Joshim Uddin v. Attorney General United States

PRECEDENTIAL

UNITED STATES COURT OF APPEALS

FOR THE THIRD CIRCUIT COURT OF APPEALS

_____________

No. 17-1056

____________

JOSHIM UDDIN,

Petitioner

v.

ATTORNEY GENERAL UNITED STATES OF AMERICA,

Respondent

On Petition for Review of an Order of the

Board of Immigration Appeals

(Agency No.: A208-059-346)

Immigration Judge: Honorable Alan Vomacka

Argued July 13, 2017

Before: GREENAWAY, JR., SHWARTZ, and RENDELL,

Circuit Judges

(Opinion filed: September 25, 2017)

Visuvanathan Rudrakumaran, Esquire (Argued)

Law Office of Visuvanathan Rudrakumaran

875 Avenue of the Americas

Suite 906

New York, NY 10001

Counsel for Petitioner

Daniel I. Smulow (Argued)

United States Department of Justice

Office of Immigration Litigation

P. O. Box 878

Ben Franklin Station

Washington, DE 20044

Counsel for Respondent

OPINION

2

RENDELL, Circuit Judge:

The Board of Immigration Appeals (“Board”) found

that Joshim Uddin, a citizen and native of Bangladesh, was

ineligible for withholding of removal because he was a

member of the Bangladesh National Party (“BNP”), a major

political party in his homeland. According to the Board, the

BNP qualified as a Tier III terrorist organization under the

Immigration and Naturalization Act (“INA”), 8 U.S.C. §

1182(a)(3)(B)(vi)(III). Thus, Uddin’s membership in the BNP

rendered him ineligible for relief.

While we will deny the petition for review challenging

the Board’s ruling dismissing Uddin’s Convention Against

Torture (“CAT”) claim, we will grant the petition in part and

remand on his withholding of removal claim. The Board has

pointed to terrorist acts by BNP members. But it did not find

that BNP leadership authorized any of the terrorist activity

committed by party members. Today, we join the reasoning

of the Seventh Circuit and the Board in many of its own

opinions by holding as follows: unless the agency finds that

party leaders authorized terrorist activity committed by its

members, an entity such as the BNP cannot be deemed a Tier

III terrorist organization.

I. Statutory Background

The so-called “terrorism bar” precludes aliens who are

members of “terrorist organizations” from seeking several

3

forms of relief, including withholding of removal. See 8

U.S.C. §§ 1182(a)(3)(B)(i), (vi); 1227(a)(4)(B);

1158(b)(2)(A)(v); 1231(b)(3)(B)(iv).

The INA, in turn, establishes three different kinds of

terrorist organizations.

Tier I terrorist organizations are officially listed

groups designated by the Secretary of State. 8 U.S.C. §§

1182(a)(3)(B)(vi)(I) & 1189. Such groups are maintained on

an official register, and are thus easily identifiable to

immigration authorities.

Tier II terrorist organizations are groups that have

engaged in terrorist activity, and are designated by the

Secretary of State in consultation with or upon the request of

the Attorney General or the Secretary of Homeland Security,

for purposes of immigration exclusion. 8 U.S.C. §

1182(a)(3)(B)(vi)(II). Such groups are maintained on an

official register, and are thus also easily identifiable to

immigration authorities.

Tier III terrorist organizations, the groups at issue in

this case, are groups “of two or more individuals, whether

organized or not, which engage[] in, or [have] a subgroup

which engages in,” terrorist activity. 8 U.S.C. §

1182(a)(3)(B)(vi)(III). Terrorist activity is defined broadly by

the statute as conduct “unlawful under the laws of the place

where it is committed (or which, if it had been committed in

the United States, would be unlawful under the laws of the

United States or any State)” and which involves one of

several enumerated actions, including the “highjacking or

sabotage of any conveyance,” “an assassination,” use of any

4

“biological agent, chemical agent, or nuclear weapon or

device, or [ ] explosive, firearm, or other weapon or

dangerous device (other than for mere personal monetary

gain), with intent to endanger, directly or indirectly, the safety

of one or more individuals or to cause substantial damage to

property,” or a “threat, attempt, or conspiracy to” commit

such acts. 8 U.S.C. § 1182(a)(3)(B)(iii).

There is no official register of Tier III organizations;

instead, groups are adjudicated as Tier III organizations on a

case-by-case basis.

