Jose Barahona v. Eric Holder, Jr.

PUBLISHED

UNITED STATES COURT OF APPEALS

FOR THE FOURTH CIRCUIT

JOSE H. BARAHONA, a/k/a Jose 

Herman Barahona, a/k/a Jose

Hernan Barahona,

Petitioner,

v.  No. 11-2046

ERIC H. HOLDER, JR., Attorney

General,

Respondent.



On Petition for Review of an Order of

the Board of Immigration Appeals.

Argued: May 15, 2012

Decided: August 13, 2012

Before TRAXLER, Chief Judge, and KING and WYNN,

Circuit Judges.

Petition for review denied by published opinion. Judge King

wrote the majority opinion, in which Chief Judge Traxler

joined. Judge Wynn wrote a dissenting opinion.

2 BARAHONA v. HOLDER

COUNSEL

ARGUED: Kristina Michelle Campbell, UNIVERSITY OF

THE DISTRICT OF COLUMBIA, Washington, D.C., for

Petitioner. Ethan B. Kanter, UNITED STATES DEPART-

MENT OF JUSTICE, Washington, D.C., for Respondent. ON

BRIEF: Tony West, Assistant Attorney General, Civil Divi-

sion, Michael P. Lindemann, Chief, National Security Unit,

UNITED STATES DEPARTMENT OF JUSTICE, Washing-

ton, D.C., for Respondent.

OPINION

KING, Circuit Judge:

Petitioner José H. Barahona, a native and citizen of El Sal-

vador, petitions this Court for review of the final order of the

Board of Immigration Appeals (the "BIA"), dated September

2, 2011, which affirmed his ineligibility for a "special rule"

cancellation of removal under section 203 of the Nicaraguan

and Central American Relief Act of 1997 (the "NACARA").1

Barahona contends that the BIA erred by deeming him ineli-

gible for NACARA relief because he had provided material

support to a terrorist organization in the early 1980s by allow-

ing anti-government Salvadoran guerrillas of the so-called

"FMLN" (the Frente Farabundo Marti para la Liberción

Nacional) the use of the kitchen of his Salvadoran home. As

1

The NACARA, which was enacted in 1997 by Public Law 105-100,

111 Stat. 2160, 2193-96, and amended that year by Public Law 105-139,

111 Stat. 2644, is codified in several titles of the United States Code,

including Title 8. See Peralta v. Gonzales, 441 F.3d 23, 24 (1st Cir. 2006).

The NACARA amended the Illegal Immigration Reform and Immigrant

Responsibility Act of 1996, which had amended the Immigration and

Nationality Act (the "INA") by rendering certain groups of aliens inadmis-

sible. See Cheruku v. Attorney Gen., 662 F.3d 198, 203-04 (3d Cir. 2011).

Thus, the NACARA effectively amended the INA, which constitutes this

country’s basic statutory enactment relating to immigration.

BARAHONA v. HOLDER 3

explained below, we reject Barahona’s contentions and deny

the petition for review.

I.

A.

Barahona entered the United States illegally in 1985. He

filed his first application for asylum in 1987, pursuant to 8

U.S.C. § 1158(a), and it was denied on July 15, 1988.

Barahona was then given thirty days to leave the United

States. Barahona nevertheless remained in this country and

applied again for asylum in 1995. On May 9, 2007, his second

asylum application was referred to an immigration judge

("IJ") for adjudication in removal proceedings. On November

11, 2007, Barahona was arrested in Prince William County,

Virginia, and charged with a state felony for maliciously caus-

ing "bodily injury to Maria Barahona, his wife, with the intent

to maim, disfigure, disable, or kill." J.A. 164-65 (citing Va.

Code Ann. § 18.2-51.2).2 On December 11, 2007, Barahona

pleaded guilty to a misdemeanor offense of domestic assault

and battery, receiving a term of probation.

