## In the 

# United States Court of Appeals

For the Seventh Circuit

____________

Nos. 07-3688, 07-3832

M OHAMMAD A ZAM H USSAIN , Petitioner

,
v.

M ICHAEL B. M UKASEY , Attorney General of the United States, Respondent

.

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Petition to Review an Order of the

Board of Immigration Appeals.
No. A70-921-157.

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A RGUED F EBRUARY 13, 2008—D ECIDEDM ARCH 6, 2008

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Before C UDAHY , P OSNER, and E VANS , Circuit Judges

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P OSNER, Circuit Judge . Mohammad Azam Hussain has petitioned us to review an order that he be removed from the United States. We recently decided a related case, in which he had sought habeas corpus relief against hisdetention pending the completion of the removal proceedings, 510 F.3d 739 (7th Cir. 2007), and our opinion in that case provides additional background concerning the government’s protracted efforts to remove Hussain.
He had come to this country from Pakistan, his native land, in 1994, and five years later had become a lawful2 Nos. 07-3688, 07-3832

permanent resident. But in September 2004 he was arrested and charged with having committed immigration fraud by means of false docu ments that had enabled himto enter and remain in the United States; other misrepresentations were charged as well. He was convicted in June 2005 and sentenced to nine months in prison, time served. The following month he was placed in detention in an immigration facility and removal proceedingswere begun. His removal hearing was spread over several days between December 2005 and May 2006, when the immigration judge took the matter under advisement. He meanwhile had appealed his criminal conviction to us, for although he had served his sentence, a reversal of the conviction would help him resist removal. In October 2006, while the appeal was pending, the governmentagreed to vacate the judgment and dismiss the indictment in lieu of turning over classified Bradymaterial to
the defense.
In May of last year the immigration judge ordered Hussain removed. The judge ruled that Hussain had gained entry to the United States by fraud and was barred from seeking asylum (for which he had applied during the removal proceeding) by having been a member of a terrorist organization, namely the Mohajir QaumiMovement-Haqiqi (MQM-H). Mohajirs are Muslim refugees from India who have settl ed in Pakistan. See Yaroslav Trofimov, “Pakistan’s Embattl ed Leader Embraces Maverick Partner,” Wall St. J ., Dec. 5, 2007, p. A1. The “embattled
leader” referred to in this article is of course President Musharraf—himself a Mohajir—and the “maverick partner” is MQM—the Mohajir Qaumi Movement,though probably not the branch to which Hussain belonged, MQM-H.Nos. 07-3688, 07-3832 3

But while finding that Hussain was removable, the immigration judge also found that he was entitled to relief under the Convention Against Torture because if returned to Pakistan he would be likely to be tortured. Thus the removal order was contingent. In October the
Board affirmed the order and remanded the case for the entry of a final order of removal after completion of the background investigation that is required as a condition of release when a removable alien is allowed to remain in this country by reas on of the Convention Against Torture or the refusal of any country to accept him. 8 C.F.R. § 1003.47. The immigration judge entered the final order on November 6, ordering Hussain removed but staying
removal until and unless he could be removed without his removal’s precipitating a violation of the Convention Against Torture. It is that order, which is administratively final, that Hussainnow asks us to vacate. The government appealed the immigration judge’s ruling that Hussain was entitled to deferral of removal by virtueof the Convention Against Torture to the Board of Immigration Appeals; the Board has now affirmed the ruling.

An alien is removable if he obtained entry into the UnitedStates by fraud. 8 U.S.C. § 1182(a)(6)(C)(i). Hussain obtained entry by showing immi gration officers, upon his
arrival in the United States , two documents that he had bought from a Pakistani offici al, one purporting to parole him into the United States on the basis of a pending application for asylum, the other purporting to authorize
him to work in the United States. Both were spurious. Later, in a petition for naturalization, he omitted his membership in MQM, and in two loan applications he falsely represented himself to be a U.S. citizen. He testified in his removal proceeding that these were innocent mis-4 Nos. 07-3688, 07-3832

takes, but the immigration judge was not required to believe him. For example, Hussain testified that he knew no English when he came to the United States, but his wife testified that when she first met him, two months after his arrival, they spoke only in English because she didn’t know Urdu. Hussain’s lawyer appears not tounderstand the limitations of judicial review of administrative decisions. He says that a federal agent’s “imprecise recollection of these hearsay documents is not particularly probative.” Perhaps not; but that is not thestandard. The evidence was conflicting, and the immigration judge was entitled to credit the government’s
evidence.

