PRECEDENTIAL

UNITED STATES COURT OF APPEALS

FOR THE THIRD CIRCUIT 

_____________

No. 17-1056

____________

JOSHIM UDDIN,

 Petitioner

v.

ATTORNEY GENERAL UNITED STATES OF AMERICA,

 Respondent

On Petition for Review of an Order of the

Board of Immigration Appeals

(Agency No.: A208-059-346)

Immigration Judge: Honorable Alan Vomacka

Argued July 13, 2017

Before: GREENAWAY, JR., SHWARTZ, and RENDELL, 

Circuit Judges
2

(Opinion filed: September 6, 2017) 

 

Visuvanathan Rudrakumaran, Esquire (Argued) 

Law Office of Visuvanathan Rudrakumaran

875 Avenue of the Americas

Suite 906

New York, NY 10001

Counsel for Petitioner

Daniel I. Smulow (Argued)

United States Department of Justice

Office of Immigration Litigation

P. O. Box 878

Ben Franklin Station

Washington, DE 20044

Counsel for Respondent

O P I N I O N 
3

RENDELL, Circuit Judge:

The Board of Immigration Appeals (“Board”) found 

that Joshim Uddin, a citizen and native of Bangladesh, was 

ineligible for withholding of removal because he was a 

member of the Bangladesh National Party (“BNP”), a major 

political party in his homeland. According to the Board, the 

BNP qualified as a Tier III terrorist organization under the 

Immigration and Naturalization Act (“INA”), 8 U.S.C. § 

1182(a)(3)(B)(vi)(III). Thus, Uddin’s membership in the BNP

rendered him ineligible for relief.

While we will deny the petition for review challenging

the Board’s ruling dismissing Uddin’s Convention Against 

Torture (“CAT”) claim, we will grant the petition in part and 

remand on his withholding of removal claim. The Board has 

pointed to terrorist acts by BNP members. But it did not find 

that BNP leadership authorized any of the terrorist activity

committed by party members. Today, we join the reasoning 

of the Seventh Circuit and the Board in many of its own 

opinions by holding as follows: unless the agency finds that 

party leaders authorized terrorist activity committed by its 

members, an entity such as the BNP cannot be deemed a Tier 

III terrorist organization.

I. Statutory Background

The so-called “terrorism bar” precludes aliens who are

members of “terrorist organizations” from seeking several 
4

forms of relief, including withholding of removal. See 8 

U.S.C. §§ 1182(a)(3)(B)(i), (vi); 1227(a)(4)(B); 

1158(b)(2)(A)(v); 1231(b)(3)(B)(iv).

The INA, in turn, establishes three different kinds of

terrorist organizations. 

Tier I terrorist organizations are officially listed 

groups designated by the Secretary of State. 8 U.S.C. §§

1182(a)(3)(B)(vi)(I) & 1189. Such groups are maintained on 

an official register, and are thus easily identifiable to 

immigration authorities. 

Tier II terrorist organizations are groups that have 

engaged in terrorist activity, and are designated by the 

Secretary of State in consultation with or upon the request of

the Attorney General or the Secretary of Homeland Security, 

for purposes of immigration exclusion. 8 U.S.C. § 

1182(a)(3)(B)(vi)(II). Such groups are maintained on an 

official register, and are thus also easily identifiable to 

immigration authorities.

Tier III terrorist organizations, the groups at issue in

this case, are groups “of two or more individuals, whether 

organized or not, which engage[] in, or [have] a subgroup 

which engages in,” terrorist activity. 8 U.S.C. § 

1182(a)(3)(B)(vi)(III). Terrorist activity is defined broadly by 

the statute as conduct “unlawful under the laws of the place 

where it is committed (or which, if it had been committed in 

the United States, would be unlawful under the laws of the 

United States or any State)” and which involves one of 

several enumerated actions, including the “highjacking or 

sabotage of any conveyance,” “an assassination,” use of any 
5

“biological agent, chemical agent, or nuclear weapon or 

device, or [ ] explosive, firearm, or other weapon or 

dangerous device (other than for mere personal monetary 

gain), with intent to endanger, directly or indirectly, the safety 

of one or more individuals or to cause substantial damage to 

property,” or a “threat, attempt, or conspiracy to” commit 

such acts. 8 U.S.C. § 1182(a)(3)(B)(iii).

