Sami Khan v. Eric Holder, Jr.

In the

United States Court of Appeals

For the Seventh Circuit

Nos. 13-2106 & 13-3385

SAMI ULLAH KHAN,

Petitioner,

v.

ERIC H. HOLDER, JR.,

Attorney General of the United States,

Respondent.

Petitions for Review of Decisions

of the Board of Immigration Appeals.

No. A098-157-095

ARGUED NOVEMBER 7, 2013 — DECIDED SEPTEMBER 4, 2014

Before BAUER, MANION, and SYKES, Circuit Judges.

SYKES, Circuit Judge. Sami Ullah Khan seeks review of a

decision of the Board of Immigration Appeals (“BIA”) apply-

ing the “terrorism bar,” 8 U.S.C. § 1182(a)(3)(B)(i)(I), a broad

barrier to admissibility into the United States. Underneath the

surface is an important legal question about the proper

2 Nos. 13-2106 & 13-3385

interpretation of an exception to the bar, but we can’t reach it

because it wasn’t properly preserved for review.

Khan is a Mohajir, which means that his parents were

immigrants into Pakistan when it was partitioned from the

British Indian Empire in 1947. Some Mohajirs formed a

political party—the Mohajir Qaumi Movement—in response to

perceived repression by nonimmigrant locals. Khan joined in

1992 when he was 14 or 15 years old. He distributed flyers,

attended meetings, and recruited people to the cause. The

group became increasingly violent, however, and many

Mohajirs, including Khan, left to join a new, supposedly more

peaceful group called MQM-Haqiqi. But this party too resorted

to violence, so Khan eventually left it as well.

Khan’s switch had made him a target, and he was repeat-

edly attacked by members of the first party, including beatings

and death threats. On two occasions he was kidnapped and

tortured. He eventually fled to the United States on a visitor

visa, and when it expired, he asked for asylum and other forms

of relief from removal. While his case was pending, he married

a United States citizen, making him eligible for permanent

residency through his marriage.

The government opposed Khan’s admission to the United

States, arguing that he was ineligible for having engaged in

terrorist activity by supporting both factions of the Mohajir

Qaumi Movement. An immigration judge (“IJ”) accepted the

government’s position and the BIA affirmed. Khan petitioned

for review, raising many issues, but he failed to preserve the

strongest argument he had, which centers on whether he knew

Nos. 13-2106 & 13-3385 3

that the MQM factions authorized terrorism during the time he

was a member. Accordingly, we deny the petition for review.

I. Background

A portion of the Immigration and Nationality Act provides

that any alien who has “engaged in a terrorist activity” is

ineligible for admission into the United States. 8 U.S.C.

§ 1182(a)(3)(B)(i)(I). Terrorist activity is defined expansively to

include “commit[ting] an act that the actor knows, or reason-

ably should know, affords material support” to a terrorist

organization. Id. § 1182(a)(3)(B)(iv)(VI). The knowledge

requirement only applies to the actor’s awareness that he is

providing material support. The knowledge required with

respect to a group’s status as a terrorist organization depends

on how it’s categorized. Terrorist organizations are divided

into three tiers: Tier 1 and 2 organizations are determined by

the Secretary of State and published in the Federal Register,

while Tier 3 organizations are any others that engage in

terrorist activities. Id. § 1182(a)(3)(B)(vi).1 If an alien gave

1

Tier 1 organizations are determined by the Secretary of State in accordance

with 8 U.S.C. § 1189. See 8 U.S.C. § 1182(a)(3)(B)(vi)(I). For a list, see Foreign

Terrorist Organizations, U.S. DEP’T OF STATE, http://www.state.gov/j/ct/rls/

other/des/123085.htm (last visited Sept. 4, 2014). Tier 2 organizations are

determined “by the Secretary of State in consultation with or upon the

request of the Attorney General or the Secretary of Homeland Security.” See

8 U.S.C. § 1182(a)(3)(B)(vi)(II). For a list, see Terrorist Exclusion List, U.S.

DEP’T OF STATE, http://www.state.gov/j/ct/rls/other/des/123086.htm (last

visited Sept. 4, 2014). (Although the page is dated December 29, 2004, it

(continued...)

4 Nos. 13-2106 & 13-3385

material support to a Tier 1 or Tier 2 organization, he is barred

from entry regardless of whether he knew it was a terrorist

organization. Compare id. § 1182(a)(3)(B)(iv)(VI)(cc) with (dd).

However, if a group is in Tier 3, the alien has an opportunity

to “demonstrate by clear and convincing evidence that [he] did

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

o r g a n i z a t i o n wa s a t e r r o r i s t o r g a n i z a t i o n . ”

§ 1182(a)(3)(B)(iv)(VI)(dd). This is known as the “knowledge

exception” to the material support bar we just described.

