         13-1135
         Khan v. Holder
                                                                                        BIA
                                                                                     Hom, IJ
                                                                               A074 973 934
                           UNITED STATES COURT OF APPEALS
                               FOR THE SECOND CIRCUIT

                                    SUMMARY ORDER
     RULINGS BY SUMMARY ORDER DO NOT HAVE PRECEDENTIAL EFFECT. CITATION TO A SUMMARY ORDER
     FILED ON OR AFTER JANUARY 1, 2007, IS PERMITTED AND IS GOVERNED BY FEDERAL RULE OF
     APPELLATE PROCEDURE 32.1 AND THIS COURT’S LOCAL RULE 32.1.1. WHEN CITING A SUMMARY ORDER
     IN A DOCUMENT FILED WITH THIS COURT, A PARTY MUST CITE EITHER THE FEDERAL APPENDIX OR AN
     ELECTRONIC DATABASE (WITH THE NOTATION “SUMMARY ORDER”). A PARTY CITING A SUMMARY
     ORDER MUST SERVE A COPY OF IT ON ANY PARTY NOT REPRESENTED BY COUNSEL.

 1            At a stated term of the United States Court of Appeals
 2       for the Second Circuit, held at the Thurgood Marshall United
 3       States Courthouse, 40 Foley Square, in the City of New York,
 4       on the 13th day of March, two thousand fourteen.
 5
 6       PRESENT:
 7                GUIDO CALABRESI,
 8                JOSÉ A. CABRANES,
 9                ROBERT D. SACK,
10                     Circuit Judges.
11       _____________________________________
12
13       MUHHAMAD ARSHAD KHAN,
14                Petitioner,
15                                                              13-1135
16                        v.                                    NAC
17
18       ERIC H. HOLDER, JR., UNITED STATES
19       ATTORNEY GENERAL,
20                Respondent.
21       _____________________________________
22
23       FOR PETITIONER:               Amy Nussbaum Gell, New York, N.Y.
24
25       FOR RESPONDENT:               Stuart F. Delery, Assistant Attorney
26                                     General; Michael P. Lindemann,
27                                     Chief, National Security Unit; Lyle
28                                     D. Jentzer, Senior Counsel for
29                                     National Security, Office of
 1                            Immigration Litigation, Civil
 2                            Division, United States Department
 3                            of Justice, Washington, D.C.
 4
 5          UPON DUE CONSIDERATION of this petition for review of a

 6   Board of Immigration Appeals (“BIA”) decision, it is hereby

 7   ORDERED, ADJUDGED, AND DECREED that the petition for review

 8   is DENIED.

 9          Petitioner, Muhammad Arshad Khan, a native and citizen

10   of Pakistan, seeks review of a February 27, 2013, decision

11   of the BIA denying his motion to reopen and remand and

12   affirming the July 25, 2011, decision of Immigration Judge

13   (“IJ”) Sandy K. Hom, denying his application for asylum,

14   withholding of removal, and relief under the Convention

15   Against Torture (“CAT”).    In re Muhammad Arshad Khan, No.

16   A074 973 934 (B.I.A. Feb. 27, 2013), aff’g No. A074 973 934

17   (Immig. Ct. N.Y. City July 25, 2011).    We assume the

18   parties’ familiarity with the underlying facts and

19   procedural history of the case.

20          Under the circumstances of this case, we have reviewed

21   the decision of the IJ as modified and supplemented by the

22   BIA.    See Xue Hong Yang v. U.S. Dep’t of Justice, 426 F.3d

23   520, 522 (2d Cir. 2005); Yan Chen v. Gonzales, 417 F.3d 268,

24   271 (2d Cir. 2005).    The applicable standards of review are



                                    2
 1   well-established.     See 8 U.S.C. § 1252(b)(4)(B); Yanqin Weng

 2   v. Holder, 562 F.3d 510, 513 (2d Cir. 2009).      Because Khan

 3   does not challenge the agency’s denial of his motion to

 4   reopen, and the BIA did not excuse his failure to exhaust

 5   any challenge to the denial of CAT relief, we have reviewed

 6   only the denial of asylum and withholding of exclusion.      See

 7   Waldron v. INS, 17 F.3d 511, 515 n.7 (2d Cir. 1993).

 8       Khan argues that his material support of the Jammu and

 9   Kashmi Liberation Front (“JKLF”) should not trigger the

10   terrorist activity bar to asylum because he did not

11   knowingly provide support and the JKLF did not engage in

12   terrorist activity.    This Court, however, retains

13   jurisdiction to consider only constitutional claims and

14   questions of law regarding the agency’s application of that

15   statutory bar.   See 8 U.S.C. §§ 1158(b)(2)(D),

16   1252(a)(2)(D).   To the extent Khan challenges the agency’s

17   factual finding that he knew that the JKLF engaged in

18   terrorist activity and that he knowingly provided it

19   material support, his arguments are unreviewable.      See Xiao

20   Ji Chen v. U.S. Dep’t of Justice, 471 F.3d 315, 329 (2d Cir.

21   2006).   We are also unable to review his argument that the

22   Government was required to consider his eligibility for a



                                     3
 1   discretionary waiver given to applicants who provided

 2   material support under duress because it is unexhausted.     A

 3   petitioner must raise to the BIA the specific issues he

 4   later raises in this Court.   Lin Zhong v. U.S. Dep’t of

 5   Justice, 480 F.3d 104, 119-20 (2d Cir. 2007).   However,

 6   whether the JKLF’s activities constitute “terrorist

 7   activities” under the Immigration and Nationality Act

 8   (“INA”) presents a question of law subject to our review.