There is no official register of Tier III organizations; 

instead, groups are adjudicated as Tier III organizations on a 

case-by-case basis.

A. Assessing Tier III Status 

There is relatively little guidance from Courts of 

Appeals as to how to determine whether an organization is a 

Tier III terrorist group. But, from a procedural standpoint,

departmental regulations set forth a burden-shifting structure 

for adjudicating such cases. First, the Government must 

introduce evidence “indicat[ing]” that a group qualifies as a 

Tier III terrorist organization. Then, the burden shifts to the 

applicant to prove “by a preponderance of the evidence” that 

the bar does not apply. 8 C.F.R. § 1208.16(d)(2).

If an alien is deemed a member of a Tier III 

organization, then he can avoid the terrorism bar if he can

“demonstrate by clear and convincing evidence that [he] did 

not know, and should not reasonably have known, that the 

organization was a terrorist organization.” 8 U.S.C. § 

1182(a)(3)(B)(i)(VI). 

II. Factual Background
6

A. Events in Bangladesh

The BNP, led by Khaleda Zia since 1984, is one of 

Bangladesh’s two major political parties; the other is the 

Awami League (AL). Both groups have been in and out of 

power over the past several decades: From 2001 to 2006, the 

BNP was in power. From approximately 2006-2008, a 

military-backed government ruled the country to oversee free 

and fair elections. In late 2008, the AL won a decisive victory

to lead the country. In January 2014, the most recent election, 

the AL maintained its hold on power, despite significant 

protests and demonstrations by the BNP as to the election’s 

fairness. 

Uddin joined the BNP in February 2008, when the

group was no longer in power. Soon after, he was promoted 

to general secretary for his district. In this position, he 

distributed posters and recruited college students.

Uddin claims that on several occasions, members of 

the AL persecuted him on account of his political beliefs. 

First, he asserts that on December 1, 2008, ten members of 

the AL approached him while he was hanging BNP posters 

with colleagues. When he refused to stop hanging posters, the 

AL members allegedly beat him, resulting in injuries to his 

face that a doctor treated with stitches.

Second, he claims that in March 2009, AL members 

broke his leg with a hockey stick.1 Third, Uddin asserted that 

AL members threatened to kill him in October 2009 if he did 

 1 A doctor’s statement, prepared in May 2016 for Uddin’s 

immigration litigation, supports the contention that Uddin’s

ankle was broken with a hockey stick in 2009.
7

not stop working for the BNP, and that AL members 

threatened him again in November and March 2010. 

Finally, Uddin alleged that on July 15, 2011, between 

ten and fifteen AL members broke into to his home and 

burned it down. Uddin had escaped through the back door. In 

October 2011, Uddin fled Bangladesh. 

B. Events in the United States

After traveling through more than a half-dozen 

countries, Uddin entered the United States illegally in 2013. 

He eventually settled in Brooklyn, New York. In 2015, he 

attended “about one or two” meetings of BNP members in the 

United States. AR 155.

Later in 2015, Uddin was arrested in New Jersey for

charges that were eventually dismissed in state court, 

including selling untaxed cigarettes and possession of 

marijuana, drug paraphernalia, and a weapon (brass

knuckles). After he posted bail, immigration officers arrested 

him on January 28, 2016, and served him with a Notice to 

Appear charging him with removability under 8 U.S.C. § 

1182(a)(6)(A)(i) (alien present in United States without 

having been admitted or paroled by an immigration officer). 

C. IJ Proceedings

At his hearing before an Immigration Judge, Uddin 

conceded his removability as charged. But he filed a 

defensive application for asylum, withholding of removal, 

and CAT protection. Eventually he conceded, through 

counsel, that he was ineligible for asylum because his 
8

application was untimely, and that he did not qualify for an 

exception to the one-year deadline set forth in 8 U.S.C. § 

1158(a)(2)(B).2 But Uddin maintained that he was eligible for 

withholding of removal and CAT protection. He argued that

because of his affiliation with the BNP, he would face 

persecution if returned to Bangladesh on account of his 

political beliefs.