* * *

The Mohajir Qaumi Movement first became a political

party in the mid 1980s and quickly rose to prominence in

Pakistani politics. It formed an early coalition with the domi-

nant political party, but the relationship soured, leading to

conflict and often violent confrontations. In 1992 the military

initiated “Operation Clean-up” aimed at purging the City of

Karachi of terrorists, though many Mohajirs viewed it as a

disguised attempt to suppress the Mohajir Qaumi Movement.

See Operation Clean-up, WIKIPEDIA, http://en.wikipedia.org/

wiki/Operation_Clean-up (last visited Sept. 4, 2014). Around

the same time, disagreements between the movement’s leaders

led to the formation of an offshoot faction. The new group

1

(...continued)

reflects the removal of the Communist Party of Nepal from the list in 2012.)

There is no formal list of Tier 3 terrorist organizations. See FH-T v. Holder,

723 F.3d 833, 839 n.2 (7th Cir. 2013). Immigration courts can decide on a

case-by-case basis whether a group fits the definition. See FH-T v. Holder,

743 F.3d 1077, 1079 (7th Cir. 2014) (Wood, C.J., dissenting from the denial

of rehearing en banc).

Nos. 13-2106 & 13-3385 5

called itself MQM-Haqiqi, or “the real Mohajir Qaumi Move-

ment.” (The original party became known as “MQM-A.” From

this point forward, we will also use this name to refer to the

party before the split. We will occasionally use “MQM” to refer

to both factions.) The military supported the new group in an

effort to undermine MQM-A. See Farhat Haq, Rise of the MQM

in Pakistan: Politics of Ethnic Mobilization, 35 ASIAN SURV. 990,

1001 (1995), available at http://www.jstor.org/stable/265723.

During the military’s clean-up operation, which continued

until 1994, MQM-H campaigned to convince party activists

that MQM-A had become a terrorist organization. Id. Ever

since the division of MQM into these two factions, members of

both groups have frequently violently clashed. See U.S. DEP’T

OF STATE, U.S. DEPARTMENT OF STATE COUNTRY REPORT ON

HUMAN RIGHTS PRACTICES 1994–PAKISTAN (Jan. 30, 1995),

available at http://www.refworld.org/docid/3ae6aa7c14.html

(noting that “people were killed almost daily in fighting among

factions of the MQM”). Because of this violence, MQM-H has

been identified as a Tier 3 terrorist organization. See Hussain v.

Mukasey, 518 F.3d 534 (7th Cir. 2008) (upholding the BIA’s

finding that MQM-H’s activities in the early 1990s qualify it as

a terrorist organization).

* * *

Khan joined MQM-A in 1992 when he was 14 or 15 years

old.2 He believed, like many in his neighborhood, that the

2

The only witnesses who testified at Khan’s removal hearing were Kahn

himself and three of his relatives. The government presented 30-some

(continued...)

6 Nos. 13-2106 & 13-3385

organization existed to fight for the rights of Mohajirs and to

improve their education and employment opportunities. He

was also upset by the injustice of the military’s clean-up

operation. Khan distributed flyers and signs, attended meet-

ings, and recruited others in his neighborhood. Over time,

however, Khan became aware of increasing violence by

members of the party. In his words, MQM activists started

engaging in “anti-state, anti-social, and anti-people activities.”

Gangsters and criminals “took control of the party and the

streets.” When he saw that “[MQM-A] leaders were aware of

what was going on but remained silent,” he realized that “the

entire mission, cause and objective of the party was changed.”

Khan says that this “came as a shock/surprise to Mohajirs and

their supporters, including me,” and that he viewed it as a

“betrayal[] of the Mohajir cause.”

In 1994 Khan, like many Mohajirs, left to join MQM-H, the

offshoot faction. The new leaders “assured [Mohajirs] that the

party will fight for their just cause,” so Khan joined “with the

strong belief and firm consideration that the [MQM-H] leaders

are trusted leaders of Mohajirs and their cause to defend

Mohajir’s struggle is legitimate.” Khan’s work with MQM-H

remained largely the same; he posted signs and flyers,

2

(...continued)

articles and reports on both of the MQM factions and the conditions in

Karachi. The IJ noted that the reports were “largely consistent with [Khan’s]

account.” The IJ did not find that Khan lacked credibility, and the govern-

ment has never argued that Khan or his relatives lied or misrepresented his

past. Therefore, we assume, like everyone else appears to, that his account

is both truthful and accurate.

Nos. 13-2106 & 13-3385 7

recruited others, attended meetings, staffed the local office in

the evenings, and organized grocery requests for those in need.

But over time Khan began to realize that MQM-H was also

engaging in violence. “In the beginning they were doing good

things, but later on, gradually, they started doing the same

things as [MQM-A].” So in 1997 Khan significantly scaled back

his involvement. “As soon as I came to know that these both

groups are getting violent, and when they are clashing, I

stopped working for them, and I stopped attending their

meetings and kept myself aloof from them.” He did not cut off

his ties entirely, though. He explained: “I had to slow down my

activities, but because I was staying in that locality and that

street[,] … they used to ask me to go with them and work for

them.” When asked whether he worked for MQM-H, even

after becoming aware of fighting between the factions, Khan

responded: “I used to support them, but I never … worked for

them or interfered with their work or what they were doing.”

