seventeen dash six four five three married dad husseini versus nielsen at all argument not to exceed fifteen minutes per side mr cartwright you may perceive the appellate when you're ready i'd like to reserve three minutes for rebuttal or your honors we have four points of argument in our brief all which merit your attention but the heart of the case is that by distributing flyers about the reigning government's corruption and its crackdowns on citizen led protest  did not knowingly provide material support to any foreign terrorist organization turning first to the issue on knowledge of the agency decision that mr hosseini did not lack knowledge about the at the case and any case nothing in the record that contradicts his statements and that's the question what was his state of mind and nothing in the record suggests that he did have knowledge about these incidents but did he realize and know that the were two  was a couple things but your question they were never actually does it needed by any department of state they're considered and designated terrorist organizations which is part of what you have to decide is whether they're actually classified correctly so he had no knowledge about their designation any point in time because at the time when he was with them they were not designated as the any k has a history where they were designated i can remember when but as i think was after far after his association with them and their designated in two thousand and twelve but the question is whether he supported that undoes in a group which is defined as a group of two more people who are engaged in terrorist activities so the court has to decide is whether the agency correctly found that these groups were engaged in terrorist activities at the time when he was supposedly supporting them the record does not support the agency's conclusion that they did but even if it did he does not have knowledge about what they were doing at that time period and i think that dispositive in his favor again he flyers that he was actually distributing had nothing to do with terrorism and had nothing to do with violence the fires he was distributing only coincided with his political opinion which was in opposition bearing in government corruption and its crackdown on women's groups and student groups so there was no flyers in this case that said hey this act of terrorism was fantastic let's support it he didn't even know about that as far as the record goes as well and that's what he sa throughout and the question for the court is what was his state of mind but he has the burden to show very clear and convincing evidence that he didn't know that's that's the burden really high standard is and it is but the ages he didn't even apply that that test is that's not what congress said you stated it correctly you know bored in this ability if you could show by committing evidence that he did not know about their conduct but if you just say something's public and shocking and impute knowledge there's no in gauge mit in that test at all so why i mean he says i didn't know they were terrorist organisation the government says look in one nine hundred eighty one of whatever there was this huge incident everybody knew about it or like we knew that maybe they did it maybe they did but isn't it up to the decision maker to weigh that just so i don't think you made your burden clear and convincing evidence and i'm going to go the government story what is of the decision maker to weigh that but they didn't weigh it if you look at your decision and downs purposes ashcroft the actual standard is the person's state of mind now how they can and understand what mr husseini state of mind was without ever actually speaking to him and over thirteen years is a mystery to me and is because it's the wrong standard they asked for him to submit written statements which he did on two occasions and he denied knowledge but they disregard those statements in favor of their public and shocking test but that is not going to what he actually knew in an interview they could have asked him some questions they could have probed into his knowledge they could have asked him some clarification points to actually get to what the actual standard is which is a state of mind and that's this course decision in dallas barber says ashcroft in that case this court provided the agency a framework by which to decide the knowledge issue that case the court was confronted with a young person who was like husseini distributing flyers in an opposition iranian regime time he was not involved there violent he provided sworn testimony to that effect was exactly what you have here mr hosseini was young and sophisticated he has provided sworn statements that he did not have knowledge about what was happening with any case terrorism at the time and that cases dispositive of this issue and that's the legal standard which the agency is bound by law to apply at one point that he had heard at least some rumors of terrorist activity there was some rumors of terrorist activity he had heard that he had heard as in his affidavit so if you think about that if you look at the seven circuits case and converses holder the seventh circuit made a distinction between individual members of a terrorist organization committing an act versus the organization actually sanctioning it by its leaders and the difference is key because if individual members of a group commit an act of terrorism that does not mean that a person would conclude that the entire group or terrorist one of the cases i read said if you like a member of the republican or democratic party going out and committing an act of terror no one would reason to conclude that those parties are terrorist organizations case similarly was a political party in the one nine hundred eighty s after the revolution and had mostly heard rumors about what they did you not necessarily conclude that whoever did that but if the rumors were about the organization being involved in terrorist and he passes up flyers anyway i mean isn't that problematic when i or stan what you're saying you're saying well what he only heard rumors that some individual who was associated with that group was a terrorist  but had no reason to suspect anybody else or that the group was i think would be problematic it was an in advancement of some type of terrorism but remember the fliers that he was distributing only coincided with his support of women's groups student groups and to opposition to iran these things were common in the community at that time and this was the issue of the day so he was finding these flyers that were getting to the truth of what is happening in iran because they're running the government at that time was actively squashing freedom of press so what is the relevance i suppose of the content of wires for us it goes to his knowledge how he had and what he actually knew and other words because the because the fires he was passing out weren't like you know death to america or something that therefore he didn't have any read it shows that he didn't think there were terrorists it supports that opinion and i think one that really needs to be talked about is we're talking about the one nine hundred eighty s in iran right after the revolution there's no internet there's no twitter and donnish bar the court even found that