1

 NOT PRECEDENTIAL

UNITED STATES COURT OF APPEALS

FOR THE THIRD CIRCUIT

___________________

Nos. 12-2839 & 13-1446

___________________

LAILA RAJABI,

 Petitioner

v.

ATTORNEY GENERAL UNITED STATES OF AMERICA, 

 Respondent

___________________

On Petition for Review from the Board of Immigration Appeals

BIA-1 No. A074-761-909

Immigration Judge: The Honorable Robert P. Owens

Submitted Pursuant to Third Circuit L.A.R. 34.1(a)

January 6, 2014

Before: SMITH, SHWARTZ, and SCIRICA, Circuit Judges

(Filed: February 3, 2014)

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OPINION

___________________

SMITH, Circuit Judge.
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I.

Laila Rajabi petitions for review of a June 15, 2012 order of the Board of 

Immigration Appeals (C.A. No. 12-2839) affirming the denial of her application 

for asylum and withholding of removal under the Immigration and Nationality Act 

(INA), and withholding of removal under the United Nations Convention Against 

Torture (CAT).1See 8 U.S.C. §§ 1158(a), 1231(b)(3); 8 C.F.R. §§ 1208.16(c), 

1208.17(a). She also petitions for review of the Board‟s February 4, 2013 order 

denying her motion to reopen her removal proceedings (C.A. No. 13-1446). These 

petitions have been consolidated for our review.

2

For the reasons set forth below, 

both will be denied.

II.

Rajabi, a native and citizen of Iran, entered the United States in 1996 

without proper documentation and was immediately placed in removal 

proceedings. She promptly filed an application for asylum and withholding of 

 

1

The BIA‟s June 15, 2012 order addressed only Rajabi‟s application for deferral of 

removal under the CAT. Yet the order incorporated by reference a June 25, 2009 

interlocutory decision denying Rajabi‟s applications for asylum and withholding of 

removal under the INA. Thus, the BIA‟s June 15, 2012 order constituted a final order of 

removal, bringing this matter within our appellate jurisdiction. See 8 U.S.C. § 1252(a).

2

The BIA had jurisdiction over Rajabi‟s motion to reopen pursuant to 8 C.F.R. § 

1003.2. This Court has jurisdiction to review final orders of the Board, including the 

denial of a motion to reopen, pursuant to 8 U.S.C. § 1252(a)(1).
3

deportation under the INA, which was denied by an immigration judge (“IJ”) on 

July 7, 2000.

3 Rajabi appealed to the BIA, who remanded the case to the IJ in 

2003, and again in 2005, because tapes were missing from the record. As a result

of these decisions, Rajabi‟s case was heard de novo before a different IJ in 2007. 

In 2007, Rajabi once again applied for asylum and withholding of removal 

under the INA, and also for protection under the CAT.

4 Rajabi‟s application stated 

that, beginning in 1995, she was a “student member and a recruiter” for 

Mojahedin-e Khalq (“MEK”), an organization she claimed was purposed on

“replac[ing] the current regime in Iran with a democratic government” and 

“promot[ing] social welfare.”5 Rajabi asserted that because of her MEK 

 

3 During the pendency of her removal proceedings, Rajabi met and married her 

husband, a United States citizen from Iran. Rajabi‟s husband filed a petition for an 

adjustment of her status in 1998, and the first IJ to hear her case administratively closed 

the proceedings pending the outcome of that petition, which was denied on the merits in 

1999. This explains the three year gap between the date Rajabi first applied for asylum 

and the IJ‟s denial of her application in 2000.

4 Relief under the CAT was not available at the time Rajabi filed her first 

applications for asylum and withholding of removal in 1997.