In December 2007, Barahona’s asylum proceedings were

administratively closed for failure to prosecute. His case was

recalendared in May 2009 for the resolution of allegations

that he was removable under 8 U.S.C. § 1182(a)(6), as an

alien present in the United States without lawful admission or

parole. During the subsequent IJ proceedings, conducted in

late 2009, Barahona was found to be removable, but was

accorded an opportunity to apply for a "special rule" cancella-

tion of removal. Such a cancellation of removal is authorized

by section 203 of the NACARA, as codified in 8 U.S.C.

§ 1229b(b), under which the Attorney General is empowered

to "cancel removal of . . . an alien who is inadmissible or

2

Citations herein to "J.A.___" refer to the contents of the Joint Appen-

dix filed by the parties in this matter.

4 BARAHONA v. HOLDER

deportable from the United States, if the alien" satisfies cer-

tain criteria, including not being either "inadmissible or

deportable" under other provisions of the INA. See 8 U.S.C.

§ 1229b(b), (c)(4). The IJ’s evidentiary hearing was con-

ducted on March 22, 2011, and Barahona was the only wit-

ness to present evidence.

B.

Barahona testified before the IJ that he was born in 1960

in the city of Carolina, in the San Miguel department of El

Salvador. Prior to the outbreak of violence incident to a

twelve-year civil war between the military government of El

Salvador and the FMLN guerillas, Barahona worked on a

small farm in San Miguel. In about 1984, the FMLN guerillas

took control of Carolina, and that seizure gave rise to local

violence. Due to the FMLN’s seizure and frequent labor dis-

putes, Barahona was unable to continue working. For nearly

a year, the FMLN guerillas took control of Barahona’s home

— using it as their needs arose, mainly for preparing food in

its kitchen, but occasionally sleeping overnight when the

weather was unfavorable.

Barahona confirmed that the FMLN guerillas would arrive

at his home and announce that they were going to use the

kitchen. He explained that, if he had refused to allow the

FMLN access and use of his residence, they would have con-

sidered him the enemy. In that event, he would have been

given twelve hours to vacate his home city or be killed.

Indeed, Barahona’s father and cousin had both been executed

by the FMLN guerillas, and his father had not been accorded

the option of leaving. From early 1984 until Barahona’s

departure for the United States in February 1985, as many as

200 FMLN guerillas used Barahona’s kitchen. They generally

utilized the water and cooking facilities of his home, but

always brought their own food. On several occasions,

Barahona gave the guerrillas directions through the jungle to

other locations.

BARAHONA v. HOLDER 5

In early 1985, when he was twenty-four years of age,

Barahona left El Salvador for this country. In doing so, he

travelled by bus through Guatemala and Mexico. Barahona

entered the United States in Texas, without being inspected or

properly admitted.

C.

After his March 22, 2011 evidentiary hearing, the IJ ren-

dered an oral decision (the "IJ Decision") denying Barahona’s

asylum application.3 The IJ Decision credited Barahona’s tes-

timony, and found that the criteria for a special rule cancella-

tion were — except for one — entirely satisfied. The sole

INA provision underlying the IJ’s rejection of the special rule

cancellation specifies that an alien is inadmissible if he has

engaged in terrorist activity by providing "material support"

to a terrorist organization. See 8 U.S.C. § 1182(a)(3)(B)(i)(I).

"Terrorist activity" is defined by the INA, and includes com-

mitting "an act that [the person] knows, or reasonably should

know, affords material support . . . to a terrorist organization."

Id. § 1182(a)(3)(B)(iv)(VI)(cc).4 "Material support" includes

providing "a safe house, transportation, communications,

funds, transfer of funds or other material financial benefit,

false documentation or identification, weapons . . . , explo-

sives, or training." Id. § 1182(a)(3)(B)(iv)(VI) (hereinafter the

"Material Support Bar") (emphasis added).

Acknowledging the difficulty of deciding whether

Barahona, in accommodating the FMLN guerrillas, had pro-

vided material support to a terrorist organization, the IJ Deci-

sion nevertheless ruled against him. In so ruling, the IJ

concluded that Barahona, in allowing the FMLN guerrillas to

use his kitchen for nearly a year, had provided "material sup-

3

The IJ Decision is found at J.A. 322-29.

