In the

United States Court of Appeals

For the Seventh Circuit

No. 12-2471

FH-T,

Petitioner,

v.

ERIC H. HOLDER, JR., Attorney General

of the United States,

Respondent.

Petition for Review of an Order of the

Board of Immigration Appeals.

No. 12-2471

ARGUED APRIL 18, 2013—DECIDED JULY 23, 2013

Before BAUER, FLAUM, and SYKES, Circuit Judges.

FLAUM, Circuit Judge. Petitioner FH-T appeals from

the decision of the Board of Immigration Appeals

affirming the Immigration Judge’s removal order. Petitioner’s applications for asylum and withholding of

removal were denied on the basis that he had provided

material support to the Eritrean People’s Liberation

Front (“EPLF”), which the Board and Immigration Judge
2 No. 12-2471

classified as a “Tier III” terrorist organization. See 8 U.S.C.

§ 1182(a)(3)(B)(vi)(III). The Board did not decide whether

Petitioner would be eligible for asylum “but for”

the material support bar, finding it unnecessary to reach

FH-T’s arguments challenging the denial of his political

persecution claim on the merits. On appeal, Petitioner

argues that the Board should have found him eligible

for the “knowledge exemption” to the material support

for terrorism bar because he did not know that the

EPLF was involved in the unlawful use of force, as compared to the lawful use of force as part of a war of independence. Because Petitioner did not exhaust this argument before the Board, this claim cannot succeed.

Petitioner next claims that because the Board did not

consider the merits of his asylum claim, he is ineligible

for a terrorism bar waiver under current Department of

Homeland Security (“DHS”) policy, effectively nullifying

a statutory right to waiver consideration. He further

suggests that government procedures for adjudicating

waivers are “legally flawed” because the process lacks

coordination among various agencies: in most cases, the

Board issues a final removal order before a waiver determination has been issued by DHS. FH-T contends that

this bifurcated system frustrates Congress’s provision

for judicial review of exemption determinations in the

context of a petition for review of final removal orders.

For the following reasons, we deny the petition.
No. 12-2471 3

I. Background

A. Factual Background

FH-T joined the EPLF when he was approximately

fifteen years old in 1982, while Eritrea and Ethiopia were

in the midst of a war that would last thirty years. By

way of background, in 1950 the United Nations General

Assembly voted to merge Eritrea with Ethiopia as

an autonomous federated unit, with Eritrea under Ethiopian sovereignty. Ethiopia abolished the federation unilaterally in 1962, annexing Eritrea and triggering the onset

of the war. FH-T’s asylum application suggests that he

was motivated to join the EPLF by “youthful emotions” as

well as the “prevailing war and politics.” He quickly

regretted this decision and attempted to return home

after two days, though the EPLF refused to let

him leave. He served in the EPLF for the next nine

years, working in communications and as a small car

and truck driver in Sudan, along the border of the

southern region of Eritrea. His responsibilities primarily

involved transporting food and clothing as a driver and

transferring calls, as well as relaying requests for truck

parts. He did not transport weapons.

In 1991, the EPLF defeated the Ethiopian army,

achieving Eritrean independence. In 1994, the EPLF

dissolved itself and transformed into a mass political

party, the People’s Front for Democracy and Justice

(“PFDJ”), which remains Eritrea’s only political party.

The PFDJ maintains a compulsory labor program

referred to as the “National Service” under which all

Eritrean citizens must work for the government. While
4 No. 12-2471

conscription is supposed to last for eighteen months, in

practice the Eritrean government frequently does not

release National Service workers after their term is completed and requires them to remain in the Service indefinitely. Conscription workers labor under poor conditions and are paid meager wages. When the war ended,

FH-T was employed as a transportation supervisor at a

government-owned company. Many of the people with

whom Petitioner worked were government conscripts.

In 2005 and 2006, Petitioner repeatedly expressed

concerns about abuses of the National Service program by

the PFDJ. When he received no response, he elevated

his complaints to a high-ranking member of the PFDJ.

This individual threatened FH-T with incarceration

if he continued to voice opposition to the National Service. In June of 2006, Eritrean “Internal Security” officials

arrested two of Petitioner’s supervisors at the governmentowned company. A month or so later on July 15, 2006,

Petitioner was also arrested by two Internal Security

officers.

FH-T was imprisoned in a military prison camp for

approximately five months. The conditions were deplorable; inmates were housed in shipping containers

without proper sanitation, ventilation, or insulation

from weather conditions. Petitioner became ill and lost

thirty pounds while in prison. Internal Security officers

repeatedly interrogated him, accusing him of belonging

to an anti-Government group. FH-T denied involvement

in any such group. Nevertheless, interrogators presented him with a file detailing his complaints re-
No. 12-2471 5

The Immigration Judge granted Petitioner deferral of 1

removal under the Convention Against Torture, which the

government has not appealed.

garding the National Service and questioned his audacity

in challenging the government. He was eventually released, having never been charged with or convicted of

any crime. Upon release, FH-T was required to report to

his office at the government-owned transportation company every day, however he was not permitted to perform any work and was not paid for his time. He also

remained under surveillance by Internal Security, was

regularly interrogated, and received threats upon his

life. When he “believed the government was about to

kill him for political disobedience,” he fled Eritrea and

made his way to the United States, where he filed for

asylum. FH-T’s father and sister were arrested when

he fled the country.