5

Formed in the early 1960s, MEK‟s origins reflect both Marxist and Islamic 

influences. U.S. Dep‟t of State, Iran; Country Reports on Terrorism, 2005. In its early 

days, MEK collaborated with Ayatollah Khomeini in his effort to overthrow the former 

Shah of Iran. Throughout the 1970s and 1980s, the organization participated in a series of 

terrorist attacks against the interests of the United States. In view of these actions, the 

U.S. Department of State added MEK to its list of designated Foreign Terrorist 

Organizations in October 1997. That designation, however, was removed in September 

2012, in light of “MEK‟s public renunciation of violence, the absence of confirmed acts 

of terrorism by the MEK for more than a decade, and their cooperation in the peaceful 

closure of Camp Ashraf, their historic paramilitary base.” Supp. A.R. at 19, Media Note, 
4

membership she feared being “imprisoned . . . , tortured, raped, and possibly 

killed” if she returned to Iran. Rajabi claimed that her sister—who was the leader 

of several MEK cells and involved with a “small military wing” of the 

organization—was arrested by Iranian police at their parents‟ home in May 1996. 

Rajabi alleged that the authorities searched for her as well, and as a result, she has 

not returned home since the date of her sister‟s arrest.

Despite the detailed description in her application, Rajabi minimalized her 

involvement with MEK during her hearing before the IJ. She testified that she was 

not actually a member of MEK, explaining that at the time she filed her application

she was unaware that the group required that an individual be involved for several 

years before it would grant membership. Further, Rajabi claimed that she 

participated in MEK for only about six months, during which time she merely 

distributed pamphlets and assisted several families displaced by the war between 

Iraq and Iran. Rajabi also testified that she did not know that MEK engaged in 

violence until after she came to the United States.

The IJ denied Rajabi‟s application for asylum and withholding of removal in 

an order dated October 5, 2007. As an initial matter, the IJ found that Rajabi‟s 

testimony was not credible, especially as to the “most crucial parts” related to her 

 

U.S. Dep‟t of State, Delisting of the Mujahedin-e Khalq (Sept. 28, 2012). 
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knowledge of MEK and the extent of her involvement with the organization. He

noted that Rajabi‟s application “disclosed a more intimate knowledge of the way 

MEK worked and its political objectives and militant capacities” than she 

professed in her oral testimony. He also disbelieved her assertion that she did not 

know about MEK‟s violent activities, particularly considering her sister‟s 

leadership role and Rajabi‟s mention in her application of the organization‟s

military branch.

The IJ additionally concluded that Rajabi was statutorily ineligible for 

asylum, withholding of removal, and CAT relief because, by distributing literature 

and recruiting individuals to join MEK, Rajabi had provided material support to a

Tier III terrorist organization. See 8 U.S.C. §§ 1182(a)(3)(B)(iv)(VI)(dd), (vi)(III).

In determining that MEK was a Tier III terrorist organization, the IJ noted that the 

organization‟s history is marked by anti-Western activity. Indeed, during the 

1970s, MEK‟s members staged terrorist attacks inside Iran, assassinated at least six 

American citizens, supported the takeover of the U.S. Embassy, and opposed the 

release of American hostages. See People’s Mojahedin Org. of Iran v. U.S. Dep’t 

of State, 182 F.3d 17, 20 (D.C. Cir. 1999) (quoting CIA Intelligence Research 

Paper dated July 1993). In light of these actions, the U.S. State Department 

designated MEK as a Tier I terrorist organization in 1997, just months after Rajabi 
6

arrived in the United States. See 8 U.S.C. §§ 1182(a)(3)(B)(vi)(I), 1189. Although 

MEK was not listed as a Tier I terrorist organization while Rajabi was offering her 

support, the IJ concluded that, given the organization‟s nefarious past, it was most 

certainly a Tier III terrorist organization before its official designation.

Despite concluding that Rajabi was statutorily ineligible for withholding of 

removal under the CAT for engaging in terrorist activities, the IJ nonetheless 

granted her deferral of removal under 8 C.F.R. § 1208.17(a).

6

The IJ reasoned that 

because Rajabi would be required to submit her deportation order to Iranian 

authorities, the authorities would be notified about her previous MEK involvement. 

He thus found that “it is more likely than not that upon her arrival [in Iran], 

[Rajabi] will be detained and subjected to torture by the Iranian government.”

The Department of Homeland Security and Rajabi both appealed to the BIA. 