4

The parties agree that the FMLN is a terrorist organization for purposes

of the INA.

6 BARAHONA v. HOLDER

port" under the INA.5 The IJ accepted the fact that Barahona

was under duress when he accommodated the guerrillas, and

the IJ recognized that Barahona had no choice but to allow the

guerrillas to use his kitchen. The IJ reasoned, however, that

there is no exception for duress or involuntariness under the

Material Support Bar. As a result, the IJ Decision denied

Barahona’s application for a special rule cancellation, and

ordered Barahona removed to El Salvador.

D.

Barahona thereafter appealed the IJ Decision to the BIA,

asserting three grounds for relief. First, Barahona claimed that

allowing the FMLN the use of his kitchen constituted support

that was de minimis only, and thus immaterial. Second, he

asserted that he was acting under duress and that his support

of the FMLN was entirely involuntary. Finally, Barahona con-

tended that the IJ Decision contravened international law. The

BIA filed its order on September 2, 2011 (the "BIA Order"),

agreeing with the IJ and affirming the IJ Decision.6

The BIA Order rejected Barahona’s first contention, find-

ing no error in the IJ’s conclusion that Barahona’s support

was material, and agreeing that there is no exception in the

Material Support Bar for de minimis activities on behalf of a

terrorist organization. Similarly, rejecting Barahona’s second

contention, the BIA explained that the Material Support Bar

"does not contain any language to support an exception to ter-

rorist support where an alien can establish duress or involun-

tary contributions, and we decline to find one at this time."

BIA Order 2. Finally, the BIA declined to find a violation of

5

Although the IJ Decision found that material support was provided to

the FMLN by Barahona, the Decision never expressly links that support

to any aspect of the statutory definition of "material support." We assume,

for purposes of our decision today, that such a link includes at least "a safe

house."

6

The BIA Order is found at J.A. 438-40.

BARAHONA v. HOLDER 7

international law. According to the BIA, the INA provides for

a discretionary waiver, subject to some limitations, that autho-

rizes the Secretary of State or the Secretary of Homeland

Security to grant a waiver of the Bar. See 8 U.S.C.

§ 1182(d)(3)(A). Such a waiver may apply in instances where

removal would violate international law. The BIA recognized,

however, that "it is well-established that Congress may enact

statutes that conflict with international law." BIA Order 2. In

the end, the BIA Order dismissed Barahona’s appeal.

II.

Where, as here, the BIA has adopted and supplemented the

IJ’s decision, we review both rulings. See Cervantes v.

Holder, 597 F.3d 229, 232 (4th Cir. 2010); see also

Kourouma v. Holder, 588 F.3d 234, 239-40 (4th Cir. 2009)

("When the BIA and [IJ] both issue decisions in a case, we

review both decisions upon appeal."). Pursuant to section

202(f) of the NACARA, "[a] determination by the Attorney

General as to whether an alien satisfies the requirements of

[cancellation of removal] is final and shall not be subject to

review by any court." 8 U.S.C. § 1101; see Ixcot v. Holder,

646 F.3d 1202, 1213–14 (9th Cir. 2011) (recognizing that

court is precluded from reviewing agency’s factual determina-

tion that alien is ineligible for special rule cancellation of

removal under NACARA). Notwithstanding the foregoing

legal principle, a court of appeals has jurisdiction to review

constitutional claims and questions of law arising from deni-

als of relief under the NACARA, even though such a court

"cannot review discretionary determinations regarding

requests for special rule cancellation of removal under

NACARA, absent legal or constitutional error." Gonzalez-

Ruano v. Holder, 662 F.3d 59, 63 (1st Cir. 2011); see 8

U.S.C. § 1252(a)(2)(D). Barahona’s primary contention in

this case — that the Material Support Bar excludes involun-

tary support, or support of a terrorist organization under

8 BARAHONA v. HOLDER

duress — presents a question of law only, as to which we pos-

sess jurisdiction.7

III.

