occasions my husband and i sent money to widows and orphans children the boards conclusion ms currie's case that she's a terrorist is simply not borne out by the record there may have been something in that secret evidence that incredible because mr singh said no such thing you can scour the record and you will not find him admitting that he connected militants to go sing between what he did was he connected journalists he connected human rights workers both the immigration judge and the board of immigration appeals appeals agreed that in doing so in connecting that one phone call during the rather kidnapping mr cheema was attempting to facilitate the kidnapping but put an end to it send money to dodgy to punch or their respective organizations the fund raising issue boils down to this if you really look at the administrative record what he admitted to doing was  contact them you talk to them directly that's all he admitted to doing the question of the fund raising that is whether or not that act of providing a phone number on occasion to individuals who were solicitor that constitutes material support there's not one iota of evidence in this record that any of those individuals to whom he gave that phone number ever sent money how can we say that he provided material support to an organization or material support in conducting a terrorist activity in particular if there is not one of evidence to suggest that any of the individuals to whom he gave this number money and i would also point out that the phone number because it all comes down to him providing the phone number the phone number was to national security anybody could have gotten that number from any number of places and mr singh is charged here with being a danger to national security because he gave away a former member there was a veil of all that many many evidence which may indicate or could indicate that the bar supply the regulations require evidence which indicates that the bars apply this is to eight point one three c two two and two eight point one six d two so i make the government's case that he was affording the tiriel support in conducting a terrorist activity any more than that and the board relied on just these two points they say he was soliciting funds well it's not borne out by the record all he did was provide more numbers to influence requires that there actually be a contribution human rights workers in india he knows everybody involved in this movement including these militants people came to him to ask for the follower as i'm sure they did to other people in the leadership of the movement but he never solicited farms all he did was give the phone number and i submit it cannot be material if nobody ended up giving giving money at least the government have the burden of establishing that somebody one person gave money to this organization and they frankly if they'll do that and if you would you know we have a fairly high hurdle as you know on the entry and the conclusions drawn from the evidence i'm interested in the terrorist definitions and i i know you wouldn't concede that he appropriately evidence there was or what we would be benchmarking against to see whether or not there in fact should be an exemption because you can be can gauge in terrorist activities  yes if they are not reasonable grounds for getting him or her as a danger to national security yes the first point i want to make in that regard is that the board's conclusion that these individuals are a danger to national security rest i think you are misreading of the evidence the board sheen is accused of supporting the material support for it have not been designated as foreign terrorist organizations section two nineteen of the immigration and nationality act permits the secretary of state to designate any organization to be a foreign terrorist organization if it meets these three requirements it has to be foreign minister engage in terrorist activity and there has to be a finding that that terrorist activity affects the security of the united states now the neither one has been designated to be a foreign terrorist organization well why the only conclusion that we can draw is the secretary does not believe either of these organizations to constitute a danger to national security and if the organizations are not a danger to national security  to be a danger to the security of the united states there are hundreds if not thousands of organizations and that rest none of these organizations are on west it seems to me that that would be one grounds for matching the statue with terrorist moniker but if you read through all the national security statutes they use language along the lines of you know national security and defense of the united states or foreign relations so it would seem that you wouldn't need to be dealing with a terrorist organization to actually import that is there any evidence here about you know and states foreign relations with strategic base and they're aware that if violence occurred outside of india they'd be thrown out the other things that i want to point out about the national security question is nothing mr cheney ever did was illegal these activities occurred right here in the united states nothing he did was prohibited by american law the government's going to say well even if there wasn't any criminal sanction against you know it was a grounder to deport ability well yeah there was a ground of the violence is first amendment protected and it can only be credited if the donor has specific intent to further the violence and there's been no such suggestion in this case so here we have a man who's accused of being a danger to national jurisprudence of this court which stood until the humanitarian law project case reversed in the year two thousand it was believed to be first amendment protected there's no way that you can find these lawful activities which were seemingly first of them are protected to be that an applicant for admission has no constitutional rights with regard to that application for admission those cases do not address the situation every one of those cases involves an applicant for admission discretionary admission or an applicant for some discretionary form of relief not a single one of those cases involves an individual like mr cheema or ms cower who's applying not only for discretionary asylum but non discretionary withholding of deportation protected by treat issue is whether or not these petitioners have due process rights to a full and fair hearing with regard to that non discretionary application for release and i think the obvious answer is yes they do if the government can't give them a then discretionary form of relief and then provide them with an unfair hearing and that's borne out by this court's decision in arab american discrimination committee because there the court distinguished j versus boyd and some of the other presidents involving the use of secret is a general matter for now discretionary applications there are constitutional rights once we get past that threshold it's obvious that the use of secret evidence is unconstitutional it's in violates due process because it's patently unfair what how do you how does that in this case and i'll tell you why the immigration judge mischaracterized the evidence repeatedly and even though they were blatant this characterizations that any simple review of the record would have revealed the board parroted then mimicked oftentimes the board parroted that language over and over and over again even though it's not borne out by the record they did not review this record to make an independent determination about whether or not mr cheema connected militants they simply parroted what the immigration judge said and the immigration judge based her conclusions in large part on that secret we're here from the government thousands of pages of testimony the board ultimately concluded that the petitioners should be afforded protection under the convention against torture but it also concluded that they are precluded from relief under the asylum withholding statute so the issue before this court is whether the board correctly concluded