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UNITED STATES DEPARTMENT OF .roSTICE

EXECUTIVE OFFICE FOR IMMIGRATION REVIEW IMMIGRATION COURT ELIZABETH, NEW JERSEY

File No.:lxxx-xxx-xxx

In the Matter of Ixxxxxxxxxxxx

In Removal Proceedings

I.

Respondent

ON BEHALF OF RESPONDENT Ashok Kumar Karmaker, Esq. Law Offices of Ashok K. Karmaker; P.C, 143-08 Hi11side Avenue Jamaica, New York 11435

ON BEHALF OF DHS

George Douveas,· Esq. Office of Chief CounseVICEIDHS 625 Evans Stree4 Room 135 Elizabeth, New Jersey 01201

CHARGES: INA § 212(a)(7)(A)(i)(I)

An immigrant seeking admission without valid entry documents

INTERLOCUTORY DECISION AND ORDER OF THE IMMIGlUTION JUDGE I.

Facts and Procedural History

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Ixxxxxx ("Respondent"), is a 25-rear-old native and citizen of Bangladesh who entered ,the Omtedtateson Octo~r 10, 2014. Exhs.l M2. On November 3, 2014, the Department of Homeland Security eDHS") issued hiIll a Notice to Appear ("NTA"), placing

him in removal proceedings. Exh. 1. On December 30, 2014, Respondent submitted an 1-589 Application for Asylum and Withholding of Removal to the Court. Exh. 2. Respondent is seeking asylum ort account of his political opinion, as a member of the Banglad~sh Nationalist Party (,4BNP"). On March 2,2015, DHS submitted a legal memorandum and evidence, claiming that Respondent is mandatorily barred from asylum, as having "engaged in terrorist activity" based on his membership in the BNP, which DHS alleges is a terrorist organization. See Exh. 4, DHS Legal Memorandum. On April 13, 2015, Respondent submitted a legal memorandum in response to DRS's brief. Exh. 7. On May 22, 2015, Respondent appeared for an individual merits hearing and

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submitted a second legal memorandum further addressing the issues raised by DHS. Exh. 8. Due to this late filing, the case was adjourned until June 10. 2015, to allow DHS to review Respondenfs submission. As DHS claims Respondent is barred from the relief he seeks, the Court elects to decide this threshold issue before considering the merits of his asylum application. This order hereby follows.

II.

Analysis

DRS alleges that the BNP is a Tier III terrorist organization as defined in INA § 212(a)(3)(B)(vi)(III). Exh. 4, DHS Legal Memorandum. By virtue of his membership in and support of the BNP, so the argument goes, Respondent has provided material support to a terrorist organization, and that as a result, he has "engaged in terrorist activity," which bars him from asylum. INA §§ 208(b)(2)(A)(v); 212(a)(3)(B)(i)(1); 212(a)(3)(B)(iv)(VI)(dd); 212(a)(3)(B)(i)(Vl).1 In arguing that the BNP is a terrorist organization, DHS presents two alternative theories: One, that the BNP is a terrorist organization due to its current and past ties to terrorist organizations, and two, that the BNP is a terrorist organization on its own merits due to its membel's having been involved in violence. See Exh. 4, DHS Legal Memorandum. The Court carefully and thoroughly considered these arguments, the evidence in the record and relevant case law, and rejects both for the reasons that foHow.

a. Evidentiary Standards Immigration Judges (Us) are not required to abide by the Federal Rules of Evidence. Fei Yan Zhu v. Att'y Gen., 744 F.3d 268, 273 (3d Cir. 2014); Matter 0/ D-R•• 25 I&N Dec. 445, 458 n.9 (BIA 2011); Matter o!lnteriano-Rosa, 25 I&N Dec. 264, 265 (BIA 2010) ("Immigration Judges have broad discretion to conduct and control immigration proceedings and to admit and consider relevant and probative evidence."). Since the rules of evidence are not applicable and admissibility is favored, the pertinent question regarding most evidence in immigration proceedings is not whether or not it is admissible. but what weight an IJ should accord it in adjudicating the issues on which the evidence has been submitted. Matter ofH-L-H & Z- Y-Z, 25 I&N Dec. 209 (BlA 2010) (Hnding that in circumstances where anecdotal and subjective evidence is presented to undercut mote recent evidence from more established and reliable sources, the latter is warranted greater weight); Matter of e-c-, 23 I&N Dec. 899, 903 (BIA 2006) (holding that the United States Department of State (State Department) documents on country conditions warranted greater weight than an affidavit from an expert witness that was not based on first·hand experience and relied on dated information); Matter of Pinedo, 20 I&N Dec. 70, 73 (BIA 1989) (stating that documentary evidence created contemporaneously with the events in question is more persuasive than a document that is obtained for the purpose of providing evidence for an immigration hearing). IJs may decline to accord weigh to I Although DHS cites to the material support bar provisions of the INA in claiming Respondent is barred from asylum, the Court notes that if the BNP were 8 terrorist organization, he would also be barred under the "member of a terrorist organization" provision in INA § 212(a)(3)(B)(i)(VI). INA § 208(b)(2)(A)(v). As both grounds hinge 011 the designation of the BNP as a Tier III terrorist organization and contain the same standard for tbe same exception, the Court considers them both jointly here.