The IJ denied Uddin’s application for relief.3 He found

that Uddin was ineligible for withholding of removal because 

he was a knowing member of a Tier III terrorist organization, 

the BNP. The IJ found “abundant [record] evidence from 

reliable sources that the BNP has used violence for political 

purposes in the past.” AR 71. 

Describing that “abundant” evidence, the IJ first

quoted a Congressional Research Services report on 

Bangladesh saying that “[p]olitical violence has long been 

part of the political landscape in Bangladesh.” AR 71. He

further noted that Uddin’s own evidence stated that former 

 2 Uddin has not appealed the denial of his asylum claim.

3 The IJ made a “mixed” credibility finding. He found Uddin 

“credible as to his support for the BNP, but not reliable or 

credible as to specific alleged events that form the basis for 

his claim of past persecution and fear or persecution.” AR 63. 

The IJ observed that Uddin “testified in a manner which tends 

to indicate he had memorized [his] narrative.” AR 62. 

Further, Uddin apparently misstated significant facts about 

political elections in Bangladesh during the time he was 

supposedly an active party member. The IJ also noted 

shortcomings in Uddin’s corroborating evidence: most of it 

was prepared for his immigration litigation. 
9

opposition parties were “quick to take revenge on their 

outgoing rivals . . . often in the form of violent attacks.” Id.

(emphases omitted).

Next, the IJ relied on a report stating that while in 

power from 2001 to 2006, the BNP “was criticized for its 

tacit support of radical Islamic groups,” which were

reportedly behind bomb blasts in 2005. AR 72. Then, the IJ 

cited evidence that the BNP had created the Rapid Action 

Battalion (“RAB”) while in power, which it used as an 

extrajudicial “death squad” during its last term in office. AR

72.

4

Finally, and most importantly, the IJ found evidence

that BNP activists resorted to “massive violence including the 

torching of dozens of polling centers” during the 2013-2014

election cycle. AR 72 (citation omitted). The IJ emphasized 

that the BNP’s leader, Khaleda Zia, had “announced the party 

would hold a series of general strikes and traffic blockades 

halting transport links to the capital.”5 AR 73. During these 

strikes, according to an “authoritative” report by the NGO 

Human Rights Watch, “opposition party workers” (i) burned

a truck driver’s wife and baby alive by “fail[ing] to allow 

enough time for [them] to escape the vehicle;” (ii) killed four 

 4 After the BNP left power, it did not maintain control of the 

RAB. Currently, the AL controls the RAB. 

5 The Human Rights Watch Report attributed strike violence 

to “opposition activists,” AR 301, rather than to the BNP 

specifically. But the IJ believed that there was evidence to 

conclude “opposition activists” meant the BNP, since the 

BNP was the “largest party in the opposition coalition.” AR 

75.
10

people by throwing a bomb onto a bus they were riding; (iii) 

badly burned a thirteen-year-old boy by torching the bus he 

worked on; and (iv) injured a seven-year-old’s hand, legs, and 

abdomen by throwing a bomb in front of him. AR 73.

6 The IJ 

also discussed opposition supporters’ “leaving homemade 

grenades on the streets, wrapped in colorful paper, which 

were picked up by children.” AR 73. Opposition workers also 

purportedly attacked polling centers to hamper voter turnout 

in the 2014 election. Because the BNP “used violence for 

political purposes to an extent that constitutes engaging in 

terrorist activity,” the IJ found that the party was a Tier III 

terrorist organization. AR 75 (emphasis omitted).

Turning to the CAT claim, the IJ found that Uddin was 

ineligible for relief because he “failed to establish a 

probability of torture, given weaknesses in his credibility and 

corroborating evidence.” AR 77. 