The immigration judge and the Board also ruled that Hussain is removable by reason of having “engaged in a terrorist activity.” 8 U.S.C. §§ 1158(b)(2)(A)(v), 1182(a)(3)(B)(i)(I). Since we have just held that he is removable because of having entered the United Statesthrough fraud, it might seem superfluous for us to discuss the alternative ground. It is not. Even after being ordered removed, an alien can pursue remedies that may enable him to stay. One is an appeal to the Convention Against Torture, and Hussain as we know has successfully appealed to it, and that might seem to make an invocation of other post-removal remedies academic even if the finding of remo vability on grounds of fraud does not. Again, not so. The Convention Against Torture provides less secure protection against removal than other remedies that Hussain might want to invoke, and not only because a change in country conditions that
lifted the threat of torture would allow him to be removed. 8 C.F.R. § 1208.17(b)(iv). The government wants to try to obtain what we assume would be reliable diplomaticNos. 07-3688, 07-3832 5

assurances from the government of Pakistan that Hussain
will not be tortured if he is re turned there. If that attempt succeeds, he will be returned, § 208.17(f), and if it fails the government intends to explore the possibility that India, or some other country in which Hussain would not be in danger of being tortured, will accept him; and if this happens, he will be sent to that country. §§ 208.17(b)(2), 208.18(c). In contrast, if he can obtain cancellation of the order of removal, or asylum, or a fraud waiver, then he probably can remain in the United States permanently. 8 U.S.C. § 1229b(b)(1) (cancellation of removal); §§ 1158, 1159(b) (asylum); §§ 1255(a), 1227(a)(1)(H) (fraud waiver); 8 C.F.R. § 245.1(a) (same).

But two of these remedies are barred (though, in a few instances, with narrow exceptions, e.g., 8 U.S.C. § 1158(b)(2)(A)(v)) to an alien found to have engaged in terrorist activity: see 8 U.S. C. § 1229b(c)(4) (cancellation of removal), § 1158(b)(2)(A)(v) (asylum). The fraud waiver, in contrast, is not in applicable to terrorists, but that cannot help someone found to have been a terrorist, since that is an independent basis for removal to which
a fraud waiver is irrelevant.

Although Hussain was found removable for engaging in terrorist activity, it was not a ground stated in the charge that initiated the removal proceeding against him, and so, he argues, it cannot be the basis for barring him from seeking cancellation of removal. But all that the statutory bar requires is that the alien beremovable on grounds of terrorism. 8 U.S.C. § 1229b(c)(4). That makes sense because one purpose of the terrorism statute is to bar forms of post-removal relief to aliens who have been ordered removed on a lesser ground, such as fraudulent entry. As held in such cases as Salviejo-Fernandez v. Gonza-6 Nos. 07-3688, 07-3832

les , 455 F.3d 1063, 1065-66 (9th Cir. 2006), and Brown v. Ashcroft , 360 F.3d 346, 352-53 (2d Cir. 2004), that purpose does not require that involv ement in terrorism be the stated ground of removal.
Since the finding that Hussain engaged in terrorist activity has consequences for him, we must soldier on and consider his challenge to that alternative ground of removability. He argues that the provision for removability on grounds of terrorism, 8 U. S.C. § 1182(a)(3)(B), is ambiguous and unless interpreted narrowly would precipitate a serious constitutional issue of fair notice, as in such