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unauthenticated reports from unidentified and apparently illegitimate web sites. See Huang v. Att y Gen., 523 Fed. Appx. 161, 165 (3d Cir. May 2, 2013)(unpublished); Fei Yon Zhu, 744 F.3d at 273 (finding that documents posted on government websites with domain names such as "gov.cn" have indicia of reliability). b. Legal Standard

Where "the evidence indicates that one or more of the grounds for mandatory denial of the application for relief may apply, the alien shall have the burden of proving by a preponderance of the evidence that such grounds do not apply." 8 C.F.R. § 1240.8(d); see also Matter of R.SwH~, 23 I&N Dec. 629, 640 (BIA 2003). An alien is statutorily barred from asylum if he "has engaged in a terrorist activity." INA §§ 208(b)(2)(A)(v); 212(a)(3)(B)(i)(I). Committing an act which the actor knows, or reasonably should know, provides material support to a terrorist organization constitutes engaging in a terrorist activity. INA § 212(a)(3)(B)(iv)(VI)(cc), (dd). The INA contains three definitions for the term "terrorist organization." INA § 212(a)(3)(B)(vi). First, a terrorist organization can be formally designated by the Secretary of State, pursuant to INA § 219. INA § 212(a)(3)(B)(vi)(I) (Tier I Organization). Second, a terrorist organization can be designated for itmnlgration purposes according to the TelTorist Exclusion List authority. INA § 212(a)(3)(B)(vi)(JI) (Tier II Organization). Lastly, a group may be designated a terrorist organization by adjudicators on an ad hoc basis if it is a "group of two or more individuals, whether organized or not, which engages in; or has a subgroup which engages in" terrorist activity. INA § 212(a)(3)(B)(vi)(III) (Tier III Organization). An alien who is found to be a member of a Tier III organization is also statutorily barred from asylum, unless he can show that he did not know. and should not reasonably have known, that the organization was a terrorist organization. INA §§ 208(b)(2)(A)(v); 212(a)(3 )(B)(i)(VI). Terrorist activity is defined as any activity that (1) is unlawful in the country where it was committed, or would be unlawful if committed in the United States and (2) involves any of the following: "hijacking or sabotage of any conveyance"; ''the seizing or detaining, and threatening to kill, injure, or continue to detain another individual in order to compel a third person ... to do or abstain from doing any act"; "[a] violent attack upon an internationally protected person"; "an assassination"; the use of biological, chemical or nuclear devices; the use of explosives~ fireanns, or other weapons and/o!' dangerous devices with the intent to endanger the safety of one or more individuals or to cause substantial damage to property; "conspiracy to do any of the foregoing." INA § 212(a)(3)(B)(iii)(I)4(VI). For the purposes of determining whether an alien is subject to the bar based on his membership or support of said group, the relevant question is whether the group engaged in terrorist activity during the time the alien allegedly supported the group. See, e.g., Haile v. Holder, 658 F.3d 1122, 1128 (9th Cir. 20U); Viegas v. Holder, 699 F.3d 798, 802 (4th eir. 2012); Bojnoordi v. Holder, 757 F.3d 1075, 1077-78 (9th Cir. 2014). As a preliminary matter, the Court notes that DHS's claim that the BNP is a terrorist organi:z.ation appears to be a novel one, and that no BlA or circuit court decision published up to date has considered the question. Further, few courts - in this jurisdiction and beyond - have analyzed whether a group should be designated a Tier III terrorist organization. Those which have done so typically have examined more obviollsly qualifying or disqualifYing fact patterns, such as a respondent who is a member of a group which has openly taken up anns against the /xxx-xxx-xxx