He clarified what he meant by support: “What I mean is that in

our street, since everybody was from [MQM-H], they used to

meet us and ask questions about us. So, I have to express

myself as a supporter, that yes, I am. But I really slowed down

my work and didn’t do anything for them.” The government

specifically questioned him about his attendance at meetings,

and Khan admitted that for the next three years he still

attended meetings when asked to. “I had to attend the meeting

when their higher-ups of the party used to come … and call

everybody or call me for attending the meeting.”3

3

There is a discrepancy between Khan’s testimony at trial and his written

(continued...)

8 Nos. 13-2106 & 13-3385

Khan’s switch in 1994 had turned the wrath of MQM-A

against him. He testified that MQM-A members began hunting

down MQM-H activists and either killing or torturing them.

“Threats to punish and kill starting pouring in against my

family and me.” One of Khan’s cousins was shot and killed. In

the summer of 1999, six MQM-A members, armed with guns,

knives, iron rods, and hockey sticks, broke into the MQM-H

office during a meeting. They dragged Khan out into the street

and beat him. He was thrown into the bed of a pickup truck,

driven to an MQM-A torture cell, and beaten for two days

before he was released.

The scene worsened in the fall of 1999 when Pervez

Musharraf seized control of the country by military coup. The

previous government had supported and protected MQM-H,

but the new government favored MQM-A. With their protec-

tion gone, the attacks against MQM-H intensified. In early 2000

Khan was seriously injured during a raid of the local MQM-H

office. MQM-A then began targeting his family and firing shots

3

(...continued)

personal statement. In the latter, after recounting his kidnapping in 1999 (an

event we will describe momentarily), Khan says, “I continued my work as

a member of Haqiqi for the cause of Mohajir’s rights despite what

happened to me.” And when relating another attack in 2000, he begins with,

“I was busy doing my work in the office with my fellow party members.”

There may not be any inconsistency—by “work” Khan may have meant

attending meetings or going along to the office when asked. There may also

be a language or translation problem; Khan had a friend draft his personal

statement for him. In any event, neither the IJ nor the BIA discussed the

discrepancy or made any specific finding as to the scope of Khan’s work

after 1997.

Nos. 13-2106 & 13-3385 9

at his house. “My life became miserable, … my house was

attacked several times[,] and my family members were

threatened.” “I was forced to run from one place to another to

save my life. As they looked for me, I could not go to my

house, attend school or even go to mosque for prayers. I was

forced into hiding for fear of my life and was literally cut off

from the society, my family and all the near and dear ones.”

Khan fled Pakistan briefly in 2000, spending a few months

in London and a few more in the United States. He returned to

Karachi in January 2001 to attend to his sick mother and to

keep his job at an airline. He stayed at his uncle’s house to

remain hidden, only visiting his family secretly at night. Even

so, MQM-H found out that he had returned. As a result he

“had to attend two or three more meetings, because … they

have a hold over that entire area, and I had no other option.”

This may have alerted MQM-A to his return; in any event, they

too caught up with him.

As he was walking home one night with his brother and

father, three MQM-A henchmen pulled up in a taxi and

jumped out. They grabbed Khan by the hair, put a gun to his

head, and threw him into the taxi. His brother and father

screamed for help, but to no avail. Khan was blindfolded and

taken to a room where he was beaten for two days. His captors

bashed his head into the walls and told him never to associate

with MQM-H and to leave the area. He was released when his

father paid a 200,000 rupee ransom (approximately $3,400).

Khan had only been back for a month.

After recovering from his injuries, Khan fled again, this

time directly to the United States on a temporary visa. He

10 Nos. 13-2106 & 13-3385

hoped to return to Pakistan once the situation improved, but

from Khan’s perspective it deteriorated; Musharraf won the

general election in 2002 and remained in power. MQM-H

supporters continued to be captured, tortured, and killed, so

Khan decided to seek asylum.

In September of 2002, the United States initiated a program

that required thousands of men from mostly Islamic countries

to register with immigration services by being fingerprinted,

photographed, and interrogated. See Cam Simpson & Flynn

McRoberts, U.S. Ends Muslim Registry, CHI. TRIBUNE, Dec. 2,

2003, http://www.chicagotribune.com/news/watchdog/chi-

0312020136dec02,0,134285.story. Fearing that he would be

deported to Pakistan and killed, Khan moved to Canada in

early 2003, a couple of months before the registration deadline

for Pakistanis. He sought asylum there instead, but then

withdrew his application when he went back to Pakistan to be

with his mother, who had fallen ill again. Six months later he

returned to the United States on a visitor visa and has been

here ever since.