cases as Humanitarian Law Project v. Reno , 205 F.3d 1130, 1137-38 (9th Cir. 2000), and Humanitarian Law Project v. Mukasey , 509 F.3d 1122, 1133-35 (9th Cir. 2007), though
none of those cases involves that provision. The provision defines a terrorist organization as “a group of two or more individuals, whether organized or not, which engages in, or has a subgroup which engages in,” certain designated activities, 8 U.S.C. § 1182(a)(3)(B)(vi)(III), including an illegal use of explosives, firearms, or other dangerous devices “with intent to endanger, directly or indirectly,the safety of one or more individuals or to cause substantial damage to property.” § 1182(a)(3)(B)(iii)(V)(b). A person who recruits or solicits funds for a terrorist organization so defined—or in deed “commit[s] an act that the actor knows, or reasonably should know, affordsmaterial support [to a terrorist organization], including . . . funds . . . or other material financial benefit”— “is deemed to have engaged in terrorist activity,”unless he “can demonstrate by cl ear and convincing evidence that he did not know, and should not reasonably have known, that the organization was a terrorist organization.” §§ 1182(a)(3)(B)(iv)(IV)(cc) , (V)(cc), (VI)(dd).Nos. 07-3688, 07-3832 7

These definitions are broad, but they are not vague. McAllister v. Attorney General of the United States , 444 F.3d 178, 186-87 (3d Cir. 2006); United States v. Hammoud

, 381 F.3d 316, 330-31 (4th Cir. 2004), remanded on other grounds, 543 U.S. 1097 (2005). Hussain complains that they stretch the term “terro rist.” They do. Terrorism as used in common speech refers to the use of violence for political ends. But the statut ory definition of “terrorist organization” is broad enough to encompass a pair ofkidnappers. See 8 U.S.C. § 1182(a)(3)(B)(iii)(II). Someone who sold the kidnappers a gun and rope, unless hecould prove he had no reason to know they were kidnappers, would be “engaged in terrorist activity.”
The statutory deformation of the ordinary meaning of “terrorist” would be a prob lem if people were allowed to rely, in determining their legal obligations, on the name of a statute without bothering to read the body of the statute. They are not. E.g., Brotherhood of R.R. Trainmen v.
Baltimore & Ohio R.R. Co. , 331 U.S. 519, 527-29 (1947); United
States v. Krilich , 159 F.3d 1020, 1028 (7th Cir. 1998); United States ex. rel. Thistlethwaite v. Dowty Woodville Polymer,
Ltd. , 110 F.3d 861, 866 (2d Cir. 1997). So it is irrelevant that MQM-H seems not to ha ve a political agenda, but rather to be engaged in a kind of jurisdictional dispute with MQM-A over which group shall represent Pakistan’s Mohajirs. It is likewise irrelevant that MQM-H does not appear to harbor any hostile designs against the United States; the statute do es not require that the terrorist organization be a threat to us.
The statute may go too far, but that is not the business of the courts. Yet an ambiguity may seem to lurk in the definition of a terrorist organization as an organization that “engages in” a specified activity. What if an organiza-8 Nos. 07-3688, 07-3832

tion contained people who resorted to violence without the organization’s sanction; would the organization be “engaged in” that violence? That is a question about authorization. If an activityis not authorized, ratified, or otherwise approved or condoned by the organization, then the organization is not the actor. NAACP v. Claiborne
Hardware Co. , 458 U.S. 886, 930-32 (1982). 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 em ployment although not authorized to do so by his employer. E.g., United States v. Potter

, 463 F.3d 9, 25-26 (1st Cir. 2006); Tippecanoe Beverages, Inc. v. S.A. El Aguila Brewing Co. , 833 F.2d 633, 637 (7th Cir. 1987); Restatement (Second) of Agency§ 212 (1958). But thatdoes 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.

