                   FOR PUBLICATION

   UNITED STATES COURT OF APPEALS
        FOR THE NINTH CIRCUIT


 SUNIL RAYAMAJHI,                              No. 16-70534
                              Petitioner,
                                                Agency No.
                    v.                         A099-912-460

 MATTHEW G. WHITAKER, Acting
 Attorney General,                               OPINION
                    Respondent.


         On Petition for Review of an Order of the
             Board of Immigration Appeals

         Argued and Submitted November 15, 2018
                 San Francisco, California

                    Filed January 15, 2019

   Before: Susan P. Graber, Stephanie Dawn Thacker,*
          and Mark J. Bennett, Circuit Judges.

                 Opinion by Judge Graber;
               Concurrence by Judge Bennett




    *
      The Honorable Stephanie Dawn Thacker, Circuit Judge for the
United States Court of Appeals for the Fourth Circuit, sitting by
designation.
2                    RAYAMAJHI V. WHITAKER

                            SUMMARY**


                             Immigration

    The panel dismissed in part and denied in part a petition
for review of Board of Immigration Appeals’ denial of
asylum and withholding of removal to a citizen of Nepal
under the material support terrorist bar.

    The panel held that petitioner’s argument for a duress
exception to the material support bar is foreclosed by
Annachamy v. Holder, 733 F.3d 254 (9th Cir. 2013),
overruled in part on other grounds by Abdisalan v. Holder,
774 F.3d 517 (9th Cir. 2015) (en banc), and therefore does
not constitute a colorable legal or constitutional question
providing jurisdiction over the otherwise unreviewable
material support determination.

    The panel held that there is no de minimis funds
exception to the material support bar. The panel explained
that the plain text of the statute, 8 U.S.C.
§ 1182(a)(3)(B)(iv)(VI), states that funds knowingly given
to a terrorist organization are material support, regardless of
the amount given. The panel further held that even if the
statute is ambiguous on this point, the Board’s interpretation
in In re A-C-M-, 27 I. & N. Dec. 303 (B.I.A. 2018), that there
is no de minimis exception, was based on a permissible
construction of the statute, and therefore is entitled to
Chevron deference.


    **
       This summary constitutes no part of the opinion of the court. It has
been prepared by court staff for the convenience of the reader.
                 RAYAMAJHI V. WHITAKER                       3

    The panel held that because petitioner admitted that he
gave about $50 to someone whom he knew was a member of
the Maoists, a designated terrorist organization at that time,
substantial evidence supported the Board’s determination that
he gave material support to a terrorist organization, rendering
him ineligible for asylum and withholding of removal.

    Concurring in part and concurring in the judgment, Judge
Bennett disagreed with the majority that the plain text of the
statute unambiguously excludes de minimis funds from the
definition of material support, but agreed with the majority
that the Board’s interpretation of the statute in In re A-C-M-
was permissible, and therefore entitled to Chevron deference.


                         COUNSEL

George T. Heridis (argued), Law Offices of Gill & Heridis,
San Jose, California, for Petitioner-Appellant.

Daniel I. Smulow (argued), Senior Counsel for National
Security; Christopher C. Fuller, Deputy Chief, National
Security Unit; Office of Immigration Litigation, Civil
Division, United States Department of Justice, Washington,
D.C.; for Respondent-Appellee.
4                RAYAMAJHI V. WHITAKER

                         OPINION

GRABER, Circuit Judge:

    Petitioner Sunil Rayamajhi fled Nepal in 2009 because a
terrorist organization tortured and threatened him repeatedly.
Before fleeing, Petitioner knowingly gave money to a
member of the terrorist organization at least once. After
arriving in the United States, Petitioner sought asylum,
statutory withholding of removal, withholding of removal
under the Convention Against Torture (“CAT”), and deferral
of removal under CAT.