A. Assessing Tier III Status

There is relatively little guidance from Courts of

Appeals as to how to determine whether an organization is a

Tier III terrorist group. But, from a procedural standpoint,

departmental regulations set forth a burden-shifting structure

for adjudicating such cases. First, the Government must

introduce evidence “indicat[ing]” that a group qualifies as a

Tier III terrorist organization. Then, the burden shifts to the

applicant to prove “by a preponderance of the evidence” that

the bar does not apply. 8 C.F.R. § 1208.16(d)(2).

If an alien is deemed a member of a Tier III

organization, then he can avoid the terrorism bar if he can

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

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

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

1182(a)(3)(B)(i)(VI).

II. Factual Background

5

A. Events in Bangladesh

The BNP, led by Khaleda Zia since 1984, is one of

Bangladesh’s two major political parties; the other is the

Awami League (AL). Both groups have been in and out of

power over the past several decades: From 2001 to 2006, the

BNP was in power. From approximately 2006-2008, a

military-backed government ruled the country to oversee free

and fair elections. In late 2008, the AL won a decisive victory

to lead the country. In January 2014, the most recent election,

the AL maintained its hold on power, despite significant

protests and demonstrations by the BNP as to the election’s

fairness.

Uddin joined the BNP in February 2008, when the

group was no longer in power. Soon after, he was promoted

to general secretary for his district. In this position, he

distributed posters and recruited college students.

Uddin claims that on several occasions, members of

the AL persecuted him on account of his political beliefs.

First, he asserts that on December 1, 2008, ten members of

the AL approached him while he was hanging BNP posters

with colleagues. When he refused to stop hanging posters, the

AL members allegedly beat him, resulting in injuries to his

face that a doctor treated with stitches.

Second, he claims that in March 2009, AL members

broke his leg with a hockey stick. 1 Third, Uddin asserted that

AL members threatened to kill him in October 2009 if he did

1

A doctor’s statement, prepared in May 2016 for Uddin’s

immigration litigation, supports the contention that Uddin’s

ankle was broken with a hockey stick in 2009.

6

not stop working for the BNP, and that AL members

threatened him again in November and March 2010.

Finally, Uddin alleged that on July 15, 2011, between

ten and fifteen AL members broke into to his home and

burned it down. Uddin had escaped through the back door. In

October 2011, Uddin fled Bangladesh.

B. Events in the United States

After traveling through more than a half-dozen

countries, Uddin entered the United States illegally in 2013.

He eventually settled in Brooklyn, New York. In 2015, he

attended “about one or two” meetings of BNP members in the

United States. AR 155.

Later in 2015, Uddin was arrested in New Jersey for

charges that were eventually dismissed in state court,

including selling untaxed cigarettes and possession of

marijuana, drug paraphernalia, and a weapon (brass

knuckles). After he posted bail, immigration officers arrested

him on January 28, 2016, and served him with a Notice to

Appear charging him with removability under 8 U.S.C. §

1182(a)(6)(A)(i) (alien present in United States without

having been admitted or paroled by an immigration officer).

C. IJ Proceedings

At his hearing before an Immigration Judge, Uddin

conceded his removability as charged. But he filed a

defensive application for asylum, withholding of removal,

and CAT protection. Eventually he conceded, through

counsel, that he was ineligible for asylum because his

7

application was untimely, and that he did not qualify for an

exception to the one-year deadline set forth in 8 U.S.C. §

1158(a)(2)(B). 2 But Uddin maintained that he was eligible for

withholding of removal and CAT protection. He argued that

because of his affiliation with the BNP, he would face

persecution if returned to Bangladesh on account of his

political beliefs.

The IJ denied Uddin’s application for relief. 3 He found

that Uddin was ineligible for withholding of removal because

he was a knowing member of a Tier III terrorist organization,

the BNP. The IJ found “abundant [record] evidence from

reliable sources that the BNP has used violence for political

purposes in the past.” AR 71.

Describing that “abundant” evidence, the IJ first

quoted a Congressional Research Services report on

Bangladesh saying that “[p]olitical violence has long been

part of the political landscape in Bangladesh.” AR 71. He

further noted that Uddin’s own evidence stated that former

2

Uddin has not appealed the denial of his asylum claim.

3

The IJ made a “mixed” credibility finding. He found Uddin

“credible as to his support for the BNP, but not reliable or

credible as to specific alleged events that form the basis for

his claim of past persecution and fear or persecution.” AR 63.

The IJ observed that Uddin “testified in a manner which tends

to indicate he had memorized [his] narrative.” AR 62.