Khan’s visa expired in February of 2004, so the following

August he applied for asylum. (He claimed that MQM-A was

still searching for him. While Khan was in Canada, some

MQM-A members went to his family’s house, looted it, and

killed the family dog.) Khan’s application alerted the govern-

ment to his expired visa, so he was served with a notice to

appear. He conceded his removability but also requested

asylum, withholding of removal under 8 U.S.C. § 1231(b)(3)(A),

and withholding or deferral of removal under the United

Nations Convention Against Torture, see 8 C.F.R. § 208.16(c).

Nos. 13-2106 & 13-3385 11

The case was delayed several years for a variety of reasons, one

of which was that Khan’s father, a witness in his case, had to

return to Pakistan to free Khan’s cousin who had been kid-

napped and tortured by Afghan terrorists. In 2008 Khan

married a United States citizen, so he also sought adjustment

of status via marriage.

The government opposed Khan’s requests for relief from

removal, arguing that he was inadmissible for having provided

material support to a terrorist organization.

On December 8, 2010, a final hearing was held on Khan’s

requests for relief, and in early 2011 they were denied. The IJ

found that Khan had given material support to MQM-H,

barring any form of relief except for deferral of removal under

the Convention Against Torture. The judge denied that

protection because Khan did not claim he would be tortured by

the Pakistani government, but only by MQM members. The

BIA affirmed, adopting and supplementing the IJ’s opinion.

(Confusingly, the Board refers to Khan’s support of both

MQM-A and MQM-H, even though the IJ had relied exclu-

sively on Khan’s participation in MQM-H.) Khan petitioned

this court for review. While his petition was pending, he also

filed a motion to reconsider, which the BIA denied, and he filed

a separate petition from that order. Having already heard oral

argument on the first petition, we consolidated the cases for

decision and concluded that oral argument was unnecessary

for the second. See FED. R. APP. P. 34(a)(2)(C).

12 Nos. 13-2106 & 13-3385

II. Discussion

We have jurisdiction to review final orders of removal

under 8 U.S.C. § 1252(a). “Where the Board has adopted the

decision of the immigration judge and added its own reason-

ing, we review both decisions.” Ruiz-Cabrera v. Holder, 748 F.3d

754, 757 (7th Cir. 2014). Our review of factual findings is

governed by the deferential substantial-evidence standard,

under which the BIA’s decision “must be upheld if supported

by reasonable, substantial, and probative evidence on the

record considered as a whole.” Weiping Chen v. Holder, 744 F.3d

527, 532 (7th Cir. 2014) (quoting INS v. Elias-Zacarias, 502 U.S.

478, 481 (1992)4); FH-T v. Holder, 723 F.3d 833, 838 (7th Cir.

2013). We will overturn “only if the record compels a contrary

result.” Ruiz-Cabrera, 748 F.3d at 757; 8 U.S.C. § 1252(b)(4)(B).

“Legal [issues] are reviewed de novo, with deference to the

agency if the issue involves an ambiguous section of the

[immigration statutes] or an interpretation of agency

4

Elias-Zacarias itself was quoting 8 U.S.C. § 1105a(a)(4), which was

subsequently repealed and replaced with 8 U.S.C. § 1252(b)(4)(B). Although

the standard there sounds even more deferential—“administrative findings

of fact are conclusive unless any reasonable adjudicator would be com-

pelled to conclude to the contrary”—every circuit court considering the

statutory change has held that the standard did not change. See Sou v.

Gonzales, 450 F.3d 1, 6 n.12 (1st Cir. 2006); Xiao Ji Chen v. Gonzales, 434 F.3d

144, 157 (2d Cir. 2006); Dia v. Ashcroft, 353 F.3d 228, 247–48 & nn.17–18 (3d

Cir. 2003) (en banc); Akhtar v. Gonzales, 406 F.3d 399, 404 (6th Cir. 2005);

Menendez-Donis v. Ashcroft, 360 F.3d 915, 917–19 (8th Cir. 2004). We too have

treated them as the same, though without much discussion. See Weiping

Chen v. Holder, 744 F.3d 527, 532 (7th Cir. 2014) (quoting both Elias-Zacarias

and § 1252(b)(4)(B)).

Nos. 13-2106 & 13-3385 13

regulations.” Cruz-Moyaho v. Holder, 703 F.3d 991, 997 (7th Cir.

2012) (internal quotation marks omitted).

We also have jurisdiction to review the BIA’s denial of

Khan’s motion to reconsider, see Kucana v. Holder, 558 U.S. 233

(2010), but our standard of review is even more deferential.