The Board affirmed the IJ‟s adverse credibility determination and his finding that 

Rajabi was statutorily barred from asylum and withholding of removal as an alien 

who participated in terrorist activities. The BIA, however, vacated the IJ‟s decision 

to grant deferral of removal under the CAT because the IJ‟s order was “unclear as 

 

6

The IJ purported to grant Rajabi CAT protection under 8 C.F.R. § 1208.16(a). This 

regulation, however, provides for withholding of removal, a form of relief that is not 

available to aliens who have provided material support to a terrorist organization. The 

BIA, therefore, appropriately understood the immigration judge to have intended to grant 

deferral of removal under 8 C.F.R. § 1208.17(a). 
7

to what evidence supports the finding of a clear probability of torture and whether 

each „link‟ in the chain of events leading to her torture was demonstrated to be 

more likely than not.” 

On remand, the IJ determined that Rajabi failed to establish that she was 

entitled to deferral of removal under the CAT, in part because she did not provide 

sufficient testimony or other evidence to prove that it was more likely than not that 

the Iranian government would identify her as a political opponent. On June 15, 

2012, the BIA affirmed the IJ‟s decision and dismissed her appeal. Rajabi timely 

petitioned this Court for review. 

While her petition for review was pending, Rajabi filed a motion to reopen 

her removal proceedings based on the fact that the Secretary of State had 

decertified MEK as a Tier I terrorist organization on September 28, 2012. The BIA 

denied the motion to reopen on February 4, 2013. The Board stated that the official 

designation as a terrorist organization does not determine Rajabi‟s removability, 

particularly where her removal was based on a finding that MEK was a Tier III 

terrorist organization at the time of Rajabi‟s participation. Further, the BIA noted 

that Rajabi‟s previous applications for relief were denied on the independent 

ground that her testimony lacked credibility. Rajabi timely petitioned for review of 

the denial of her motion to reopen. The two petitions have been consolidated for 
8

our review.

III.

We “review the administrative record on which the final removal order is 

based.” Li Hua Yuan v. Att’y Gen. of the U.S., 642 F.3d 420, 425 (3d Cir. 2011). 

Where the BIA‟s decision affirms and specifically references the IJ‟s decision, our

review includes the referenced portions of the IJ‟s decision. Id. “Our review of 

factual findings, including findings [related to] persecution and fear of persecution, 

is for substantial evidence, which means we must uphold findings of fact unless the 

record evidence compels a contrary finding.” Id. (citing Sandie v. Att’y Gen. of the 

U.S., 562 F.3d 246, 250 (3d Cir. 2009)). We review legal conclusions de novo. Id.

Rajabi‟s primary contention, with respect to both her motion to reopen and 

her application for asylum and withholding of removal, is that the Secretary of 

State‟s September 2012 decision to delist MEK as a Tier I terrorist organization 

somehow commands a different outcome in her removal proceedings. While the 

decision to remove MEK from the list of Tier I terrorist organizations may reflect 

the United States‟ current perception of the organization, we fail to see how this 

has any bearing on whether MEK was a terrorist organization at the time of 

Rajabi‟s involvement.

Under our immigration laws, an alien is inadmissible and ineligible for 
9

asylum, withholding of removal, or CAT relief if she “has engaged in a terrorist 

activity,” 8 U.S.C. § 1182(a)(3)(B)(i)(I), which includes committing “an act that 

the actor knows, or reasonably should know, affords material support” to a terrorist 

organization. Id. § 1182(a)(3)(B)(iv)(VI)(cc), (dd); see also id. § 1158(b)(2)(A)(v); 

8 C.F.R. § 1208.16(d)(2). The INA defines a “terrorist organization” as a group so 

designated by the Secretary of State (a “Tier I” organization), 8 U.S.C. § 

1182(a)(3)(B)(vi)(I), or as an undesignated group that “engages in, or has a 

subgroup which engages in,” terrorist activity (a “Tier III” organization). Id. §

1182(a)(3)(B)(vi)(III).

7

To be sure, providing material support to a terrorist 

organization—whether Tier I or Tier III—precludes an alien from obtaining 

protection under our immigration laws. 