Further, Uddin apparently misstated significant facts about

political elections in Bangladesh during the time he was

supposedly an active party member. The IJ also noted

shortcomings in Uddin’s corroborating evidence: most of it

was prepared for his immigration litigation.

8

opposition parties were “quick to take revenge on their

outgoing rivals . . . often in the form of violent attacks.” Id.

(emphases omitted).

Next, the IJ relied on a report stating that while in

power from 2001 to 2006, the BNP “was criticized for its

tacit support of radical Islamic groups,” which were

reportedly behind bomb blasts in 2005. AR 72. Then, the IJ

cited evidence that the BNP had created the Rapid Action

Battalion (“RAB”) while in power, which it used as an

extrajudicial “death squad” during its last term in office. AR

72. 4

Finally, and most importantly, the IJ found evidence

that BNP activists resorted to “massive violence including the

torching of dozens of polling centers” during the 2013-2014

election cycle. AR 72 (citation omitted). The IJ emphasized

that the BNP’s leader, Khaleda Zia, had “announced the party

would hold a series of general strikes and traffic blockades

halting transport links to the capital.” 5 AR 73. During these

strikes, according to an “authoritative” report by the NGO

Human Rights Watch, “opposition party workers” (i) burned

a truck driver’s wife and baby alive by “fail[ing] to allow

enough time for [them] to escape the vehicle;” (ii) killed four

4

After the BNP left power, it did not maintain control of the

RAB. Currently, the AL controls the RAB.

5

The Human Rights Watch Report attributed strike violence

to “opposition activists,” AR 301, rather than to the BNP

specifically. But the IJ believed that there was evidence to

conclude “opposition activists” meant the BNP, since the

BNP was the “largest party in the opposition coalition.” AR

75.

9

people by throwing a bomb onto a bus they were riding; (iii)

badly burned a thirteen-year-old boy by torching the bus he

worked on; and (iv) injured a seven-year-old’s hand, legs, and

abdomen by throwing a bomb in front of him. AR 73. 6 The IJ

also discussed opposition supporters’ “leaving homemade

grenades on the streets, wrapped in colorful paper, which

were picked up by children.” AR 73. Opposition workers also

purportedly attacked polling centers to hamper voter turnout

in the 2014 election. Because the BNP “used violence for

political purposes to an extent that constitutes engaging in

terrorist activity,” the IJ found that the party was a Tier III

terrorist organization. AR 75 (emphasis omitted).

Turning to the CAT claim, the IJ found that Uddin was

ineligible for relief because he “failed to establish a

probability of torture, given weaknesses in his credibility and

corroborating evidence.” AR 77.

D. Board Proceedings

6

Analyzing whether Uddin had proved that he did not, or

should not have known, that the BNP was a terrorist

organization, the IJ opined that before Uddin joined, the BNP

used political violence, and created the RAB. While he was

active, the party took no “known action to abandon its history

of violence.” AR 75. After he joined, BNP activists resorted

to massive violence including torching polling centers. Based

on this history, notwithstanding Uddin’s sworn testimony that

he did not know about BNP members’ violent acts, the IJ

found that Uddin “could not have joined the BNP and served

as a publicity officer without being aware of [its] history [of

violence].” AR 76.

10

Uddin appealed to the Board, which dismissed his

claim. To start, the Board noted that Uddin had not

“meaningfully challenged” the IJ’s decision denying his

request for protection under CAT. AR 3 n.1. He did not

mention the IJ’s denial of CAT protection in his Notice of

Appeal, and made only two passing references to CAT

protection in his brief to the Board. Thus, the Board

“deem[ed] [the] claim waived on appeal.” Id.

Next, the Board agreed with the IJ that Uddin was

ineligible for withholding of removal as a member of a Tier

III terrorist organization. The Board highlighted Uddin’s

admitted membership in the BNP, and his continued support

for the organization even after he entered the United States.

The Board also found that the record reflected

“abundant evidence” that the BNP had used violence for

political purposes in the past, including its creation of the

RAB which it employed as a “death squad” while in power.

AR 4. It noted the “deadly results of the campaign to disrupt

the Bengali election in January 2014.” AR 4. The Board

further emphasized that the BNP leader “publicly announced

a plan to obstruct the 2014 election by strikes, boycotts, and

blockades.” AR. 4. And, like the IJ, the Board stated that

“party officers” employed forms of violence which resulted in

death and serious injury. 7 AR 4.

7

The Board noted that it did not address the IJ’s

determination regarding credibility, because it had found that

the terrorism bar applied.