B. Procedural Background

An Immigration Judge denied FH-T’s applications for

asylum and withholding of removal under 8 U.S.C. §§ 1158

and 1231(b)(3) and ordered removal. The denial was 1

based upon alternative findings that (1) FH-T lacked

credibility, (2) FH-T failed to prove his eligibility for

asylum on the merits, and (3) FH-T was statutorily ineligible for having provided material support to the EPLF,

which the Immigration Judge classified as a Tier III terrorist organization. With respect to credibility, the Immigration Judge disbelieved that Petitioner was ignorant
6 No. 12-2471

of the EPLF’s violent and “well-known terrorist activities” between 1982 and 1991, such as the EPLF’s attacks

on United Nations relief convoys, a large-scale 1982

attack on Asmara, and assassinations of Eritrean civilians. While FH-T testified to being present at monthly

EPLF “political indoctrination” meetings where he was

informed of its current actions, he nevertheless stated

that he was ignorant of many such events because

he did not personally witness them. Based on

these equivocations, the Immigration Judge determined

that FH-T was not credible.

The Immigration Judge also found FH-T ineligible

for asylum and withholding of removal on the basis that

his claimed persecution was not on account of a

statutorily protected ground. FH-T asserted that he

had been persecuted by the Eritrean government for

complaining about working conditions and low pay in

the National Service, however the Immigration Judge

determined that FH-T’s “complaints about treatment of

members of the National Service within the scope of his

employment with the government of Eritrea did not

qualify as an expression of a political opinion for

asylum purposes.” The Immigration Judge further reasoned that the fact that FH-T’s father and sister were

arrested following his departure from Eritrea failed

to establish a well-founded fear that he would be persecuted upon his return because those arrests were tied to

his previous internal complaints regarding the National

Service. Because he could not establish asylum eligibility, the Immigration Judge reasoned that “it necessarily

follows that the respondent has failed to satisfy the
No. 12-2471 7

more stringent probability of persecution standard required for withholding of removal.”

Finally, the Immigration Judge determined that even

if FH-T were found to have suffered past persecution

and/or a well-founded fear of future persecution, he

would still be statutorily barred from relief for having

given material support to a terrorist organization, citing

Petitioner’s nine years of service in the EPLF. The Immigration Judge determined that the EPLF satisfied

the definition of a Tier III terrorist organization under

8 U.S.C. § 1182(a)(3)(B)(vi)(III) and further concluded

that FH-T had not met his burden of showing by clear

and convincing evidence that he did not know the

group was a terrorist organization.

The Board affirmed the Immigration Judge’s decision

that FH-T was barred from receiving asylum and withholding of removal because he provided material support to a

Tier III terrorist organization. FH-T had argued before

the Board that the Immigration Judge erred by: (1) failing

to consider his imputed political opinion theory of

asylum; (2) finding that his complaints regarding the

National Service amounted to mere whistle-blowing;

(3) finding his denial of knowledge that the EPLF

engaged in terrorist activity not to be credible; and

(4) applying the material support bar because the

support he provided to the EPLF was not “material.” The

Board rejected these challenges. The Board agreed with

the Immigration Judge’s determination that FH-T had

not satisfied his burden of proving lack of knowledge

that the EPLF was a terrorist organization, because
8 No. 12-2471

while Petitioner denied being aware of the EPLF’s acts

of violence, he often equivocated, relying on the fact that

he did not personally witness the events. The Board

also relied upon FH-T’s testimony indicating that he

had been present at monthly political indoctrinations

where current events were discussed and FH-T “only

heard that they [the EPLF] were attacking the civilian

trucks or killing civilians.” (Tr. At 195, 201-03). These

equivocations, combined with the fact that FH-T served

in the EPLF for nine years, led to the Board’s conclusion that the Immigration Judge did not clearly err in

finding that FH-T had not established with clear and

convincing evidence that he did not know or should not

have reasonably known that the EPLF was engaged in

terrorist activities. The Board did not reach FH-T’s arguments challenging the denial of his political persecution

claim on the merits because it determined that the

material support bar rendered him ineligible for

asylum and withholding of removal. FH-T now appeals,

challenging the Board’s conclusion that he does not

qualify for the knowledge exemption to the material

support for terrorism bar, the Board’s decision not to

adjudicate the merits of his claim, and the process by

which the government adjudicates waivers. For the

following reasons, we deny FH-T’s petition.

II. Discussion

“Where . . . the Board relies on the findings of the

[Immigration Judge] but adds its own analysis, we

review the IJ’s decision as supplemented by the Board’s
No. 12-2471 9

additional reasoning.” Yi Xian Chen v. Holder, 705 F.3d

624, 628 (7th Cir. 2013) (internal citation omitted). We

review agency findings of fact for “substantial evidence”

and may reverse the Immigration Judge’s determinations

“only if we determine that the evidence compels a different result.” Abraham v. Holder, 647 F.3d 626, 632 (7th

Cir. 2011) (emphasis added) (citing Balogun v. Ashcroft,

374 F.3d 492, 498 (7th Cir. 2004). We review the Board’s

legal conclusions de novo, Orejuela v. Gonzales, 423 F.3d

666, 671 (7th Cir. 2005) (internal citation omitted),

“ow[ing] the Board deference in its interpretation of the

[Immigration and Nationality Act] ,” Duron-Ortiz v.

Holder, 698 F.3d 523, 526 (7th Cir. 2012) (internal citation

omitted). “We are not at liberty to overturn the Board’s

determination simply because we would have decided

the case differently.” Bueso-Avila v. Holder, 663 F.3d 934,

937 (7th Cir. 2011) (quoting Jamal-Daoud v. Gonzales,

403 F.3d 918, 922 (7th Cir. 2005)).

A. The Board’s Analysis of 8 U.S.C. § 1158(b)(2)(A)(v)

An individual is barred from asylum and withholding

of removal if he has provided material support to a

Tier III terrorist organization, unless he can demonstrate

that he “did not know, and should not reasonably have

known, that the organization was a terrorist organization.”