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govenunent. See, e.g., Matter ofS-K-, 23 I&N Dec. 936, 941·42 (BIA 2006)(fmding a group to be a terrorist organization when it engaged in combat with the military). However, here, the Court is presented with the question of whether the BNP - a widely recognized and longstanding party in a democratic political system - has become a Tier III terrorist organization. Given the novelty of the claim and the dearth of controlling precedent, the Court has reviewed relevant case law from a number of jurisdictions and cites these cases as persuasive authority. a. The evidence does not indicate that the BNP is a terrorist organization

In support of its argument that the BNP is a terrorist organization, DHS submits 16 exhibits as evidence. Exh. 4, Tabs A-P. However, a number of these reports and articles suffer from reliability and credibility deficiencies, as discussed in detail infra.

i. Eyidence regarding the BNP's relationships with organizations between 2001 and 2006 do not demonstrate that it is a terrorist organizatiQn First, DHS's claim that the BNP's relationships with other groups between 2001 and 2006 qualify it as a terrorist organization is unsupported by the record. DHS submits articles and reports that describe the organizations with which BNP had ties. Exh. 4, Tabs A, B~ F-K, N. Although DHS does not expressly connect these purported affiliations to the statute, it appears to invoke INA § 212(a)(3)(B)(iii)(VI)~ which includes the conspi,racy to commit an act ofterrorism as in the definition of "terrorist activity." In its Jegal memorandum, DHS contends that while the BNP was in power between 2001 and 2006, it included in its coalition govenunent Islamic organizations, like the Jamaat-e-Islami ("Jamaat") and Islami Oikya Jote ("lOr), which have ties to known terrorist organiz.ations such as AI-Qaeda, HarkaHd-lihad al Islami ("HuJ!"), and lamaat-ul-Mujahideen Bangladesh ("1MB"). DHS Legal Memorandum, p. 6. DHS cites one source which states that during this time, the BNP was accused of "tacit[ly] support[ing]" and "harboring" the JMB, which in tum was accused of committing bomb attacks in 2005. Exh. 4, DHS Legal Memorandum, p. 6; Tab B, p. 1. Additionally. the Congressional Research Service notes that whi1e in power from 200 I to 2006, the BNP included a number of Islamist groups in its coalition government, and that this provided an opportunity for these groups to find a foothold in Bangladesh more broadly. Exh. 4, Tab A, p. 8-10. Also, the South Asian Terrorist Portal, an unknown internet source, claims that Hull "is known to have enjoyed the patronage of mainstream political parties such as the BNP and Jamaat~e-Islami." Exh. 4, Tab N. The record does not prove that by virtue of including these groups in a coalition government between 2001 and 2006, the BNPconspired with them to commit terrorist acts. The claim, that 10 years ago the BNP had ties to organizations which had ties to terrorist organizations, is facially weak and little reliable evidence supports it. Unsubstantiated allegations - that BNP provided "tacit support" and harbored the JMB - do not prove that the BNP was a terrorist organization at this time. Further, the record is mixed with regards to the BNP's relationships with these groups, as other evidence submitted by DHS states that the BNP - seemingly reluctantly - banned the JMB and other groups while in power in 200S, and arrested many of these groups' members. Exh. 4, Tabs I, A, p. 8-9 ("The previous BNP government also demonstrated newfound resolve to fight terrorism despite baving Islamist political parties in its 4

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coalition... eventually moved to suppress the JMB and JMJB operating in Bangladesh."). However it is noted that this reluctance was due to Jamaat's influence in the government. Exh. 4, Tab I, p. 3. This theory is too attenuated and the evidence too weak and contradictory to prove that the BNP was a terrorist organization at this time. Further, as the question presented is whether the BNP was a terrorist organization at the time Respondent gave support to it, which began in January 2008, the party's activities from 2001 to 2006 (when Respondent was between 12 and 17 years old) are irrelevant to the analysis. Such information would perhaps be helpful if it demonstrated that the party has engaged in terrorist activity since 2001, but DRS fails to provide - and this Court is unable to find - any cases or any other authority finding the BNP to have been a terrorist organization during this period or at any other point in time. Thus, for all the foregoing reasons, the Court rejects this argument.