“Motions to reconsider ask the BIA to reexamine its earlier

decision in light of additional legal arguments, a change of law,

or an argument that was overlooked,” Mungongo v. Gonzales,

479 F.3d 531, 534 (7th Cir. 2007) (internal quotation marks

omitted), often “rehash[ing] arguments that should have been

presented the first time around,” Patel v. Ashcroft, 378 F.3d 610,

612 (7th Cir 2004). “Yet motions to reconsider … are not

replays of the main event.” Rehman v. Gonzales, 441 F.3d 506,

508 (7th Cir. 2006). We review only for abuse of discretion and

will uphold the BIA’s decision unless it “was made without a

rational explanation, inexplicably departed from established

policies, or rested on an impermissible basis such as invidious

discrimination against a particular race or group.” Victor v.

Holder, 616 F.3d 705, 708 (7th Cir. 2010) (internal quotation

marks omitted).

* * *

Khan’s primary argument is that he was never given an

opportunity to prove that he didn’t know MQM-H was a

terrorist organization. He received a hearing, of course, but he

believes he should have gotten two. He claims that the hearing

had to be bifurcated—the IJ first needed to find that he gave

material support to a terrorist organization and then conduct

a second hearing on the knowledge exception.

14 Nos. 13-2106 & 13-3385

There are two problems with this argument and both are

fatal to it. First, Khan failed to raise it in his appeal to the

Board. FH-T, 723 F.3d at 841 (“[A]n 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.” (internal

quotation marks omitted)). Khan responds that the exhaustion

requirement is not a jurisdictional rule, and that’s true, see id.,

but it still “limits the arguments available to an alien,” id.

(quoting Issaq v. Holder, 617 F.3d 962, 968 (7th Cir. 2010)). The

exhaustion requirement exists to “provid[e] the Board an

opportunity to apply its specialized knowledge and experience

to the matter, which provides us with reasoning to review.”

Minghai Tian v. Holder, 745 F.3d 822, 826 (7th Cir. 2014) (inter-

nal quotation marks omitted).

Second, Khan doesn’t have any legal authority for a right

to a bifurcated hearing. His only citation is to American

Academy of Religion v. Napolitano, 573 F.3d 115 (2d Cir. 2009),

but that case is not helpful to him. There the government

denied a visa to an Islamic scholar based on the material

support bar. American Academy involved a challenge to that

denial, the details of which are somewhat complicated and

ultimately irrelevant here. The bottom line is that the Second

Circuit remanded the case because there was nothing in the

record indicating that the applicant was given “a meaningful

opportunity to negate knowledge.” Id. at 132. Khan empha-

sizes the following passage:

The existence of the opportunity for the visa

applicant to prove that he lacked actual or

Nos. 13-2106 & 13-3385 15

constructive knowledge that the recipient of his

funds was a terrorist organization implies that,

before a decision on the visa application is made,

the alien must be confronted with the allegation

that he knew he had supported a terrorist orga-

nization. Otherwise, he has no way of under-

standing what it is that he must show he did not

know or should not have known.

Id. at 131–32. But this passage does not support Khan’s position

because Khan was presented with “the allegation that he knew

he had supported a terrorist organization.” The government

made clear long before Khan’s final hearing on December 8,

2010, that it recommended his removal based on his participa-

tion in MQM. As Khan acknowledges, the government took

this position as early as 2008. The parties also discussed the

terrorism bar during a status conference on September 13,

giving Khan ample warning before he actually had to present

evidence on December 8.

Furthermore, Khan’s lawyer was warned that there would

only be one evidentiary hearing. At the September 13 confer-

ence, he insisted that any evidentiary hearing should be

bifurcated, but the IJ disagreed. If that wasn’t enough, the IJ

reiterated during the final hearing that it was the whole

shebang: “[Judge]: I’m not bifurcating, counsel. I mean, we’re

going for everything. [Khan’s lawyer]: Yeah, I understand that,

Judge.” Khan’s argument that he never had a chance to contest

his knowledge is meritless.

In his petition for review of the denial of his motion to

reconsider, Khan makes a slightly different argument about the

16 Nos. 13-2106 & 13-3385

adequacy of his hearing. He argues that the IJ signaled that the

December 8 hearing would be limited to Khan’s admissibility

vis-à-vis the terrorism bar, so he was not prepared—and thus

did not have an opportunity—to present evidence on his many

claims for relief (asylum, withholding of removal, etc.). The

record is not entirely clear in this regard, but it does not matter.

Khan concedes that the terrorism bar, if it applies, blocks all of

his requested forms of relief except for deferral under the

Convention Against Torture (which we’ll discuss momen-

tarily). And the government had provisionally approved

Khan’s I-130 application for adjustment of status through

marriage, so if the terrorism bar did not apply, his other

requested forms of relief were irrelevant. The IJ, the govern-

ment, and Khan’s counsel all agreed on these points at the

September 13 conference, so the evidentiary hearing on

December 8 was understandably focused on the terrorism bar.

Even if Khan’s counsel was given the impression that the

hearing was confined to this topic, there is no error because

addressing most of his other arguments for relief would have

been a waste of time.

