                                                                                                                           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Precedential or Non-Precedential: Precedential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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                        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.

                                               27