ii. The evidence regarding BNP's current relationships with other groups does not indicate that the BNP is a terrorist organization Although it did not explicitly raise this argument, DRS implied with its numerous filings that the BNP's current affiliations render it a terrorist organization. The record indicates that the BNP currently has ties to Jamaat and its student wing~ Islamic Chhatra Shibir ("ICS'~). Exh. 4, Tabs F-N. A number of sources describe Jamaat and leS as violent organizations with terroristic tendencies, and that they engage in violent attacks that fall within the terrorist activity definition. Exh. 4~ Tabs A-B, R-K, M-N; INA § 212(a)(3)(B)(iii)(I)-(VI). The record indicates that Jamaat and ICS have ties to terrorist organizations and that their members engage in terrorist activities. The Congressional Research Service notes that Jamaat "may have ties" to AI-Qaeda, and that IOJ was "reported to" have ties with HuJI, which has been designated a terrorist organization by the State Department. Exh. 4, Tabs A, p. 8-9, Tab J ("The ICS has also been linked to international groups such as the Taliban and al-Qaeda, but concrete linkages have never been proven, and these accusations usually come from Awami League politicians;"). Several reports claimed that Jamaat had ties to JMB, as well. Exh. 4, Tabs I-K. Despite three articles in the record discussing AI-Qaeda, no evidence is presented to demonstrate that Jamaat, ICS or the BNP have direct ties to the group - the only group with any established ties to Al~Qaeda appears to be HuJI~ and no reliable evidence proves that BNP or its allies have ties to the HuJI. Exh. 4, Tabs C-E. Further, none of the sources credibly describes the nature and extent of the BNP's relationships with these groups. One report notes a "combine" between BNP, Jamaat and ICS that is "sound," but does not describe the relationship in any further detail: nothing demonstrates what kind of support BNP does or does not provide to Jamaat or these other groups; the record is merely rife with vague "allies" and Ucombine" language. Exh. 4, Tabs A, B, G, K. There is nO indication of whether the BNP provides any material goods- such as weapons or funds - to support Jamaat's or ICS's violent activities, or whether theirs is purely a relationship of political convenience. The only article which discusses this relationship in detail, another unidentified web site, reports that the two groups have different agendas and that their "aUiance" is weakening. Exh. 4, Tab O. The South Asian Terrorism Portal quotes BNP Chairperson Begum Khaleda Zia as stating the BNP-Jamaat aUiance is not pennanent and could be reconsidered. Exh. 4, Tab N, Bangladesh Timeline 2014, p. 38. 5 Ixxx-xxx-xxx

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The report that levies the most extreme charges is notably unreliable. Exh. 4, Tab F. This article. written by a source identified only as the Indian Defence Review with no additional indicia of its reliabi1 ity or evidentiary value, is repeatedly conclusory, failing to provide evidence for its sweeping conclusions, and of such an unpolished quality - with numerous errors, such as repeated phrases - that the meaning of sentences is at times difficult to determine. Exh. 4, Tab F. For example, the report states that the nexus between the ISI~ Khaleda Zia's BNP and the jihadi organizations have only strengthened, rather become more vicious. This combine is again trying to dislodge her by any means. The difference this time is that West Bengal is serving as a base for the war against Sheikh Rasina dispensation. Exh. 4, Tab F. The article, which appears to be an opinion article, also claims that the links between the BNP and JMB "have been conclusively proven/' and the only evidence cited to support this claim is a BNP leader addressing a rally of the JMJB on some unknown date and another conclusory statement that links between a BNP minister and the. JMB Hlater surfaced." Bxh. 4, Tab f. The Court finds these allegations unsupported and untrustworthy given that the document its;elf lacks any facial indicia of reliability, and declines to accord this source any weight. I

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Absent further detailed evidence regarding the nature of the relationship between the BNP and Jamaat ()r arty other group, the. Court is left with insufficient evidence to find a "conspiracy" exists between the BNP and Jamaat or ICS. INA § 212(a)(3)(B)(iii)(VI). DRS has put forward no further argument or explanation for the submission of this evidence, and the Court declines to extrapolate as to alternate purposes for these documents. Further, DRS does not argue or cite previous cases in which courts have found a group's ties to other groups as sufficient to find a group to be a terrorist organization. Thus, the Court finds that the evidence regarding BNP's ties to other organizations do not suffice to render it a Tier 1II terrorist organization. iii. The evidence regarding the actions of BNP members is insufficient to render the party a terrorist organization

The evidence submitted by DHS does cast an unfavorable light upon the BNP, and highlights an alanning increase in political violence in Banglaqesh. The recorqindicates that the BNP is one of the largest political parties in Bangladesh, where its opponent and rival, the Awami League ("ALH), currently holds power. Exh. 4, Tabs A, B, G, R..I, K, M, D-P. Although, as one source noted, "political violence has long been a part of the political landscape in Bangladesh,;' a number of reports suggest that the violence escalated surrounding the 2014 election. Exh. 4, Tab A. p. 1, Tab B. Some of these reports directly implicate BNP members, supporters or activists in acts that likely fall within the definition often-orist activity.

