                                                                                                                           Opinions of the United
2005 Decisions                                                                                                             States Court of Appeals
                                                                                                                              for the Third Circuit


10-27-2005

Pheap Sor v. Atty Gen USA
Precedential or Non-Precedential: Non-Precedential

Docket No. 04-3241




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                                                      NOT PRECEDENTIAL


                 IN THE UNITED STATES COURT
                          OF APPEALS
                     FOR THE THIRD CIRCUIT


                            NO. 04-3241


                            PHEAP SOR,
                             Petitioner

                                  v.

        ATTORNEY GENERAL OF THE UNITED STATES,
                      Respondent




On Petition for Review of an Order of the Board of Immigration Appeals
                           No. A95-841-726


           Submitted Pursuant to Third Circuit LAR 34.1(a)
                          October 19, 2005

  BEFORE: SMITH, STAPLETON and NYGAARD, Circuit Judges

                  (Opinion Filed October 27, 2005 )




                     OPINION OF THE COURT
STAPLETON, Circuit Judge:

       Appellant Pheap Sor, a woman from Cambodia, appeals the denial of her

applications for asylum and withholding of removal. After a hearing, the IJ found that

Sor had “intentionally fabricated her entire case.” App. at 18. He further concluded that,

assuming her story to be credible, she was not entitled to relief because she had “engaged

in terrorist activity.” App. at 16. The BIA upheld the IJ’s decision. While it expressly

did not defer to the IJ’s credibility determination, it agreed that Sor had engaged in

terrorist activity:

       The respondent testified that she recruited for the Cambodian Freedom Fighters
       (CFF), that she knew the CFF’s mission was to overthrow the Cambodian
       government, using violence if necessary, and that in December 2000, the CFF
       attacked a Cambodian government installation with a grenade, thus incurring
       casualties. Although the United States Department of State has not officially
       designated the CFF as a foreign terrorist organization, the respondent remains
       inadmissible . . . because she engaged in terrorist activity.

App. at 22 (internal citations omitted). It is undisputed that the State Department has not

designated the CFF to be a terrorist organization.

       Both asylum and withholding of removal are not available to aliens who have

engaged in terrorist activities as defined in the statutory scheme. See 8 U.S.C. §

1158(b)(2)(A)(v) (finding aliens ineligible for asylum if they fall under certain portions of

§ 1182(a)(3)(B) – the statutory provision defining terrorist activities); 8 U.S.C. §

1231(b)(3)(B)(iv) (refusing to allow withholding of removal to aliens if there are

“reasonable grounds” to believe that the alien is “a danger to the security of the United



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States” and specifically referring to § 1227(a)(4)(B) which states that the definition

includes any alien described under § 1182(a)(3)(B) – the statutory provision defining

terrorist activities).

        Section 212(a)(3)(B)(i)(I) of the INA provides that “[a]ny alien who (I) has

engaged in terrorist activity . . . is inadmissible.” 8 U.S.C. § 1182(a)(3)(B)(i)(I). In this

context, “engage in terrorist activity” includes:

        to solicit any individual . . . (cc) for membership in a terrorist organization
        described in clause (vi)(III) unless the solicitor can demonstrate that he did
        not know, and should not reasonably have known, that the solicitation
        would further the organization’s terrorist activity . . .

8 U.S.C. § 1182(a)(3)(B)(iv)(V)(cc). Clause (vi)(III) defines a “terrorist organization” as

“a group of two or more individuals, whether organized or not, which engages in the

activities described in subclause (I), (II), or (III) of clause (iv).” 8 U.S.C. §

1182(a)(3)(B)(vi)(III).1 This refers back to clause (iv) which defines “engage in a

terrorist activity” to include:

        (I) to commit or to incite to commit, under circumstances indicating an
        intention to cause death or serious bodily injury, a terrorist activity; [or]
        (II) to prepare or plan a terrorist activity . . .

8 U.S.C. § 1182(a)(3)(B)(vi)(I)-(II). In this context, “terrorist activity” means, among

other things:

        any activity which is unlawful under the laws of the place where it is

   1
    It is worth noting here that it is clause (vi)(II), not (vi)(III), that refers to the
designation of an organization as a terrorist organization by the Secretary of State. See 8
U.S.C. § 1182(a)(3)(B)(vi)(II).

                                                3
       committed . . . and which involves . . . (V) The use of any . . . (b) explosive,
       firearm, or other weapon or dangerous device (other than for mere personal
       monetary gain), with intent to endanger, directly or indirectly, the safety of
       one or more individuals or to cause substantial damage to property.

8 U.S.C. § 1182(a)(3)(B)(iii)(V)(b).

       “Engag[ing] in terrorist activity” under these statutory provisions clearly includes

the conduct that Sor admitted to at her hearing. She admitted that she solicited

individuals to become members of an organization (the CFF), see 8 U.S.C. §

1182(a)(3)(B)(iv)(V)(cc), that she knew was engaged in certain illegal activities (the

attack on the government), see 8 U.S.C. § 1182(a)(3)(B)(vi)(III), including the planning

and committing of, see 8 U.S.C. § 1182(a)(3)(B)(vi)(I)-(II), illegal activities which

involve the use of explosive devices (grenades) with intent to endanger the safety of one

or more individuals or to cause substantial property damage. See 8 U.S.C. §

1182(a)(3)(B)(iii)(V)(a). She has thus admitted each of the elements of “engag[ing] in

terrorist activity.” In addition, the evidence indicates that she has an ongoing relationship

with CFF. She receives monthly financial payments from the group and testified that her

application for asylum was prepared by a person she identified as the president of the CFF

in the United States. It follows that the decision of the BIA was supported by substantial

evidence.

       We have upheld a similar determination by the BIA where the petitioner admitted

to much less involvement in militant activities. In Singh-Kaur v. Ashcroft, 385 F.3d 293

(3d Cir. 2004), we found that an alien who admitted only to providing food and shelter to

                                              4
a group of militant Sikhs who opposed the Indian government was properly found to have

provided “material support” to those “engaged in terrorist activities.” Id. at 299–301.

       Sor was not denied due process of law as she contends. In immigration

adjudications, the Due Process Clause mandates that:

       An alien: (1) is entitled to factfinding based on a record produced before the
       decisionmaker and disclosed to him or her; (2) must be allowed to make
       arguments on his or her own behalf; and (3) has the right to an
       individualized determination of his or her interests.

Abudlai v. Ashcroft, 239 F.3d 542, 549 (3d Cir. 2001) (internal quotations omitted). As to

the conduct of the decisionmaker, an alien is only constitutionally entitled to a

decisionmaker who “actually consider[s] the evidence and argument that a party presents”

so that the decisionmaker does not “act as a mere rubber stamp.” Id. at 549-50 (citing

Marincas v. Lewis, 92 F.3d 195 (3d Cir. 1996)).

       Sor was able to develop a record and make arguments supporting the relief which

she sought. The decision rendered was tailored to her testimony and her situation. While

she purports to find the IJ’s opinion logically inconsistent when it finds her not credible

and then credits her testimony that she is a terrorist, the provision of alternative grounds

for decision hardly constitutes a due process violation. Moreover, we review the BIA’s

opinion in this instance, not the decision of the immigration judge. Abudlai, 239 F.3d at

548-49. The BIA’s opinion considered the evidence and arguments in her case and did

not act as a mere rubber stamp. Sor’s due process rights were not violated.

       The petition for review will be denied.

                                              5