See 8 U.S.C. §§ 1158(b)(2)(A)(v); 1182(a)(3)(B)(iv)(VI)(dd),

(vi)(III). The immigration statutes delineate three tiers

of terrorist organizations: Tiers I and II are designated as

terrorist organizations by the Department of Homeland
10 No. 12-2471

Unlike Tiers I and II, the Government does not maintain 2

a formal list of organizations falling under Tier III.

Security and the Department of State, respectively. A

Tier III terrorist organization, by contrast, is broadly

defined as a “group of two or more individuals, whether

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

which engages in, the activities described in subclauses (I)

through (IV), 8 U.S.C. § 1182(a)(3)(B)(vi)(iii) .” The “ac- 2

tivities” referenced therein concern “terrorist activity,”

meaning “any activity which is 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 involves conduct such as assassination,

violent attacks upon an internationally protected person,

sabotage, and high-jacking. 8 U.S.C. § 1182(a)(3)(B)(iii).

Under the so-called “knowledge exemption,” the

material support bar applies only if FH-T knew or reasonably should have known that the EPLF was engaged

in an activity that is either unlawful where it took place

or would be unlawful in the United States. See 8

U.S.C. §§ 1158(b)(2)(A)(v); 1182(a)(3)(B)(iv)(VI), (vi)(III).

On appeal, FH-T advances a nuanced argument challenging the Board’s conclusion that he does not qualify

for the knowledge exemption to the material support

bar: He argues that he has consistently claimed ignorance

of any unlawful activity committed by the EPLF,

while simultaneously acknowledging his awareness of

“lawful” violence undertaken by the EPLF as part of a
No. 12-2471 11

struggle for independence. Accordingly, Petitioner does

not dispute that he was aware of the fighting between

Eritrean and Ethiopian forces during the war, but

contends that he understood the EPLF to be operating as

a pseudo-government engaged in a legitimate war of

independence. Nevertheless, he claims that he has consistently denied having any knowledge of any unlawful

(terrorist) activities, such as attacks on civilians committed by the EPLF during the time he was affiliated

with the group. His ignorance of such unlawful violence,

FH-T continues, is corroborated by a letter from his

friend and the testimony of Eritrean country expert

Trisha Hepner, who explained that a high level of secrecy

was associated with the EPLF’s military actions and

combat strategy.

Petitioner argues that the Board’s opinion glossed

over the significant distinction between his knowledge

of the EPLF’s lawful violent activities as compared to its

unlawful ones, and its failure to adequately address

such a critical component of his claim is grounds for a

remand. Champion v. Holder, 626 F.3d 952, 957 (7th Cir.

2012) (“Finding that the BIA erred by failing to consider

the impact of Yomi’s potential deportation, we remand

this matter in order for the BIA to address this critical

component of the hardship analysis.”). Further, as a

matter of policy, Petitioner contends that Congress did

not intend to impose “strict liability” on asylum-seekers

so as to render them ineligible for asylum on the basis

of any support for armed independence movements

against dictatorial regimes. In advancing this argument,

Petitioner urges that wars of independence are lawful
12 No. 12-2471

In addition, Petitioner argues that even if Ethiopia is the “law 3

of the place” for purposes of the knowledge exemption to the

material support bar, it “is not clear that the EPLF’s actions

would be considered unlawful in se.” (Petitioner’s Br. at 21).

Ethiopia’s most recent constitution (relevant because the

language of the statute is in the present tense, see 8 U.S.C.

§ 1182(a)(3)(B)(iii)), states that “[e]very Nation, Nationality

(continued...)

under international law, Eritrean law, and the laws of

the United States.

The language of the statute suggests that the relevant

analysis for purposes of the knowledge exemption is

whether the activity of which FH-T was aware is “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).”

8 U.S.C. § 1182(a)(3)(B)(iii). While acknowledging that it

is an open question whether a court ought to examine

the law of the newly independent nation or the laws of

the oppressor nation (in assessing an action’s lawfulness

“under the laws of the place where it is committed”),

Petitioner submits that Eritrea is the relevant “law of the

place” for purposes of the inquiry surrounding the

legality of the EPLF’s activity. The Eritrean Constitution,

Petitioner suggests, unsurprisingly recognizes the EPLF’s

wartime activities as lawful. See Eri. Const. pmbl. (expressing “[e]ternal [g]ratitude to the scores of thousands of

our martyrs who sacrificed their lives for the causes of

our rights and independence, during the long and

heroic revolutionary struggle for liberation.”).3
No. 12-2471 13

(...continued) 3

and People in Ethiopia has an unconditional right to selfdetermination, including the right to secession.” Eth. Const.

art. 39, pt. 1 (1995).

Other courts have encountered various versions of this 4

argument. The Ninth Circuit, for instance, has explained that

“there may be an exception to the definition of ‘terrorist

activity’ where ‘the law of the country in question incorporates

international law such that the conduct in question is no

longer ‘unlawful’ under the country’s domestic law.’ ”

(continued...)

Further, Petitioner argues that the EPLF activities of

which he was aware do not violate United States law. To

this end, FH-T concedes that “it violates the law to conspire or aim to overthrow the government of the United

States,” 18 U.S.C. §§ 2384, 2385, but argues that this

comparison is an improper analogue. Instead, Petitioner

urges us to imagine a foreign oppressor operating a nondemocratic government, noting that our domestic law

did not bar our own independence movement against

Britain. FH-T also refers us to the Guarantee Clause,

U.S. Const., Art. IV, § 4, which promises a republican

form of government and requires the federal government to protect against invasion and domestic violence.

