FOR PUBLICATION

UNITED STATES COURT OF APPEALS

FOR THE NINTH CIRCUIT

SATHEESKUMAR ANNACHAMY, AKA

Sathees Annachamy,

Petitioner,

v.

ERIC H. HOLDER, JR., Attorney

General,

Respondent.

No. 07-70336

Agency No.

A200-041-850

ORDER AND

AMENDED

OPINION

On Petition for Review of an Order of the

Board of Immigration Appeals

Argued and Submitted

September 2, 2011—San Francisco, California

Filed July 3, 2012

Amended August 19, 2013

Before: Raymond C. Fisher and Johnnie B. Rawlinson,

Circuit Judges, and Richard Mills, District Judge.

*

Opinion by Judge Fisher

* The Honorable Richard Mills, Senior United States District Judge for

the Central District of Illinois, sitting by designation.
2 ANNACHAMY V. HOLDER

SUMMARY**

Immigration 

The panel amended its opinion filed on July 3, 2012;

granted a petition for rehearing; denied a petition for

rehearing en banc on behalf of the court; and ordered that no

future petitions will be entertained.

The panel denied a petition for review of the Board of

Immigration Appeals’ denial of asylum and withholding of

removal based on the material support terrorist provision of

8 U.S.C. § 1182(a)(3)(B)(iv)(VI). The panel held that the

material support bar does not include an implied exception

for individuals who assist organizations engaged in legitimate

political violence or who provide support under duress. 

In the amended opinion, the panel added a statement that

because Congress updated the totalitarian party membership

provision in the same legislation in which it created the

material support bar, it was appropriate to presume that

Congress was aware of the existing legislation. The panel

also added a statement that the waiver provision is still

relevant in determining earlier congressional intent, even

though the waiver provision was not enacted until 15 years

after the creation of the material support bar.

** This summary constitutes no part of the opinion of the court. It has

been prepared by court staff for the convenience of the reader.
ANNACHAMY V. HOLDER 3

COUNSEL

Visuvanathan Rudrakumaran, Law Office of Visuvanathan

Rudrakumaran (argued), New York, New York, for

Petitioner.

Tony West, Assistant Attorney General, United States

Department of Justice; Michael P. Lindemann, Assistant

Director; Ethan B. Kanter (argued), Senior Litigation

Counsel, Office of Immigration Litigation,Washington, D.C.,

for Respondent.

Sean Riordan, ACLU of San Diego & Imperial Counties, San

Diego, California, for Amici Curiae Harvard Immigration and

Refugee Clinic and American Civil Liberties Union of San

Diego & Imperial Counties.

ORDER

The opinion filed July 3, 2012, and reported at 686 F.3d

729 (9th Cir. 2012), is amended. The amended opinion is

filed concurrent with this Order.

With the amended opinion, the panel has voted to

GRANT Petitioner’s petition for rehearing. Judges Fisher

and Rawlinson have voted to deny the suggestion for

rehearing en banc and Judge Mills so recommends.

The full court has been advised of the suggestion for

rehearing en banc and no active judge has requested a vote on

whether to rehear the matter en banc. Fed. R. App. P. 35.
4 ANNACHAMY V. HOLDER

Petitioner’s suggestion for rehearing en banc, filed

September 14, 2012, is DENIED.

No future petitions for rehearing or rehearing en banc will

be entertained.

OPINION

FISHER, Circuit Judge:

Satheeskumar Annachamy petitions for review of a

decision of the Board of Immigration Appeals (BIA) denying

him asylum and withholding of removal because he provided

material support to a terrorist organization, in violation of

8 U.S.C. § 1182(a)(3)(B)(iv)(VI). Annachamyargues that the

BIA erred by applying the material support bar because (1)

the organization he supported was engaged in legitimate

political violence and (2) he provided support under duress. 

We hold that the material support bar does not include an

implied exception for individuals who assist organizations

engaged in legitimate political violence or who provide

support under duress. We thus deny Annachamy’s petition

for review.

I.

Annachamy is a native and citizen of Sri Lanka. In a

hearing before an immigration judge (IJ), Annachamy

testified that between 1986 and 2004 he was arrested several

times by the Sri Lankan army on suspicion that he was

involved with the Liberation Tigers of Tamil Eelam (LTTE),

a militant organization that was then at war with the Sri
ANNACHAMY V. HOLDER 5

Lankan government.1 Each time, the army detained him for

many weeks, interrogated him and tortured him, including

beating him with weapons while he was hung upside down,

inserting a stick in his rectum, placing a bag soaked in

gasoline over his head and forcibly submerging his head into

water.

Annachamy testified that he was never a member of the

LTTE and was opposed to it. On several occasions, however,

he was forced to assist LTTE members. In 1992, for instance,

LTTE members came to his house and demanded that he join

them. Annachamy refused and, upon threat of force,

promised to give them money in the future. In 1996, he paid

LTTE members 2000 rupees (approximately $37). On other

occasions, LTTE members blindfolded Annachamy and took

him to a LTTE camp, where they forced him to cook, dig

trenches, fill sandbags and help build fences. Each time he

was taken to perform these activities, he was kept under strict

watch and there was no possibility of escape. Annachamy

believed that he would have been killed if he tried to escape

or seek help from the police. He has had no contact with the

LTTE since 1997, when he moved from his home town. 