D. Board Proceedings

 6 Analyzing whether Uddin had proved that he did not, or 

should not have known, that the BNP was a terrorist 

organization, the IJ opined that before Uddin joined, the BNP 

used political violence, and created the RAB. While he was 

active, the party took no “known action to abandon its history 

of violence.” AR 75. After he joined, BNP activists resorted 

to massive violence including torching polling centers. Based 

on this history, notwithstanding Uddin’s sworn testimony that 

he did not know about BNP members’ violent acts, the IJ 

found that Uddin “could not have joined the BNP and served 

as a publicity officer without being aware of [its] history [of 

violence].” AR 76. 
11

Uddin appealed to the Board, which dismissed his 

claim. To start, the Board noted that Uddin had not 

“meaningfully challenged” the IJ’s decision denying his 

request for protection under CAT. AR 3 n.1. He did not 

mention the IJ’s denial of CAT protection in his Notice of 

Appeal, and made only two passing references to CAT 

protection in his brief to the Board. Thus, the Board 

“deem[ed] [the] claim waived on appeal.” Id.

Next, the Board agreed with the IJ that Uddin was 

ineligible for withholding of removal as a member of a Tier 

III terrorist organization. The Board highlighted Uddin’s 

admitted membership in the BNP, and his continued support 

for the organization even after he entered the United States. 

The Board also found that the record reflected 

“abundant evidence” that the BNP had used violence for 

political purposes in the past, including its creation of the 

RAB which it employed as a “death squad” while in power. 

AR 4. It noted the “deadly results of the campaign to disrupt 

the Bengali election in January 2014.” AR 4. The Board

further emphasized that the BNP leader “publicly announced 

a plan to obstruct the 2014 election by strikes, boycotts, and 

blockades.” AR. 4. And, like the IJ, the Board stated that 

“party officers” employed forms of violence which resulted in 

death and serious injury.

7 AR 4. 

 7 The Board noted that it did not address the IJ’s 

determination regarding credibility, because it had found that 

the terrorism bar applied.
12

III. Analysis8

A. CAT Claim

Uddin urges that the Board erred in refusing to review 

his CAT claim. We disagree. In his Notice of Appeal, Uddin 

did not mention the CAT claim. And he made only passing 

reference to CAT twice in his brief the Board.

9 Because he

provided the Board no way to identify his grievance with the

IJ’s CAT ruling, the Board dismissed the claim. 

We review such dismissals for abuse of discretion: the 

Board, in its discretion, may determine “when to summarily 

dismiss an appeal for lack of specificity and when the BIA is 

sufficiently appraised of the appealable issues to entertain the 

appeal.” Lin v. Att’y Gen., 543 F.3d 114, 124 (3d Cir. 2008); 

8 C.F.R. § 1003.1(d)(2)(i) (stating that the Board “may 

summarily dismiss any appeal or portion of any appeal . . . 

[that] fails to specify the reasons for the appeal . . . .”); see 

also 8 C.F.R. § 1003.3(b) (an alien “must specifically identify 

the findings of fact, the conclusions of law, or both that are 

being challenged” to avoid summary dismissal). Here, it is 

clear that the Board did not abuse its discretion in dismissing 

Uddin’s undefined CAT claim: Uddin provided the Board no 

basis for ruling on his vague objection to the IJ’s CAT denial.

 8 We have jurisdiction pursuant to 8 U.S.C. § 1252. The 

Board’s jurisdiction arose under 8 C.F.R. §§ 1003.1(b)(3) & 

1240.15.

9 Uddin simply stated twice that the IJ “summarily dismissed 

[Uddin’s] claim under the [CAT] with little to no analysis 

given to the claim.” AR 10 & 14.
13

On appeal, Uddin seems to argue that the Board found 

his claim “waived,” and not “summarily dismissed,” and that 

thus we do not review for abuse of discretion. We disagree. 

While the Board may not have used the magic words 

“summarily dismiss,” it was clearly unable to address Uddin’s 

claim because it could not discern Uddin’s grievance with the 

IJ’s CAT ruling, and it dismissed the claim on those 

grounds.