    An immigration judge (“IJ”) granted Petitioner deferral of
removal under CAT, but denied him asylum and both forms
of withholding of removal. The IJ found Petitioner ineligible
for asylum and withholding of removal because Petitioner
provided “material support” to a terrorist organization, as
defined in 8 U.S.C. § 1182(a)(3)(B)(iv)(VI). The Board of
Immigration Appeals (“BIA”) affirmed the denials of asylum
and withholding of removal and left undisturbed the grant of
deferral of removal. Petitioner seeks review of the BIA’s
decision. We have jurisdiction under 8 U.S.C. § 1252(a). We
deny the petition in part and dismiss it in part.

    Petitioner is a Nepali citizen. In 2003, he took an
administrative position with Doctors Without Borders, an
international nongovernmental organization. During the early
stages of his work for Doctors Without Borders, Petitioner
became a target of a Nepali terrorist organization called
the Maoists. The Secretary of State designated the Maoists
as a “terrorist organization” under 8 U.S.C.
§ 1182(a)(3)(B)(vi)(II) in 2004, but revoked that designation
in 2012. 77 Fed. Reg. 54,944-02, 54,944 (Sept. 6, 2012).
                   RAYAMAJHI V. WHITAKER                           5

    From 2004 to 2008, Maoists beat Petitioner twice,
demanded that he give them money and join their political
party, and threatened him and his family. In February 2009,
a Maoist approached Petitioner at a taxi stand and demanded
money. Petitioner recognized the Maoist as one of the men
who had beaten him in the past. Fearing what the Maoist
might do to him if he did not comply, Petitioner gave the man
the equivalent of about $50.1 Petitioner left Nepal soon after
that incident.

    Petitioner entered the United States in June 2009 on a
visitor’s visa. He applied for asylum and withholding of
removal in December 2009. An IJ found that, even
considering only the 2009 “donation,” Petitioner gave
material support to the Maoists in the form of money. Thus,
the IJ ruled that the Immigration and Nationality Act’s
(“INA”) “material support bar” rendered Petitioner ineligible
for asylum and withholding of removal. The IJ also held that
she lacked jurisdiction to grant an exception on the ground of
duress. The IJ ordered Petitioner removed to Nepal, but
deferred his removal under CAT because he likely would
suffer torture if sent back to Nepal. The material support bar
does not apply to deferral of removal under CAT. 8 C.F.R.
§ 1208.17(a). Petitioner appealed the denial of asylum and
withholding of removal, and the government appealed the
grant of deferral of removal.

   On appeal, the BIA rejected Petitioner’s argument that the
material support bar did not apply to him, holding: “There is


    1
     The parties dispute whether Petitioner also knowingly gave money
to Maoists in 2004 and 2005 when they demanded money from him. We
need not resolve that dispute because, as explained in text, the
unchallenged event in 2009 is disqualifying.
6                RAYAMAJHI V. WHITAKER

no de minimis exception to the material support bar” and “no
duress exception to the material support bar.” The BIA also
concluded that the IJ had not properly considered the country
condition evidence in the record as it pertained to CAT
deferral. Accordingly, the BIA remanded the case to the IJ
solely for further consideration of Petitioner’s claim for CAT
deferral. On remand, the IJ incorporated the facts and
procedural history of her prior decision and the BIA’s prior
decision. She again granted Petitioner CAT deferral.

    Petitioner again appealed to the BIA and contested the
IJ’s denials of asylum and withholding of removal under the
material support bar. In 2016, the BIA issued its second
decision, reaffirming its dismissal of Petitioner’s asylum and
withholding claims. The government did not appeal the IJ’s
second grant of CAT deferral, so that portion of the ruling
remains in effect.

     Petitioner timely seeks our review. He argues that the
BIA and the IJ erred by denying him asylum and withholding
of removal under the material support bar, because he gave
money to the Maoists under duress and gave only de minimis
support. We review only the BIA’s opinion, except to the
extent that it expressly adopted portions of the IJ’s decision.
Doe v. Holder, 736 F.3d 871, 877 (9th Cir. 2013). We review
the BIA’s fact-finding for substantial evidence and may grant
a petition only if the evidence compels a conclusion contrary
to the BIA’s conclusion. Id. We review de novo the BIA’s
determination of purely legal questions, but defer to the
BIA’s legal interpretation of the INA unless that
interpretation contradicts the statute’s plain meaning.
Simeonov v. Ashcroft, 371 F.3d 532, 535 (9th Cir. 2004)
(citing Chevron U.S.A. Inc. v. Nat. Res. Def. Council, Inc.,
467 U.S. 837, 843 n.9 (1984)).
                  RAYAMAJHI V. WHITAKER                        7