Annachamy testified that he was not aware that the LTTE

was considered a terrorist organization when he assisted

them.

After being detained by the Sri Lankan army again in

2004, Annachamy went into hiding. He left Sri Lanka and

arrived in the United States in 2005. Upon his arrival, the

Immigration and Naturalization Service, now the Department

of Homeland Security (DHS), initiated removal proceedings. 

1 Because both the IJ and BIA found that Annachamy was a credible

witness, we assume his testimony was true.
6 ANNACHAMY V. HOLDER

Annachamy conceded that he was removable based on his

unlawful presence in the United States, but filed an

application for asylum, withholding of removal and

protection under the Convention Against Torture (CAT).

After a hearing, an IJ granted Annachamy asylum and

withholding of removal. The IJ found that, despite some

inconsistencies, Annachamy testified in a credible manner. 

Relying on Annachamy’s application, testimony and State

Department reports on the conditions in Sri Lanka, the IJ

found that Annachamy had demonstrated a well-founded fear

of persecution based on a protected ground. The IJ also

found that Annachamy was not precluded from obtaining

relief even though he gave assistance to the LTTE, because

he was forced to do so. The IJ found that Annachamy’s “life

or freedom would have been threatened” if he had not

assisted the LTTE.

The BIA reversed. In an unpublished opinion, the BIA

accepted the IJ’s credibility determination and found that

there was “no question” that Annachamy had established a

well-founded fear of future persecution that went unrebutted. 

The BIA found, however, that the Immigration and

Nationality Act (INA) barred Annachamy from obtaining

asylum or withholding of removal because he had provided

material support to a terrorist organization. The BIA instead

granted Annachamy deferral of removal under CAT and

remanded to the IJ to complete identity, law enforcement or

security examinations required under 8 C.F.R.
ANNACHAMY V. HOLDER 7

§ 1003.1(d)(6).2 Annachamy petitions for review of that

decision.

II.

We have jurisdiction to review the BIA’s final order

denying asylum and withholding of removal under 8 U.S.C.

§ 1252. See Li, 656 F.3d at 904 (“[W]here the BIA denies

relief and remands pursuant to § 1003.1(d)(6) for background

checks required for alternative relief, we have jurisdiction to

consider an appeal of the final order denying relief.”). “Our

review is confined to the BIA’s decision except to the extent

the BIA incorporated the IJ’s decision.” Id. at 900–01. We

review de novo constitutional and other questions of law. See

Khan v. Holder, 584 F.3d 773, 776 (9th Cir. 2009). We

afford the BIA’s unpublished opinion Skidmore deference,

meaning “we ‘examine the validity of the BIA’s reasoning, its

thoroughness, and overall persuasiveness,’ and give it weight

accordingly.” United States v. Casasola, 670 F.3d 1023,

1030 (9th Cir. 2012) (quoting Garcia-Quintero v. Gonzales,

455 F.3d 1006, 1015 (9th Cir. 2006)).

2 Before granting an application for relief or protection from removal,

DHS must complete certain identity, law enforcement and security

examinations. See 8 C.F.R. § 1003.47. Under 8 C.F.R. § 1003.1(d)(6),

“[w]here background checks are required but have not yet been

completed, the BIA must either issue an order remanding the case to the

IJ with instructions to allow the DHS to complete the background checks,

or provide notice to both parties that the case is on hold pending

completion of the background checks.” Junming Li v. Holder, 656 F.3d

898, 902 (9th Cir. 2011).
8 ANNACHAMY V. HOLDER

III.

An alien who has engaged in terrorist activities is

ineligible for asylum, withholding of removal and

withholding under CAT, but remains eligible for deferral of

removal under CAT. See Haile v. Holder, 658 F.3d 1122,

1125–26 (9th Cir. 2011).3 We have previously recognized

that the INA “defines ‘engag[ing] in terrorist activity’

broadly.” Khan, 584 F.3d at 777 (alteration in original). The

definition includes committing, planning or gathering

information about potential targets for a terrorist activity, and

soliciting funds or individuals for a terrorist activity or

terrorist organization. See 8 U.S.C. § 1182(a)(3)(B)(iv). An

alien also engages in terrorist activity by

commit[ting] an act that the actor knows, or

reasonably should know, affords material

support, including a safe house,

transportation, communications, funds,

transfer of funds or other material financial

benefit, false documentation or identification,

weapons (including chemical, biological, or

radiological weapons), explosives, or training

—

(aa) for the commission of a terrorist activity;

3

See also 8 U.S.C. § 1182(a)(3)(B)(i)(I) (providing that an alien who

has “engaged in terrorist activity” is inadmissible); id. § 1158(b)(2)(A)(v)

