# United S tates C ou rt of App eals

For the Seventh Circui t

Chic ago, I lli nois 60604

January 15, 2014

Before

W I L L I A M J. B A U E R

, Circ uit Judge

J O E L M. F L A U M

, Circ uit Judge

D I A N E S. S Y K E S

, Circ uit Judge

No. 12-2471

FH-T,

Petitioner

,

v.

E R I C J. H O L D E R

, J R

., A T T O R

N E Y

G E N E R A L O F T H E U N I T E D S T A T E S

, Responden t.

Peti tio n fo r Review o f an Order of the

Bo ard o f Immi gratio n Appe als.

No. 12 -2 47 1

O R D E R2 No. 12-2471

On consi derat i on of the petiti on for rehear i ng and petiti on

for rehear i ng en banc fi led by petiti oner in t he above case on *

S e p t e mber 6, 2013, a major i ty of acti ve judges vo ted to d e ny

rehear i ng. Chi ef Judge Wood, Ci rcui t Judges Posner, Ro v ne r

and Hami lton v o t e d t o gr ant en banc rehear i ng. Chi ef Judge

Wood has wri tte n an opin i on, whi ch Judges Posner, Rov ner

and Hami lton have jo i ned, di ssen tin g from the denial o f the

petiti on.

Ci rcui t Judge Ann Cl aire Wi l l i ams di d not partici pate i n the consi derati on *

of this p eti tio n.No. 12

‐ 2741 3

W OOD

, Chief Judge, with whom P OSNER

, R OVNER

, and

H AMILTON

, Circuit Judges, join, dissenting from the denial of

rehearing en banc.

One cannot read the panel opinion in this case without

appreciating how difficult the issues are, and how troubled

the panel was with the outcome that it believed it was

required to reach. I agree with the panel’s conclusion that

petitioner FH

‐ T failed to exhaust his argument about the

“knowledge exception” to the bar for asylum that applies to

persons who provided material support to a terrorist

organization. But I cannot subscribe to the panel’s

conclusion that it was powerless to do anything about the

procedural dead end in which a person like FH

‐ T finds

himself—unable to receive an answer from the Board of

Immigration Appeals on the question whether he is eligible

for asylum apart from what I will call the terrorism bar, yet

unable to obtain a determination from the Department of

Homeland Security on an application for a waiver of the

terrorism bar without a decision from the BIA. The panel

suggests at the end of its opinion (sl. op. at 33) that this is a

problem that can be solved only by Congress. In my view,

however, the problem is regulatory in both its creation and

its solution: we have an instance of two agencies (the

Department of Justice, through its Executive Office of

Immigration Review, and the Department of Homeland

Security) that have thwarted the congressional scheme

through their regulatory apparatus. Legislative intervention

is not necessary to empower these two Executive

departments to solve a problem of their own making. To the4 No. 12

‐ 2741

contrary, there are a number of ways in which they could

come into compliance with the statutory framework. I

outline a few of them below. The proper procedure for

adjudicating terrorism

‐ bar cases is important enough on its

own to justify the attention of the full court. But there is

more here: this case raises the general problem (which we

have seen elsewhere in immigration cases) of assuring that

agency regulations do not defeat rights found in statutes. Cf.

Kucana v. Holder, 558 U.S. 233 (2010) (refusing to extend

proscription against judicial review of decisions made

discretionary by statute to those made discretionary by

regulation). I believe that this case is worth the attention of

the en banc court, and so I respectfully dissent from the

decision not to set it for rehearing.

A quick review of the underlying facts and pertinent

legal materials is helpful to put my concerns in context. FH

‐

T is an Eritrean citizen. Here is what the CIA’s World

Factbook has to say about Eritrea:

The UN established Eritrea as an autonomous

region within the Ethiopian federation in 1952.

Ethiopia’s full annexation of Eritrea as a

province 10 years later sparked a violent 30

‐

year struggle for independence that ended in

1991 with Eritrean rebels defeating

government forces. Eritreans overwhelmingly

approved independence in a 1993 referendum.

Isaias Afworki has been Eritrea’s only

president since independence; his rule,No. 12

‐ 2741 5

particularly since 2001, has been highly

autocratic and repressive. His government has

created a highly militarized society by

pursuing an unpopular program of mandatory

conscription into national service, sometimes

of indefinite length.

https://www.cia.gov/library/publications/the

‐ world

‐ factbook/geos/er.html (last visited Jan. 15, 2014). At the age

of 15, FH

‐ T joined the Eritrean People’s Liberation Front

(EPLF) and was quickly swept up in that violent war for

independence. He regretted his decision almost

immediately, but he discovered that he was not free to leave,

and he thus remained with the EPLF for the duration of the

war. During that time, FH

‐ T’s duties included driving a

truck to distribute food and clothing and transferring calls

and requests for truck parts.

