U.S.C. § 2339A provides: more than 15 years, or both, and, if (a) O f f e n s e.–Wh oe ve r the death of any person results, provides material support or shall be imprisoned for any term of resources or conceals or disguises years or for life. A violation of this the nature, location, source, or section may be prosecuted in any ownership of material support or Federal judicial district in which resources, knowing or intending the underlying of fe nse w as that they are to be used in committed, or in any other Federal preparation for, or in carrying out, judicial district as provided by law. a violation of section 32, 37, 81, (b) Definition.–In this 175, 229, 351, 831, 842(m) or (n), section, the term “material support 844(f) or (i), 930(c), 956, 1114, or resources” means currency or 1116, 1203, 1361, 1362, 1363, monetary instruments or financial 1366, 1751, 1992, 1993, 2155, securities, financial services, 2156, 2280, 2281, 2332, 2332a, lodging, training, expert advice or 2332b, 2332f, or 2340A of this assistance, safehouses, fals e title, section 236 of the Atomic documentation or identification, Energy Act of 1954 (42 U.S.C. c o m m u n i c a t i o n s e q u i p m e n t, 2284), or section 46502 or f a c i l i t ie s , w e a p o n s , l e th a l 60123(b) of title 49, or in substances, explosives, personnel, preparation for, or in carrying out, transportation, and other physical the concealment of an escape from assets, except medicine or religious the commission of any such materials.

19 above, is not whether non-enumerated statute, the mere provision of food and conduct can be “material support,” but tents, even to a terrorist, would not be a whether non-enumerated supportive acts criminal act unless the “material support or rise to the requisite level of materiality. resources” were knowingly or intentionally supplied “to be used in preparation for, or I also part with the majority, which in carrying out” one of § 2339A’s concludes that the existence of § 2339A specified and grievous terrorist crimes. requires that we construe INA § 212 so broadly that we read “material” out of the Thus, one could not be jailed under statute. The majority suggests that “it § 2339A, let alone jailed for life,19 for would be incongruous to conclude that a providing a terrorist with a glass of water, person who provides food and sets up tents unless, for example, the water was heavy for terrorists could be jailed for up to life water that the defendant knows or intends under 18 U.S.C. § 2339A, but the same be used to develop a nuclear weapon. The conduct could not prohibit admission to majority does not explain how the mere the United States under INA § 212.” Maj. provision of food and tents, without more, Op. at 9. might constitute knowing or intentional provision of “material support or The majority’s suggestion of resources” that are “to be used in incongruity is easily dismissed. Section preparation for, or in carrying out” terrorist 2339A requires that the “material support acts such as hijacking or unleashing or resources” be provided by a person, weapons of mass destruction. In sum, “knowing or intending that they are to be there is no incongruity, 20 and § 2339A used in preparation for, or in carrying out” a long list of specific and extremely serious crimes of terror. 18 Under that in nature. 19 I note that the majority’s hypothetical 18 The statute lists over thirty specific, sentence of life imprisonment under § serious acts of criminal terror that include 2339A could not even arise unless the destruction of aircraft, 18 U.S.C. § 32; tents and food were somehow used in violence at international airports, 18 preparation for or in carrying out a serious U.S.C. § 37; prohibitions with respect to act of terrorism that led to death. Nowhere biological weapons, 18 U.S.C. § 175; use does the majority explain how Singh- of chemical weapons, 18 U.S.C. § 229; Kaur’s food and tents was connected, assassination and kidnapping of members directly or indirectly, to any death. of Congress, the Cabinet, and the Supreme 20 Court, 18 U.S.C. § 351; transactions Indeed, I believe that under involving nuclear materials, 18 U.S.C. § appropriate circumstances – not at hand 831; and many more crimes, nearly all here – a glass of water could constitute obviously terroristic and hugely significant “material support” under INA § 212 as