(providing that an alien described in § 1182(a)(3)(B)(i)(I) is ineligible for

asylum); id. §§ 1227(a)(4)(B), 1231(b)(3)(B)(iv) (same for withholding of

removal); 8 C.F.R. § 1208.16(d)(2) (same for withholding under the

CAT); 8 C.F.R. § 1208.17(a) (providing that an alien eligible for CAT

protection but ineligible for CAT withholding shall be granted deferral of

removal).
ANNACHAMY V. HOLDER 9

(bb) to any individual who the actor knows, or

reasonably should know, has committed or

plans to commit a terrorist activity;

(cc) to a terrorist organization described in

subclause (I) or (II) of clause (vi) or to any

member of such an organization; or

(dd) to a terrorist organization described in

clause (vi)(III), or to any member of such an

organization, unless the actor can demonstrate

by clear and convincing evidence that the

actor did not know, and should not reasonably

have known, that the organization was a

terrorist organization.

Id. § 1182(a)(3)(B)(iv)(VI).

“The statute also defines ‘terrorist organization’ broadly.” 

Khan, 584 F.3d at 777. The definition includes organizations

designated as a “terrorist organization” by the Secretary of

State, in consultation with the appropriate officials, see

8 U.S.C. § 1182(a)(3)(B)(vi)(I)–(II) — often referred to as

Tier I and Tier II terrorist organizations — and any “group of

two or more individuals, whether organized or not, which

engages in, or has a subgroup which engages in, [terrorist

activities],” id. § 1182(a)(3)(B)(vi)(III) — referred to as Tier

III terrorist organizations.

Annachamy does not dispute that he materially assisted

the LTTE, and the parties agree that the LTTE qualified as a
10 ANNACHAMY V. HOLDER

Tier III organization at the time he assisted it.4 Annachamy

challenges the BIA’s decision on two grounds, however. He

argues, first, that the material support bar does not apply to

him because the LTTE was engaged in legitimate political

violence; and, second, that the bar does not apply to him

because he supported the LTTE under duress. We consider

each argument in turn.

A. Political Offense Exception.

Annachamy contends that the material support bar does

not apply to him because the LTTE was engaged in

“legitimate political violence.” Our decision in Khan

forecloses this argument. See 584 F.3d at 781–85.

In that case, the BIA found an alien ineligible for asylum

and withholding of removal because he had engaged in

terrorist activities by soliciting funds for a terrorist

organization, in violation of 8 U.S.C. § 1182(a)(3)(B)(iv)(IV). 

See id. at 776. The alien argued on appeal that he did not

assist a “terrorist organization” because “the definition of

‘terrorist activity’ under § 1182(a)(3)(B)(iii) incorporates

international law, and thus excludes legitimate armed

resistance against military targets.” Id. at 781. We rejected

this argument because the plain language of the INA allowed

for no such exception. See id.

Annachamy advances the same argument we rejected in

Khan, except he concedes the LTTE is a terrorist organization

4 Annachamy does not argue that his support of the LTTE was not

“material,” so we need not resolve the issue of whether Annachamy’s

actions constitute “material support” of the LTTE within the meaning of

the statute.
ANNACHAMY V. HOLDER 11

and thus that it engaged in terrorist activity. Rather than

arguing there is a “political offense” exception to the

definition of “terrorist activity,” Annachamy would have us

locate the exception in the material support bar. We decline

to do so.

The material support bar provides that any alien who

“commit[s] an act that the actor knows, or reasonably should

know, affords material support, including a safe house,

transportation, communications, funds, transfer of funds or

other material financial benefit, false documentation or

identification, weapons (including chemical, biological, or

radiological weapons), explosives, or training” to a terrorist

organization has engaged in terrorist activity. 8 U.S.C.

§ 1182(a)(3)(B)(iv)(VI). Annachamy provides no textual

hook for his argument that the material support bar does not

apply to political offenses. He argues only that denying relief

to aliens who have participated in political offenses would

violate the United States’ obligations under international law

and would lead to troubling results, whereby, for instance,

individuals who resisted the Nazis would be barred from

obtaining asylum. We considered and rejected both of these

arguments in Khan. See 584 F.3d at 781–84; see also In re SK-, 23 I. & N. Dec. 936, 941 (B.I.A. 2006) (“[W]e find that

Congress intentionally drafted the terrorist bars to relief very

broadly, to include even those people described as ‘freedom

fighters,’ and it did not intend to give us discretion to create

exceptions for members of organizations to which our

Government might be sympathetic.”). We therefore hold that
12 ANNACHAMY V. HOLDER

there is no political offense exception to the material support

bar.5

B. Duress Exception.

Annachamy also argues that he is not barred from

obtaining asylum or withholding of removal because the

material support bar does not apply to aliens who supported

terrorist activities or organizations under duress. We do not

believe that is a permissible reading of the statute.

We begin with the text of the statute. Notably,

the material support bar itself does not provide an

exception for material support that is involuntary or coerced. 