That still leaves deferral, the only other topic for which

evidence would have been logically relevant. But the IJ

reminded Khan’s counsel on both September 13 and

December 8 that he needed to make a case for that relief.

Khan’s lawyer responded specifically that he “would rest with

the [deferral] claim on the record” and “would not ask any

questions … other than resting with the application itself.”

Therefore, we reject Khan’s arguments that his hearing was

somehow inadequate.

Nos. 13-2106 & 13-3385 17

Most of his remaining arguments can be disposed of fairly

quickly. First, Khan argues that none of the ways in which he

supported MQM-A or MQM-H were “material.” The statute

says that “material support” includes “a safe house, transporta-

tion, communications, funds, transfer of funds or other

material financial benefit, false documentation or identification,

weapons (including chemical, biological, or radiological

weapons), explosives, or training.” § 1182(a)(3)(B)(iv)(VI).

Khan didn’t provide any of these things, but the list is not

exhaustive, see id. (“an act that … affords material support,

including a safe house … ” (emphasis added)); Singh-Kaur v.

Ashcroft, 385 F.3d 293, 298–99 (3d Cir. 2004), and as the IJ noted,

Khan “distributed flyers, posted signs, looked after the local

office, and recruited individuals in his neighborhood to attend

the organization’s meeting”—and he did so for multiple years.

Recruiting by itself meets the statutory definition of “engaging

in terrorist activity,” § 1182(a)(3)(B)(iv)(V)(cc), so surely years

of recruiting also counts as material support, see also Hussain,

518 F.3d at 538 (upholding a removal order based on

§ 1182(a)(3)(B) where an individual had “recruited for MQM-H

and solicited funds for it as well”). Courts have found less

significant support to be sufficiently material. See, e.g., Singh-

Kaur, 385 F.3d at 298–99 (providing food and setting up

shelter); In re S-K-, 23 I. & N. Dec. 936, 945 & n.13 (B.I.A. 2006)

($685 in donations).

Khan also argues that his participation was immaterial

because it only related to the groups’ peaceful political activi-

ties, but we rejected this argument in Hussain. 518 F.3d at 538

(“If you provide material support to a terrorist organization,

you are engaged in terrorist activity even if your support is

18 Nos. 13-2106 & 13-3385

confined to the nonterrorist activities of the organization.”). We

find no error in the BIA’s conclusion that Khan provided

material support to MQM-A and MQM-H.

Khan’s next contention is that he was improperly denied

deferral of removal under the Convention Against Torture, the

only relief not precluded by the terrorism bar. So-called “CAT

deferral” requires evidence that the alien will be tortured by the

government or with its acquiescence. 8 C.F.R. §§ 1208.16(c)(3),

1208.17(a), 1208.18(a)(1); e.g., Bitsin v. Holder, 719 F.3d 619,

630–31 (7th Cir. 2013); Ishitiaq v. Holder, 578 F.3d 712, 718 n.3

(7th Cir. 2009); Pavlyk v. Gonzales, 469 F.3d 1082, 1090 (7th Cir.

2006). But Khan’s lawyer essentially conceded that Khan was

not in danger of torture by the Pakistani government. When

the IJ reminded him that he needed to present a case for

deferral, he responded: “We’ve never alleged that the govern-

ment of Pakistan has tortured the respondent, kidnapped him,

or done any harm to him whatsoever. It’s a group that the

government would be unable to control.”

Khan asserts that the IJ and the BIA failed to consider

several reports about conditions in Pakistan. The IJ, however,

explicitly mentioned these reports in the list of exhibits he

considered, and the BIA adopted his decision. Furthermore,

the reports that Khan identifies contain only a few oblique and

summary references to the government’s ability to control

violent clashes between the MQM groups—saying, for exam-

ple, that “[t]he Pakistani state is often either unable or unwill-

ing to protect its citizens from the violent MQM factions.” That

is not enough to establish that Khan is likely to be tortured by

Nos. 13-2106 & 13-3385 19

or with the acquiescence of the Pakistani government. We see

no error here either.

Khan also spends three sentences in his second petition

arguing that the IJ should have indefinitely continued his

proceedings while he sought a waiver under 8 U.S.C.

§ 1182(d)(3)(B) (allowing the Secretary of State or the Secretary

of Homeland Security to grant a waiver of the terrorism bar in

certain circumstances). To the extent that this can be character-

ized as a developed argument, it is foreclosed by FH-T.

723 F.3d at 847–48.

That brings us to Khan’s final argument, his best one. In his

petition for review of the BIA’s denial of his motion to recon-

sider, Khan argues that the immigration agency erred by

assuming that “knowledge of kidnapping and violence [is] per

se sufficient to preclude an individual from invoking the

[knowledge] exception.” There may be something to this

argument. Though we ultimately can’t reach it, it’s worth

pointing out the problem.