After the war ended, the EPLF transformed itself into a

political party, the People’s Front for Democracy and Justice

(PFDJ), and Isaias Afworki was named president by a

transitional legislature. Unfortunately, this did not herald

the adoption of a democratic form of government. To the

contrary, “the constitution, ratified in May 1997, did not

enter into effect, pending parliamentary and presidential

elections; parliamentary elections were scheduled in

December 2001 but were postponed indefinitely; currently

the PFDJ is the sole legal party and controls all national,

regional, and local political offices.” World Factbook, supra

. In connection with the EPLF’s re

‐ branding as a political6 No. 12

‐ 2741

party, FH

‐ T found himself in the mandatory national service

referenced above, where he was assigned to work as a

transportation supervisor for a state

‐ owned company. He

repeatedly spoke out against the “national service” program,

which supposedly required 18 months of service, but in

reality often amounted to indefinite compulsory work. The

PFDJ was not amused: it imprisoned FH

‐ T in a military

camp for five months under horrendous conditions; he

became seriously ill and lost 30 pounds. At the end of that

period, he was released without having been charged with

any wrongdoing. He was forced to return to his old job, but

he was not permitted to do any work, and in exchange he

received no pay. In 2007, when he heard of a possible

governmental attempt to kill him, he fled to the United

States and filed for asylum. After his departure, his father

and sister were arrested.

FH

‐ T’s asylum application prompted DHS to issue a

Notice to Appear on August 15, 2007, which had the effect of

putting him into removal proceedings. It is important to note

that DHS (through its Citizenship and Immigration Service,

or CIS) takes care of most applications for waiver of the

terrorism bar administratively—that is to say, without the

involvement of an Immigration Judge or the BIA. See

statistics at http://www.rcusa.org/uploads/pdfs/TRIG%20stat

s%20(only),%206

‐ 5

‐ 12.pdf (last visited Jan. 15, 2014) (cited in

Petition for Rehearing En Banc at 12 n.8). We are not

concerned in this case with the set of cases that are handled

exclusively by DHS; our problem is with the smaller, but

important, group of cases in which the noncitizen has beenNo. 12

‐ 2741 7

placed within formal removal proceedings. The latter cases

are handled by the Executive Office for Immigration Review

in the Justice Department.

The IJ denied FH

‐ T’s applications for asylum and

withholding of removal, but he did grant deferral of removal

under Article III of the U.N. Convention Against Torture,

1465 U.N.T.S. 85 (1984), which the United States has signed.

The IJ found that FH

‐ T’s account of his knowledge of the

EPLF’s activities was not credible, that FH

‐ T had failed to

establish his eligibility for asylum, and that he was

statutorily ineligible for withholding of removal because he

had provided material support to the EPLF, which the IJ

characterized as a Tier III terrorist organization for purposes

of 8 U.S.C. § 1182(a)(3)(B)(vi)(III). (As the panel points out,

sl. op. at 9–10, terrorist organizations fall into several tiers:

DHS designates the Tier I groups, and the Department of

State designates the Tier II groups. Tier III is more flexibly

defined and there is no formal list of such organizations;

among others, the IJs have the authority to decide if a group

fits the Tier III definition.)

It is the BIA’s opinion affirming the IJ’s ultimate

conclusions that is critical for our purposes. The BIA noted

that FH

‐ T did not challenge the finding that the EPLF was a

Tier III terrorist organization; I agree with both the Board

and with the panel that this issue is not before us. FH

‐ T

stressed instead his assertions that the support he provided

for the EPLF was not material and that he had no knowledge

of the group’s terrorist activities. Like the IJ, the BIA found8 No. 12

‐ 2741

no merit in these arguments. The BIA concluded with the

following statement and footnote (emphasis added):

As the respondent [FH

‐ T] is barred from

asylum and withholding of removal [because

of the terrorism bar], we need not 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. [Footnote 1: To the extent that

the respondent has argued his possible

eligibility for a waiver under section

212(d)(3)(B)(i) of the Act [8 U.S.C. §

1182(d)(3)(B)(i)], we 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.]

In fact, the Board’s assumption that only the Secretary of

State is empowered to grant a waiver of the terrorism bar

was incorrect. The statute provides as follows:

The Secretary of State, after consultation with

the Attorney General and the Secretary of

Homeland Security, or the Secretary of Homeland

Security

, after consultation with the Secretary

of State and the Attorney General, may

determine in such Secretary’s sole

unreviewable discretion

... [that a waiver

should be granted].No. 12

‐ 2741 9

8 U.S.C. § 1182(d)(3)(B)(i) (emphasis added).

In fact, the Secretary of State loses his power to grant a

waiver once removal proceedings have begun, see id.