Although silence is certainly not conclusive as to whether

an exception exists, see Negusie v. Holder, 555 U.S. 511,

518 (2009); cf. Holder v. Gutierrez, 132 S. Ct. 2011,

2019 (2012) (“We cannot read a silent statute as requiring

(not merely allowing) imputation just because that rule would

be family-friendly.”), the statutory framework makes clear

that no exception was intended. First, in the material support

bar Congress explicitly carved out an exception, in the case

of Tier III terrorist organizations, for aliens who

“demonstrate by clear and convincing evidence that the actor

did not know, and should not reasonably have known, that the

5

In Khan, we acknowledged 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.” 584 F.3d at 781. 

Annachamy argues that this case should be remanded to the BIA to

consider whether Sri Lanka has incorporated international law, such that

the LTTE’s activities were not unlawful under Sri Lankan domestic law. 

Because Annachamy has not provided any evidence that Sri Lanka has

incorporated such international law, we decline his invitation to remand.
ANNACHAMY V. HOLDER 13

organization was a terrorist organization.” 8 U.S.C.

§ 1182(a)(3)(B)(iv)(VI)(dd). That Congress included this

express exception within the provision is some indication that

it would have likewise expressly excepted involuntary

support if it intended to do so.6

6

In support of Annachamy’s petition for rehearing, amici Harvard

Immigrant Rights Clinic and the American Civil Liberties Union argue

that the word “unlawful” fromthe statute’s definition of “terrorist activity”

creates an implicit duress exception because “unlawful” means

“criminally culpable” and duress is a defense to criminal liability. We

disagree. First, “unlawful” (which is not defined in the statute) merely

means contrary to law, not necessarily contrary to criminal law. Many

areas of law, including immigration, use the word unlawful without

denoting criminal liability. Compare 8 U.S.C. § 1182(a)(9)(B)(ii)

(deeming aliens to be unlawfully present if they remain in the United

States after the expiration of their authorized period) with Arizona v.

United States, 132 S. Ct. 2492, 2505 (2012) (noting that “it is not a crime

for a removable alien to remain present in the United States”); see also

29 U.S.C. § 623 (making it “unlawful,” but not criminal, to discriminate

on the basis of age); 5 U.S.C. § 706(2) (providing that agency action that

is arbitrary or capricious is “unlawful”).

Second, even assuming “unlawful” means “criminally culpable,” the

word appears in the definition of “terrorist activity,” but the material

support bar appears in the definition of “engage in terrorist activity,” and

this subsection does not include the word unlawful. See 8 U.S.C.

§ 1182(a)(3)(B)(i), (iii). “Terrorist activity” defines acts ofterrorism, such

as hijacking, assassination, etc., but “engage in terrorist activity” describes

actions an individual might take, directly or indirectly, to aid in terrorism. 

Reading the entire statutory scheme together reveals that although the

generic act of terrorism must be an unlawful act, the alien’s commission

of or support for that act of terrorism or terrorist organization need not be

criminally liable for the material support bar to apply.

Finally, even if criminal culpability were required for the material

support bar to apply, duress does not excuse the majority of acts listed in

the definition of “terrorist activity.” Duress does not excuse murder or

even reduce murder to manslaughter. See United States v. LaFleur,
14 ANNACHAMY V. HOLDER

Second, as the BIA observed, Congress created an explicit

involuntariness exception in a neighboring subsection. 

Section 1182(a)(3)(D)(i) provides that “[a]ny immigrant who

is or has been a member of or affiliated with the Communist

or any other totalitarian party (or subdivision or affiliate

thereof), domestic or foreign, is inadmissible.” Congress

specified that the bar is inapplicable “if the alien

establishes . . . that the membership or affiliation is or was

involuntary.” Id. § 1182(a)(3)(D)(ii). “‘[W]here Congress

includes particular language in one section of a statute but

omits it in another section of the same Act, it is generally

presumed that Congress acts intentionally and purposely in

the disparate inclusion or exclusion.’” INS v. CardozaFonseca, 480 U.S. 421, 432 (1987) (alteration in original)

(quoting Russello v. United States, 464 U.S. 16, 23 (1983));

see also Fedorenko v. United States, 449 U.S. 490, 512

(1981)(holding, where Congress had included a voluntariness

requirement in one subsection of the statute, but not another,

that “the deliberate omission of the word ‘voluntary’ . . .

971 F.2d 200, 206 (9thCir. 1991). And in many jurisdictions, duress does

not excuse attempted murder or aiding and abetting murder either. See,

e.g., People v. Vieira, 106 P.3d 990, 1005–07 (Cal. 2005); State v.

Mannering, 48 P.3d 367, 371 (Wash. Ct. App. 2002). All ofthe acts listed

in the definition of “terrorist activity” involve either murder or a situation

where an innocent person’s life is placed in grave danger, see 8 U.S.C.