Id. Amicus adds that congressional intent, as expressed

via the Immigration and Nationality Act’s broad definition of refugees, see 8 U.S.C. § 1101(a)(42), is at odds

with the notion of excluding a large swath of asylumseekers on the basis of their involvement with an independence movement.4
14 No. 12-2471

(...continued) 4

Annachamy v. Holder, 686 F.3d 729, 734 n.4 (9th Cir. 2012) (citing

Khan v. Holder, 584 F.3d 773, 781 (9th Cir. 2009)). Because

the petitioner in Annachamy failed to provide “any evidence

that Sri Lanka has incorporated such international law,” the

Ninth Circuit declined the petitioner’s invitation to remand.

Id.; see also Khan, 584 F.3d at 781 (“An action would be

lawful within the meaning of § 1182(a)(3)(B)(iii) if the law of

the country in question incorporates international law such

that the conduct in question is no longer ‘unlawful’ under the

country’s domestic law, but Khan has made no argument that

that is the case here.”); cf. McAllister v. Att’y Gen., 444 F.3d 178,

187 (3d Cir. 2006). In the present case, while Petitioner argues

on appeal that international law recognizes that the use of

force during hostilities in wars of independence can be

lawful, like the unsuccessful petitioner in Annachamy, he has

not articulated a claim that Eritrea has incorporated such international law authorizing the use of force in independence

movements. Regardless, for the reasons stated, FH-T did

not exhaust this claim before the Board and his argument

cannot succeed.

We need not decide whether the violent activity Petitioner knew about was lawful in the place where it was

committed or would be lawful in the United States,

however, because FH-T did not exhaust this “lawful

violence” argument before the Board. We have explained

that “an alien must exhaust ‘all administrative remedies

available to the alien as of right,’ . . . and this includes the

obligation first to present to the Board any arguments that

lie within its power to address.” Issaq v. Holder, 617 F.3d

962, 968 (7th Cir. 2010) (citing 8 U.S.C. § 1252(d)(1)) (other
No. 12-2471 15

citation omitted). This rule is not jurisdictional, but rather

is a “case-processing rule that limits the arguments available to an alien in this court when those arguments have

not been raised properly at the agency level.” Id. The

exhaustion requirement is meant to provide “the Board an

opportunity to apply its specialized knowledge and

experience to the matter” as well as “provide[] the petitioner with the relief requested in the first instance,

and . . . provides us with reasoning to review.” Arobelidze

v. Holder, 653 F.3d 513, 517 (7th Cir. 2011).

 In his brief before the Board, Petitioner argued that

“[i]n presuming that [Petitioner] must have known

about the full scope of activities of the EPLF, the Immigration Judge ignored” expert testimony and the letter

from FH-T’s friend. Petitioner’s appeal before the Board

further argued “[t]he Immigration Judge also erroneously

concluded that [Petitioner] knew or should reasonably

have known that EPLF was a terrorist organization.” The

government contends that such arguments before the

Board were aimed at persuading it that FH-T was

altogether ignorant of the EPLF’s activities, not that he

possessed innocuous as opposed to inculpating knowledge. Indeed, FH-T did not use the “lawful” versus

“unlawful” activity terminology before the Board, did

not discuss the laws of the places where the EPLF’s

violence was carried out or United States law, and did not

cite the definition of “terrorist activity” contained in

§ 1182(a)(3)(B)(iii).

We agree with the government that FH-T did not

exhaust this argument before the Board. The fact that the
16 No. 12-2471

argument FH-T advanced before the Board appears

consistent with his claim on appeal that he was aware of

the (possibly) lawful violence committed by the EPLF

but simultaneously ignorant of its unlawful activities

is not enough for purposes of exhaustion: it is not the

Board’s responsibility to divine and respond to theories

that are unformed and lacking in citation to supporting

authority. See El-Gazawy v. Holder, 690 F.3d 852, 858-59

(7th Cir. 2012) (unformed arguments before the Board

were “simply too thin for the BIA to recognize [ ] in the

form the petitioner now urges us to consider.”). On

appeal Petitioner claims that “[b]y focusing broadly on

whether Petitioner knew of any violence committed by

the EPLF rather than any unlawful violence, the Board’s

analysis asked the wrong question and reached the

wrong conclusion.” (Petitioner’s Br. at 12). The government rightfully points out that this framework turns

the exhaustion requirement on its head: the burden is

affirmatively on the petitioner, not the Board, to present

“arguments that lie within its power to address.” Issaq,

617 F.3d at 968. Petitioner’s arguments before the

Board were insufficient to provide notice of the “lawful

violence” theory he advances on appeal. Had Petitioner

employed the lawful-versus-unlawful terminology

below, cited the definition of terrorist activity in

§ 1182(a)(3)(B)(iii), or elucidated arguments that the

types of force used by the EPLF of which Petitioner

had knowledge are lawful under Eritrean or American

law, our finding may well have been different. Indeed,

in its brief the government does not dispute that the text

of the relevant statutory scheme requires knowledge of
No. 12-2471 17

Instead, the government noted, without analysis, that two 5

federal courts of appeals rejected versions of the argument FH-T

now advances on appeal. (Government’s Br. at 27). The government did not address the argument on its terms, instead

relying upon exhaustion as well as an argument that “the

Board’s ruling that FH-T failed to prove he did not know, or

should not reasonably have known of EPLF’s terrorism

of civilians is independently dispositive.” Id.

unlawful violence for purposes of the material support

bar’s knowledge exemption in the context of a Tier III

terrorist organization. See Appellee’s Br. at 26. But FH-T’s 5

failure to articulate this novel argument before the

Board requires us to find that he did not exhaust it, and

his claim that he falls under the knowledge exemption

to the material support bar must therefore fail. We need

not reach the government’s alternative claim that the

Board and Immigration Judge clearly found that FH-T

failed to disprove his awareness of EPLF’s attacks on

civilians (even assuming that the EPLF attacks on the

Ethiopian military do not qualify as terrorist activity).

