Evidence that members of a group conducted election-related violence and showed “tacit support for radical Islam” are not enough to establish that the group is a low-level terrorist organization whose members must be deported, the U.S. Court of Appeals for the Third Circuit has ruled.
A unanimous three-judge panel of the court determined that, in order to establish that an organization is a Tier III terrorist group, whose members are barred from seeking relief in this country, there must be evidence that the group’s leaders authorized the alleged terrorist activities.
The precedential decision aligns the Third Circuit with the Seventh Circuit in an area where there is little judicial guidance, according to Judge Marjorie Rendell, who wrote the court’s opinion.
The decision overruled a determination by the Board of Immigration Appeals that a member of the Bangladesh Nationalist Party was ineligible for withholding of removal because of violence conducted by members of the party during the 2013-14 election cycle. The panel remanded the case back to the board to examine whether there is enough evidence to establish that the party’s leaders authorized any of the alleged terrorist activities during the time the petitioner, Joshim Uddin, was a member of the party.
“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,” Rendell said. “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.”
The ruling focuses on the threshold for what constitutes a Tier III terrorist organization, with Tier I being a group officially designated as a terrorist organization by the U.S. Secretary of State, and Tier III being an organization that includes two or more individuals who have engaged in some sort of terrorism, either acting along or together.
Rendell noted there is no official register of Tier III organizations, and there is “relatively little guidance from courts of appeals as to how to determine whether an organization is a Tier III terrorist group.”
If members of Tier III organizations demonstrate they did not know the group was a terrorist organization, Rendell said, they can avoid the so-called “terrorism bar,” which precludes any members of terrorist organizations from seeking refuge in the United States.
Rendell said she was guided by Seventh Circuit precedent, “common sense” and statutory construction, since the text deals with actions of groups and “not uncoordinated activities by individual members.”
According to Rendell, Uddin, who had been a local party leader in Bangladesh between 2008 and 2011, entered the United States illegally in 2013 after he had allegedly been attacked and had his house burned down because of his recruitment efforts. He was arrested in 2016 and charged with removability after he was initially arrested in 2015 on charges that were later dropped.
Uddin raised several challenges to the removal, including seeking a withholding of the removal, which is a determination that the country is barred from removing an individual based on the threats they received.
The immigration judge noted that the party had been criticized for “its tacit support of radical Islamic groups” in 2005, and, most importantly, that it had engaged in bombings and attacks on polling centers during the 2013-14 election cycle, Rendell said. The judge ultimately determined that Uddin was ineligible for withholding of removal because he was a knowing member of a Tier III terrorist organization.
Rendell noted that the immigration board had been inconsistent about whether the Bangladesh Nationalist Party could be considered a terrorist organization, and, while the determinations should still be made on a case-by-case basis, there needs to be some indication that the leaders authorized the terrorist activities.
“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,” Rendell said.
Both Visuvanathan Rudrakumaran, who represented Uddin, and Daniel Smulow of the U.S. Department of Justice Office of Immigration Litigation did not return a call for comment.