§ 1182(a)(3)(B)(iii), so even if the alien’s support for the terrorist act had

to be criminally culpable, duress would not necessarily negate that

culpability. In short, the single, undefined use of the word “unlawful” in

a different subsection cannot withstand the weight amici place on it: the

importation of the entire doctrine of criminal law, including the

opportunity to present all affirmative defenses.
ANNACHAMY V. HOLDER 15

compels the conclusion” that Congress did not intend to adopt

a voluntariness requirement in the latter subsection).7

Third, the existence of an administrative waiver provision

in the INA “weakens [Annachamy’s] argument that the BIA’s

reading of the statutory language is overly broad, because the

broad statutory definition is combined with a discretionary

waiver by executive branch officials.” Khan, 584 F.3d at

782. The waiver provision states:

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 subsection

(a)(3)(B) of this section [defining “terrorist

activities”] shall not apply with respect to an

alien within the scope of that subsection or

that subsection (a)(3)(B)(vi)(III) of this

section [defining Tier III terrorist

organization]shall not apply to a group within

the scope of that subsection, except that no

such waiver may be extended to an alien who

7 Annachamy points out that the totalitarian bar was enacted several

years before the material support bar, as the BIA acknowledged, but we

must “assume that Congress is aware of existing law when it passes

legislation.” See Miles v. Apex Marine Corp., 498 U.S. 19, 32 (1990). 

Presuming congressional awareness of existing legislation is particularly

appropriate here because Congress updated the totalitarian party

membership provision in the same legislation in which it created the

material support bar. See H.R. Conf. Rep. No. 101-955, 1990 WL

201613, at § 601.
16 ANNACHAMY V. HOLDER

is within the scope of subsection

(a)(3)(B)(i)(II) [i.e. an alien who the executive

knows, or has reasonable ground to believe, is

engaged in or likely to engage in terrorist

activity after entry], no such waiver may be

extended to an alien who is a member or

representative of, has voluntarily and

knowingly engaged in or endorsed or

espoused or persuaded others to endorse or

espouse or support terrorist activity on behalf

of, or has voluntarily and knowingly received

military-type training from a terrorist

organization that is [designated as a Tier I or

II terrorist organization], and no such waiver

may be extended to a group that has engaged

terrorist activity against the United States or

another democratic country or that has

purposefully engaged in a pattern or practice

of terrorist activity that is directed at civilians.

8 U.S.C. § 1182(d)(3)(B)(i).8 As we recognized in Khan, this

delegation of authority to the specified Secretaries reflects

8 The waiver provision was originally passed as part of the Real ID Act

of 2005. See Pub. L. No. 109-13, § 104, 119 Stat. 231, 309 (2005). It was

amended to its current form by the Consolidated Appropriations Act,

2008. See Pub. L. No. 110-161, § 691(a), 121 Stat 1844 (2007). Although

the waiver provision was not enacted until 15 years after the creation of

the material support bar, the waiver provision is still relevant in

determining the earlier congressional intent. See Red Lion Broadcasting

Co. v. FCC, 395 U.S. 367, 380–81 (1969) (“Subsequent legislation

declaring the intent of an earlier statute is entitled to great weight in

statutory construction.”); see also Barahona v. Holder, 691 F.3d 349, 355

(4th Cir. 2012) (considering the waiver provision in its analysis of the

material support bar).
ANNACHAMY V. HOLDER 17

Congress’ determination that executive branch officials are in

a position to judge the characteristics of particular groups

engaging in terrorist activities, see 584 F.3d at 782, perhaps

taking into account whether the groups have a practice of

forcing innocent civilians to support their causes under threat

of force.

Indeed, the relevant officials here have exercised their

authority to create a mechanism by which aliens who have

provided material support under duress may be exempted

from the material support bar. In March 2007, Secretary of

Homeland Security Michael Chertoff, after appropriate

consultations, exercised his discretion under the waiver

provision to exempt from the material support bar aliens who

provided support to several specific organizations. See

Exercise of Authority Under Sec. 212(d)(3)(B)(i) of the

Immigration and Nationality Act, 72 Fed. Reg. 9954-01 to

9957-02 (Mar. 6, 2007) (exempting aliens who provide

material support to the Alzados, Kayan New Land Party,

Karenni National Progressive Party, Karen National

Union/Karen National Liberation Army, Mustangs, Arakan

Liberation Party, Chin National Front/Chin National Army

and Chin National League for Democracy). He also

exercised his discretion by creating a mechanism by which

certain aliens who provided material support to a Tier III

terrorist organization under duress could be exempted from

the material support bar. See Exercise of Authority Under

Sec. 212(d)(3)(B)(i) of the Immigration and Nationality Act,

72 Fed. Reg. 9958-01 (Mar. 6, 2007). He set forth specific

criteria an alien must meet to qualify for a duress exception

and delegated to U.S. Citizenship and Immigration Services,

in consultation with U.S. Immigration and Customs

Enforcement, the authority to make individual

determinations. See id. Shortly thereafter, the Secretary
18 ANNACHAMY V. HOLDER

extended the mechanism for duress waivers to aliens who

provided support to Tier I and Tier II organizations. See

Exercise of Authority Under Section 212(d)(3)(B)(i) of the

Immigration and Nationality Act, 72 Fed. Reg. 26138-02

(May 8, 2007).9

Subsequent legislative action helps clarify Congress’