In his petition for review, Barahona maintains that his con-

tacts with the FMLN guerrillas do not fall under the Material

Support Bar. He asserts that the use of his kitchen by the

FMLN guerrillas "occurred under duress, and as such do[es]

not rise to the level of providing ‘material support.’" Br. of

Pet’r 13. Restated, Barahona’s position is that he did not pro-

vide material support to the FMLN because he was forced,

under threat of execution, to allow the guerrillas to use his

kitchen.

Barahona admits that the Material Support Bar is silent on

whether voluntariness is a requirement thereof. He asserts,

however, that such silence renders the statute ambiguous.

Relying on Negusie v. Holder, 555 U.S. 511 (2009), Barahona

argues that we must decide whether a lack of voluntariness is

relevant to the Material Support Bar determination. If it is rel-

evant, Barahona argues, the fact that his support of the FMLN

was provided under duress precludes the Bar from applying

to him.

In its Negusie decision, the BIA rejected the claim of an

alien that there was a duress exception to the so-called "Perse-

cutor Bar." See 8 U.S.C. § 1101(a)(42). The Persecutor Bar

prevents an alien from obtaining immigration relief if he par-

ticipated in the persecution of another person. The BIA’s

Negusie ruling had relied on an earlier Supreme Court deci-

7

In his petition for review, Barahona appears to have abandoned his ear-

lier claim of a violation of international law. Barahona reiterates, however,

that his support of the FMLN guerrillas was de minimis and that, as such,

it could not amount to material support. Inasmuch as this contention chal-

lenges a finding of fact, we lack jurisdiction to reach or address it. See

Ixcot, 646 F.3d at 1213–14.

BARAHONA v. HOLDER 9

sion, Fedorenko v. United States, 449 U.S. 490 (1981), which

declined to read an involuntariness exception into the Dis-

placed Persons Act. The result of the BIA’s Negusie ruling

was to render inadmissible European refugees after World

War II who had served as guards at Nazi concentration

camps. The Supreme Court’s Negusie decision was that the

BIA had erred in relying on Fedorenko to reject the alien’s

asserted duress exception to the Persecutor Bar. That is, the

Negusie Court held that "[t]he BIA is not bound to apply the

Fedorenko rule that motive and intent are irrelevant to the

[Persecutor Bar]." Negusie, 555 U.S. at 522-23. As a result,

the Court reversed the BIA and remanded for further proceed-

ings.

Unlike the situation in Negusie, however, the BIA in this

case did not rely on precedent interpreting a different statute

when it dismissed Barahona’s appeal. Rather, the BIA care-

fully examined the Material Support Bar and determined that

it "does not contain any language to support an exception to

terrorist support where an alien can establish duress or invol-

untary contributions." BIA Order 2. Remaining faithful to the

statutory scheme, the BIA declined to read such an exception

into the Material Support Bar.

Because the issue before us turns on an interpretation of the

INA, we must "afford the BIA deference under the familiar

Chevron standard." Midi v. Holder, 566 F.3d 132, 136 (4th

Cir. 2009) (citing Chevron U.S.A., Inc. v. NRDC, Inc., 467

U.S. 837, 844 (1984)). Under the Chevron standard, "we ini-

tially examine the statute’s plain language; if Congress has

spoken clearly on the precise question at issue, the statutory

language controls. If, however, the statute is silent or ambigu-

ous, we defer to the agency’s interpretation if it is reason-

able." Midi, 566 F.3d at 136-37 (citations omitted).

The Material Support Bar contains no express exception for

material support provided to a terrorist organization either

involuntarily or under duress. Congress has created, however,

10 BARAHONA v. HOLDER

a general waiver provision for aliens who are otherwise inad-

missible. Under § 1182(d)(3)(A) of Title 8, an alien who is

inadmissible may seek approval for admission from the Secre-

tary of State or the Secretary of Homeland Security despite

his inadmissibility. A statutory limitation is placed on the use

of that waiver, however, in that it may not be extended to an

alien who has voluntarily supported terrorist activities. See 8

U.S.C. § 1182(d)(3)(B). Thus, Barahona, or any similarly sit-

uated alien who has supported a terrorist organization under

duress, possesses an alternative avenue of relief from inadmissi-

bility.8 Notably, Congress included voluntary support of ter-

rorist activities in its exception to the waiver provision

contained in § 1182(d)(3)(B), but made no distinction

between voluntary and involuntary conduct in the Material

Support Bar. We therefore assume that Congress did not

intend to create an involuntariness exception to the Material

Support Bar, otherwise the voluntary support exception to the

waiver provision would be rendered superfluous. See Bilski v.