B. Whether the Petition Must be Granted Because

Current Government Procedures for Adjudicating

Material Support for Terrorism Waivers are

Legally Flawed

Petitioner next argues that even assuming his activities

triggered the material support bar, the denial of asylum

and the entry of a removal order were nevertheless erroneous because the Board’s decision deprived him of a
18 No. 12-2471

The amended language provides that “no court shall have 6

jurisdiction to review such a determination or revocation

except in a proceeding for review of a final order of removal

pursuant to section 1252 of this title and review shall be

limited to the extent provided in section 1252(a)(2)(D).”

8 U.S.C. § 1182(d)(3)(B)(i).

fair opportunity to obtain a waiver from that bar. The

Secretary of State and Secretary of Homeland Security may,

in consultation with one another and the Attorney

General, waive the application of the material support bar for individual aliens or groups. 8 U.S.C.

§ 1182(d)(3)(B)(i). The legislative history surrounding

the availability of such waivers or exemptions, which

are rarely issued, suggests that Congress was concerned

that the breadth of the definition of “terrorism” as contained in the bars might sweep too broadly, effectively

denying asylum to otherwise deserving applicants.

See “The ‘Material Support’ Bar: Denying refuge to the

Persecuted,” S. Hrg. 110-753, 7 (Sept. 19, 2007). In

addition, when Congress last amended the exemption

process, it added language indicating that waiver decisions shall be subject to judicial review under

§ 1252(A)(2)(D). The Consolidated Appropriations Act 6

2008, Pub. L. No. 110-161, Div. J, § 691, 121 Stat. 1844, 2364-

66 (Dec. 26, 2007).

FH-T contends that published DHS policy suggests

that the Department will not consider whether to grant a

waiver until: (1) the petitioner was found eligible for

asylum “but for” the material support for terrorism bar;

and (2) the petitioner has received a final order denying
No. 12-2471 19

him asylum (and thus ordering removal). It is undisputed

that the Board is required to promptly proceed with

an asylum case and cannot hold it indefinitely in

abeyance while awaiting waiver adjudication by DHS.

See 8 C.F.R. 1003.1(e)(8) (requiring the Board, with

certain exceptions, to adjudicate cases within 90 days

(for single-member boards) or 180 days (for threemember panels)).

FH-T argues that this procedure is legally flawed as

applied to this case in two respects: (1) the Board erred

in its adjudication by not addressing whether FH-T

would be eligible for asylum “but for” the material

support for terrorism bar, despite the fact that an exemption possibility existed; and (2) the Board erred

in ordering removal and denying asylum before

DHS adjudicated the exemption matter, effectively preventing judicial review of any waiver determination in

the context of a final removal order, as authorized in

8 U.S.C. § 1182(d)(3)(B)(i).

(i) The Board’s Decision Not to Adjudicate the

Merits of Petitioner’s Claim

Petitioner first argues that because published DHS

policy requires that a petitioner be eligible for asylum

“but for” the material support bar in order to be considered for a waiver, it was erroneous for the Board

to dismiss Petitioner’s asylum claim without addressing

the merits. The Board explained that “[t]o the extent

that the respondent has argued his possible eligibility

for a waiver under section 212(d)(3)(B)(i) of the Act, we
20 No. 12-2471

7 The Board explained “[a]s the respondent is barred from

receiving asylum and withholding of removal, we need not

(continued...)

note that the Secretary of State has the sole authority

to grant this waiver, and this provision does not affect

the disposition of the instant removal proceedings,”

(Supplementary Appendix at 3, n. 1) (hereafter “SA”),

effectively acknowledging the existence of such a waiver

but recognizing its lack of authority to decide the issue.

As previously mentioned, 8 U.S.C. § 1182(d)(3)(B)(i)

empowers the Secretary of State and Secretary of Homeland Security, in consultation with one another and the

Attorney General, to waive the application of the

material support bar for individual aliens or groups. It

further provides that no court shall have jurisdiction “to

review such a determination” except in a proceeding for

review of a final removal order. Id. According to a “Fact

Sheet” published by DHS regarding such waivers, a

threshold requirement for obtaining a waiver is that an

applicant “is seeking a benefit or protection under the

Act and has been determined to be otherwise eligible for the

benefit or protection.” (SA at 46) (emphasis added). The

Fact Sheet explains that an asylum petition will only be

given exemption consideration “if relief or protection

was denied solely on the basis of one of the grounds of

inadmissibility for which exemption authority has been

exercised by the Secretary.” (SA at 49). FH-T argues

that because the Board halted its analysis upon determining that the material support bar had been triggered and declined to adjudicate the merits, Petitioner 7
No. 12-2471 21

(...continued) 7

address the other arguments on appeal regarding the merits

of the respondent’s claim of persecution in Eritrea on account

of actual or imputed political opinion.” (SA at 3).

was necessarily denied the opportunity to seek a waiver

from DHS, as the statute permits.

Petitioner argues that the precarious position he

occupies—unable to seek a waiver because no final finding

of asylum eligibility “but for the bar” has been issued,

and unable to receive a full adjudication of

asylum eligibility on the basis that he is subject to the

material support bar—has been rejected by the

Seventh Circuit. He claims that our case law requires

coordination among agencies with overlapping

authority, as between the Board and DHS or between

the Board and the Department of State, and that the

Board’s decision not to fully address the merits of his

claim constituted an abdication of its role. (Petitioner’s

Br. at 37 (“[T]he Board abdicated its consultative role

by not only not making a recommendation, but by

issuing a decision which hinders DHS from making

any exemption decision in the case.”).)