intent. Only months after Secretary Chertoff issued his

directive exempting specified groups from the material

support bar and creating a mechanism for processing duress

waivers, Congress passed the Consolidated Appropriations

Act, 2008. See Pub. L. No. 110-161, 121 Stat 1844 (Dec. 26,

2007). That Act created a statutory exemption from the

material support bar for the eight groups the Secretary had

previously excepted from the bar. See id. In response to the

mechanism for duress waivers, the Act also required the

Secretary to report to Congress on an annual basis:

9 We acknowledge that several commentators have questioned the

adequacy of the Secretary’s waiver mechanism. See, e.g., Steven H.

Schulman, Victimized Twice: Asylum Seekers and the Material-Support

Bar, 59 Cath. U. L. Rev. 949, 953-54 (2010) (describing “pronounced”

delays associated with the waiver process); Human Rights First, Denial

and Delay: The Impact of the Immigration Law’s “Terrorism Bars” on

Asylum Seekers and Refugees in the United States, 7–8 (2009), available

at http://www.humanrightsfirst.org/wp-content/uploads/pdf/

RPP-DenialandDelay-FULL-111009-web.pdf(last visitedMay 28, 2012). 

We express no opinion as to the efficacy of the waiver mechanism. That

determination has been delegated solely to the Secretaries of State and of

Homeland Security and, as we discuss below, Congress appears to be

monitoring the mechanism in an effort to strike the appropriate balance

between the United States’ humanitarian obligations and national security. 

We rely on the waiver provision only insofar as it informs our

understanding of the statutory structure.
ANNACHAMY V. HOLDER 19

(1) the number of individuals subject to

removal from the United States for having

provided material support to a terrorist group

who allege that such support was provided

under duress;

(2) a breakdown of the types of terrorist

organizations to which the individuals

described in paragraph (1) have provided

material support;

(3) a description of the factors that the

Department of Homeland Security considers

when evaluating duress waivers; and

(4) any other information that the Secretary

believes that the Congress should consider

while overseeing theDepartment’s application

of duress waivers.

Id. These legislative reactions indicate that Congress was

deliberate in delegating to the Secretary the sole authority to

waive the applicability of terrorist-related bars, and has paid

specific attention to duress waivers.

Moreover, the Act amended the waiver provision itself,

significantly expanding the Secretaries’ authority to grant

waivers.10 Among the amendments was an express

10 Prior to the Act, the Secretary was given authority to issue waivers

with respect to only three specific terrorism bars. See 8 U.S.C.

§ 1182(d)(3)(B)(i) (2006) (permitting waivers for aliens who were

members of a political group that endorsed terrorist activity, themselves

endorsed terrorist activities or provided material support to a terrorist
20 ANNACHAMY V. HOLDER

prohibition on waivers to aliens who “voluntarily and

knowingly” support or receive training from Tier I and II

organizations, again indicating that Congress has appreciated

the distinction between voluntary and involuntary conduct

when amending the INA and has been express when it seeks

to distinguish between the two. In light of all this legislative

activity, we should defer to Congress’ chosen method to try

to strike the correct balance between the United States’

humanitarian obligations and national security.

11

activity). The Act amended the waiver provision to permit the Secretary

to waive almost all of the terrorism-related bars. See id.

§ 1182(d)(3)(B)(i) (2008) (permitting waiver for any part of subsection

(a)(3)(B), except where executive official has reasonable grounds to

believe the alien is engaged in or is likely to engage after entry in terrorist

activity or the alien has voluntary and knowingly espoused support for,

received military training from or engaged in terrorist activity on behalf

of a Tier I or II terrorist organization). This amendment made eligible for

waivers several classes of aliens who were previously ineligible, including

members and representatives of Tier III organizations, persons who

themselves have “engaged in terrorist activity,” provided that it was not

on behalf of a Tier I or II organization, and persons who “engaged in

terrorist activity” on behalf of a Tier I or II group, provided that they did

not do so voluntarily and knowingly.

11 At oral argument, Annachamy urged us not to rely on the executive

waiver provision when interpreting the material support bar in this

instance because the Secretary lacks the authority to grant him a waiver. 

Specifically, he points to an exception to the waiver provision that says

“no . . . waiver may be extended to a group that has engaged terrorist

activity against the United States or another democratic country,” 

8 U.S.C. § 1182(d)(3)(B)(i), and Sri Lanka is a democratic country. 

Annachamy misreads the statute. By its own terms, the exception limits

only the Secretaries’ authority to extend waivers to groups. See id.