the iranian government was squashing the freedom of press no one knew what was happening support student groups and that's what he distributed and that support judge was not material congress provided a list of non exhaustive not exhaustive list rather of material support and includes providing a safe house transportation money false documentation or weapons training in other words conduct that is far more serious than what mr husseini did when he made some copies in the sense of faxes on a minimal and occasional basis in fact before the district court's ruling i was unreal finding any federal court that has such an expansive and breathtaking definition of material support but it's the good books not the court that's the government is taking that distributing flyers plus writing articles in training and became members on the use of guns and their mothers as holder the fourth circuit said was hanging posters plus paying a membership fee every month for four years all that is conduct tha husseini no court has found that the lower court did in the agency did that the mere participation the particular political process of a foreign country by distributing flyers about it for six years i mean it's not like he did it for two months or his house or whatever and take it i mean he was showing more initiative than just a bunch of pasties out every six months or so i don't know the record supports that i do think that the record supports that he was opposition to the brain or shame like our own country and especially how it cracks down on students and women's groups so when those things corresponded yes i think he was active in that but that doesn't mean that he was supporting one of the gr remember all this information was in the public sphere everybody was out there a lot and everybody a lot of people are out there so to distribute this type of information because that was the issue of the time  the holder case was a challenge to a criminal statute and that statute was specifically addressing designated terrorist groups so there's no ambiguity or any type of concern about who these people are actually going to go and support the difference i think here is where a civil statute talking about things that happened thirty to forty years ago with groups that at the time were never designated by congress actually be terrorist groups and you're talking about behavior that was  non violent and purely political and sort of clays i think question what about the material support part of holder it doesn't it doesn't isn't there a broad definition in that case of material support and there's a carve out in that statute that we don't have in the statute for straight for political activity or whatever it is doesn't that suggest that that is covered if it's not carved out well i think it is the holder if it's relevant has the test and it says that material the word has to mean something otherwise it's surplusage and what it means in holder is that it and nothing the record supports that he did because the information that he was distributing was already in the public sphere and there are people out there distributing it if he hadn't done it other people would have thank you thank you you're from the government organizations third that mr hussein it did not present clear and convincing evidence that he lacked knowledge of the terrorist activities and finally that he provided material support to the m e k and the f e k addressing my first  that should then there bind citizenship and immigration services in making any other decisions on any other immigration benefits these again are first these are two separate decisions second the law changed between when he was granted derivative aside the status and when he was when he petition for adjustment of status in third there was a more complete record because the government had received additional information from mr husseini about his activities with both the  them but as far as in terms of his credibility when he claimed he didn't have a substantial association with these alleged terrorist organizations the agency in considering the information about his activities with d m k in the f u k were in determining whether or not he was inadmissible under terrorism related immigration on terrorism related ground not under any other grounds of an invisibility in other words that he had committed fraud or had had attempted to conceal something from the agency so it was just that we now have a fuller picture and we now understand your affiliation both with the emmy kay and your affiliation with the f u k and whether or not your affiliation your activities or material support would render you in or miscible under a terrorism related ground  it's clear from the record that the any k in the f u k were under the needed terrorist organisations what's the evidence that he knew how did he did he know that well the lack of knowledge standard there are two parts to it at that is that the individual did not know in that he should not have reasonably known that the organization was a terrorist organisation and so you're going on the objective prog here i think that there is both a there's both evidence for the subject upon in the objector pro on in the records of course that mr zinni took the time he looked in reviewed at the of the activities of these organizations and he doesn't also in the record shows that he doesn't contest that the f u k was in fact involved conducting terrorist activities if you look at the subject of tom you look at the open historias nature and the activities that both of these organizations were engaging in and i think the record is clear that the ne k for a long period of time was engaged in terrorist activities in the f u k the two was for an extensive period of time was engaged in it now i think that you know this this well reported sort of activities again shows his that he should have known but he also indicates that he did know he attempts to discredit his own knowledge in the record by saying well that information wasn't reliable i thought i heard some stuff about their activities but you know you can really couldn't trust any information that was in the public domain at that point in time but again at the same time he's saying in the record that he took the time to learn and he read about these organizations in after the nine hundred seventy nine overthrow of the shah he took time to try to learn about what was going on in iran and what the government was doing and what activities were occurring and so i think that the record shows that it that he has not demonstrated by clear and convincing evidence that he didn't know or should have known that these were terrorist organizations i think the opposing counsel points the dodge of our which is a six circuit case i just want to point out in the first instance with that case that case was decided before the real idea and that's important because the real i d act although maybe not affecting the test that is applied for lack of knowledge the real idea act changed in the knowledge prong and so in dollars are the standard that was applied was that the individual did not know or should not a reason we have known that the solicitation would further the organizations terrorist activity that is very different from what the real idea for choirs and what the agency evaluated mr hussein is