 9   Shi Ji Ge v. Holder, 588 F.3d 90, 94-95 (2d Cir. 2009).

10       Because Khan applied for asylum prior to April 1, 1997,

11   the agency was required to apply the INA as amended by the

12   Anti-terrorist and Effective Death Penalty Act, but prior to

13   the amendments made by the Illegal Immigration Reform and

14   Immigrant Responsibility Act (“IIRIRA”).   See 8 C.F.R.

15   § 1208.13(c)(2)(i)(F).   Unlike its successor, the pre-IIRIRA

16   statute provided that terrorist activity abroad did not bar

17   a grant of asylum if “there are no reasonable grounds to

18   believe that the individual is a danger to the security of

19   the United States.”   However, the agency erroneously applied

20   the IIRIRA-amended INA to Khan’s application.   The agency

21   therefore did not consider whether the exception under 8

22   C.F.R. § 1208.13(c)(2)(i)(F) applied.   However, we do not


                                   4
 1   consider Khan’s argument that remand is warranted because it

 2   is unexhausted.     See Lin Zhong, 480 F.3d at 119-20.

 3       Khan also argues that the agency incorrectly designated

 4   JKLF as a terrorist organization.     Remand to reconsider that

 5   designation is unnecessary, however, because, for the

 6   reasons set forth below, under the prior version of the INA,

 7   Khan was barred from relief based on his support of the

 8   JKLF.     See Alam v. Gonzales, 438 F.3d 184, 187-88 (2d Cir.

 9   2006) (the Court is “not required to remand where there is

10   no realistic possibility that, absent the errors, the IJ or

11   BIA would have reached a different conclusion”).

12       Former section 212(a)(3)(B) of the INA provided, in

13   relevant part, that an alien is inadmissible if he has

14   “engaged in terrorist activity.”     INA § 212(a)(3)(B)(i)(I)

15   (1996).    “Engag[ing]” in terrorist activity included

16   providing “material support to any individual, organization,

17   or government in conducting a terrorist activity at any

18   time, including . . . a safe house, transportation,

19   communications, funds, false identification, weapons,

20   explosives, or training, to any individual the actor knows

21   or has reason to believe has committed or plans to commit a

22   terrorist activity.”     Id. § 212(a)(3)(B)(iii).   This

23   definition, while less detailed than its later iteration,

                                     5
 1   encompasses the support the agency found Khan provided the

 2   JKLF.   Compare id. (defining engagement to include material

 3   support of any organization conducting terrorist activity),

 4   with INA § 212(a)(3)(B)(iii)(1997) (distinguishing between

 5   the types of terrorist organizations).    Moreover, the agency

 6   reasonably found that the JKLF conducted a “terrorist

 7   activity.”   “Terrorist activity” was defined as “any

 8   activity which is unlawful under the laws of the place where

 9   it is committed . . . and which involves any of the

10   following:”
11        . . .
12        (II) The seizing or detaining, and threatening to kill,
13        injure, or continue to detain, another individual in
14        order to compel a third person (including a
15        governmental organization) to do or abstain from doing
16        any act as an explicit or implicit condition for the
17        release of the individual seized or detained.
18        . . .
19        (V) The use of any--
20             (a) biological agent, chemical agent, or nuclear
21             weapon or device, or
22             (b) explosive or firearm (other than for mere
23             personal monetary gain),
24             with intent to endanger, directly or indirectly,
25             the safety of one or more individuals or to cause
26             substantial damage to property.
27        (VI) A threat, attempt, or conspiracy to do any of the
28        foregoing.
29
30   INA § 212(a)(3)(B)(ii) (1996).    According to the declaration

31   and testimony of Khan’s expert witnesses and various other

32   sources, the Pakistani government discontinued its support


                                   6
 1   of the JKLF in the 1990s.     Various news articles also assign

 2   responsibility for thousands of death in India to the JKLF’s

 3   1990 insurgency there, during which it used arms, bombs, and

 4   kidnappings against Indian nationals to achieve its goal of

 5   Kashmiri independence.   In light of the deaths incontestably

 6   caused by the JFLK’s illegal use of firearms and bombs and

 7   ransom schemes, the agency reasonably found that the JKLF

 8   had conducted terrorist activities.     See id.

 9   § 212(A)(3)(B)(ii)(II),(V).

10       For the foregoing reasons, the petition for review is

11   DENIED.   As we have completed our review, any stay of

12   removal that the Court previously granted in this petition

13   is VACATED, and any pending motion for a stay of removal in

14   this petition is DISMISSED as moot.     Any pending request for

15   oral argument in this petition is DENIED in accordance with

16   Federal Rule of Appellate Procedure 34(a)(2), and Second

17   Circuit Local Rule 34.1(b).

18                                 FOR THE COURT:
19                                 Catherine O’Hagan Wolfe, Clerk
20




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