    A. Duress

    In Annachamy v. Holder, 733 F.3d 254, 267 (9th Cir.
2013), overruled in part on other grounds by Abdisalan v.
Holder, 774 F.3d 517, 526 (9th Cir. 2015) (en banc), we held
that “the material support bar does not include an implied
exception for individuals” who give support to a terrorist
organization while “under duress.” Annachamy forecloses
Petitioner’s argument that a “duress” exception to the
material support bar applies here.

    Because Petitioner’s duress argument is not colorable in
view of our precedent, we lack jurisdiction to consider it.
Under 8 U.S.C. § 1158(b)(2)(D), we lack jurisdiction to
consider a petition for review of the BIA’s denial of asylum
and withholding of removal pursuant to the material support
bar. Under 8 U.S.C. § 1252(a)(2)(D), however, we retain
jurisdiction (despite the BIA’s applying the material support
bar) only over “colorable constitutional claims or questions
of law.” Bazua-Cota v. Gonzales, 466 F.3d 747, 748 (9th Cir.
2006) (per curiam). Accordingly, we dismiss the petition in
part.

    B. De Minimis Support

    A noncitizen who has engaged in “terrorist activity”
cannot obtain asylum or withholding of removal. See
8 U.S.C. § 1182(a)(3)(B)(i)(I) (stating that an alien who
has engaged in “terrorist activity” is inadmissible);
id. § 1158(b)(2)(A)(v) (stating that an alien described
in § 1182(a)(3)(B)(i)(I) is ineligible for asylum); id.
§ 1227(a)(4)(B) (stating that any alien described in
§ 1182(a)(3)(B) is removable); id. § 1231(b)(3)(B)(iv)
(stating that an alien described in § 1227(a)(4)(B) is ineligible
8                 RAYAMAJHI V. WHITAKER

for withholding of removal). As relevant here, “engage in
terrorist activity” means “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, or
training,” to a terrorist organization or a member of a terrorist
organization, unless the alien did not know (and should not
reasonably have known) that the organization was a terrorist
organization. Id. § 1182(a)(3)(B)(iv)(VI).

    In its decisions on Petitioner’s claims, the BIA held that
no de minimis exception to the material support bar exists. In
a published opinion issued several years later, the BIA held
the same: “[A]n alien provides ‘material support’ to a
terrorist organization, regardless of whether [the act] was
intended to aid the organization, if the act has a logical and
reasonably foreseeable tendency to promote, sustain, or
maintain the organization, even if only to a de minimis
degree.” In re A-C-M-, 27 I. & N. Dec. 303, 308 (B.I.A.
2018) (emphasis added)); see also id. at 307 (“In sum,
‘material support’ is a term of art” that refers to “aid of a
material and normally tangible nature, and it is not
quantitative.” (footnote omitted)). Whether or not we afford
Chevron deference to the BIA’s interpretation, we agree that
the material support bar does not contain an exception for
people who give merely de minimis funds to a terrorist
organization.

    If a statute is unambiguous, we end our analysis by
enforcing its text. Chevron, 467 U.S. at 843. In relevant part,
§ 1182(a)(3)(B)(iv)(VI) defines engaging in terrorist activity
as giving something that “affords material support, including
                    RAYAMAJHI V. WHITAKER                               9

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, or
training,” to a terrorist organization. (Emphases added.) The
statute provides a list of things that constitute “material
support.” “Funds” fall under this category, and the statute
does not establish any numerical threshold for money to
qualify as material support. The inclusion in the list of the
phrase “other material financial benefit” does not assist
Petitioner. Grammatically, that phrase relates only to
“transfer of funds” and suggests that “funds” are material per
se, because a person affords material support by transferring
funds or some “other material financial benefit.” Under the
plain text of § 1182(a)(3)(B)(iv)(VI), “funds” knowingly
given to a terrorist organization are “material support,”2
regardless of the amount given.