An entire organization does not automatically become a

terrorist organization just because some members of the group

commit terrorist acts. The question is one of authorization. We

made this point in Hussain. 518 F.3d at 538 (“An organization

is not a terrorist organization just because one of its members

commits an act of armed violence without direct or indirect

authorization, even if his objective was to advance the

organization’s goals.”). But if an organization does not become

a terrorist organization until it authorizes terrorist acts, then a

person may not know whether he is supporting a terrorist

organization until he knows which acts are authorized. Even

20 Nos. 13-2106 & 13-3385

if someone is aware of violent acts by some members of his

group, that does not necessarily mean that he knew or should

have known that the acts were backed by the leaders. This is

especially so in diffuse political parties in poor countries. And

even if an organization actually does sanction terrorist acts,

that does not automatically mean that all of its members will

be aware that authorization has been given. A leader in an

otherwise peaceable group might secretly authorize some

branch to commit atrocities but leave the majority of its

members oblivious.

The IJ and BIA seem to have assumed that Khan’s aware-

ness of some violence by members of the MQM factions

automatically precluded him from showing that he didn’t

know he was supporting a terrorist organization. Both relied

almost exclusively on Khan’s own testimony to rule out the

knowledge exception. But we are unable to find anything in

Khan’s testimony that clearly indicates that he was aware of

group-sanctioned violence for any significant period of time

during his involvement. If anything, his testimony shows the

opposite. After all, Khan left MQM precisely because of its

violence. Twice. The government’s position is that he did not

leave soon enough, but this means that the timing of Khan’s

awareness and withdrawal from involvement becomes critical.

Although the IJ and BIA agreed with the government’s

position, neither made any specific findings on this more

nuanced point.

With respect to Khan’s time with MQM-A—which, recall,

only the BIA discussed, and even then it’s not clear how this

affected the knowledge exception—the agency wrote:

Nos. 13-2106 & 13-3385 21

[Khan] acknowledged that he knew [MQM-A]

began to commit acts of torture, killing, kidnap-

ping, and rape during the time he was a member

of that organization, and that such acts were

reported in the media. (Exh. 5, Tab A, at 6–7;

Tr. at 242–43). These actions constitute terrorist

activity. … [Khan’s] objection to such conduct is

the reason he decided to join the MQM-H when

the factions split.

In his personal statement (this is the Exhibit 5 referenced by the

BIA), Khan does explain that the leadership of MQM-A turned

the party toward “killings, tortures, harassments, kidnappings

for ransom money, rapes, … and all sorts of criminal activi-

ties.” But this statement must be understood in context: Kahn

was explaining why he left the group. He also explains that

“[t]he involvement of [MQM-A] in criminal activities men-

tioned earlier came as a shock/surprise to Mohajirs and their

supporters, including me.” And later: “Because I … was fed up

with the criminal attitude and policies of [MQM-A], I …

decided to leave the party.” Khan’s testimony on the stand was

consistent. Nothing he said establishes any significant overlap

between Khan’s awareness that MQM-A authorized terrorist

activities and his involvement with the group. That may

explain why the IJ limited his findings to Khan’s time with

MQM-H.

With respect to Khan’s involvement with MQM-H and the

timing of his awareness that it too had become violent, the IJ

wrote: “[Khan] testified that he ‘gradually’ became aware that

the MQM-H was engaging in violent acts but continued to

22 Nos. 13-2106 & 13-3385

support it for several years. As such, he has not met his burden

to show that he falls within the exception.” The BIA was

similarly nonspecific on this point: “Even [after Khan left

MQM-A for MQM-H], however, [he] concedes he was aware

of killings being perpetrated by both factions.” The IJ didn’t

cite to the record, but his finding that Khan “gradually”

became aware of violence may have come from the following

exchange:

[Government]: So, sir, if I understand you

correctly, then you knew that MQM-H was also

perpetrating violence, is that correct?

[Khan]: In the beginning they were doing

good things, but later on, gradually, they started

doing the same things as [MQM-A].

But this question and answer was immediately preceded by

Khan’s specific testimony that he curtailed his involvement as

soon as he fully appreciated the scope of the violence:

[Government]: And you were aware of this

ongoing violence between these two groups, is

that correct?

[Khan]: As soon as I came to know that these

both groups are getting violent, and when they

were clashing, I stopped working for them, and

I stopped attending their meetings and kept

myself aloof from them.

A few questions later, the government even asked explicitly

about the timing of his involvement and awareness:

Nos. 13-2106 & 13-3385 23

[Government]: Okay, so, did you still work

for them and participate with the MQM-H even

after you were aware of the fighting between

[MQM-A] and MQM-H?

[Khan]: I used to [express my support for]

them, but I never … worked for them or inter-

fered with their work or what they were doing.

Khan further clarified that in addition to expressing support

for MQM-H when asked, he also attended meetings when

MQM-H members called on him. This more limited involve-

ment lasted for another three or four years and may have been

the basis of the IJ’s finding that he “continued to support

[MQM-H] for several years,” even after recognizing its

violence.