10 Even when pressed at oral argument, Uddin’s 

attorney was unable to articulate the basis of his objection to 

the IJ’s CAT analysis.11

Uddin additionally argues that by challenging the IJ’s 

adverse credibility finding, he implicitly challenged the CAT 

ruling, since the IJ’s CAT ruling had discussed the adverse 

credibility finding. We do not agree that there was a clear line 

connecting a challenge to the IJ’s credibility analysis to the 

IJ’s CAT analysis, such that the Board should have divined 

Uddin’s argument. In Lin, the petitioner made a somewhat 

similar argument to the effect that when one issue implicates

another in the case, raising one of the issues puts the Board on 

notice as to the other. 543 F.3d at 122. We rejected that 

argument and do not credit it here. The Board had no way of 

 10 At oral argument, Uddin’s attorney seems to have conceded 

that the Board in fact “summarily dismissed” the CAT claim, 

but then later argued that the Board had instead found the 

claim “waived.”

11 In his brief before us, Uddin stated that his reference to the 

CAT claim in his brief before the Board is “sufficient for 

exhaustion.” Brief at 11. But exhaustion, which implicates 

our jurisdiction, Lin, 543 F.3d at 120, is not at issue here. 

Instead, we are assessing whether the Board properly 

summarily dismissed the CAT claim.
14

knowing that, by challenging the adverse credibility finding,

Uddin was challenging the IJ’s CAT ruling. Thus, Uddin’s 

CAT claim fails. 

B. Withholding of Removal 

(i) Standard of Review

We review the legal determination of whether a group 

falls within the definition of an undesignated terrorist 

organization de novo. Findings of fact underlying this 

determination are reviewed to determine if they are supported 

by substantial evidence, meaning that we will “uphold the 

agency’s determination unless the evidence would compel 

any reasonable fact finder to reach a contrary result.” Sesay v. 

Att’y Gen., 787 F.3d 215, 220 (3d Cir. 2015) (quoting 

Gonazalez-Posadas v. Att’y Gen., 781 F.3d 677, 684 n.5 (3d 

Cir. 2015)). When, as here, the “BIA’s opinion directly states 

that the BIA is deferring to the IJ, or invokes specific aspects 

of the IJ’s analysis and factfinding in support of the BIA’s 

conclusions,” we review both decisions. Oliva-Ramos v. Att’y 

Gen., 694 F.3d 259, 270 (3d Cir. 2012) (quoting Voci v. 

Gonzales, 409 F.3d 607, 613 (3d Cir. 2005)).

(ii) Analysis

As discussed, the Board found that Uddin was 

ineligible for withholding of relief because he was a member 

of a Tier III terrorist organization. But while the IJ and Board 

pointed to evidence of terrorist activity committed by 
15

members of the BNP,

12 it did not, as it has in many of its 

rulings, discuss whether the specified terrorist acts were 

 12 Although there is evidence in the record as to terrorist 

activity by BNP members from 2013-2015, the record is less 

clear as to terrorist acts committed by BNP members between 

2008 and 2011, when Uddin was a member in Bangladesh.

Pressed at oral argument as to what evidence of terrorist acts 

were in the record while Uddin was in Bangladesh, counsel 

directed us to a single page from a report by the Immigration 

and Refugee Board of Canada. AR 237. 

That report states that one source consulted reported 

“135 individuals having been killed and 11,532 persons 

having been injured due to political violence between January 

and December 2011.” But the report immediately notes 

thereafter: “Corroborating Information could not be found

among the sources consulted . . .” AR 237 (emphasis added).

Further, as the Government’s counsel conceded, the report

does not attribute the political violence referenced to the 

BNP. That this was the most damning evidence the 

Government could cite at argument from a 734-page record 

makes us question the BNP’s status a terrorist organization 

during the years 2008-2011. But because Uddin continued his 

active membership in the BNP even after he arrived in the 

United States, we also look to the BNP’s actions from 2011-

2015.

We note, however, that evidence of RAB’s violence 

conduct that predated Uddin’s membership in the BNP is not 

relevant to the determination of the BNP’s Tier III status 

while he was a member. The BNP has not controlled the RAB 

since approximately two years before Uddin even joined the 

party. In fact, the Human Rights Watch Report states that 

since the BNP has been a minority party, the government has 
16

actually authorized. Today, we hold that absent such a finding 

regarding authorization by a group’s leaders, Tier III status 

cannot be assigned to a group. We will thus remand for the 

Board to address this issue.