, and

the Secretary of Homeland Security takes responsibility for

many, if not most, of these waivers. On October 23, 2008,

Homeland Security, through CIS, issued a document entitled

“Fact Sheet: Department of Homeland Security Implements

Exemption Authority for Certain Terrorist

‐ Related

Inadmissibility Grounds for Cases with Administratively

Final Orders of Removal.” The Fact Sheet indicates that the

Secretary of Homeland Security had begun as of September

8, 2008, to implement his exemption authority under §

1182(d)(3)(B)(i) “for cases issued administratively final

orders of removal by the Department of Justice (DOJ),

Executive Office for Immigration Review (EOIR).” The Fact

Sheet sets out two prerequisites for the Secretary’s

consideration: (1) the order of removal must be

“administratively final”—in other words, the BIA must have

affirmed the order or the period for seeking review before

the BIA must have expired; and (2) for those not in custody,

the exemption petition will be forwarded to CIS “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.” For those in custody,

the Fact Sheet similarly states that the individual must

“otherwise [be] eligible for consideration.” It is no mystery

why DHS would choose to insist that all other issues be

resolved before the Secretary considers an exemption10 No. 12

‐ 2741

petition; there is no need for him to waste his resources if the

petitioner could still be removed on independent grounds.

Proper resolution of this case also requires us to look at

the key statutes. First is 8 U.S.C. § 1182(a)(3)(B)

(§ 212(a)(3)(B) of the Act), which designates as “ineligible to

receive visas and ineligible to be admitted to the United

States” any alien who has engaged in terrorist activities.

Section 1182(a)(3)(B)(vi) defines the term “terrorist

organization” by classifying such organizations into three

tiers. The one relevant here is subsection III, which speaks of

“an organization

... that is 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 (VI) of clause (iv). Those activities

range from murder, to gathering information, to soliciting

funds for the terrorist organization, to solicitation of

membership in the group. The rule of § 1182(a)(3)(B) is not

absolute, however. Section 1182(d)(3)(B)(i) confers authority

on either the Secretary of State, in consultation with the

Attorney General and the Secretary of Homeland Security,

or the Secretary of Homeland Security, in consultation with

the other two, to “determine in such Secretary’s sole

unreviewable discretion that subsection (a)(3)(B) of this

section shall not apply with respect to an alien within the

scope of that subsection

... .” And, critically for our case,

Congress provided for judicial review of legal issues that

may arise in conjunction with waiver determinations:No. 12

‐ 2741 11

Notwithstanding any other provision of law

(statutory or nonstatutory), including section

2241 of Title 28, or any other habeas corpus

provision, and sections 1361 and 1651 of Title

28, no court shall have 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) of this title. The Secretary of State

may not exercise the discretion provided in

this clause with respect to an alien at any time

during which the alien is the subject of

pending removal proceedings under section

1229a of this title.

8 U.S.C. § 1182(d)(3)(B)(i) (emphasis added). In summary,

Congress has (1) created a rule forbidding certain aliens who

are or were associated with terrorist activities from being

admitted to the United States; (2) created an exemption from

that rule, to be awarded solely in the discretion of the

Executive Branch; but it has (3) permitted judicial review of

legal issues that might arise in connection with the exercise

of the exemption authority. Indeed, one could argue that the

last sentence in the excerpt just above indicates that the

Secretary of State (and by inference also the Secretary of

Homeland Security) must await the conclusion of removal

proceedings before making an exemption decision. At a

minimum, the final sentence means that only the Secretary12 No. 12

‐ 2741

of Homeland Security may act once removal proceedings

have commenced.

Nowhere in this statutory scheme can one find a

command from Congress that authorizes or compels the BIA

to refrain from deciding issues that might influence the

removability of an alien before it. Normally, it is up to the

BIA to decide how many issues it should reach on an appeal

from an IJ, just as this court often chooses not to reach

arguments that a party has made if the case can rest on

another ground. But “normally” does not mean always. If

the operation of a different statute depends on a finding of

fact or a conclusion of law from the BIA, then it is up to the

BIA to devise administrative procedures that will assure that

it performs its duty. No statute, to my knowledge, forbids

the Board from creating a structure that will ensure that the

Board does not effectively deprive a noncitizen in FH

‐ T’s

position from seeking a waiver before DHS.

It is at this point, in my view, that the considerable line of

cases disapproving agency procedures that defeat an alien’s

right to obtain a merits determination on a ground for

withholding removal becomes relevant. In Subhan v.

Ashcroft, 383 F.3d 591 (7th Cir. 2004), the noncitizen had

applied for adjustment of status under a statute that

permitted him to receive that benefit if he was certified as

eligible for employment in the United States. He received

two continuances, but then the IJ denied him a third. We

held that this denial had the effect of barring him from relief

that Congress had authorized: “When a request for anNo. 12

‐ 2741 13

adjustment of status is denied there is no judicial review

because the denial is one of the discretionary orders

expressly made nonreviewable by section 1252(a)(2)(B). But

no discretion was exercised here to deny a requested

adjustment of status; instead, the denial of the continuance

prevented the alien from obtaining action on his request.”

