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A decision last week by the 3rd U.S. Circuit Court of Appeals in Singh-Kaur v. Ashcroft upholding the deportation, under Patriot Act amendments to immigration law, of a native of India on the grounds that he provided food and shelter for known terrorists might have escaped notice if not for a sharply worded dissent from one of the court’s newest judges, D. Michael Fisher. The majority opinion, authored by Senior 3rd Circuit Judge Ruggero J. Aldisert rejected Charangeet Singh-Kaur’s claim for asylum in which he alleged that he was persecuted as a member of the Sikh religion. Instead, Aldisert, who was joined by 3rd Circuit Judge Samuel A. Alito Jr., found that the Board of Immigration Appeals correctly applied new immigration rules passed as part of the Patriot Act in holding that Singh (Singh-Kaur, the majority noted, goes by the surname “Singh”) was subject to mandatory deportation for his admitted activities in supplying food and tents to known terrorists. “Although Singh himself denied participating directly in any violence, substantial evidence supports the BIA’s determination that he knew or should have known the militant Sikhs to whom he provided food and shelter had committed or planned to commit terrorist activities,” Aldisert wrote. But in a strongly worded dissent, Fisher complained that his colleagues were taking far too broad a reading of the new statute’s use of the term “material support.” Fisher said he would have reversed the BIA’s order because undisputed testimony showed that Singh provided the food and tents only for religious meetings. “There is no doubt that sustenance, such as food and water, or maintenance, such as shelter, are necessary for life, but they are not per se necessary for terrorism,” Fisher wrote. “To hold differently would — in cases like this one, involving food and tents –automatically transmute mere ‘support’ into ‘material support.’ This would eviscerate the statute,” Fisher wrote. Fisher complained that the majority’s analysis failed to follow some of the most basic rules of statutory construction. “Had Congress intended the mere provision of food and shelter, without more, to be ‘engaging in terrorist activity,’ there would have been no need to include the term ‘material’ in the statute,” Fisher wrote. According to court papers, Singh entered the United States without inspection in September 1989. When the Immigration and Naturalization Service initiated deportation proceedings, Singh applied for asylum, claiming that if he were returned to India, he would be arrested and persecuted. In the asylum petition, Singh said he was a member of the “Babbar Khalsa Group,” whose purpose, he said, was “to protect and promote the Sikh faith,” and the “Sant Jarnail Sing Bhindrawala Militant Group,” whose purpose was “to fight for and protect the religious and political cause of Sikh community.” Due to his participation in demonstrations, Singh claimed to be “on the military and police wanted list.” But the State Department’s Bureau of Human Rights and Humanitarian Affairs told an immigration judge that the Indian government did not persecute Sikhs such as Singh merely for their faith or membership in certain organizations. Instead, the State Department letter said, India targeted for arrest only those Sikhs who had involvement in specific violent acts. The letter went on to say that Singh had admitted to being a member of a “radical” group known as the International Sikh Youth Federation, as well as the Khalistan Commando Force, described in the letter as “a notorious terrorist group responsible for a grisly April 1985 random killing in a Punjab village.” Singh also admitted to be a member of “the equally notorious Babbar Khalsa,” the letter said, which is “an even more fundamentalist terrorist group with a reputation for its use of explosives.” In response, Singh submitted an affidavit to clarify statements in his asylum application. In it, he insisted that he had never been involved in or supported violent activities against Indian government officials. The Indian police and military, he said, simply presumed that, as a Sikh, he opposed the government. Singh won the first round of litigation when an immigration judge ruled in February 1998 that even though Singh had entered the United States without inspection, his eight-year stay gave him “sufficient equity to overcome that adverse immigration conduct.” The INS appealed, and in February 2003 the BIA vacated the immigration judge’s order and required Singh to be removed from the United States, finding that he was “ineligible for adjustment of status” due to the Patriot Act amendments that mandate deportation for anyone who provided “material support” to terrorists. In its ruling, the BIA found that “a person ‘engages in terrorist activities’ by providing ‘any type of material support’ to ‘any individual the actor knows, or reasonably should know, has committed or plans to commit a terrorist activity.’” The BIA also found that Singh had provided support to militants who “were members of groups which were designated as terrorist organizations by the United States Department of State.” Now the 3rd Circuit has ruled that the BIA erred in its factual description because “none of the organizations to which Singh belonged, including Babbar Khalsa, are among the 36 foreign terrorist organizations designated by the … Department of State.” But the majority nonetheless found that the BIA’s deportation order was valid because it properly tracked the language of the Patriot Act amendments and determined that Singh’s conduct in providing food and setting up tents constituted “material support” either “for the commission of terrorist activity” or “to any individual who the actor knows, or reasonably should know, has committed or plans to commit a terrorist activity.” Aldisert found there was clear evidence that “at the time of Singh’s participation with them, the members of the various militant Sikh organizations opposed to the Indian government had committed or planned to commit terrorist activity.” Even if the court accepted all of Singh’s statements in his second affidavit, Aldisert found that “Singh’s self-described activities in conjunction with his membership in various militant Sikh organizations consisted of: (1) providing food to militant Sikhs who had committed or planned to commit terrorist activity; and (2) setting up tents for meetings of militants who had committed or planned to commit terrorist activity.” But Fisher argued in his dissent that Singh’s testimony was undisputed on a critical point — the meetings he provided food and tents for were strictly for religious purposes. Since neither the immigration judge nor the BIA made any “adverse credibility finding” on that point, Fisher argued that the appellate court “must assume Singh’s testimony before the IJ to be true.” Turning to the language of the Patriot Act amendments, Fisher said he believed the majority had erred in holding that Singh’s activities amounted to providing “material support” to terrorists. “The statute’s express language requires an act that ‘affords material support’ that is either ‘for the commission of a terrorist activity,’ ‘to any individual who the actor knows, or reasonably should know, has committed or plans to commit a terrorist activity,’ or ‘to a terrorist organization,’” Fisher wrote. “Thus, the support must be relevant to the specified terrorist goal, terrorist persons, or terrorist organizations, which in sum means that the support must be relevant to terrorism,” Fisher wrote. The BIA erred, Fisher said, by premising its ruling on too broad a reading of the law that allows any support given to terrorists to be considered “material support.” “The BIA’s construction is manifestly contrary to the statute’s plain meaning because it reads ‘material’ out of ‘material support,’” Fisher wrote. “Even under the broadest possible reading, ‘material’ in this context must mean both ‘important’ and ‘relevant’ to terrorism… . Put another way, an act ‘affording material support’ must move the ball down the field for terrorism,” Fisher wrote. At oral argument, Fisher noted, a government lawyer suggested that giving a cup of water to a terrorist could constitute “material support.” “I have no doubt that under the right facts, the provision of a single glass of water to a terrorist could be material support. If [Osama] bin Laden were dying of thirst and asked for a cup of water to permit him to walk another half mile and detonate a weapon of mass destruction, such support would be ‘material’ to terrorism,” Fisher wrote. “But those facts are not before us, and permitting a mere cup of water, without more, to be ‘material support’ reads ‘material’ out of the statute,” Fisher wrote. Singh’s lawyer, Steven A. Morley of Morley Surin & Griffin, could not be reached for comment. Justice Department attorney Ethan B. Kanter of the Office of Immigration Litigation argued the government’s case.

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