We find support for our ruling in the statutory text, the 

Board’s own rulings and those of the Seventh Circuit, and 

common sense. To start, the relevant statute defines a Tier III 

terrorist organization as a “group of two or more individuals”

that engages in terrorist activity, or a group that “has a 

subgroup” that engages in terrorist activity. 8 U.S.C. § 

1182(a)(3)(B)(vi)(III) (emphases added). Had the statute 

stated that a Tier III terrorist organization is “a group whose 

members engage in terrorist activity,” then a group’s Tier III 

designation could be based on the individual actions of its 

members, regardless of authorization. But the text speaks to 

concerted actions of a group, not uncoordinated activities by

individual members: an organization receives Tier III status

only if a group itself engages in terrorist activity. A rule that 

there must be evidence of authorization from party leaders is 

most faithful to that statutory text.

Second, the rule we announce mirrors the Board’s own

reasoning in the mine-run of its cases involving the BNP’s 

status as a Tier III organization. In fact, in some cases where 

IJs did not make a finding as to BNP leaders’ authorization of 

allegedly terrorist acts, the Board found error in the IJs’

omissions, and remanded to the IJs to take up that very 

question of authorization. In such cases, the Board bolstered 

 

used the RAB to conduct numerous extra-judicial killings of 

BNP members. Thus, for purposes of the BNP’s status as a 

terrorist organization, the RAB’s conduct cannot be ascribed 

to that group during the time period relevant to Uddin’s case. 
17

its reasoning by referencing Seventh Circuit opinions

suggesting that some finding on authorization is necessary to 

assign a group Tier III status. See Khan v. Holder, 766 F.3d 

689, 699 (7th Cir. 2014) (“An entire organization does not 

automatically become a terrorist organization just because 

some members of the group commit terrorist acts. The 

question is one of authorization.”); Hussain v. Mukasey, 518 

F.3d 534, 538 (7th Cir. 2008) (“An organization is not a 

terrorist organization just because one of its members 

commits an act of armed violence without direct or indirect 

authorization . . . .”).

Third, requiring a finding of authorization simply 

formalizes common sense notions as to what a terrorist 

organization is. If a single member of the Democratic or

Republican Party committed a terrorist act, we would not 

impute terrorist status to the entire group, absent some 

showing that party leadership authorized the act. So too here, 

it cannot be that the acts of any single member of the BNP 

can transform the organization into a terrorist group.13 Judge 

Posner explained why this is so in Hussain:

If an activity is not authorized, ratified, or otherwise 

approved or condoned by the organization, then the

 13 Violent outbreaks by both BNP and AL members seem to 

color the political landscape of Bangladesh leading up to 

elections. The BNP and AL are the two major political parties 

in that country, and dominate political life there. Thus, 

following the Board’s reasoning in this case which suggests 

that both parties qualify as terrorist organizations, it appears 

that a large swath of Bengali aliens who are members of these 

parties would be ineligible for most forms of immigration

relief. This gives us pause. 
18

organization is not the actor. It may be liable under the 

principles of agency law, even criminally liable, for a 

harm done by one of its employees or other agents, as 

when an employee commits a tort within the course of 

his employment although not authorized to do so by 

his employer. But that does not mean that the 

employer “engaged in” the employee’s act. An 

organization is not a terrorist organization just because 

one of its members commits an act of armed violence 

without direct or indirect authorization, even if his 

objective was to advance the organization’s goals, 

though the organization might be held liable to the 

victim of his violent act.

518 F.3d at 538 (citations omitted). 

Further, today’s ruling should help provide the Board a 

principled method of adjudicating Tier III cases, an area of 

law with little guidance from the Courts of Appeals. This 

dearth of precedential opinions has resulted in highly 

inconsistent results regarding the BNP’s status as a terrorist 

organization: our preliminary research in preparation for oral 

argument turned up several Board rulings concluding that the 

BNP was not in fact a terrorist organization. These

conclusions were in stark contrast to the Board’s finding in 

Uddin’s case.