Kappos, 130 S. Ct. 3218, 3228 (2010) (recognizing "canon

against interpreting any statutory provision in a manner that

would render another provision superfluous"); Russello v.

United States, 464 U.S. 16, 23 (1983) ("[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 pre-

sumed that Congress acts intentionally and purposely in the

disparate inclusion or exclusion." (internal quotation marks

omitted)).

This proceeding bears several similarities to the recent situ-

ation faced by the First Circuit in Gonzalez v. Holder, 673

F.3d 35 (1st Cir. 2012). Gonzalez petitioned the court of

appeals for review of the BIA’s denial of a special rule can-

cellation under the NACARA. The BIA had ruled that Gonza-

lez was barred from NACARA relief because he had last

8

Barahona’s lawyer advised at oral argument that her client had already

applied for relief under the waiver provision, and that such relief was

denied by the Secretary of Homeland Security in March 2012.

BARAHONA v. HOLDER 11

entered the United States as a crewman, and section 240A(c)

of the INA (the "Crewman Bar") renders an alien who entered

as a crewman ineligible for cancellation of removal. Gonzalez

contended in the court of appeals that the Crewman Bar does

not apply to an alien who has established eligibility for

NACARA relief prior to entering this country as a crewman.

As relevant here, the First Circuit declined to read into the

Crewman Bar any such exception, holding that "the statute

simply does not contain any exceptions. . . . We cannot

rewrite the statute." Gonzalez, 673 F.3d at 40.

Put simply, the terms of the Material Support Bar encom-

pass both voluntary and involuntary support and, like those of

the Crewman Bar, fail to provide for the exception under

which Barahona seeks relief. See De Osorio v. INS, 10 F.3d

1034, 1042-43 (4th Cir. 1993) (deferring to BIA’s permissible

statutory construction where statute was silent with respect to

exception to "Aggravated Felony Bar").9 Moreover, Congress

has vested discretionary waiver authority in the Secretary of

State and the Secretary of Homeland Security for an alien

who has provided material support, but has excepted from

such a waiver those who voluntarily provided material sup-

port. By excepting only voluntary supporters from the waiver

authorization, Congress has created an alternative avenue of

relief for an alien who is inadmissible because he involuntar-

ily provided material support to a terrorist organization. It was

thus reasonable for the BIA, in its decision here, to decline to

create an involuntariness exception from the Material Support

Bar. We therefore defer to the BIA’s interpretation of the Bar,

as we must under Chevron. See Asika v. Ashcroft, 362 F.3d

9

Section 1182(a)(3)(D) of Title 8, which bars the admission of any

immigrant who has been affiliated with the Communist or another totali-

tarian party, contains an exception for aliens who "establish[ ] . . . that the

membership or affiliation is or was involuntary." § 1182(a)(3)(D)(ii). The

inclusion of this exception in a bar to admissibility, titled "Exception for

involuntary membership," provides further support for the proposition that

Congress never intended to create an involuntariness exception in the

Material Support Bar.

12 BARAHONA v. HOLDER

264, 270 (4th Cir. 2004) (recognizing that "we are bound by

Chevron to defer to the [BIA’s] construction of the Act so

long as it is reasonable").

