In the

United States Court of Appeals

For the Seventh Circuit ____________

Nos. 07-3688, 07-3832

MOHAMMAD AZAM HUSSAIN,

Petitioner,

v.

MICHAEL B. MUKASEY, Attorney General

of the United States,

Respondent.

____________

Petition to Review an Order of the

Board of Immigration Appeals.

No. A70-921-157.

____________

ARGUED FEBRUARY 13, 2008—DECIDED MARCH 6, 2008

____________

Before CUDAHY, POSNER, and EVANS, Circuit Judges.

POSNER, 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 his

detention 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 lawful
2 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 documents that had enabled him

to 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 proceedings

were 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 government

agreed to vacate the judgment and dismiss the indictment in lieu of turning over classified Brady material 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 Qaumi

Movement-Haqiqi (MQM-H). Mohajirs are Muslim refugees from India who have settled in Pakistan. See Yaroslav

Trofimov, “Pakistan’s Embattled 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 reason 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 Hussain now asks us to vacate. The

government appealed the immigration judge’s ruling

that Hussain was entitled to deferral of removal by virtue

of 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 United

States by fraud. 8 U.S.C. § 1182(a)(6)(C)(i). Hussain obtained entry by showing immigration officers, upon his

arrival in the United States, two documents that he had

bought from a Pakistani official, 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 to

understand 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 the

standard. 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 States

through 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 removability 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 diplomatic
Nos. 07-3688, 07-3832 5

assurances from the government of Pakistan that Hussain

will not be tortured if he is returned 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 inapplicable 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 be removable 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 involvement 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 indeed “commit[s] an act that

the actor knows, or reasonably should know, affords

material 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 clear 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 “terrorist.” They do. Terrorism as

used in common speech refers to the use of violence for

political ends. But the statutory definition of “terrorist

organization” is broad enough to encompass a pair of

kidnappers. See 8 U.S.C. § 1182(a)(3)(B)(iii)(II). Someone who sold the kidnappers a gun and rope, unless he

could 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 problem 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 have 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 does 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 activity is 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 employment 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 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.

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 terrorist 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, provision of social services). If

you give money (or raise money to be given) for the

teaching of arithmetic to children in an elementary

school run by Hamas, you are providing material support to a terrorist organization 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 Immigration Appeals pointed

out in In re S-K-, 23 I.&N. Dec. 936, 944 (BIA 2006), “Especially where assistance as fungible 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 organization to solicit funds 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 organization and thus were under

his 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] is
10 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 frequent, 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 Project, 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 had 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) were 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 support of terrorism must be
Nos. 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 without 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

DENIED.

USCA-02-C-0072—3-6-08