20 does not support the majority’s attempt substitutes conjecture for proof and reads treat INA § 212’s recitation of “material” “material” out of “material support.” as surplusage. Here, the majority concludes that “Material support,” by its plain “[t]he evidence is clear that at the time of language, means that the act affording Singh’s participation with them, the support must be of a kind and degree that members of the various militant Sikh has relevance and importance for terrorist organizations opposed to the Indian a c t iv i ty, t e r r o r i s t s , o r t e r r o r i s t government had committed or planned to organizations, and cannot be mere support. commit terrorist activity.” Maj. Op. at 10. In the next section, I apply this plain The majority bases its holding on five reading to the facts of the case and premises: (1) Singh-Kaur supplied food conclude that Singh-Kaur’s mere support and tents (2) prior to 1989 (3) to unnamed does not rise to the requisite level of members of the Babbar Khalsa and/or Sant materiality. Jarnail organizations (4) who engaged in unnamed terrorist acts or planned to III. engage in such unnamed acts, and (5) Applying the facts to the law, Singh-Kaur knew or should have known substantial evidence does not support the that these unnamed individuals engaged in BIA’s finding that Singh-Kaur provided unnamed terrorist acts or planned to “material support.” Nothing in the record engage in such unnamed acts. shows how the food and tents were At best, only the first three premises important and relevant to terrorism, and are supported by the record. There is no indeed, Singh-Kaur testified that they were dispute that Singh-Kaur supplied food and provided for religious meetings. The tents prior to 1989 to unnamed members of majority therefore relies on speculation by at least one of these organizations. But the concluding that mere support to unnamed administrative record contains nothing persons who may or may not have engaged about whether the individuals at issue had in unknown terrorist activities constitutes engaged in terrorist acts or planned to do “material support.” This conclusion so. Indeed, the record is to the contrary – Singh-Kaur testified that the meetings were for religious purposes. The IJ did not well, so long as the water was relevant and find Singh-Kaur’s testimony to lack important to terrorism. See note 5, supra credibility and the BIA did not find (noting that under INA § 212, a glass of otherwise; we therefore “must proceed as water may constitute “material support” if [petitioner’s] testimony were credible where it was provided to a terrorist so that and determine whether the BIA's decision he can survive long enough to walk the is supported by substantial evidence in the last half-mile to complete his terrorist aim face of his assumed (but not determined) because such support would be both credibility.” Kayembe, 334 F.3d at 235; important and relevant to terrorism).

21 see also Lim, 224 F.3d at 933 (where A: Yes, because I was baptized. neither the IJ nor the BIA expressly made That’s why. credibility findings, Court must accept Q: Well, but in this statement, sir, testimony as true). Nor did the BIA base that I just read to you, you say there its finding on other evidence of record, were known activities that you took such as the disclaimed 1991 asylum against the Indian government. affidavit. What were those activities? Accordingly, we are limited to the A: Sant Jarnail Singh organized BIA’s finding that Singh-Kaur supplied meetings in different villages to food and tents, and we must assume that propagate religion. his testimony before the IJ was true. In this regard, it is helpful to review the Q: So, in other words you’re telling testimony: me that you attended these meetings, correct? IJ: Sir, I want to read to you something that you wrote in an A: Yes. We used to have those asylum application that you gave to people to arrange our tents and put the Immigration Service. You say some – some sort of – arrange “I am on the military and police preparation of the food and also wanted list because of known and arrange to bring people to these suspected activities against the gatherings and then take them back government and when I left I had to their places. failed to meet their reporting Q: Did you do anything else? requirements.” Now, my first question to you, sir, is this. Were A: No. you on a military and police wanted Q: Sir, when you say here there list in India, sir? were known activities against the A: Yes, on police. Indian government, that is what you’re referring to, sir? Q: Why? A: W e were not a g a in s t A: Because I baptized. After [the] gov ernm ent, b u t w e w e r e killing of Jarnail Singh [by Indian propagating the teachings of our authorities], they made a list of all Sant. those people who got baptized and then they started catching all those .... people. Q: . . . Were you ever involved in Q: So, it was only because you any violent activities against the were baptized as a Sikh, sir. Is that Indian government – wait until I what you mean?

22 finish, please, sir – in support of an Wala militant group in 1984. Isn’t independent Sikh state? that correct? A: Yes. We want Khalistan, but A: I was baptized by Sant Jarnail we don’t want by the means of Singh Bhindra Wala. violence. Q: And, you joined his group, Q: Well, I want you to answer the militant group, in 1984. Isn’t that question I asked you, sir. You have correct? not answered it. Were you ever A: This is not a militant group. involved in any violent activity in India? Q: According to your application for asylum, it’s called the Sant A: No. Jarnail Singh Bhindra Wala militant A review of this testimony makes it group. clear that Singh-Kaur disclaimed any A: That may be a mistake by my connection to violence. It also shows that lawyer, but he was saying that by the meetings at question were “to getting baptized you will have your propagate religion.” It further shows that own army, you will have your own the tents and food were supplied to garment, you will have your own members of Sant Jarnail. Nothing in the police. testimony reflects that the purpose or subject of the meetings was to facilitate Q: And, sir, the purpose of this terrorism. g r o u p , a c c o r d ing to y o u r application, is to fight for and Shortly thereafter, the government’s protect the religious and political lawyer questioned Singh-Kaur: cause of the Sikh community. Is Q: Sir, accordin g to your that true? application for asylum, you joined A: This group propagates the the Babbar Khalsa group in 1993. religion and whatever the teachings Is that so? of our ten gurus, that group also A: In 1983. propagates those teachings. Q: I’m sorry, 1983. Q: And, according to your affidavit, which is attached to your A: I got baptized and then my application for asylum, you assisted name was written that he belongs to the freedom fighters in your village Babbar Khalsa. in the movement of weapons Q: And, according to your through your village. Isn’t that application for asylum you joined correct? the Sant Jarnail Singh Bhindra