In sum, Barahona’s support of the FMLN guerrillas falls

under the Material Support Bar and his petition for review

must be denied, even though that support was rendered invol-

untarily and was provided to the FMLN guerrillas under

duress — namely, the threat of execution. As such, we recog-

nize that our ruling today could be reasonably viewed as

yielding a harsh result. Barahona’s testimony before the IJ,

taken at face value and accepted as credible by the IJ, is com-

pelling in many ways. We are constrained in our disposition

of this proceeding, however, by the terms of the Material Sup-

port Bar and the BIA’s reasonable interpretation thereof. As

the First Circuit recently explained, "[w]e cannot rewrite the

statute," see Gonzalez, and the fact that the BIA has reached

a seemingly harsh result does not vitiate the clear statutory

provisions. If the governing legal principles are to be altered,

that obligation rests with the legislative branch of our govern-

ment, rather than with the judiciary.

IV.

Pursuant to the foregoing, we deny Barahona’s petition for

review.

PETITION FOR REVIEW DENIED

WYNN, Circuit Judge, dissenting:

Per the majority opinion, Petitioner José Barahona is ineli-

gible for relief from an order of deportation because over

twenty-five years ago, during the twelve-year civil war in El

Salvador, he was "forced . . . under threat of execution, to

allow the guerrillas to use his kitchen." I, however, would

hold that this passive acquiescence to the crimes of terrorists

does not constitute an "act" that "affords material support . . .

BARAHONA v. HOLDER 13

to a terrorist organization" under the plain language of 8

U.S.C. § 1182(a)(3)(B)(iv)(VI) (the "Material Support Bar").

Accordingly, I must respectfully dissent.

I.

Under the Material Support Bar, an alien is inadmissible if

he has engaged in terrorist activity by providing "material

support" to a terrorist organization. See 8 U.S.C.

§ 1182(a)(3)(B)(i)(I). "Terrorist activity" is in turn defined to

include the commission of "an act that [the person] knows, or

reasonably should know, affords material support . . . to a ter-

rorist organization." Id. § 1182(a)(3)(B)(iv)(VI)(cc) (emphasis

added).

As noted by the majority opinion, the statute does not pro-

vide any type of "duress" exception for an "act" committed

under the type of violence and intimidation all parties

acknowledge Barahona faced in this case. Ante at 9-10. How-

ever, the requirement of an "act"—"something done or per-

formed," Black’s Law Dictionary 27 (9th ed. 2009),1 should

not be conflated with an excuse for conduct for which an indi-

vidual would otherwise be liable:

If a person manipulates the hand of another in such

a way as to cause a crime to be committed, the latter

person is guilty of no crime because he has per-

formed no act. On the other hand, if a person threat-

ens another with harm unless he commits a crime,

and thereby causes the crime to be committed, the

coerced person has performed an act, [though duress

may excuse the act].

1

Other relevant legal definitions of act include: (1) from criminal law,

"a bodily movement whether voluntary or involuntary," Model Penal Code

§ 1.13; and from civil law, "an external manifestation of the actor’s will,"

Restatement (Second) of Torts § 2.

14 BARAHONA v. HOLDER

1 Charles E. Torcia Wharton’s Criminal Law § 52 (15th ed.

2011) (emphasis added). Moreover, our justice system has

long distinguished between committing an act and failing to

act. See, e.g., 1 Wayne R. LaFave, Substantive Criminal Law

§ 6.2 (2d ed. 2008) ("For criminal liability to be based upon

a failure to act it must be found that there is a duty to act—a

legal duty and not simply a moral duty."); Restatement (Sec-

ond) of Torts § 314 ("The fact that the actor realizes or should

realize that action on his part is necessary for another’s aid or

protection does not of itself impose upon him a duty to take

such action.").

Here, the Immigration Judge, whose decision was adopted

and supplemented by the Board of Immigration Appeals,

made the following factual findings:

The material support at issue in this particular case

. . . is [Barahona] has testified that the guerrillas did

make use of his kitchen to cook their food . . . during

approximately one year. I will state also that he did

state that he gave guerrillas directions and showed

them shortcuts, but it is the opinion of the Court that

would not have constituted material support to the

guerrillas. There is no evidence he was trying to help

them on any military missions. . . . I will make a fac-

tual finding that [Barahona] was living in occupied

territory of the guerrillas, that he had no choice as to

whether or not to let them use his house . . . and,

therefore, I would find, as a factual matter, that there

was duress in this case.