that they were statutorily ineligible for this statutory basis and the regulatory basis under which they are detained does not call it imprisonment well let's put it this way they're not free to walk around until such time as the conditions change and they get another hearing correct they mr saying is free to petition the district director should conditions have changed regarding here is a situation his chase whatever she would like to put forward in his exception to the terrorist activity bar is if the borg were to find that there are not reasonable grounds regarding him how do you justify the war because the board found that his material support for terrorist activity presented a danger to the national security we used yes yes i would the finding of material support for terrorism was given here's my legal problem ok yes basically the board says he's a terrorist therefore he's a threat to the national security and they basically equating conflate the two so i'm taking the b i hate its word and i'm looking at the meaning of danger to national security under ed and there's three parts to it which i know that mr singh's council doesn't agree with but they say you are a danger to national security if you endanger the lives all that the evidence is that they have as the as the board health they have brought the conflict to the united states that creates the very real potential on one hand harm to the united states how why and how it would it would be easier for me to understand this if i had some testimony in the record where somebody said you know from the i or somewhere else that said here's the situation i deal with terrorist groups here's how it works here's how the concern is all we have is basically the b i am jumping to the legal conclusion the  well the danger national security provision as the court has has recognized is broadly defined national security is broadly defined national security threats are broadly defined to include economic foreign to argue instead of answering the question it's a real simple question we're going to walk through each one of these factors and i want to hear the evidence which will only in order to benefit the united states if we understand your avon's yes rather than arguing against us that we're some creates a reason to believe that there is a danger bear in mind that the word danger is on qualify you can be in danger of any degree or nature supposed to be a democracy it's a nuclear power it's one with whom we have friendly relations you know i can say that all of that at my head my question is did somebody testify however that given this political condition relates to our us foreign relations or the you know you are it doesn't translate automatically however congress has given to the attorney general the task to make that judgment call meaning that does not mean that terrorist groups operating against the government of india do not constitute a threat to our national security regardless of what pakistan's view force as a terrorist organization has identified the student federation b two factions as a terrorist organization when council states that are finding it's not been made under section t nineteen of the ins which is completely separate that means necessarily that they are not terrorist organizations the statute doesn't require the secretary of state under that provision that to find that all terrorist groups that are terrorist groups are designated and the ones that aren't are hereby deemed friendly organizations the state department in this record as extensively and exhaustively supreme court has indicated that in matters of foreign affairs and that national security that congress in designing the statutes has  necessarily painted with a broad brush to give the executive branch the president the attorney general the secretary of state broad leeway in in making determinations with testimony but i don't have anything in front of me that were playing out the principle that you just said i totally agree with the principle we ought to defer to the state department or the executive to the president in military and foreign and other things but we don't have any you know record in which we do that that's my question what we have is a record of bloody murders of indian civilians by these terrorist groups and terrorist leaders and the courts finding exercising that bribe discretion delegated to the attorney general that the petitioners material support for those terrorist groups his fundraising serving as a communication making the determination making the judgment call that then these actions constitute terrorist activity and constitute a danger to our national security council we please respond to to thirty three hundred civilians killed in one thousand nine hundred one i will take that year as an example that is the year in which the petitioners phone bill was thirty six thousand dollars at page ten forty three of the administrative records where he stated that cost came through to be connected to the two and pants war in pakistan and he connected them frequently and often without even asking who was calling secondly with regard to fund raising the question or himself testifies that he was the chief fundraiser at page fifteen fourteen of the administrators record quote when ever when ever gatherings take place any place any fundraiser i spoke i told them there's a duty to send money if that is not solicitation i don't know what is right and i have one last question your time is expired but i'm interested to know your position one of the difficulties we always have in these records is there's quite a bit of time lag between events testimony and the board decision when the board make that decision in two thousand and two should it be looking at whether the singhs activities any additional information that may have been presented to which the petitioner presented additional information it would do so in a motion to reopen before the board the record yes there may be a dividing line between inadmissible aliens and the portable aliens those who are seeking admission to the united states as the petitioners are as a legal matter they are outside the united states  admission and therefore they don't do not have the constitutional due process interests that come with developing legal try to this country and that is a fundamental distinction in if you have or have not the state of thank you your honor and because of the allegation in opposing counsel's briefs which greatly disturbed me as well because i take to it and i brought with me the excerpts of the record which demonstrate that the characterizations in my brief in the government's brief are accurate and they are true to the record and i would be happy to hand these record  thought thank you very much you may have five minutes rebuttal just time and attention issue mr cheney has been detained by the immigration service for the past five years he was a everybody two minutes he was arrested by the immigration service in november of one thousand nine hundred because he's tried being treated as an excludable legally and he has no right to a bond hearing before an impartial arbiter he's never had an immigration releasing an individual who's a danger to the united states for obvious reasons so the determination by the board in this case that he's a danger to the united states means that he will either give up this rights go back to india and face torture for the category then it's then up to the attorney general and others to really make a judgment if you will about our immigrations and national security and here it would be i x s that for the attorney general why wouldn't we defer for that determination well a couple reasons i mean first the board's determination is inconsistent is patently inconsistent with the determinations of the president the secretary of state who declined to designate these organizations to any danger to the united states and we recognize that these organizations have engaged in what is classified as terrorist activities not speeding and for the government to point out that you know things took place that helps us not at all the question is whether that makes