23 A: No. We – I used to help by State Department has designated Sant putting that tent and organize the Jarnail as a terrorist organization is mondo (phonetic sp.) or the tent. incorrect and is by itself reversible error.21 Q: And, it also states that you gave Recognizing this error, the majority shelter to these militants who were does not hold that Singh-Kaur supplied involved in the transport – “material support” to a terrorist transportation of weapons. Isn’t organization, but instead, to an “individual that true? who the actor knows, or reasonably should know, has committed or plans to commit a A: No, I never kept any weapons. terrorist activity.” But the record is devoid Those Sikhs who were baptized, of any evidence of who these individuals they used to come and they knew were, what terrorist activities they had that I am also baptized and I just done, or what terrorist acts they planned to help them with the – giving them commit. There is also no evidence of what food. Singh-Kaur knew or should have known Again, Singh-Kaur disclaimed regarding these unknown activities. The engaging in militant activities or moving only evidence that the BIA and majority weapons, and he reaffirmed the religious appear to latch upon in this regard is the nature of the matter. It is in this context following exchange at the end of the that we must analyze whether the support government’s questioning of Singh-Kaur: he provided was “material,” i.e., more than Q: So, in other words, you were mere support, and support of importance helping the militants who were and relevance to terrorism. involved in the terrorist activities. As a threshold matter and as Isn’t that true? acknowledged by the majority, the BIA A: When we came from far away erred in determining that Babbar Khalsa to this (indiscernible) congregation, and Sant Jarnail were designated by the then we may have some contact. State Department as terrorist organizations We never help in any other way pursuant to INA § 219. See Maj. Op. at 7; than giving them food. Yes. see also note 3, supra. In addition, the testimony above makes it clear that the food and tents were supplied to members of Sant Jarnail. The Sant Jarnail 21 The BIA’s errors regarding the status organization has not been designated as a of the two entities are inextricably Foreign Terrorist Organization or as a interwoven with the ultimate conclusion Specially Designated Global Terrorist that the provision of food and tents to organization, either by the Department of members of these organizations was State or the Department of Treasury. “material support.” This basis alone Accordingly, the BIA’s holding that the warrants granting of the petition.

24 The BIA and majority rely on this passage Further, in the context of this appeal, the to conclude that Singh-Kaur admitted to term “terrorist activity” has a specified having offered support to “militants who legal definition, whereas we have no idea were involved in terrorist activities.” what Singh-Kaur understood the term to Therefore, the majority upholds the BIA’s mean. At the very least the passage is finding that Singh-Kaur offered “material ambiguous, and at the worst, reliance on support . . . to any individual who the actor the passage fails the substantial evidence knows, or reasonably should know, has test because it requires us to speculate as committed or plans to commit a terrorist to what Singh-Kaur was saying “Yes” to. activity.” Despite these concerns, the case The majority’s reliance on this need not turn on this issue, because even if passage is questionable at best. Although we were to assume that Singh-Kaur admissions may certainly be based on admitted that the unnamed “militants” had leading questions, it is difficult to know engaged in unspecified “terrorist activity,” whether or not Singh-Kaur was agreeing to the BIA still has not established that the the words put into his mouth by the food or the tents were material in any way. government lawyer and transmitted Nothing in the record shows the type of through the translator, or what he meant by terrorist activities committed or planned by the response relayed back through the these unnamed individuals, and nothing translator. Indeed, moments before, shows how the food and tents were Singh-Kaur had adamantly denied that the relevant and important to these unnamed persons he helped were “militants.” 22 persons engaging in unknown terrorist activities. Under such circumstances, finding mere support to be “material” 22 The majority also cites to an affidavit support reads “material” out of the statute. Singh-Kaur filed in 1996 in connection Though the BIA might have looked to with his adjustment of status application, other bases for its decision, it did not do in which he states that “after [Sant so, and we cannot raise new bases in the Jarnail’s] death his group became militant context of a petition for review.23 because of the violence perpetrated upon him and his and his [sic] followers by the Indian Military.” Maj. Op. at 10. It is or whether unspecified militant activity unclear how this proves anything. We do was “terrorist activity” for purposes of not know whether the individuals to whom INA § 212. Indeed, Sant Jarnail is not a Singh-Kaur provided food and tents were Foreign Terrorist Organization or a involved in militant activity at all, Specially Designated Global Terrorist whatever that activity might be. Indeed, organization. See note 3, supra. Singh-Kaur later testified before the IJ that 23 the group was not militant. More Although the government argues that fundamentally, there is no indication how Singh-Kaur had the burden of proving he