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III. Analysis 8

A. CAT Claim

Uddin urges that the Board erred in refusing to review

his CAT claim. We disagree. In his Notice of Appeal, Uddin

did not mention the CAT claim. And he made only passing

reference to CAT twice in his brief the Board. 9 Because he

provided the Board no way to identify his grievance with the

IJ’s CAT ruling, the Board dismissed the claim.

We review such dismissals for abuse of discretion: the

Board, in its discretion, may determine “when to summarily

dismiss an appeal for lack of specificity and when the BIA is

sufficiently appraised of the appealable issues to entertain the

appeal.” Lin v. Att’y Gen., 543 F.3d 114, 124 (3d Cir. 2008);

8 C.F.R. § 1003.1(d)(2)(i) (stating that the Board “may

summarily dismiss any appeal or portion of any appeal . . .

[that] fails to specify the reasons for the appeal . . . .”); see

also 8 C.F.R. § 1003.3(b) (an alien “must specifically identify

the findings of fact, the conclusions of law, or both that are

being challenged” to avoid summary dismissal). Here, it is

clear that the Board did not abuse its discretion in dismissing

Uddin’s undefined CAT claim: Uddin provided the Board no

basis for ruling on his vague objection to the IJ’s CAT denial.

8

We have jurisdiction pursuant to 8 U.S.C. § 1252. The

Board’s jurisdiction arose under 8 C.F.R. §§ 1003.1(b)(3) &

1240.15.

9

Uddin simply stated twice that the IJ “summarily dismissed

[Uddin’s] claim under the [CAT] with little to no analysis

given to the claim.” AR 10 & 14.

12

On appeal, Uddin seems to argue that the Board found

his claim “waived,” and not “summarily dismissed,” and that

thus we do not review for abuse of discretion. We disagree.

While the Board may not have used the magic words

“summarily dismiss,” it was clearly unable to address Uddin’s

claim because it could not discern Uddin’s grievance with the

IJ’s CAT ruling, and it dismissed the claim on those

grounds. 10 Even when pressed at oral argument, Uddin’s

attorney was unable to articulate the basis of his objection to

the IJ’s CAT analysis. 11

Uddin additionally argues that by challenging the IJ’s

adverse credibility finding, he implicitly challenged the CAT

ruling, since the IJ’s CAT ruling had discussed the adverse

credibility finding. We do not agree that there was a clear line

connecting a challenge to the IJ’s credibility analysis to the

IJ’s CAT analysis, such that the Board should have divined

Uddin’s argument. In Lin, the petitioner made a somewhat

similar argument to the effect that when one issue implicates

another in the case, raising one of the issues puts the Board on

notice as to the other. 543 F.3d at 122. We rejected that

argument and do not credit it here. The Board had no way of

10

At oral argument, Uddin’s attorney seems to have conceded

that the Board in fact “summarily dismissed” the CAT claim,

but then later argued that the Board had instead found the

claim “waived.”

11

In his brief before us, Uddin stated that his reference to the

CAT claim in his brief before the Board is “sufficient for

exhaustion.” Brief at 11. But exhaustion, which implicates

our jurisdiction, Lin, 543 F.3d at 120, is not at issue here.

Instead, we are assessing whether the Board properly

summarily dismissed the CAT claim.

13

knowing that, by challenging the adverse credibility finding,

Uddin was challenging the IJ’s CAT ruling. Thus, Uddin’s

CAT claim fails.

B. Withholding of Removal

(i) Standard of Review

We review the legal determination of whether a group

falls within the definition of an undesignated terrorist

organization de novo. Findings of fact underlying this

determination are reviewed to determine if they are supported

by substantial evidence, meaning that we will “uphold the

agency’s determination unless the evidence would compel

any reasonable fact finder to reach a contrary result.” Sesay v.

Att’y Gen., 787 F.3d 215, 220 (3d Cir. 2015) (quoting

Gonazalez-Posadas v. Att’y Gen., 781 F.3d 677, 684 n.5 (3d

Cir. 2015)). When, as here, the “BIA’s opinion directly states

that the BIA is deferring to the IJ, or invokes specific aspects

of the IJ’s analysis and factfinding in support of the BIA’s

conclusions,” we review both decisions. Oliva-Ramos v. Att’y

Gen., 694 F.3d 259, 270 (3d Cir. 2012) (quoting Voci v.

Gonzales, 409 F.3d 607, 613 (3d Cir. 2005)).