conduct under is the demonstrate by clear and convincing evidence that he did not know or should not know have known that the organization was a terrorist now i would also point to you know the last portion which is that he did provide material support to this organization in discussing his activities with  there or on the application of the statute in their decisions as to what is or is not a tier three on doesn't need organization i think that congress has made it clear by the language of statute that they have given the executive the ability to make that individual determination when evaluating an individual's adjustment of status thing i know that appellant points to that citizenship and immigration services merely is out there just to divvy out immigration benefits and that's not true they have his wife's her affidavit supporting her asylum application or in this case is really any of the others i mean this is close to the edge i mean isn't callous all right i mean usually when you're passing things out or whatever there's something else that the person is doing in these other cases i think they're not so passing out flyers i mean this guy's that's the only thing he's doing and other any cases where that's the only thing somebody is doing i think i would i would point to is cited in the twenty eight a letter that the government submitted in the a c m in rio a c m they do point to and this is a second circuit case which talks about designing and printing communications materials such as brochures posters and banners and this is to hear visas allege where is that level activity and as far as being on the edge of mean we have this is he is handing out propaganda on behalf of organizations that are on designated terrorist organizations courts have found that it doesn't matter if your activities are soley in the realm of the sort of non or non terror you know non terror related that that still is material support and we have to take into account that this is this is you know propaganda that he's passing out this is in some degree supporting the goals of the organization which is to overthrow the government of iran both of these organizations were attempting to overgrow overthrow the government of iran through violent means of promoting women's rights and students groups well that's i mean the that is what he indicated so the fires were are passing out but again it's on behalf of and it's contrary and it is saying this government should not be in power and that this government should be overthrown because they are not we don't have any of the fires on the record no we do not and the fires in the wrecker i mean i think that you know we have other cases that deal specifically with you know providing gossip water providing food and that is i you know material support to terrorist organization to say that passing out flyers on behalf of that organization wouldn't then also be material support i think is it could new drug you could draw a line a defensible line between providing tangible things purses passing out flyers free of guns water or whatever it is i mean it seems to me that if you wanted to draw that line you could it would be ridiculous but i don't think congress doesn't draw that line in the statute doesn't draw that line material support is is a support to terrorist organization it helps to someone passing out flyers helps free up someone to do something else passing out flyers helps further the terrorist go it helps further recruitment i mean to say that i you know i think that this would go to you know maybe you know the court wants drug change of someone today today well they only designed the web page for isis and therefore that that's on material support isis or they only you know they only handed out flyers saying that you know the west is bad because they don't do certain things were western or this or x government doesn't provide you know these types of things to to its citizens and i think that that is not to not a distinction that strong in the statute and it's not a distinction that congress intended and it is not the way that the  has the board of immigration appeals or citizenship and immigration services has you know interpreted material support to me but the relevance of the older humanitarian workers well i think that the relevance of the cases that you know what material support means that it it doesn't need to both you know further it doesn't need to be further in it in a terrorist act but also that it is there that if someone is providing material support to something that is important and something is material if it then frees up resources to do other things in the group to do other things then it frees up the activities of the organization you know other individuals to take took part in other activities and i think it takes into account what's important holders and i think it takes into account one of modern terrorist organization looks like that it has various you know say groups or portions of it that deal specifically with maybe violent completed unless the the court has any other questions designated terrorist organizations that mr husseini provided material support to those organizations and at the time he provided material support those organizations were and doesn't need a terrorist organizations and because of that because a record supports that and there is a rational connection between what the record supports in c i s is the situation that he should be denied adjustment of status that their decision to deny his twenty a j letter matter s are dealt with a person who is in slaves by a terrorist organization and he took water from a common well and provided it to his fellow slaves the board in that case said that that was not material support because it was the actions were too attenuated to the goals of any terrorism well mr saini took ideas and knowledge that were in the public sphere just like water from a common well and he distributed to his fellow citizens who were oppressed by the ir ns just like the person who was in slay the tree maka that's not material support because it's too attenuated to any of the acts of terror and that actually gives the word material some effect again in a holder they said is that exclusive though i mean what why do you say that i mean if he was just if he's passing out information that furthers the goal of the organization whether they would have paid somebody else to do it or why is that a winning material support of the organization what he's doing something directly other orders that might be different but he was not he was he was only distributing flyers that were you know called siding with his political opinion so they got to be a difference he was actually directly aligned with them but he was a person who was imposed the iranian government corruption and crackdowns on its citizens and what did he do about it what he read about it and history of this some flyers ok usually not every time the flyers came from these groups that incidentally were involved in terrorism but he didn't know about that and u s yes never bothered in the thirteen years that it considered his case and thirty's involved in terrorism to bring him into other apis is to ask him where are the flyers what about this group how did you not know about it they never made that determination and that's a violation of the