(delegating the authority to “determine . . . that subsection

(a)(3)(B)(vi)(III) of this section [defining Tier III terrorist organizations]

shall not apply to a group within the scope of that subsection” (emphasis

added)). The exception does not apply to the Secretaries’ authority to
ANNACHAMY V. HOLDER 21

Annachamy argues that interpreting the material support

bar to include aliens who provided support under duress is

inconsistent with Fedorenko v. United States, 449 U.S. 490

(1981), and Negusie v. Holder, 555 U.S. 511 (2009). We

disagree. In Fedorenko, the Court interpreted the Displaced

Persons Act of 1948 (DPA), which Congress enacted “to

enable European refugees driven from their homelands by

[World War II] to emigrate to the United States without

regard to traditional immigration quotas.” 449 U.S. at 495. 

“The DPA incorporated the definition of ‘refugees or

displaced persons’ contained in Annex I to the Constitution

of the International Refugee Organization of the United

Nations” (IRO Constitution). Id. at 495 n.3. Section 2 of the

IRO Constitution, as codified by Congress, excluded any

individual “who can be shown: (a) to have assisted the enemy

in persecuting civil populations of countries, Members of the

United Nations; or (b) to have voluntarily assisted the enemy

forces since the outbreak of the second world war in their

operations against the United Nations.” Id. at 495 n.4

(quoting Annex I, Part II, 62 Stat. 3037, 3051–52 (1946))

(internal quotation marks omitted). The Fedorenko Court

held that “an individual’s service as a concentration camp

armed guard — whether voluntary or involuntary — made

him ineligible for a visa” under § 2(a) of the IRO

Constitution. Id. at 512. The Court observed, “[t]hat

Congress was perfectly capable of adopting a ‘voluntariness’

limitation where it felt that one was necessary is plain from

comparing § 2(a) with § 2(b), which excludes only those

individuals who ‘voluntarily assisted the enemy forces . . . in

their operations.’” Id. (alteration in original) (emphasis in

“determine . . . that subsection (a)(3)(B) ofthis section [which includes the

material support bar] shall not apply with respect to an alien within the

scope of that subsection.” Id. (emphasis added).
22 ANNACHAMY V. HOLDER

original). “Under traditional principles of statutory

construction, the deliberate omission of the word ‘voluntary’

from § 2(a) compels the conclusion that the statute made all

those who assisted in the persecution of civilians ineligible

for visas.” Id. (emphasis in original).

In Negusie, the BIA held that it was constrained by

Fedorenko to read an implied involuntariness exception into

the INA’s persecutor bar. See 555 U.S. at 518.12 The

Supreme Court held that the BIA erred by assuming that

Fedorenko controlled without considering the differences

between the statutory frameworks at issue in Fedorenko and

Negusie. In particular, “[t]he textual structure of the statute

in Fedorenko (‘voluntary’ is in one subsection but not the

other) [was] not part of the statutory framework considered”

in Negusie. Id. at 519. The Court remanded to allow the BIA

to exercise its interpretive authority to construe the persecutor

bar. See id. at 522–23.

Fedorenko and Negusie are consistent with our

conclusion here. As with the IRO Constitution in Fedorenko,

Congress’ express distinction between voluntary and

involuntary conduct in § 1182 compels the conclusion that it

deliberately omitted a voluntariness requirement from the

material support bar. Furthermore, we are not faced with a

situation in which the BIA mistakenly based its decision on

precedent that was not controlling. Rather, the BIA engaged

in an independent interpretation of the statute, employing

 

12 The persecutor bar states: “The term ‘refugee’ does not include any

person who ordered, incited, assisted, or otherwise participated in the

persecution of any person on account of race, religion, nationality,

membership in a particular social group, or political opinion.” 8 U.S.C.

§ 1101(a)(42).
ANNACHAMY V. HOLDER 23

some of the same canons of statutory interpretation that we

have applied above, and concluded that the material support

bar contains no exception for duress.13

We also reject Annachamy’s suggestion that construing

the material support bar to include involuntary support

conflicts with the United States’ obligations under the United

Nations Protocol Relating to the Status of Refugees

(“Protocol”) and the United Nations Convention Relating to

the Status of Refugees (“Convention”). Although

Annachamy does not identify the provisions of the

Convention or Protocol that support his argument, he

apparently relies on the Convention’s limited exceptions to

refugee status and its nonrefoulement provision. The

Convention excepts from the definition of refugee:

13 Annachamy also argues that the criminal law presumption of a duress

exception should be imported into immigration law. In Negusie, the

Supreme Court did not decide whether the INA’s persecutor bar imports

this principle of criminal culpability. See 555 U.S. at 517–18 (declining

to address the issue). Some Justices were divided on the issue. Compare

id. at 526 (Scalia, J., joined by Alito, J., concurring) (providing several

reasons a duress defense based on principles of criminal culpability should

not necessarily be read into the INA’s persecutor bar) and id. at 549 n.3

(Thomas, J., dissenting) (arguing that “[t]here is no warrant to read

criminal-law requirements into” the INA) with id. at 536–37 (Stevens, J.,

joined by Breyer, J., concurring in part and dissenting in part) (arguing

that principles of criminal culpability should apply to the persecutor bar). 

