reason his adjustment of sas was denied was a determination by the agency that he had given what the statute calls material support to a terrorist organization the immigration statute is quite broad in this respect because it includes not just terrorist organizations but groups that have subgroups that engage in terrorist activities and the primary question before the court is what's a subgroup how do we figure it out and do the agency do what it was supposed to do to determine that this was a subgroup there's some other issues but that's what i want to talk about first the statute doesn't define subgroup the board has never just defined subgroup this court hasn't had a chance to but there's a series of published an unpublished decisions that i think are helpful it's helpful i think to start with the statutes text congress used the word subgroup on purpose they defined terrorist organizations to include groups that use the organizations name and uses the word subgroup the third circuit in the dean decision talked about what that means that congress chose to to talk about groups instead of individuals and it deemed it said that congress had decided to say a terrorist organization is any organization whose members engage in terrorist activities then anytime your members engage in terrorist assent some kind of agreement that we agree with what these folks are doing is that would that analysis be the same for a group and subgroup in terms of distinguishing between the group in gauging or the group subgroup engaging in the activity versus individuals and gauging in the activity i think so i wondered about this this week i could envision somebody from my church starting to blow things up and saying i'm doing it on behalf of this church you wouldn't say the church is now a terrorist organization unless there has been some sort of an acknowledgment or a senator even silence to be in talks about silence might be enough but you wouldn't autumn and i think the position that attorney general takes at least in part in their briefing is that that that's all really all that requires that there's a group that identifies itself as a subgroup that is doing terrorist activities so the authorization that's what you're urging the court to take on cracked a standard that that there needs to be some evidence of authorization of the particular acts that are identified and so it seems to me that to to apply that to the subgroup you'd almost have to apply that same analysis given the statute to the group as well  i think that's right and i don't think the court decision is somewhat short i don't think it went to that but i think i agree that both the group and the subgroup would need to be in agreement so what else would you the sub group still has is something obviously than the group so even assuming that there's some kind of authorization for both even if we assume that is there more in terms of you know where do we find the guidance to define the group they have because that the authorization i think seems to come from what you're talking about in the statute itself which is distinguishing between the group and the individual where do we get guidance to help us understand how to decide whether something's a subgroup are not i start with the text i think the words mean subsidiary which i think it necessarily means there is an agreement there that we belong to each other but the court talked about how the board probably should publish a decision on this on this issue because so far it talked about how it had read about fifty unpublished decisions on the boards cases had largely agreed that there needed to be any knowledge of it but some of them didn't agree we could find guidance there but i also think the court  just read the statute and determine that using those words by using subgroup congress intended some kind of an agreement or sanction or silence or something like that has the barrel ever things that you can know about them so do they engage in terrorist organization terrorist activities and we agree this is not a tier one or to or to organise a that's right and has there been any prior cases which have which have designated this alleged one problem that the eugene court talks about is that the board's unpublished decisions are not generally available in fact the eugene court asked the department of justice journey give us all of your cases about this particular group and found that it was quite difficult for the them to gather those decisions they're not all in one place the immigration judge in that case had said there's never been a case about this group and it turns out there had been about fifty but what the court when it finally read those decisions said about half the time th another one but but that the board had said about half the time this is a terrorist group and about half the time they had said it's not the point i'm trying to make is i don't think there's been that kind of clarity with this or any other group because the boards and publish decisions don't really track each other and it's hard to find out i've filed the foyer request i'll just share with respect to this group and the board's decisions and i've been told the board has no way to search its own decisions by keyword so they can't give me the decisions that say whether  terrorist group or not i think so i think subgroup implies acknowledgement or or agreement or whatever we want to use i also think that we didn't or there's a second rule about it in this case i didn't turns a little bit on the board material you know i haven't i don't think we disputed that with the material you get about eight hundred dollars which if you gave a hundred dollars out isis i would say that probably materially supporting a terrorist organization argument was more that  judge concluded yes he gave money but the question is did he give money to the terrorist organization or the other organization that has the same name for our purposes the board doesn't actually make a finding that this version of events d c is a subgroup of that version it says as such that's that's the totality of what the board says so one thing that's missing is an explanation of why the agency concluded perhaps it would with some of the rationale the judgment talked about but perhaps not it's just hard to know from the board's decision i find compelling judge metal's decision from two thousand and nine because it's lengthy and talks at length about the record she was able to observe his testimony at trial and determine whether it's credible or not we put a lot of stake in the trial judge's observation of trial testimony and i know a lot of my colleagues briefing talks about instances in that initial hearing where he admits that they were an armed group but judge nettles had the benefit of being there and read the whole transcript and she explicitly concluded that he hadn't been aware that they were a valid group or that he hadn't joined a violent group i think her decision