         12-4302
         Ayvaz v. Holder
                                                                                        BIA
                                                                               Balasquide, IJ
                                                                               A097 517 245
                            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 7th day of May, two thousand fourteen.
 5
 6       PRESENT:
 7                JOSÉ A. CABRANES,
 8                GERARD E. LYNCH,
 9                CHRISTOPHER F. DRONEY,
10                     Circuit Judges.
11       _____________________________________
12
13       TARIK AYVAZ,
14                Petitioner,
15                                                              12-4302
16                         v.                                   NAC
17
18       ERIC H. HOLDER, JR., UNITED STATES
19       ATTORNEY GENERAL,
20                Respondent.
21       _____________________________________
22
23       FOR PETITIONER:               Joshua Bardavid, New York, New York.
24
25       FOR RESPONDENT:               Stuart F. Delery, Assistant Attorney
26                                     General; Ethan B. Kanter, Deputy
27                                     Chief, National Security Unit;
28                                     Jeffrey L. Menkin, Senior Counsel
29                                     for National Security, Office of
30                                     Immigration Litigation, Civil
31                                     Division, United States Department
32                                     of Justice, Washington, D.C.
 1          UPON DUE CONSIDERATION of this petition for review of a

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

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

 4   is GRANTED in part and DENIED in part.

 5          Petitioner, Tarik Ayvaz, a native and citizen of

 6   Turkey, seeks review of an October 12, 2012, decision of the

 7   BIA affirming the February 14, 2011, decision of an

 8   Immigration Judge (“IJ”), denying a continuance,

 9   pretermitting his asylum application, and denying his

10   applications for withholding of removal and relief under the

11   Convention Against Torture (“CAT”).     In re Tarik Ayvaz, No.

12   A097 517 245 (B.I.A. Oct. 12, 2012), aff’g No. A097 517 245

13   (Immig. Ct. N.Y. City Feb. 14, 2011).     We assume the

14   parties’ familiarity with the underlying facts and

15   procedural history of the case.

16          We review the decision of the IJ as supplemented by the

17   BIA.     See Yan Chen v. Gonzales, 417 F.3d 268, 271 (2d Cir.

18   2005).    The applicable standards of review are well

19   established.     See 8 U.S.C. § 1252(b)(4)(B); Yanqin Weng v.

20   Holder, 562 F.3d 510, 513 (2d Cir. 2009).     Because Ayvaz

21   does not challenge the agency’s pretermission of his asylum

22   application, we review only Ayvaz’s arguments regarding the

23   denial of his motion for a continuance, withholding of

24   removal, and deferral of removal under the CAT.

                                     2
 1   I.   Withholding of Removal

 2        Ayvaz argues that his provision of one meal to members

 3   of the Kurdistan Worker’s Party (“PKK”) does not trigger the

 4   terrorist activity bar to withholding of removal because his

 5   support was immaterial and involuntary.     Aliens who have

 6   “engaged in a terrorist activity” are statutorily ineligible

 7   for withholding of removal under both 8 U.S.C. § 1231(b)(3)

 8   and the CAT.   See 8 U.S.C. §§ 1231(b)(3)(B)(iv),

 9   1227(a)(4)(B) (withholding under § 1231(b)(3)); 8 C.F.R.

10   § 1208.16(d)(2) (withholding under the CAT).     This Court,

11   however, retains jurisdiction to consider constitutional

12   claims and questions of law regarding the agency’s

13   application of that statutory bar.     See 8 U.S.C.

14   §§ 1158(b)(2)(D), 1252(a)(2)(D).     Whether the terrorist

15   activity bar encompasses minimal aid or aid given under

16   duress raises questions of law subject to our review.        See

17   Rosario v. Holder, 627 F.3d 58, 61 (2d Cir. 2010).

18        A.   Material Support Provided

19        Terrorist activity includes, among other conduct,

20   committing an act that “the actor knows, or reasonably

21   should know, affords material support” to a designated

22   terrorist organization.   8 U.S.C. § 1182(a)(3)(B)(iv)(VI).


                                   3
 1   “Material support” includes providing “a safe house,

 2   transportation, communications, . . . material financial

 3   benefit, false documentation or identification, weapons [],

 4   explosives, or training . . . .”     Id.   The BIA has never

 5   held that de minimis aid is support that is “material” under

 6   the terrorist activity bar.    In In re S-K-, 23 I. & N. Dec.

 7   936 (BIA 2006), the BIA noted the lack of “any legislative

 8   history which indicates a limitation on the definition of

 9   the term ‘material support’” and observed that “Congress has

10   not expressly indicated its intent to provide an exception

11   for contributions which are de minimis,” but ultimately

12   declined to reach the issue.     Id. at 943, 945.