Although MEK was not designated as a Tier I terrorist organization until 

1997 (just after Rajabi arrived in the United States), the IJ concluded that, given its

history of violent anti-Western conduct throughout the 1970s and into the 1990s, 

MEK was nonetheless a Tier III organization at the time Rajabi provided material 

 

7

For our purposes, there is only one distinguishing feature between Tier I and Tier 

III organizations: for undesignated Tier III organizations, the material support bar does 

not apply if the alien “can demonstrate by clear and convincing evidence that [she] did 

not know, and should not reasonably have known, that the organization was a terrorist 

organization.” 8 U.S.C. § 1182(a)(3)(B)(iv)(VI)(dd). The IJ concluded that, given MEK‟s 

long history as an organization and her sister‟s leadership role, Rajabi could not 

demonstrate that she should not reasonably have known that MEK was involved in 

terrorist activities. Rajabi does not challenge this finding in her petition for review.
10

support in 1995.8 Rajabi, however, contends that she should not be disqualified 

based on her past support of MEK. She argues that the statutory definition for a 

Tier III terrorist organization uses present tense language, and thus the material 

support bar should not apply where the supported organization is no longer 

actively engaged in terrorist conduct.

Rajabi‟s position finds no support in either the plain language of the statute 

or the statutory context. Importantly, the operative provision of the statute that

directly addresses an alien‟s eligibility for relief is plainly phrased in the past tense, 

stating that an alien is inadmissible if she “has engaged in a terrorist activity.” 8 

U.S.C. § 1182(a)(3)(B)(i)(I). This language is clearly directed both at past conduct

and ongoing behavior. Our reading is bolstered by the fact that the PATRIOT

Act—which amended the INA to add restrictions for aliens who previously 

engaged in terrorist activities—includes a retroactivity provision that states that the 

law applies to all “actions taken by an alien before, on, or after [the date of 

enactment].” USA PATRIOT Act of 2001, Pub. L. No. 107-56, Title IV, §§ 

411(c)(1)(A), 115 Stat. 272, 348. Indeed, the authorization of retroactive 

application would have no function if not to reach past conduct.

The use of the present tense in the definition of a Tier III organization does 

 

8 Rajabi has not challenged the IJ‟s conclusion that distributing literature and 

recruiting members constitutes “material support.” See 8 U.S.C. § 1182(a)(3)(B)(iv)(V).
11

not alter our conclusion. Indeed, that definition includes any “group of two or more 

individuals . . . which engages in [terrorist activity].” 8 U.S.C. § 1182(a)(3)(B)(iv)

(emphasis added). But here, the term “engages in” refers to the conduct of the 

organization, not the individual alien‟s actions. It describes the acts the 

organization must have undertaken at the time the support was given in order for 

the alien to be deemed inadmissible. There is no basis for concluding this language 

was intended to restrict the application of the INA‟s disqualification provisions to 

aliens actively engaged in ongoing terrorist activities.

Furthermore, our sister circuits that have considered the issue agree that an 

alien‟s past support to an organization that qualified as a “terrorist organization” at 

the time the support was rendered precludes that individual from relief under our 

immigration laws. See, e.g., Alturo v. U.S. Att’y Gen., 716 F.3d 1310, 1313 (11th 

Cir. 2013) (“[T]he fact that the AUC was demobilized in 2006 does not render the 

material support bar inapplicable. When Alturo made those payments, the AUC 

was active and designated as a Foreign Terrorist Organization . . . .”); Khan v. 

Holder, 584 F.3d 773, 777 (9th Cir. 2009) (“[I]f an alien „has engaged in a terrorist 

activity‟ under § 1182(a)(3)(B)(iv) at any time, he is ineligible for both asylum and 

withholding of removal. It does not matter that the alien ceased participation in 

terrorist activity at some point before seeking admission to or relief in the United 
12

States.”). Rajabi has not identified any case that holds to the contrary. 

For these reasons, we cannot accept Rajabi‟s argument that the State 

Department‟s decision to delist MEK as a terrorist organization compels a different 

outcome in her quest for asylum, withholding of removal, or CAT relief. The IJ 

appropriately determined that MEK was a Tier III terrorist organization at the time 

of Rajabi‟s involvement in 1995. Also, the IJ did not err when he concluded that,

by providing material support to MEK at that time, Rajabi is ineligible for 

protection under United States immigration laws. Rajabi‟s consolidated petitions 

for review will be denied.