Faced with these contradictory opinions, in advance of 

oral argument we asked the Government to submit all Board

opinions from 2015-2017 addressing the terrorism bar as it 

applies to the BNP. (Those opinions are not all publicly

available.) The Government’s submission—fifty-four 

opinions in total—did not bolster our confidence in the 

Board’s adjudication of these cases.
19

In six of the opinions, the Board agreed with the IJ that 

the BNP qualified as a terrorist organization based on the 

record in that case. But in at least ten, the Board concluded 

that the BNP was not a terrorist organization. In at least five 

cases, the Government did not challenge the IJ’s 

determination that the BNP is not a terrorist organization.

And in one case, the Board reversed its own prior 

determination, finding that that “the Board’s last decision 

incorrectly affirmed the Immigration Judge’s finding that the 

BNP is a Tier III terrorist organization.” Many of the cases 

discussed the BNP’s terrorist status during the same time 

periods, reaching radically different results. 

We recognize that the Board’s decisions are 

unpublished, and thus lack precedential value. We also note 

the Government’s argument that the BNP’s status as an 

undesignated terrorist organization is a “case-specific” 

determination based on the facts presented. That said, 

something is amiss where, time and time again, the Board 

finds the BNP is a terrorist organization one day, and reaches 

the exact opposite conclusion the next.

Even more concerning, the IJ in this case stated that he

was “aware of no BIA or circuit court decision to date which 

has considered whether the BNP constitutes a terrorist 

organization.” AR 68. At the time the IJ ruled, there were 

several such decisions, and now there are dozens. When 

asked at oral argument whether the IJ could access 

unpublished Board decisions regarding BNP’s terrorist status, 

the Government’s Attorney responded that he did not know.

This is a troubling state of affairs.
20

Still, the rule we announce today does not always

require that the Government produce conclusive proof that 

the leader(s) of a group explicitly sign off on each individual 

terrorist act at issue. Instead, as the Board itself has opined in 

several cases, “[e]vidence of authorization may be direct or

circumstantial, and authorization may be reasonably inferred 

from, among other things, the fact that most of an 

organization’s members commit terrorist activity or from a 

failure of a group’s leadership to condemn or curtail its 

members’ terrorist acts.” Addendum at 6. As we have stated, 

what constitutes a Tier III terrorist organization is adjudicated 

on a case-by-case basis. Accordingly, what constitutes 

authorization under the rule we announce today must also be 

determined case-by-case. Whether words, acts, or silences 

amount to authorization must depend on context, including, 

but not limited to, the structure of the organization, the 

relationship between the organization and its members, and 

the information each has about the other. As long as the 

agency finds as a matter of fact that the allegedly terroristic 

acts were authorized by party leaders, we review that

determination for clear error. 

Because neither the IJ nor the Board in this case

addressed whether the terrorist activity was authorized by 

party leadership,14 we will grant the petition on the 

withholding of removal claim and remand. On remand, the 

 14 Both the IJ and the Board made scattered comments 

suggesting that authorization might have been an element of 

their findings. But, unlike in other BIA cases, neither 

explicitly addressed the issue of authorization. Nor do they 

affirmatively establish that BNP leaders authorized the 

actions that were terroristic.
21

Board should determine whether the BNP’s leadership has 

authorized its members to engage in the referenced terrorist 

activity.

IV. Conclusion

The INA contemplates that we afford some deference 

to the Board’s expertise in matters of immigration. But when 

the Board’s inconsistency leaves us guessing as to its actual 

position on a matter, we think it merits a closer look. The 

question of authorization is, as the Board itself has found, a 

necessary part of the Tier III inquiry. Thus, we will grant the 

petition and remand on the withholding claim. On the CAT 

claim, we will deny the petition.
GREENAWAY, JR., concurring. 

I join the Court’s opinion in full. We hold that groups 

may only be deemed Tier III terrorist organizations based on 

the terrorist activities of their members if the groups authorized 

those activities. I write separately to clarify and expand on the

meaning and scope of that holding and its necessary 

implications. 