Unlike Negusie, however, where the statutory structure surrounding the

persecutor bar did not inform the provision’s silence as to duress, the

statutory structure surrounding the material support bar would be strong

enough to defeat the criminal law presumption that there is a duress

exception. Thus, we need not reach the more general question of whether

Congress should be presumed to have legislated with a duress exception

in mind.
24 ANNACHAMY V. HOLDER

any person with respect to whom there are

serious reasons for considering that:

(a) he has committed a crime against peace, a

war crime, or a crime against humanity, as

defined in the international instruments drawn

up to make provision in respect of such

crimes;

(b) he has committed a serious non-political

crime outside the country of refuge prior to

his admission to that country as a refugee;

(c) he has been guilty of acts contrary to the

purposes and principles of the United Nations.

Convention, art. 1F, reprinted in 19 U.S.T. 6223.

The Convention also includes a duty of nonrefoulement,

which provides that “[n]o Contracting State shall expel or

return (‘refouler’) a refugee in any manner whatsoever to the

frontiers of territories where his life or freedom would be

threatened on account of his race, religion, nationality,

membership of a particular social group or political opinion.” 

Id. at art. 33.1. The Convention also states, however, that the

benefit of nonrefoulement may not “be claimed by a refugee

whom there are reasonable grounds for regarding as a danger

to the security of the country in which he is.” Id. at art. 33.2.

In Khan, we rejected the argument that Article 1F and the

duty of nonrefoulement compelled a narrow reading of the

INA’s terrorist bars that would exclude legitimate armed

resistance. Although the United States acceded to the

Protocol in 1968, the Protocol is not self-executing and
ANNACHAMY V. HOLDER 25

therefore does not have the force of law in American courts. 

See Khan, 584 F.3d at 783. We nonetheless “follow[ed] the

general rule of the Charming Betsy canon that ‘an act of

Congress ought never to be construed to violate the law of

nations, if any other possible construction remains.’” Id.

(quoting Murray v. The Schooner Charming Betsy, 6 U.S. (2

Cranch) 64, 118 (1804)). We observed that “[t]he Protocol,

through Refugee Convention Article 33.2, allows the United

States to refoul an individual ‘whom there are reasonable

grounds for regarding as a danger to the security’ of the

United States” and that, according to the United Nations High

Commissioner for Refugees, “‘the determination of refugee

status . . . is incumbent upon the Contracting state in whose

territory the refugee finds himself.’” Id. at 783–84 (second

alteration in original). Thus, Congress’ determination in the

INA that “an alien who [has engaged in a terrorist activity]

shall be considered to be an alien with respect to whom there

are reasonable grounds for regarding as a danger to the

security of the United States,” 8 U.S.C. § 1231(b)(3), adhered

to the Protocol’s nonrefoulement provision and controlled our

decision. See id. at 784. The same reasoning applies here. 

Under the Protocol and Convention, Congress is free to

decide that an alien who provided material support to a

terrorist organization, even if under duress, is a danger to the

security of the United States.14,15

14 Although neither party cites them, we note that the U.N. Guidelines

on the application of Article 1F specify that “[f]actors generally

considered to constitute defences to criminal responsibility,” including

duress, “should be considered.” UNHCR, Guidelines on International

Protection: Application of the Exclusion Clauses: Article 1F of the 1951

Convention relating to the Status of Refugees § II.E.22 (2003)

(“Guidelines”). We presume that these Guidelines, like the U.N.

Handbook, “may be a useful interpretive aid,” but they are “not binding

on the Attorney General, the BIA, or United States courts.” INS v.
26 ANNACHAMY V. HOLDER

IV.

For the foregoing reasons, we hold that the material

support bar does not include an implied exception for

individuals who assist organizations engaged in legitimate

political violence or who provide support under duress.

PETITION DENIED.

Aguirre-Aguirre, 526 U.S. 415, 427 (1999). In any event, the Guidelines

do not conflict with our interpretation. An individual ineligible for asylum

due to the material support bar is excluded because he is a “danger to the

security of the United States,” as permitted by Article 33.2 of the

Convention. Khan, 584 F.3d at 784 (quoting 8 U.S.C. § 1231(b)(3)). The

Guidelines do not apply to Article 33.2. See Guidelines § I.B.4 (“[T]he

exclusion clauses are not to be confused with Articles 32 and 33(2) of the

Convention which deal respectively with the expulsion of, and the

withdrawal of protection fromrefoulement from, recognised refugees who

pose a danger to the host State (for example, because of serious crimes

they have committed there). Article 33(2) concerns the future risk that a

recognised refugee may pose to the host State.”).

15 Furthermore, as we noted in Khan, even if there were a conflict, the

administrative waiver provision, by granting the executive the discretion

to waive applicability of the terrorist bars as to aliens who are not a danger

to the United States, is probably sufficient to resolve the conflict. See

Khan, 584 F.3d at 784 (citing INS v. Stevic, 467 U.S. 407, 428 n.22

(1984)).