J.A. 327-28. The Immigration Judge concluded that because,

"[u]nfortunately, the law as it stands today, provides no

defense for duress," Barahona had violated the Material Sup-

port Bar and was, consequently, ineligible for relief.2 The

2

The Immigration Judge further remarked that: "I want to make clear

were it not for this material support issue I would have found the respon-

dent meets the criteria of relief under [section] 203 of NACARA, and I

would urge whoever is making the decision, Department of Homeland

Security, to allow the duress exception." J.A. 328.

BARAHONA v. HOLDER 15

Board of Immigration Appeals agreed and ruled that, due to

the lack of a duress exception or voluntariness requirement,

Barahona violated the Material Support Bar by allowing the

guerrillas to use his kitchen. It is this legal conclusion,

affirmed by the majority opinion, with which I take issue, as

I find that Barahona need not plead either duress or involun-

tariness when he can be "guilty of no crime because he has

performed no act." Torcia, supra § 52. Nowhere in the record

before this Court is there any suggestion that Barahona took

any affirmative step, or otherwise performed or did any deed,

that he "kn[ew], or reasonably should [have known], afford-

[ed] material support" to the guerillas. 8 U.S.C.

§ 1182(a)(3)(B)(iv)(VI)(cc).

Rather, the Immigration Judge and the Board of Immigra-

tion Appeals essentially found that—under threat of

death—Barahona did not prevent the guerillas from occupy-

ing his home and using his kitchen to prepare their meals for

approximately a year. Yet the plain language of the statute

refers only to whether the individual "commit[s] an act," 8

U.S.C. § 1182(a)(3)(B)(iv)(VI)(cc) (emphasis added). A fail-

ure to act should not be equated with—or read into—that

phrase. See e.g., Midi v. Holder, 566 F.3d 132, 136-37 (4th

Cir. 2009) (noting that under the standard from Chevron v.

Natural Resources Defense Council, Inc., 467 U.S. 837, 844

(1984), "we initially examine the statute’s plain language; if

Congress has spoken clearly on the precise question at issue,

the statutory language controls.").

To apply the Material Support Bar to a failure to act, such

as in Barahona’s case, runs contrary both to our justice sys-

tem’s longstanding distinction between committing an act and

failing to act, discussed above, and to the well-established

tenet that we should construe statutes to avoid absurd results.

Griffin v. Oceanic Contractors, Inc., 458 U.S. 564, 575

(1982) ("[I]nterpretations of a statute which would produce

absurd results are to be avoided if alternative interpretations

consistent with the legislative purpose are available.").

16 BARAHONA v. HOLDER

Consider, for example, that the majority opinion’s holding

would still bar Barahona from relief even had he immediately

fled his home and never returned, and the guerillas had used

his home in his absence, yet he reasonably should have

known they would occupy and use his home once he left.

Likewise, he would not be eligible for relief even if he had

taken some sort of action to prevent the guerillas from being

able to prepare meals, such as sabotaging his stove, if they

instead used his fireplace. Such cannot be the intent of Con-

gress, when the statute specifically provides that an individual

must "commit an act" that "affords material support."3

II.

José Barahona lost his home, members of his family, and

his homeland to guerilla terrorists. Under today’s ruling, he

will now lose his adopted country. Because I find that the

plain language of the Material Support Bar requires that

Barahona have "commit[ted] an act"—beyond simply being

the unfortunate victim of terrorists—to deny the relief he

seeks, I must respectfully dissent.

3

Indeed, every case cited by the Board of Immigration Appeals, in sup-

port of its duress analysis or otherwise, involves the commission of an act.

See, e.g., Arias v. Gonzales, 143 F. App’x 464, 466-68 (3d Cir. 2005)

(making voluntary payments); Matter of S-K-, 23 I&N Dec. 936, 937 (BIA

2006) (donating money); Singh-Kauer v. Ashcroft, 385 F.3d 293, 298 (3d

Cir. 2004) (providing food).