25 Thus, it is apparent that even was not inadmissible, the case does not though the majority concedes that it cannot turn on which party bore the burden of affirm the BIA on the basis of material proof. Here, the facts regarding the food support to a terrorist organization, it and tents were undisputed and Singh- nevertheless uses the affiliation of the Kaur’s testimony must be treated as unnamed individuals to Sant Jarnail to credible. Under these circumstances, bootstrap a finding that they engaged in Singh-Kaur’s actions do not constitute terrorist activities, however unknown those “material support” regardless of who bears activities may be. But bootstrapping and the burden. These circumstances evoke conjecture are not even close to substantial United States v. McGuire, 178 F.3d 203 evidence that the food and tents were (3d Cir. 1999), a federal arson case where material, i.e., relevant and important to before the district court, the government terrorism. Where the “conclusion is not rested Commerce Clause jurisdiction based on a specific, cogent reason, but, solely on the presence of a bottle of instead, is based on speculation, Florida orange juice in the trunk of a car conjecture, or an otherwise unsupported used solely for intrastate business. We personal opinion, we will not uphold it held that “a conviction under 18 U.S.C. § because it will not have been supported by 844(i) must rest upon more than the such relevant evidence as a reasonable dubious interstate commerce nexus of our mind would find adequate.” Dia v. hypothetical cup of sugar, or the Ashcroft, 353 F.3d 228, 250 (3d Cir. 2003) ephemeral nexus of the government’s (en banc); see also Gao v. Ashcroft, 299 carton of orange juice.” Id. at 211-12. We F.3d 266, 272 (3d Cir. 2002) (findings rejected the government’s argument on based on “speculation or conjecture, rather appeal that “we should now look past the than on evidence in the record, are orange juice and consider other items that reversible”). “In other words, [the finding] were in the trunk” that might support federal jurisdiction. Id. at 206. Here, just as in McGuire, although the BIA might have relied upon other information of record to support its conclusion that Singh-Kaur provided “material support,” the agency relied “transportation” to the individuals at issue, solely on the food and tents. The BIA did but the BIA did not rely on this basis. See not rely on the 1991 asylum application, INA § 212(a)(3)(B)(iv)(VI), 8 U.S.C. § and we may not go searching for bases not 1182(a)(3)(B)(iv)(VI). See Navas, 217 relied upon by the agency. Possibly, the F.3d at 658 n.16 (Court may not affirm BIA could have seized upon the fact that BIA on grounds on which the agency did Singh-Kaur testified to pro vidin g not rely).

26 will not have been supported by substantial would be “material” to terrorism. But evidence.” Dia, 353 F.3d at 250.24 those facts are not before us, and permitting a mere cup of water, without IV. more, to be “material support” reads That the BIA’s finding cannot be “material” out of the statute. upheld is underscored through the In reaching this conclusion, I government’s suggestion at oral argument remain cognizant of the fact that the that the provision of a cup of water to a executive branch is best-equipped to terrorist could constitute “m aterial handle the fast-changing circumstances of support.” I have no doubt that under the the war against terror. But courts may not right facts, the provision of a single glass rew rite clear statute s or de cide of water to a terrorist could be material immigration petitions on speculation. support. If bin Laden were dying of thirst Because “material support” does not mean and asked for a cup of water to permit him immaterial support, I would grant the to walk another half mile and detonate a petition for review, vacate the order of the weapon of mass destruction, such support BIA, and remand for further proceedings.25

24 Along these lines, the majority discusses at length Singh-Kaur’s membership in Babbar Khalsa, the International Sikh Youth Federation, and the Khalistan Commando Force. See Maj. 25 Op. at 10-11. However, the food and tents Because I conclude that the statute’s were not provided to these organizations, plain meaning dictates the outcome, I need but to individuals belonging to a different not rely on the rule of lenity. See St. Cyr, organization, Sant Jarnail. The relevance 533 U.S. at 320 (“longstanding principle of these facts to the food and tents is of construing any lingering ambiguities in nowhere explained, nor could it be. More deportation statutes in favor of the alien”); fundamentally, the majority cannot and Ki Se Lee, 369 F.3d at 225. Because the does not identify the terrorist acts that statute is unambiguous and plain, the rule Singh-Kaur provided “material support” of lenity has no bearing here. See Ki Se for, for any group. Although facts about Lee, 369 F.3d at 227-28 n.13 (Alito, J., other groups paint Singh-Kaur in an dissenting) (“The rule of lenity . . . is unfavorable light, they do not suffice to reserved for situations in which the normal provide anything more than speculation as rules of statutory interpretation are to how his “support” was “material” to unhelpful.”). Nonetheless, our adherence anything. Finally, the BIA did not cite to to the rule of lenity in the immigration or rely upon Singh-Kaur’s membership to context provides additional support for the such other groups. conclusion here.