(ii) Analysis

As discussed, the Board found that Uddin was

ineligible for withholding of relief because he was a member

of a Tier III terrorist organization. But while the IJ and Board

pointed to evidence of terrorist activity committed by

14

members of the BNP, 12 it did not, as it has in many of its

rulings, discuss whether the specified terrorist acts were

12

Although there is evidence in the record as to terrorist

activity by BNP members from 2013-2015, the record is less

clear as to terrorist acts committed by BNP members between

2008 and 2011, when Uddin was a member in Bangladesh.

Pressed at oral argument as to what evidence of terrorist acts

were in the record while Uddin was in Bangladesh, counsel

directed us to a single page from a report by the Immigration

and Refugee Board of Canada. AR 237.

That report states that one source consulted reported

“135 individuals having been killed and 11,532 persons

having been injured due to political violence between January

and December 2011.” But the report immediately notes

thereafter: “Corroborating Information could not be found

among the sources consulted . . .” AR 237 (emphasis added).

Further, as the Government’s counsel conceded, the report

does not attribute the political violence referenced to the

BNP. That this was the most damning evidence the

Government could cite at argument from a 734-page record

makes us question the BNP’s status a terrorist organization

during the years 2008-2011. But because Uddin continued his

active membership in the BNP even after he arrived in the

United States, we also look to the BNP’s actions from 2011-

2015.

We note, however, that evidence of RAB’s violence

conduct that predated Uddin’s membership in the BNP is not

relevant to the determination of the BNP’s Tier III status

while he was a member. The BNP has not controlled the RAB

since approximately two years before Uddin even joined the

party. In fact, the Human Rights Watch Report states that

since the BNP has been a minority party, the government has

15

actually authorized. Today, we hold that absent such a finding

regarding authorization by a group’s leaders, Tier III status

cannot be assigned to a group. We will thus remand for the

Board to address this issue.

We find support for our ruling in the statutory text, the

Board’s own rulings and those of the Seventh Circuit, and

common sense. To start, the relevant statute defines a Tier III

terrorist organization as a “group of two or more individuals”

that engages in terrorist activity, or a group that “has a

subgroup” that engages in terrorist activity. 8 U.S.C. §

1182(a)(3)(B)(vi)(III) (emphases added). Had the statute

stated that a Tier III terrorist organization is “a group whose

members engage in terrorist activity,” then a group’s Tier III

designation could be based on the individual actions of its

members, regardless of authorization. But the text speaks to

concerted actions of a group, not uncoordinated activities by

individual members: an organization receives Tier III status

only if a group itself engages in terrorist activity. A rule that

there must be evidence of authorization from party leaders is

most faithful to that statutory text.

Second, the rule we announce mirrors the Board’s own

reasoning in the mine-run of its cases involving the BNP’s

status as a Tier III organization. In fact, in some cases where

IJs did not make a finding as to BNP leaders’ authorization of

allegedly terrorist acts, the Board found error in the IJs’

omissions, and remanded to the IJs to take up that very

question of authorization. In such cases, the Board bolstered

used the RAB to conduct numerous extra-judicial killings of

BNP members. Thus, for purposes of the BNP’s status as a

terrorist organization, the RAB’s conduct cannot be ascribed

to that group during the time period relevant to Uddin’s case.

16

its reasoning by referencing Seventh Circuit opinions

suggesting that some finding on authorization is necessary to

assign a group Tier III status. See Khan v. Holder, 766 F.3d

689, 699 (7th Cir. 2014) (“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.”); Hussain v. Mukasey, 518

F.3d 534, 538 (7th Cir. 2008) (“An organization is not a

terrorist organization just because one of its members

commits an act of armed violence without direct or indirect

authorization . . . .”).

Third, requiring a finding of authorization simply

formalizes common sense notions as to what a terrorist

organization is. If a single member of the Democratic or

Republican Party committed a terrorist act, we would not

impute terrorist status to the entire group, absent some

showing that party leadership authorized the act. So too here,

it cannot be that the acts of any single member of the BNP

can transform the organization into a terrorist group. 13 Judge

Posner explained why this is so in Hussain:

If an activity is not authorized, ratified, or otherwise

approved or condoned by the organization, then the

13

Violent outbreaks by both BNP and AL members seem to

color the political landscape of Bangladesh leading up to

elections. The BNP and AL are the two major political parties

in that country, and dominate political life there. Thus,

following the Board’s reasoning in this case which suggests

that both parties qualify as terrorist organizations, it appears

that a large swath of Bengali aliens who are members of these

parties would be ineligible for most forms of immigration

relief. This gives us pause.