    If § 1182(a)(3)(B)(iv)(VI) is ambiguous as to whether it
contains an exception for de minimis funds, the BIA’s
interpretation merits Chevron deference even though it post-
dates the BIA’s decision on Petitioner’s claims. Pauley v.
U.S. Dep’t of Agric., 348 F.3d 1143, 1152 (9th Cir. 2003) (per
curiam); see also Smiley v. Citibank (S.D.), N.A., 517 U.S.
735, 744 n.3 (1996) (“Where, however, a court is addressing
transactions that occurred at a time when there was no clear
agency guidance, it would be absurd to ignore the agency’s
current authoritative pronouncement of what the statute


    2
      As noted, an exception applies when the person affording support
did not know, and should not reasonably have known, that he was dealing
with a terrorist organization. § 1182(a)(3)(B)(iv)(VI). That exception
does not apply here because Petitioner testified that he knew that the man
to whom he gave money in 2009 was a Maoist.
10               RAYAMAJHI V. WHITAKER

means.”). The BIA’s determination that no de minimis
exception exists “is based on a permissible construction of the
statute.” Chevron, 467 U.S. at 843. The BIA found “no
legislative history to support taking a quantitative approach”
to defining “material support.” In re A-C-M-, 27 I. & N. Dec.
at 307. Moreover, the BIA noted that it would not make
sense for § 1182(a)(3)(B)(iv)(VI) itself to contain a de
minimis exception because, in § 1182(d)(3)(B)(i), Congress
gave the Secretary of Homeland Security the discretionary
authority to grant waivers to the material support bar “to
address excusable violations including, among other things,
support provided under duress or to only a de minimis
degree.” Id. at 308. That grant of discretion would be
meaningless if the material support bar did not apply in the
first place.

    We hold that the INA’s material support bar contains no
implied exception for de minimis aid in the form of funds.
Petitioner admitted that, in 2009, he gave about $50 to
someone whom he knew was a Maoist. Thus, substantial
evidence supports the IJ’s finding, adopted by the BIA, that
Petitioner gave material support to a terrorist organization,
rendering him ineligible for asylum and withholding of
removal.

     DISMISSED in part and DENIED in part.
                 RAYAMAJHI V. WHITAKER                     11

BENNETT, Circuit Judge, concurring in part and concurring
in the judgment:

    I fully agree with the majority’s discussion of the duress
issue.

    I also agree that the petition should be denied as to the
material support issue. The agency’s interpretation of the
material support bar is permissible, and so we must defer to
it under Chevron U.S.A., Inc. v. Nat. Res. Def. Council, Inc.,
467 U.S. 837, 843 (1984), even if, de novo, we might
interpret the statute in a different way. But my colleagues
also conclude that, under the plain text of the statute,
“material support” encompasses de minimis support. Maj.
Op. at 8–9. I respectfully disagree, as Congress has not
“directly spoken to the precise question at issue.” Chevron,
467 U.S. at 842.

    The material support bar provides that an alien is deemed
to “engage in terrorist activity” if he commits an act that he
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, or training

to a terrorist. 8 U.S.C. § 1182(a)(3)(B)(iv)(VI). The question
here is whether the statute unambiguously defines de minimis
“funds” as “material support.”
12                   RAYAMAJHI V. WHITAKER

    I begin with a proposition that the majority does not
dispute: the word “material,” when modifying “support,” is
patently ambiguous.1 “Material” has several definitions,
ranging from “more or less necessary” to “important” to
merely “having influence or effect.” Black’s Law Dictionary
976 (6th ed. 1990).2 Not all of these definitions support the
agency’s interpretation that material support encompasses
any act that “has a logical and reasonably foreseeable
tendency to promote, sustain, or maintain the [terrorist]
organization, even if only to a de minimis degree.” In re A-
C-M-, 27 I. & N. Dec. 303, 308 (B.I.A. 2018).