Hussain recruited for MQM-H and solicited funds for it as well; the questions are whether the organization is a terrorist organization and if so whether Hussain has proved by clear and convincing evidence that he was
unaware of the violent acts in which it engaged in its struggle with MQM-A. He argues futilely that nothing he did contributed to those acts; MQM-H engaged in
nonviolent as well as violent activities and his work was only with the former. That is irrelevant. If you provide material support to a terro rist organization, you are engaged in terrorist activity even if your support is con-Nos. 07-3688, 07-3832 9

fined to the nonterrorist activities of the organization. Organizations that the statute, and indeed in this instance common parlance, describes as terrorist organizations, such as Hamas in Gaza and Hezbollah in Lebanon, often operate on two tracks: a violent one and a peaceful one (electioneering, charity, pr ovision of social services). If you give money (or raise money to be given) for the teaching of arithmetic to children in an elementaryschool run by Hamas, you are providing material support to a terrorist organizat ion even though you are not providing direct support to any terrorist acts. Singh-Kaur v. Ashcroft , 385 F.3d 293, 299-300 (3d Cir. 2004); Humanitarian Law Project v. Gonzales , 380 F. Supp. 2d 1134, 1137 (C.D. Cal 2005). As the Board of I mmigration Appeals pointed

out in In re S-K- , 23 I.&N. Dec. 936, 944 (BIA 2006), “Especially where assistance as fu ngible as money is concerned, [requiring] such a link would not be in keeping with the purpose of the material support provision, as it would enable a terrorist organizat ion to solicitfunds for an ostensibly benign purpose, and then transfer other equivalent funds in its possession to promote its terrorist
activities.”

Hussain was active in MQM-H between 1991 and 1996, two years after he came to the United States. In Pakistan he was a high-level official of the organization, in charge of a region in which there were 100,000 Mohajirs, of whom 2,000 belonged to his organizat ion and thus were underhis command. During that period members of the organization committed a number of acts of armed violence against members of the rival MQM-A, and MQM-H did not criticize, or make efforts to curb, that violence; an inference that it was authorized is inescapable. “Violence between the two rival factions [MQM-H and MQM-A] is10 Nos. 07-3688, 07-3832

one of the main reasons Pakistani security forces have been called upon to restore law and order in Karachi numerous times since 1992. Members of both organizations are often involved in fights over territory within Karachi. Other MQM-H targets include other ethnic militants and government forces. For the most part, MQM-H actions are limited to small, but freq uent, armed attacks or arsons. Often these attacks are committed to avenge the death of MQM-H members at the hands of rival factions such as MQM-A.” Memorial Institute for the Prevention of Terrorism, “MIPT Terrorism Knowledge Base,” www.tkb.org/Home.jsp (visited Feb. 14, 2008); see also “Rangers Arrest Three MQM-H Activists,” Daily Times

, p. 1 (Aug. 5, 2004), www.dailytimes.com.pk/ default.asp?page=story_5-8- 2004_pg1_3 (visited Feb. 19, 2008); Minorities at Risk Projec t, University of Maryland, “Assessment for Mohajirs in Pakistan” (2004), www. cidcm.umd.edu/mar/assessment.asp?groupId=77007(visited Feb. 19, 2008); Mike Tolson, “Reaping the Whirlwind: Karachi’s Descent into Hell,” Houston Chronicle

, Nov. 8, 1998, p. 2. The fact that the violence was not formally authorized and ha d no clear political aim is irrelevant. And the acts of violence (including almost daily killings in 1993 and 1994, while Hussain was still an MQM-H official in Pakistan) we re so frequent that Hussain could not have failed to learn about them—indeed, he admitted he knew about them— and to learn that they had not been denounced by the organization’s leadership, of which he was a part.

Hussain makes a couple of procedural objections to the removal proceeding, but they have no merit and we will not burden this opinion with a discussion of them.
The Board’s conclusion that Hussain is removable both
for fraud and for material su pport of terrorism must beNos. 07-3688, 07-3832 11

sustained. But we note that Hussain has been in custody for more than two and a half years and that since he cannot at present be removed from the United States because of the Board’s ruling on the Convention Against Torture, the six-month presumptive limitation on detaining an
alien if he has been ordered removed but the order
cannot be executed withou t violating the Convention now begins to run. Zadvydas v. Davis , 533 U.S. 678 (2001); Hussain v. Mukasey

, supra , 510 F.3d at 742-43.
The petition for review is

D ENIED

.

USCA-02-C-0072—3-6-08