In support of this claim, FH-T cites a line of cases

which he argues stands for the proposition that a minimum level of coordination among the various executive agencies is required and supports our jurisdiction

here. See Siddiqui v. Holder, 670 F.3d 736, 741 (7th Cir.

2012); Ceta v. Mukasey, 535 F.3d 639, 646-47 (7th Cir.

2008) (“unless [] subagencies engage in some minimal co-
22 No. 12-2471

ordination of their respective proceedings—for example,

by the immigration courts favorably exercising discretion, in the appropriate case, to continue proceedings to

allow the other subagency to act—the statutory opportunity to seek [relief] will prove to be a mere illusion.”);

Potdar v. Keisler, 505 F.3d 680, 684 (7th Cir. 2007), vacated

on other grounds by Potdar v. Keisler, 550 F.3d 594 (7th Cir.

2008); Boyanivskyy v. Gonzales, 450 F.3d 286, 292 (7th

Cir. 2006); Benslimane v. Gonzalez, 430 F.3d 828, 832 (7th Cir.

2005); Subhan v. Ashcroft, 383 F.3d 591, 595 (7th Cir. 2004).

FH-T suggests that because the Board’s adjudication

practices operate to “nullify a statutory right” and effectively thwart Congress’s desire to provide aliens subject

to terrorism bars with an exemption possibility, we are

authorized to review such procedures and instruct

the Board to adjudicate Petitioner’s claim in a

particular way.

In Ceta, we provided a helpful discussion of the reasoning behind the line of cases upon which Petitioner

relies:

In Subhan, we concluded that, despite the door-closing

statute, we had jurisdiction to review the denial of a

continuance when such a denial would nullify an

alien’s statutory opportunity to adjust status. Specifically, we found it untenable “that Congress,

intending, as it clearly did, to entitle illegal aliens to

seek an adjustment of status upon the receipt of

[certain required] certificates . . ., at the same time also

intended section 1252(a)(2)(B)(ii) to place beyond

judicial review decisions that nullif[y] the statute.”
No. 12-2471 23

The government also claims that Petitioner failed to exhaust 8

the argument below that the Board was required to adjudicate

(continued...)

Subhan, 383 F.3d at 595. In Benslimane v. Gonzales, we

explained that Subhan applies when the denial of a

continuance request has “the effect of a substantive

ruling on the application to adjust . . . status.” 430 F.3d

828, 832 (7th Cir. 2005) (“An immigration judge

cannot be permitted, by arbitrarily denying a motion

for a continuance without which the alien cannot

establish a ground on which Congress has determined that he is eligible to seek to remain in this

country, 8 U.S.C. §§ 1151(b)(2)(A)(i), 1255(a), to thwart

the congressional design.”). 

535 F.3d at 645-46. These cases did not concern a purported right to a waiver determination in the context of

the material support for terrorism bar, but rather

statutory rights to apply for adjustment of status (Ceta,

Subhan, Benslimane), or to present evidence in a removal

hearing (Boyanivskyy), or to seek “legalization” (Potdar,

Siddiqui). Nevertheless, Petitioner argues that these cases

stand for the general principle that we must instruct

the Board to adjudicate the merits of his claim.

The government counters that we lack jurisdiction to

review the Board’s case adjudication practices and argues

that the cases Petitioner cites are distinguishable from

the present one because they concerned “statutory

rights,” whereas the waiver provision at issue here confers

no such rights. The government claims that “[n]othing 8
24 No. 12-2471

(...continued)

the merits of his argument. This view of exhaustion is

too demanding. In his brief before the Board, Petitioner explicitly acknowledged the while the grant of the discretionary

waiver is outside the authority of the Board or the Immigration Judge to issue directly, the Board should nevertheless

“consider all his arguments on appeal even if the Board upholds

the material support bar” so that his ability to obtain other

administrative remedies is not frustrated. (Administrative

Record at 24). Indeed, the Board discussed the issue in its

decision, (SA at 6), further indicating that the argument

was appropriately exhausted.

The provision also enumerates bars to the extension of 9

that relief and the right to judicial review. 8 U.S.C.

§ 1182(d)(3)(B)(i). 

in the exemption provision establishes a right in any

alien to apply for an exemption, or any right, entitlement,

or interest in the exemption possibility itself.” (Government’s Br. at 38). 

It is true that the language of the statutes permitting

an individual to vindicate adjustment of status or legalization rights invites individuals to “apply,” see 8 U.S.C.

§ 1255(a) (describing the alien’s ability to “make[] an

application for such adjustment”), whereas the language

of the waiver provision at issue here does not,

instead simply empowering the Secretaries with “sole

unreviewable discretion” to grant a waiver, 8 U.S.C.

§ 1182(d)(3)(B)(i). Indeed, the Secretary of DHS herself 9

has apparently advanced this understanding, declaring

that her exercise of the provision’s authority is “not
No. 12-2471 25

intended to create any substantive or procedural right or

benefit that is legally enforceable by any party.” (SA at 46).

The government further notes that Petitioner’s case is

distinguishable from the Ceta line in a procedural sense:

FH-T has not sought a continuance or the approval of

an application for a benefit, but instead seeks “the equivalent of a pardon” to remove the material support for

terrorism designation.

Thus, at least as a matter of text, the exemption

provision before us is technically distinct from the rights

at issue in the Ceta line of cases. Denying Petitioner

relief on this basis is somewhat troubling, as, in a

broader sense this case is much like the other cases

in which we expect the immigration courts to coordinate

action with other executive agencies so as to avoid depriving individuals of opportunities to which they are

legislatively entitled. Moreover, the Secretary of

DHS’s characterization of the exemption provision is

unsatisfying: The suggestion that her exercise of the

provision’s authority is not “legally enforceable” is at

least in some sense belied by Congress’s explicit authorization of judicial review of waiver determinations.