is compelling there's also a question of which decision got reviewed by the board this is sort of an oddity that we only found by reviewing the record but judge nettles decision wasn't signed until two thousand and fourteen that's page thirteen eleven of the record she signed it two months after judge o'malley had signed his decision but is that a straight faced argument when they say we again affirm and you know how the seventy decisions written i don't know what it means yeah it's odd to me i just say that it's odd to me the second issue in figuring out if you've given money to a terrorist organization is tiny so the group might be a terrorist organization now but the agency needs to talk about when did it become a terrorist organization and when did you give them money and that's one other thing that's missing from the board's decision here there's a third circuit case called  unpublished but in regarding the court talked about how congress had used the word engages then and that that that that language implies that there is a time a time frame here the board didn't address timing instead it worded its decision and present tense it said the sentences the f t c has multiple facets as it were talking about them today the question though is and there's a real challenge when did they split up when did they stop being a unified group because we know the date that mr and join the group and we know the day that he stopped is that material that there wasn't that the parties agreed there was a misstatement in the record as to when the when there was a break with the with the two groups attorney general agreed with that as well however in judge analysis engine he's also citing evidence from two thousand and eight about bad things the n f t it's doing that's it page two twenty five of the record mr and the i was here he wasn't in senegal he wasn't sending money in two thousand and eight to there's a real question i think about whether the already did the work necessary to address timing address when when was the material support given and what was the group terrorist group at the time the third thing i want to raise and all of my colleagues talk is the burden of proof at the board mr nj i raised this issue that when terrorist material support issues arise the department of homeland security has the initial burden and then once they meet it's general you're on the board here properly determined that the m f t theory is that your three terrorist organization to immigration judges and a three member panel of the board of immigration appeal all agree that evidence in the record clearly to show that pitch a group even exist much less that he belonged to it all the petitioner really operate it is inconsistent and contradictory testimony and don't remind you that both immigration judges found the petitioner to be not credible and the board up held the second immigration that has members that commit terrorist acts in the name of the organization does that automatically make the organization a terrorist group i'll use the argument as if his local somebody is local church decided to or it would at least be official to indicate that there is evidence in the record indicating that the group qualified as a terrorist organization so he's not just one member of just one member act in the name of the of the organization that automatically makes the terrorist that makes everyone else who is a member of that organization at that point i have to decide what i'm going to have i'm going to get out of this group or i got i'm going to drop this religion or whatever i don't know that one number would be sufficient we don't have a definition for subgroups but what the board give me what the statute does clarify is that a group consists of at least two or more individuals and so i think one could safely assume that subgroup would also have to be used more than one member and my colleague discusses the third circuit's decision where it read an authorization requirement into the statute while we would discourage the court from adopting such an authorization that you what what i will say is that the third circuit was more concerned with the activities of rogue members of individual members and that was that was the case w individual rogue individuals taking actions which they said our were done on behalf of the b n p and the court concluded there that it can't be said that the acts of any single members can transform a group into a terrorist organization but here petitioner not citing to any violent activities committed by single members there thereby distinct factions of the m f t sea which may be working in concert which may not be it's really unclear and honestly that's that's really  consistent with the nature of a terrorist organization oftentimes they do not act in a concerted manner they are disorganized for a purpose so as to insulate any cells or subgroups from criminal prosecution  so as to gable to carry on their activities when when other factions may have been apprehended and prosecuted so the purpose of congress in drafting such a broad the language that's used is to account for this  nature of terrorist organizations how then how do you look at this group though even if if if we can adopt what you're saying is true doesn't the word subgroups have to have that for it meaning and separate analysis to determine whether in fact it is actually to this group that is defined either the way you said it or the way mr hopper decided has argued it should be defined i don't think so i mean there's there's no there's no play requirement there that there be in the statute that there's the authorization and so i think what congress who were doing was just trying to account for the fact that terrorist organization often act in mall or groups and so the smaller group may not be acting in concert with one another and at the core is that you as a group of individuals whether organized or not can feel it recognizes that oftentimes and maybe smaller factions of a larger group that are engaging in violent activities and  death because these factions are engaging in our are committing violence and we shouldn't just because then they're not acting in an organized fashion shouldn't insulate the entire group and prevent them from being designated as  accepting even all of that of what you say is true i still am struggling with how to define a subgroup how do you how do you determine what's the factual analysis or legal analysis that the immigration judge would go through to determine whether or not this actually is a subgroup of what is a terrorist organization or is just something separate and on its own i think i will at least in that case your honor it would be a group that identify with the n f b and so or or group who or for example many of the background documents in the record describing violent acts attribute the violence to constituted a subgroup and whether they had authorization because at the end of the day they're