17

organization is not the actor. It may be liable under the

principles of agency law, even criminally liable, for a

harm done by one of its employees or other agents, as

when an employee commits a tort within the course of

his employment although not authorized to do so by

his employer. But that does not mean that the

employer “engaged in” the employee’s act. 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,

though the organization might be held liable to the

victim of his violent act.

518 F.3d at 538 (citations omitted).

Further, today’s ruling should help provide the Board a

principled method of adjudicating Tier III cases, an area of

law with little guidance from the Courts of Appeals. This

dearth of precedential opinions has resulted in highly

inconsistent results regarding the BNP’s status as a terrorist

organization: our preliminary research in preparation for oral

argument turned up several Board rulings concluding that the

BNP was not in fact a terrorist organization. These

conclusions were in stark contrast to the Board’s finding in

Uddin’s case.

Faced with these contradictory opinions, in advance of

oral argument we asked the Government to submit all Board

opinions from 2015-2017 addressing the terrorism bar as it

applies to the BNP. (Those opinions are not all publicly

available.) The Government’s submission—fifty-four

18

opinions in total—did not bolster our confidence in the

Board’s adjudication of these cases.

In six of the opinions, the Board agreed with the IJ that

the BNP qualified as a terrorist organization based on the

record in that case. But in at least ten, the Board concluded

that the BNP was not a terrorist organization. In at least five

cases, the Government did not challenge the IJ’s

determination that the BNP is not a terrorist organization.

And in one case, the Board reversed its own prior

determination, finding that that “the Board’s last decision

incorrectly affirmed the Immigration Judge’s finding that the

BNP is a Tier III terrorist organization.” Many of the cases

discussed the BNP’s terrorist status during the same time

periods, reaching radically different results.

We recognize that the Board’s decisions are

unpublished, and thus lack precedential value. We also note

the Government’s argument that the BNP’s status as an

undesignated terrorist organization is a “case-specific”

determination based on the facts presented. That said,

something is amiss where, time and time again, the Board

finds the BNP is a terrorist organization one day, and reaches

the exact opposite conclusion the next.

Even more concerning, the IJ in this case stated that he

was “aware of no BIA or circuit court decision to date which

has considered whether the BNP constitutes a terrorist

organization.” AR 68. At the time the IJ ruled, there were

several such decisions, and now there are dozens. When

asked at oral argument whether the IJ could access

unpublished Board decisions regarding BNP’s terrorist status,

19

the Government’s Attorney responded that he did not know.

This is a troubling state of affairs.

Still, the rule we announce today does not always

require that the Government produce conclusive proof that

the leader(s) of a group explicitly sign off on each individual

terrorist act at issue. Instead, as the Board itself has opined in

several cases, “[e]vidence of authorization may be direct or

circumstantial, and authorization may be reasonably inferred

from, among other things, the fact that most of an

organization’s members commit terrorist activity or from a

failure of a group’s leadership to condemn or curtail its

members’ terrorist acts.” Addendum at 6. As we have stated,

what constitutes a Tier III terrorist organization is adjudicated

on a case-by-case basis. Accordingly, what constitutes

authorization under the rule we announce today must also be

determined case-by-case. Whether words, acts, or silences

amount to authorization must depend on context, including,

but not limited to, the structure of the organization, the

relationship between the organization and its members, and

the information each has about the other. As long as the

agency finds as a matter of fact that the allegedly terroristic

acts were authorized by party leaders, we review that

determination for substantial evidence.

Because neither the IJ nor the Board in this case

addressed whether the terrorist activity was authorized by

party leadership, 14 we will grant the petition on the

14

Both the IJ and the Board made scattered comments

suggesting that authorization might have been an element of

their findings. But, unlike in other BIA cases, neither

explicitly addressed the issue of authorization. Nor do they

20

withholding of removal claim and remand. On remand, the

Board should determine whether the BNP’s leadership has

authorized its members to engage in the referenced terrorist

activity.

IV. Conclusion

The INA contemplates that we afford some deference

to the Board’s expertise in matters of immigration. But when

the Board’s inconsistency leaves us guessing as to its actual

position on a matter, we think it merits a closer look. The

question of authorization is, as the Board itself has found, a

necessary part of the Tier III inquiry. Thus, we will grant the

petition and remand on the withholding claim. On the CAT

claim, we will deny the petition.

affirmatively establish that BNP leaders authorized the

actions that were terroristic.

21