Nevertheless, we are of the opinion that the present

case does not fall within the Ceta line. In addition to the

textual distinctions (no part of the present statute

affords a petitioner the opportunity to “apply” for an

exemption) and procedural disparities (FH-T did not

request a continuance), pragmatic considerations counsel in favor of abstaining from encroachment upon

agency expertise in this context. As compared to the
26 No. 12-2471

Although the present case does not fall within the Ceta line, 10

this does not mean, as the government suggests, that we lack

jurisdiction to review the procedural sufficiency of the Board’s

actions. The government argues that “[w]here neither the

statute, regulations, nor the Constitution afford FH-T a right

or entitlement to apply or be considered for a terrorism

waiver, FH-T necessarily also lacks any ground upon which to

(continued...)

adjustment of status or legalization applications, exemption grants from the terrorism bars are exceedingly rare.

Accordingly, while there are sound practical considerations weighing in favor of requiring a floor of interagency coordination in the context of the (relatively)

frequently granted status adjustments or legalization

applications, a decree requiring a specific method of

Board adjudication in every case in which a petitioner

holds himself out as eligible for a waiver to the

terrorism bars may serve only to prolong the resolution

of cases in an already strained system. While it may be

optimal in theory for the Board to adjudicate all asylum

cases in a manner that furnishes DHS with every potentially useful determination to inform its consideration

of exemptions, we cannot conclude that the Ceta line

of cases compels as much. Indeed, instructing the Board

to adjudicate all asylum cases implicating the material

support for terrorism bar in the manner prescribed by

Petitioner would be far more intrusive than any of our

past mandates (such as instructing the Board to issue

continuances) on the basis of a far less certain statutory

right, if such a right exists at all.10
No. 12-2471 27

(...continued) 10

assert that the jurisdictional clause in § 1182(d)(3)(B)(i)—

providing jurisdiction to review an exemption ‘determination,’—pertains to anything other than the exemption ‘determination’ he has not obtained.” (Government’s Br. at 41-42).

However, we have said that “[t]he procedural sufficiency of

an immigration hearing is a legal question,” Boyanivskyy, 450

F.3d at 291, and thus we properly consider the Board’s

actions de novo. Id. Indeed, if we were to have concluded that

the current agency process “thwart[s] the congressional design,”

Benslimane, 430 F.3d at 832, we would be within our authority

in remanding the case to the Board for a full determination as

to whether Petitioner would be eligible for asylum but for the

bar. See id. at 833(“We are not required to permit Benslimane

to be ground to bits in the bureaucratic mill against the will

of Congress.”); see also Lagunas-Salgado v. Holder, 584 F.3d 707,

713 (7th Cir. 2009) (the immigration statute guarantees a fair

hearing); Ceta, 535 F.3d at 645 (“In Subhan, we concluded that,

despite the door-closing statute, we had jurisdiction to review

the denial of a continuance when such a denial would nullify

an alien’s statutory opportunity to adjust status.”).

It’s worth noting that if Petitioner’s interpretation of the

DHS Fact Sheet is in fact accurate, he is rightfully frustrated that by declining to reach the question of whether

he would be eligible for asylum “but for” the bar, the

Board effectively deprived him of the opportunity to

plausibly seek a waiver from DHS. However, it’s not

clear that FH-T’s interpretation of the Fact Sheet is

correct, or that the Fact Sheet is in any sense binding

upon the Board or DHS. For instance, the government

points out that the Fact Sheet requires only that “[a]ll
28 No. 12-2471

parties . . . have a chance to litigate the merits of the

case up through the BIA,” (SA at 49); it does not explicitly

require the Board to adjudicate the merits in any

particular fashion. Perhaps more significantly, it is not

clear from the language of the Fact Sheet that the Board

alone possesses the ability to determine whether an

alien would be “otherwise eligible for the benefit or

protection.” The Fact Sheet’s use of the passive voice (the

exemption provision applies to an alien “seeking a

benefit or protection . . . and has been determined to be

otherwise eligible for the benefit or protection.”) (SA at 47)

(emphasis added), suggests that other officials or

agencies, perhaps including DHS itself, could theoretically

determine that an alien would be “otherwise eligible” for

relief. (See Government’s Br. at 56 n. 15). If that were

the case, the Board’s decision not to adjudicate the

merits of Petitioner’s asylum claim would not deprive

him of the opportunity to be considered for a waiver. 

Ultimately, the alleged statutory right to consideration

for an exemption is simply too nebulous for us to

require, at this stage, that the Board adjudicate such

claims in the particular manner Petitioner requests. FH-T

does not point us to compelling evidence that Congress,

rather than a single non-binding agency publication,

intended the waiver provision to require Board adjudication of the merits of asylum claims in every case triggering the material support for terrorism bar. While

Petitioner alerts us to a disconcerting lack of harmonization

among executive agencies, we cannot say that the

Board “legally erred” in declining to reach the merits of

FH-T’s asylum claim.
No. 12-2471 29

The government argues that FH-T’s challenge regarding the 11

timing of waiver determinations presents a non-justiciable

political question. We disagree. The Supreme Court recently

explained that “[t]he Judicial Branch appropriately exercises [ ]

authority . . . where the question is whether Congress or the

Executive is ‘aggrandizing its power at the expense of another

branch.’” Zivotofsky ex rel. Zivotofsky v. Clinton, 132 S.Ct. 1421,

1428 (2012) (quoting Freytag v. Commissioner, 501 U.S. 868, 878

(1991)). FH-T’s claim can properly be characterized as

an argument that the Executive’s current adjudication procedures amount to an aggrandizement of its power at the

expense of statutorily-enacted relief (the possibility of a

waiver and judicial review thereof) explicitly provided for by

Congress. Further, we have repeatedly found judicially manageable standards in determining whether executive agency

actions have the effect of nullifying immigration statutes.