all violent going back to something you mentioned earlier mr murphy i want to make sure i understand did you say that if any one subgroup is classified as a terrorist organization the whole group is yet your honor according to the language of the statute so you cannot have an organization that may have a purely humanitarian aspect to it that identified as a group of individuals say running a hospital and a separate organization are separate subgroup that has terrorist activities in that situation the humanitarian part would also be a terrorist organization yes your honor and unless the petition were able to show that it were an entirely separate group but the reason the reason how does that how does that play into something like islam if if you have individual mosques where you may have some terrorist activity ongoing is that make the whole religion a terrorist organization no your honor it doesn't but i i think in in this case and what we're talking about project noted the reason for for why support of a peaceful faction of a group is is it still should still constitute unlawful supply material support and that is because support given to a group nonviolent wing tends to free up other resources within the organization that may be put to put to violent ends and then such support also helps lend legitimacy to the terrorist group as a whole including the violen actions that group undertakes and there's also good reason to believe that foreign terrorist organizations don't maintain legitimate financial firewall between fundraise for humanitarian purposes on the one hand and those ultimately used  for to violence and so because of this because of the very nature of terrorist groups i think congress thought it appropriate to draft such a broad statute where even support to a peaceful humanitarian wing would be sufficient to constitute support of a terrorist organization as a whole from the agency decisions what time or whether they whether they considered a relevant time period in analyzing whether the f t c is a is a terrorist organization i think is his argument is incorrect it's clear from immigration judge o'malley's decision the second immigration judge well he did cite a two thousand and eight country report he also noted he did that in noting that the use of violence has been consistent since at least i think in one thousand nine hundred seventy which is what he said so it's clear from the immigration judge's decision that he considered the entire time period in which the petitioner claims to have been affiliated or or providing support to this an f t c group and the the board upheld judg c had not split apart at the time that the petitioner joined i think his argument actually is harmless what my my understanding and reading of the background hundred eight so in essence what the immigration judge was saying was that the petitioner had joined the group when it was when it was unified when there were like supposedly a political separate political and military conjunction well under your analysis doesn't make any difference because if i'm understanding your the government's argument it sounds like a faction just another name for a subgroup and so what difference does it make you if you joined it when i was separated there for you if you joined it when it was reunify well it it doesn't really make any difference your honor i'm particularly because there's nothing in the in the record to show that either faction was actually entirely peaceful while one faction was engaged more politically and they had abided by a cease fire and into or engaging politically with some agreed government they also maintained their arms during that entire period and they maintained control of an entire swath of land that they something your honour's if there's no further questions for the government i think i've addressed everything that i had intended to address the bench has no more questions so therefore your arguments complete i don't think it would be helpful to go page by page through the record but i don't find the argument about there being no evidence that one image d c was peaceful to be accurate all of those page citations are in everything but the first argument or second argument you made was that there is no evidence that they were talking about rogue members that's just not true there is an article at page nine hundred eighty eight in the record that talks about the timeline and specifically talks about the violent section of the m f d c as a quote a ragtag group estimated that between three hundred and one thousand poorly armed enclosed men and boys that article goes on to talk about how there's a peaceful version that was actually negotiating with the government the government was willing to sign peace treaties with them they were not engaged in violence and the government was unwilling to negotiate with the violent version of that group it's not the only article but it addresses what ms murphy raises there being no evidence in the record about this really involving rogue elements people that claim to use the name him f t c but then go do things that the the organization has spoken out about even the board it i think talked about how the two groups do have different leaders different ideologies but then it said we can rely on a subgroup as such we conclude that you are you gave material support to a terrorist organization at a minimum i think there is more work for the board to do we would ask the court to step in the case back to the board to at least do that modicum of w we disagree with the conclusion that if any member or ms murphy said to members of a group split off and start committing violent acts in the name of the group that that becomes a subgroup i think judge posner's analysis in the hussein case out of the seventh circuit is compelling as he talks about what do you do when you're part of a group and one of your members to starts killing people the quote from hussein was if it's not approved by the organization it's perhaps that's not a quote judge posner's analysis was that if the organization hadn't approved it then it shouldn't be the responsibility of the organization that someone has committed terrorism in their in their midst the last thing i wanted to talk about was timing ms murphy's response was that judge o'malley had gotten the timing i had considered the actual timing so it's not so necessary that the board did not but the decision on appeal is the board's decision and the board's decision talks in present tense about things that should be in past tense that it's a it's a question it's not clear th because that was the window in which the petitioner had joined it's not a harmless reference and if it were harmless the board could have corrected it but then the board didn't so we're left with an incomplete record an incomplete story we would ask the court to re this tropic case number eighteen dash eleven thirty five is submitted for decision ms banks and next case