    I am unable to resolve the ambiguity by consulting
various judicial interpretations of “material.” The meaning
of “material” depends on the context in which it is used. See
Jabateh v. Lynch, 845 F.3d 332, 344–45 (7th Cir. 2017)
(Hamilton, J., concurring in part and concurring in the
judgment). For the crime of making fraudulent statements to
immigration officials, “material” means “has a natural
tendency to influence, or was capable of influencing, the
decision of the decisionmaking body to which it was
addressed.” Kungys v. United States, 485 U.S. 759, 770
(1988) (internal quotation marks omitted) (reviewing
historical examples and adopting the “most common


     1
       As discussed below, the word “material” is used twice in the statute.
I find “material” unambiguously quantitative when used the second
time—as an adjective modifying “financial benefit.”
     2
      The first iteration of the material support bar was enacted in the
Immigration Act of 1990, Pub. L. No. 101-649, § 601(a), 104 Stat. 4978,
5067–70. The varying definitions of “material” have not meaningfully
changed since then. See Black’s Law Dictionary 1124 (10th ed. 2014)
(defining “material” as, inter alia, “[h]aving some logical connection with
the consequential facts,” “significant,” “essential”).
                  RAYAMAJHI V. WHITAKER                       13

formulation” of the materiality standard in the context of
concealment or misrepresentation). In the False Claims Act
context, however, the Supreme Court has rejected the view
“that any statutory, regulatory, or contractual violation is
material so long as the defendant knows that the Government
would be entitled to refuse payment were it aware of the
violation.” Universal Health Servs., Inc. v. United States,
136 S. Ct. 1989, 2004 (2016). Unlike in A-C-M-, the
“materiality standard is demanding” in the False Claims Act
context and does not encompass “minor or insubstantial”
noncompliance with a condition of payment in a government
contract. Id. at 2003.

    There are many other interpretations of “material,” but
none of them changes the fact that the word is ambiguous in
most contexts. See, e.g., Fed. R. Evid. 401 advisory
committee’s note (explaining that the rule “has the advantage
of avoiding the loosely used and ambiguous word
‘material’”). It is not surprising, then, that the only other
circuit to consider the issue concluded that the term “material
support” is ambiguous with respect to the question of de
minimis support. See Ayvaz v. Holder, 564 F. App’x 625,
628 (2d Cir. 2014) (unpublished) (“Because the term
‘material’ is ambiguous and the BIA did not address whether
the single meal Ayvaz provided qualified as material support,
remand is appropriate for further clarification in a
precedential decision.”).

    This case involves support in the form of funds. The
majority reasons that Congress rendered the term “material
support” unambiguous in the context of funds. Maj. Op. at 9.
In particular, the majority relies on the clause “including . . .
funds” in section 1182(a)(3)(B)(iv)(VI) to conclude that
14                RAYAMAJHI V. WHITAKER

“material support” unambiguously includes any funds,
regardless of amount. Maj. Op. at 9.

    I respectfully disagree. In general, terms that follow the
word “including” are illustrative, not definitional. Fed. Land
Bank of St. Paul v. Bismarck Lumber Co., 314 U.S. 95,
99–100 (1941). Here, the term “funds” is intended to be
illustrative of “material support.” When interpreting a
statute, we should not prioritize the meaning of illustrative
terms over the meaning of the illustrated term. See
Chickasaw Nation v. United States, 534 U.S. 84, 89–91
(2001); United States v. Collins, 854 F.3d 1324, 1333 (11th
Cir.), cert. denied, 138 S. Ct. 503 (2017).

    Thus, when a list of terms follows the word “including,”
not every conceivable definition of every term in that list
necessarily falls within the purview of the statute. See
Chickasaw Nation, 534 U.S. at 89–91; Collins, 854 F.3d at
1333. When, for example, it appears that Congress
inadvertently included an illustrative term that conflicts with
the plain meaning of the term it is intended to illustrate,
courts should disregard the illustrative term as “simply a bad
example.” Chickasaw Nation, 534 U.S. at 90. So too, when
a statute uses an illustrative term that is overly broad, courts
should adopt a narrowing construction of that illustrative term
so that it fits the meaning of the term it illustrates. See, e.g.,
Collins, 854 F.3d at 1333 (construing 18 U.S.C.
§ 3663A(c)(1)(A)(ii) such that the illustrative phrase
“including any offense committed by fraud or deceit” refers
only to an “offense against property”). Therefore, were
“material” given a quantitative interpretation, funds would
mean not any and all amounts of money, but instead a non-de
minimis amount of money.
                     RAYAMAJHI V. WHITAKER                               15