13        The cases cited by the BIA are factually

14   distinguishable.     In Singh-Kaur v. Ashcroft, 385 F.3d 293,

15   294-95 (3d Cir. 2004), and Haile v. Holder, 658 F.3d 1122,

16   1129 (9th Cir. 2011), the Third and Ninth Circuits

17   considered, respectively, the organized and repeated efforts

18   to provide overnight shelter and provisions, and the

19   communication of intelligence, collection of funds, and

20   provision of food.    In contrast, the agency here found that

21   Ayvaz provided one meal in his home to seven members of a

22   terrorist organization.

23

                                     4
 1       Although both the Third and Ninth Circuits deferred to

 2   the BIA’s materiality findings, they did so without

 3   determining whether deference was warranted.    The BIA’s

 4   interpretation of an ambiguous INA provision is entitled to

 5   deference under Chevron U.S.A., Inc. v. Natural Resources

 6   Defense Council, Inc., 467 U.S. 837 (1984).     Because the

 7   term “material” is ambiguous and the BIA did not address

 8   whether the single meal Ayvaz provided qualified as material

 9   support, remand is appropriate for further clarification in

10   a precedential decision.     See Rotimi v. Gonzales, 473 F.3d

11   55, 57(2d Cir. 2007) (remanding for the BIA to issue a

12   precedential interpretation of an ambiguous statute).

13       B.   Duress Exception

14       Ayvaz also asserts that his aid to the PKK was

15   involuntary, and argues that the material support bar

16   contains an implicit duress exception.    We have recently

17   remanded the same issue to the BIA in Ay v. Holder.     See

18   2014 U.S. App. LEXIS 3346 (2d Cir. Feb. 20, 2014).     For the

19   same reasons we stated in that decision, we remand to the

20   BIA to “address the matter in the first instance in light of

21   its own expertise.”     Negusie v. Holder, 555 U.S. 511, 517

22   (2009)(quoting INS v. Orlando Ventura, 537 U.S. 12, 16-17

23   (2002) (per curiam)).

                                     5
 1   II. Continuance Motion

 2       We deny the petition as to Ayvaz’s challenge to the

 3   denial of a second continuance to pursue his application for

 4   a discretionary duress waiver.     Immigration judges have the

 5   authority to grant continuances “for good cause shown,” 8

 6   C.F.R. § 1003.29, and “are accorded wide latitude in

 7   calendar management,” Morgan v. Gonzales, 445 F.3d 549, 551

 8   (2d Cir. 2006).   Accordingly, we review the agency’s

 9   decision to deny the continuance for abuse of discretion.

10   Singh v. U.S. Dep’t of Homeland Sec., 526 F.3d 72, 80-81 (2d

11   Cir. 2008); Morgan, 445 F.3d at 551.

12       Here, the IJ granted two continuances over four months

13   so that Ayvaz could pursue his discretionary application,

14   and reasonably declined to provide an additional continuance

15   as he had warned Ayvaz that no additional continuances would

16   be granted and Ayvaz did not indicate when the application

17   would be adjudicated.    See Morgan, 445 F.3d at 551.

18   III. CAT Relief

19       The agency did not err in finding that Ayvaz did not

20   establish eligibility for deferral of removal under the CAT

21   because he did not demonstrate that it is more likely than

22   not that he would be targeted by the Turkish government or


                                    6
 1   that any harm he would suffer would rise to the level of

 2   torture.   See 8 C.F.R. §§ 1208.16(c), 1208.17(a); Khouzam v.

 3   Ashcroft, 361 F.3d 161, 168 (2d Cir. 2004).

 4       The 2008 State Department Human Rights Report notes

 5   that the Turkish government arrests members of illegal

 6   organizations and that its security forces have, with

 7   impunity, subjected detainees to torture.     However, the

 8   agency reasonably found that Ayvaz’s fear of torture based

 9   on his suspected PKK activity was undermined by his ability

10   to remain in Istanbul for two years and depart Turkey using

11   his passport without incident.    See 8 C.F.R.

12   §§ 1208.16(c)(3)(ii) (requiring evidence that applicant is

13   likely to be tortured), 1208.17(a) (providing that deferral

14   is conditioned upon eligibility for CAT relief under

15   § 1208.16(c)(3)).   Because the agency’s finding also

16   precludes success on a claim for withholding of removal

17   under the CAT, we decline to remand for consideration of

18   that relief, even if Ayvaz is found not subject to the

19   terrorist activity bar.

20       For the foregoing reasons, the petition for review is

21   GRANTED in part and DENIED in part.   Any pending request for

22   oral argument in this petition is DENIED in accordance with


                                   7
1   Federal Rule of Appellate Procedure 34(a)(2), and Second

2   Circuit Local Rule 34.1(b).

3                                 FOR THE COURT:
4                                 Catherine O’Hagan Wolfe, Clerk
5
6




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