See Potdar, 550 F.3d at 596-97, Ceta, 535 F.3d at 645, Benslimane,

430 F.3d at 832; Subhan, 383 F.3d at 591. Petitioner’s claim

is justiciable.

(ii) The Board’s Issuance of a Final Removal Order

Prior to a DHS Exemption Decision

Petitioner next argues that the existing waiver process

is flawed because the entry of a removal order by the

Board prior to any waiver adjudication by DHS either

frustrates judicial review or requires the federal courts

to expand their jurisdiction beyond determinations normally treated as removal orders. As previously men- 11

tioned, Congress expressly provided for federal judicial

review over exemption determinations under the limited

jurisdictional provisions of 8 U.S.C. § 1252(a)(2)(D) and

8 U.S.C. § 1182 (d)(3)(B)(i). Congress further specified
30 No. 12-2471

that such review must occur in the context of a petition

for review from a final removal order. 8 U.S.C. § 1182

(d)(3)(B)(i). Under current DHS procedures, DHS

considers whether to grant a waiver only after a final

removal order is entered. Meanwhile, the removal order

entered by the Board triggers a 30-day window for the

asylum applicant to seek federal judicial review. 8 U.S.C.

§ 1252(b)(1). The DHS waiver process and the removal

order review process are wholly independent; in the

typical case (such as the present one), a petitioner will

have no waiver determination upon which to seek

review as part of his final removal order within the 30-day

window. Petitioner concedes that it is unlikely that Congress intended DHS waiver decisions themselves to constitute separately reviewable decisions analogous to

removal orders, as this would result in twice as many

appeals to this court, raising costs and straining

judicial resources. (Petitioner’s Br. at 41). Thus,

the parallel track scheme as it currently operates

may frustrate Congress’s conferral of exemption review

authority upon the courts. Accordingly, FH-T claims “the

more natural reading of the statute is to require that

exemption decisions be made before a final removal

order, not afterward.” (Petitioner’s Br. at 37) (emphasis

in original). Petitioner suggests that as an alternative to

the present system, “[t]he Board might, for instance,

communicate its decision to the parties, but withhold finality from the order until DHS could make a

decision on the exemption possibility.” (Petitioner’s Br.

at 41). At bottom, Petitioner argues that the process by

which DHS and the Board currently coordinate waivers
No. 12-2471 31

of terrorism-related inadmissibility bars should be

deemed unlawful.

Congress has enacted legislation addressing this sort

of problem in other contexts. For example, in the context

of 8 U.S.C. § 1255a(f)(4), which authorizes judicial

review of legalization denials (but likewise only in the

context of a petition for review from a final removal

order), Congress automatically stayed removal for individuals presenting prima facie legalization claims. 8

U.S.C. § 1255a(e)(2); see also 8 U.S.C. § 1160(d)(2) (same,

for applicants under farm worker program). Legalization

decisions, like material support bar waiver decisions,

are made by DHS and are not reviewable by the Board

of Immigration Appeals. 8 U.S.C. § 1255a(f)(3)(A); Matter

of Singh, 21 I&N Dec. 427 (BIA 1996).

Because Congress has not similarly authorized automatic stays for DHS material support for terrorism

waiver decisions pending review, Petitioner suggests

that the Board should abstain from issuing a final

removal order until after DHS issues an exemption determination, such that the determination could be

reviewed naturally in the course of an appeal from the

removal order itself. This approach, he argues, would

facilitate appeal to this court (should it become necessary), vindicating the judicial review explicitly provided

for by Congress, while limiting the proliferation of

multiple claims by the same petitioner.

The government urges that adopting Petitioner’s argument would “turn the statute on its head to interpret it

as requiring the Secretaries to afford an alien the oppor-
32 No. 12-2471

tunity to apply for a terrorism waiver in order to

vindicate a right to judicial review of that waiver.” (Government’s Br. at 42). The government reads the statute

as guaranteeing no such right, but rather merely identifying where (on petition for review of a removal order)

and when (after a determination or revocation) judicial

review may occur, assuming such a determination

takes place. See 8 U.S.C. § 1182(d)(3)(B)(i). Because no

such procedural interest is promised by the statute, the

government continues, the judicial review clause itself

cannot “force the Executive” to provide a determination.

As a textual matter, the government is correct. See id.

And Petitioner provides no persuasive support for

the suggestion that it is within our authority to order

the DHS and the Board to coordinate adjudication in

this fashion so that asylum applicants are not ordered

removed before a waiver determination has been made.

The government’s interpretation is of some concern,

however, insofar as Congress did clearly legislate to

provide for judicial review of DHS waiver determinations, and current agency practices will in all likelihood

frustrate the opportunity for review because Board decisions will issue more quickly than DHS exemptions

(and the period for appealing a removal order will otherwise lapse). 

Nevertheless, the comparatively comprehensive scheme

in place for per se stays in the context of legalization decisions illustrates the fact that Congress knows

how to solve this predicament when it so chooses. To

instruct the Board to automatically stall the issuance of
No. 12-2471 33

its opinions (including in cases such as the present one

where the petitioner has not requested a continuance)

while awaiting exemption determinations from DHS

which may or may not ever issue would not only grind

the levers of the immigration system to a near halt, but

would constitute an impermissible judicial encroachment

upon agency authority. While Petitioner again alerts us

to the troubling operation of uncoordinated procedures;

we again hold that it is the province of Congress, rather

than the courts, to mend this bifurcated scheme.

We decline Petitioner’s invitation to reverse on this basis.

IV. Conclusion

For the foregoing reasons, we DENY the petition.

7-23-13