    I agree that Congress might have used the phrase
“including . . . funds” to define “material support” as
encompassing any funds, however small the amount. That
construction fits with one permissible interpretation of
“material.” And, indeed, given the devastating worldwide
harms inflicted by terrorists, such a decision by Congress
would be understandable.           But Congress did not
unambiguously define “material” in that way.3 Another
permissible interpretation of “material” is “more than de
minimis.” Under that interpretation, the statute’s illustrative
use of the term “funds” should not be construed to encompass
de minimis funds. If the agency can permissibly interpret
“material” to mean “more than de minimis,” as surely it can,
then it can also permissibly interpret “funds” to fit that
interpretation.

    The ambiguity is made starker by Congress’s use of the
illustrative phrase “transfer of funds or other material
financial benefit.” 8 U.S.C. § 1182(a)(3)(B)(iv)(VI). On the
one hand, this phrase suggests that funds per se constitute a
“material financial benefit,” as the majority points out. Maj.
Op. at 8–9. On the other hand, under the majority’s
interpretation, the word “material” as used this second time
is entirely superfluous, as under the majority’s interpretation,
any financial benefit is necessarily material. If Congress did
not intend “material” to be superfluous when used this second
time, then “material” cannot be read as anything other than a


    3
      If the statute read “material support, including . . . any funds,” then
I would agree that it is unambiguous as to the issue of de minimis support.
See United States v. Gonzales, 520 U.S. 1, 5 (1997). Congress has
included such language in other statutes, but not here. See, e.g., 18 U.S.C.
§ 2339A(b) (defining “material support or resources” to mean “any
property, tangible or intangible, or service . . .”).
16                  RAYAMAJHI V. WHITAKER

quantitative term that excludes from its reach the transfer of
de minimis (i.e., non-material) financial benefits. What else
could “material financial benefit” mean, if the word
“material” is to be ascribed any meaning at all? See Jabateh,
845 F.3d at 345 (Hamilton, J., concurring in part and
concurring in the judgment) (“While the precise meaning of
‘material’ depends on its context, it always has the effect of
raising the threshold of the word it modifies.”). And if
“material” means “more than de minimis” the second time it
is used, as I believe it must, we would ordinarily presume it
has the same meaning elsewhere in the same statute–
particularly elsewhere in the same subsection (indeed the
same sentence). See Dep’t of Revenue v. ACF Industries,
Inc., 510 U.S. 332, 341–42 (1994).

    Although I concur in the judgment here, the majority’s
reasoning will have consequences that extend beyond this
case. In light of today’s decision, the agency will be unable
to adopt a different permissible interpretation of the material
support bar in the context of de minimis funds in the future.
See Nat’l Cable & Telecomms. Ass’n v. Brand X Internet
Servs., 545 U.S. 967, 982 (2005). We should not prevent the
agency from continuing to consider the meaning of an
ambiguous, context-specific term based on its expertise and
experience in this area.4 See id. at 1002–03.



     4
      Before its precedential decision in A-C-M-, the BIA concluded in a
reasoned unpublished decision that “one packed lunch and the equivalent
of about $4 U.S. dollars, which the terrorists expressly stated would be
used to buy beer . . . cannot be said to be material.” In re ***, 2009 WL
9133770, at *2 (B.I.A. 2009); see also In re S-K-, 23 I. & N. Dec. 936,
945 (B.I.A. 2006) (declining to address the respondent’s claim that
material support does not include de minimis support, but recognizing that
such a claim was “by no means frivolous”).
                 RAYAMAJHI V. WHITAKER                    17

    Because I believe Congress did not speak directly to the
question whether “material support” encompasses de minimis
funds, I cannot join in the majority’s application of Chevron
step one. Otherwise, I concur.