We found it “unlikely that Congress, intending, as it clearly

did, to entitle illegal aliens to seek an adjustment of status

upon the receipt of certificates from the state and federal

labor departments, at the same time also intended section

1252(a)(2)(B)(ii) to place beyond judicial review decisions by

the immigration authorities that nullified the statute.” Id. at

595.

Benslimane v. Gonzales

, 430 F.3d 828 (7th Cir. 2005), offers

another application of the same principle. Benslimane had

originally entered under a visitor’s visa and overstayed, but

later his spouse applied on his behalf for a spousal visa and

he sought adjustment of status. His removal proceeding

went forward nonetheless, and at one point his lawyer erred

by failing to submit the adjustment of status request to the IJ

(thinking that it could not be filed there until it had been

adjudicated). The IJ denied a continuance and ordered

Benslimane removed. This court ruled that the decision to

deny a continuance was reviewable because it “had the

effect of a substantive ruling on the application to adjust his

status

... .” Id. at 832. Writing more broadly, we said that

“[a]n immigration judge cannot be permitted, by arbitrarily

denying a motion for a continuance without which the alien

cannot establish a ground on which Congress has14 No. 12

‐ 2741

determined that he is eligible to remain in this country, to

thwart the congressional design.” Id.

Finally, in Ceta v. Mukasey, 535 F.3d 639 (7th Cir. 2008),

we faced a situation in which an Albanian citizen was

seeking asylum in the United States. He was concededly

removable, and his application for asylum had been denied,

but he was also seeking adjustment of status on the basis of

his marriage to an American citizen. Under the regulations

in force when he applied, he was ineligible for adjustment of

status, but during the pendency of his appeal to the BIA,

DHS and the Attorney General issued an interim rule

providing that applicants for adjustment had to apply with

CIS whether or not they were in removal proceedings. The

IJ, however, denied Ceta a continuance that would have

permitted him to pursue that avenue. This court found that

the “BIA’s affirmation of [the denial of] Mr. Ceta’s request

for a continuance amounts, under the circumstances of this

case, to a denial of his statutory right to apply for adjustment

of status.” Id. at 646. He had become, we said, “trapped

within a regulatory interstice” because he had a statutory

right to apply for adjustment of status but he would be

removed before CIS could adjudicate his application.

I recognize that there are distinctions to be drawn

between these cases and FH

‐ T’s, such as the procedural

posture or the details of statutory language. But none of

these differences overcomes the relevant similarity: in each

of these three cases, the alien had a statutory right to seek a

form of relief, and the immigration agencies erected aNo. 12

‐ 2741 15

regulatory barrier to the opportunity to seek the relief in

question. The same situation exists here. FH

‐ T has a

statutory right to seek a waiver of the terrorism bar, but

between them, the EOIR and DHS have created regulatory

barriers that made it impossible for him to place his case

before the Secretary of Homeland Security and obtain a

“yes” or “no” answer. I am not persuaded by the panel’s

opinion that we can or should accept that answer.

I conclude with two points. First, it is premature to worry

about relieving FH

‐ T from any consequences that flow from

the existence of a “final removal order.” Finality is one of the

criteria that DHS has identified as necessary before it will

entertain an exemption request. Just because there is a final

order of removal does not mean that a bag

‐ and

‐ baggage

letter is coming along imminently. Those letters are within

the control of DHS anyway, and I would hope that one arm

of the agency can find a way to ensure that it does not

nullify what another arm of the agency is doing. FH

‐ T, to

this extent, is asking for more than we need to address right

now. If such a letter were to arrive before he obtains his

answer from DHS, I presume that his attorney would seek

an emergency stay, and we would have a better record on

which to consider the facts and the equities. Second,

although I believe that the agencies here have stumbled into

a system that impermissibly nullifies rights that Congress

has created, I am not suggesting that the solution is to have

courts micromanage the proper fix. One possible answer

would be to insist that the BIA adjudicate all issues that

might stand in the way of an exemption from the terrorism16 No. 12

‐ 2741

bar, in cases where it is an issue; another possible “fix”

would be for DHS to change the policy expressed in the Fact

Sheet and to state that it will adjudicate all exemption

requests in cases where there is a final BIA order (or its

equivalent), regardless of how many issues the BIA reached.

And there may be others; it is up to the agencies to decide

how they want to solve this problem. The one thing they

cannot do, however, is to adopt a system that flies in the face

of statutory rights.

For these reasons, I dissent from the decision not to hear

this case en banc

.