Where the BIA has applied this authorization 

requirement, it has generally also interpreted the statute to 

impose a limiting definition on the word “subgroup.”1

 This 

definition has two features. First, the term “subgroup” covers

only “significant” subgroups. See, e.g., Addendum at 8 (BIA 

opinion, Dec. 16, 2016) (citing H.R. Rep. No. 107-236, at 63 

(2001)). Second, the term applies only “where there are 

reasonable grounds to believe that [the subgroup] is 

subordinate to, or affiliated with, [the larger group] and [the 

subgroup] is dependent on, or otherwise relies upon, [the larger 

group] in whole or in part to support or maintain its 

 1 In these cases, the BIA also tends to adopt an additional 

limitation from a subsequent Seventh Circuit case, Khan v. 

Holder, 766 F.3d 689, 699 (7th Cir. 2014). A person is not 

subject to the terrorist bar if they did not know, and reasonably 

should not have known, that the organization they were a part 

of was a terrorist organization. 8 U.S.C. 

§ 1182(a)(3)(B)(i)(VI). The Seventh Circuit observed that, in 

light of the authorization requirement, “a person may not know 

whether he is supporting a terrorist organization until he knows 

which acts are authorized.” Khan, 766 F.3d at 699 (emphasis 

omitted).
2

operations.” Id. (quoting 9 Foreign Affairs Manual § 302.6-

2(B)(3)(h)). 

These limitations on what can constitute a “subgroup” 

in this context are interdependent with the authorization 

requirement and required by our interpretation. A Tier III 

terrorist organization is “a group of two or more individuals, 

whether organized or not, which engages in, or has a subgroup 

which engages in” terrorist activity. 8 U.S.C. § 

1182(a)(3)(B)(vi)(III). As a matter of statutory structure, we 

cannot understand what it means for a group to engage in 

terrorist activity unless we also understand what it means for a 

subgroup to do so. If the relevant “subgroup” could be defined 

as “whichever individuals committed terrorist acts,” then every 

single group (of whatever size, shape, or formality) that 

happens to have two members committing terrorist acts could 

be deemed a terrorist organization, regardless of the 

relationship between the members and the group. 

Accordingly, a limitation on what it means for a group to 

engage in terrorist activity requires a concurrent limitation on 

the meaning of “subgroup.” Otherwise, the unauthorized 

activities of a group’s members—which we have held cannot 

render the group a terrorist organization—could always be recharacterized as the activities of an unorganized subgroup, 

transforming the group back into a terrorist organization once 

more. The authorization requirement would not function. 

Moreover, our concerns about the unintended potential for this 

statute to be extended to most, if not all, asylum-seekers, would 

go unaddressed.
3

Thus, for the same interpretive reasons that we have 

found that the statute requires authorization,

2 I would adopt the 

BIA’s two limiting definitions of the word “subgroup” as well. 

I would therefore counsel the BIA, as it applies our holding, to 

follow not only the holding of this opinion but that holding’s 

necessary corollaries, as it has often done in the past. A group 

should not be declared a Tier III terrorist organization based on 

the actions of a subgroup unless that subgroup is “significant”

and unless that subgroup “is subordinate to, or affiliated with, 

[the larger group] and [the subgroup] is dependent on, or 

otherwise relies upon, [the larger group] in whole or in part to 

support or maintain its operations.” Addendum at 8 (BIA 

opinion, Dec. 16, 2016) (quoting 9 Foreign Affairs Manual § 

302.6-2(B)(3)(h)).

 2 Indeed, any interpretive path leads to this same result. To the 

extent that the Seventh Circuit originally derived this 

authorization requirement from principles of constitutional 

avoidance, Hussain v. Mukasey, 518 F.3d 534, 538 (7th Cir. 

2008) (citing NAACP v. Claiborne Hardware Co., 458 U.S. 

886, 930-32 (1982)), a failure to limit the meaning of 

“subgroup” would also raise those same constitutional 

concerns. The point is that so long as “subgroup” can mean 

“members,” there can be no effective distinction between the 

group’s activities and its members’ activities, under any 

framework.