The government relies on Khan’s attendance at meetings to

support its argument that he didn’t leave MQM-H soon

enough. Of course, Khan also testified that he “had to attend”

because “they have a hold over that entire area, and I had no

other option,” and it’s an open question whether there is a

duress exception to the material support bar. See Ay v. Holder,

743 F.3d 317, 320–21 (2d Cir. 2014). It’s doubtful that attending

meetings, without more, constitutes “material support” for a

terrorist organization. Khan obviously can’t argue that he

didn’t provide any material support to MQM at any time, but

his involvement might be characterized as “immaterial” after

he realized that the group condoned violence.5

5

That is, unless Khan continued his more significant work for MQM-H

(continued...)

24 Nos. 13-2106 & 13-3385

The IJ also found that Khan should have known that MQM-H

was a terrorist organization even if he didn’t. But this finding

also seems to rest on the assumption that mere knowledge of

violence by members of an organization is enough: “The

evidence in the record shows that the MQM-H committed

violent political acts in 1994 and 1995, the years during which

[Khan] claims he was most active in the party.” The govern-

ment defends this finding by pointing to Hussain, where we

said that MQM-H’s violent acts “were so frequent that Hussain

could not have failed to learn about them,” and that “an

inference that [the violence] was authorized is inescapable.”

518 F.3d at 539. The same is true of Khan, the government

argues, because he “lived in the same city at the same time and

was a member of the same organization.” True, Khan must

have been aware of violence by members of MQM-H—and he

admits that he was—but he may not have recognized that it

was a group-sanctioned phenomenon.

And there is an important difference between Hussain and

Khan: Hussain was a “high-level official of the organization, in

charge of a region in which there were 100,000 Mohajirs, of

whom 2,000 belonged to his organization and thus were under

his command,” id., while Khan “distributed flyers … and

sometimes … looked after the local office.” Hussain could not

plausibly argue that he was unaware of what MQM-H was

authorizing because he was in charge. Khan, on the other hand,

was about as low as one could be in the organization. At the

5

(...continued)

even after 1997, as his personal statement may imply. See supra note 3. But

the immigration courts would need to make a finding on this to rely on it.

Nos. 13-2106 & 13-3385 25

time Khan was involved with MQM, Karachi had a population

equivalent to that of New York City today, covered a much

larger area, and was far less developed, see Demographics of

Karachi, W IKIPEDI A, http://en.wikipedia.org/wiki/

Demographics_of_Karachi (last visited Sept. 4, 2014); Karachi,

WIKIPEDIA, http://en.wikipedia.org/wiki/Karachi (last visited

Sept. 4, 2014)—so it’s plausible that Khan’s awareness was

limited by the events occurring in his immediate vicinity. And

recall that by at least one historian’s account, MQM-H leaders

were running a campaign to convince low-level members that

MQM-A was the terrorist faction of the movement. See Farhat

Haq, supra, at 1001. It’s hardly surprising that they could

convince a teenager.

In the end, however, we can’t resolve the more precise

knowledge question because Khan failed to exhaust the

argument before the Board. See FH-T, 723 F.3d at 841. Khan’s

brief suggests that he raised this issue in the following two

sentences in his motion to reconsider: “The Board concluded

that the respondent provided ‘material support’ only by the

respondent acknowledging ‘he knew the MQM began to

commit acts of torture, killing, and rape during the time he was

a member.’ This finding by the Board does not accurately

depict the respondent’s testimony.” These two short sentences

do not clearly articulate the argument now raised on review;

they were certainly not enough to notify the BIA of the

embedded legal issue about the proper interpretation of the

knowledge exception. Nor did Khan make the argument in his

initial appeal to the BIA. Khan’s lawyer did argue that Khan’s

testimony “shows that [he] did not reasonably know that the

organization was a terrorist organization.” But the theory

26 Nos. 13-2106 & 13-3385

advanced was that Khan couldn’t possibly have known that

MQM-H was a terrorist organization because his involvement

preceded the enactment of the statutory section defining Tier 3

terrorist organizations. The Board rejected that argument, and

Khan does not repeat it here.

The exhaustion requirement is not just an empty formality;

it exists in part to prevent error by appellate courts. We’ve

identified the more nuanced knowledge question here in order

to flag it for future cases, but we might have missed something.

In any event, the issue should be addressed by the BIA in the

first instance. Had Khan made this argument to the Board, it

could have “appl[ied] its specialized knowledge and experi-

ence to the matter.” Id. (internal quotation marks omitted). On

the present record, labeling Khan a terrorist to prevent him

from remaining in the United States with his American citizen

wife is troubling, but we cannot ignore the exhaustion require-

ment, especially not for an argument raised for the first time on

a petition for review from a motion to reconsider, where our

deference to the BIA is at its peak.

For the foregoing reasons, we DENY the petitions for

review.