1. The record demonstrates that BNP members and supportei's have been implicated in disturbing instances of violence that likely fall within the definflion of terrorist activity. A report by Ruman Rights Watch, dated April 20]4, is reliable and trustworthy source that describes a number of activities implicating BNP members in various incidents. First. the 6

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Court notes that this report is a contemporaneous record of interviews with individuals with firsthand knowledge of events, and its recounting of these events is thus worthy of probative value. The report also includes a description of the organization and its methodology in its reporting. Exh. 4, Tab M, p. 9. Accordingly, the Court accorded this source significant weight and considers it highly probative. The report states that the BNP announced that it would engage in a number of strikes and blockades in advance of the January 2014 election in order to pressure the governing party, AL, to reinstate the neutral caretaker government system to oversee elections, as had been done in previous elections. Exh. 4, Tab M, p. 1, II. This repoli notes that violence has broken out in connection with the blockades, but never fully describes the extent or nature of the blockades and does not attribute this violence to the BNP specifically, but rather to "opposition activists." Exh. 4, Tab M, p.1-2. Thus, insufficient information lies in the record for the Court to find that the blockades constitute terrorist acts themselves carried out by the BNP. However, the report also includes several eye witness accounts of BNP members engaging in attacks on viUages and a child's statement that members of the BNP's student wing bribed him to throw grenades at buses. Exh. 4, Tab M, p. 20~21, 23, ] 7. The remaining sources quoted in the report - some of whom describe horrific instances of fire bombings and other attacks - either identified perpetrators as "BNP-Jamaat" or "opposition party members." Exh.4, Tab M, p. 14·20. For example, "on numerous occasions, opposition party members and activists threw petrol bombs at trucks~ buses and motorized rickshaws that defied the traffic blockades. " in some cases opposition groups reclUited children to carry out the attacks." Exh. 4, Tab M, p. 2. In another incident, a vi11ager identified individuals who attacked his village as neighbors; whom he knew to be "BNP-Jamaat." Exh. 4, Tab M, p. 2. Although the Court considered these incidents, it notes that these incidents carry less weight in the detennination of whether the BNP itself engaged in terrorist activity. As the BNP is not conclusively and specifically identified in these acts, its CUlpability for them is murkier. Nonetheless, the more specifically attributed acts described above are noteworthy and appalling. The remaining reports suffer from credibility and reliability deficiencies, and the Court did not accord them full eVidentiary value as a result. First, another report, by a source identified only as the South Asia Terrorism Portal, lists a number of incidents in which individuals affiliated with the BNP were reported to have engaged in violent acts. Exb. 4, TabN. However, absent any explanation or· backgroundinfotmation from· DHS as to the reliability of this source, the Court is reluctant to accord it significant probative weight as there is no indication of how it has obtained the information it reports as facts. Nowhere does the source reveal its authorship or bases for its statements, and rarely does it cite other sources. This deprives the Court of the opportunity to seriously consider the reliability of the facts therein asserted. However, the Court considered the evidence presented by this document, given its level of detail, even if it did not give it much probative weight. The events include BNP activists making and detonating explosives, as well as engaging in one gunfight. Exh. 4, Tab N, p. 2, 54, 75. Additionally, on October 25, 2013, "BNP activists~' burned an AL office during a clash, and vandalized a police van. Exh. 4, Tab N, p. 49. BNP members were arrested for attempted murder of police officers and "creating violence in the capital" on November 9,2013. Exh. 4, Tab N. Then, on December 30, 2013, "BNP supporters" exploded three crude bombs during a confrontation with police. Tab N, p. 75. This source also attributed several acts to the BNP and other organizations. For

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example, the site claims that on March 17,2013, "BNP-Jamaat cadres" exploded bombs aimed at law enforcers in Dhaka, and on December 22,2013, BNP-Jamaat cadres blasted a crude bomb in front ofa government minister's home. Exh. 4, Tab N, p. 14,72. These represent only some of many incidents described in this document, and many other entries describe the perpetrators as the "BNP-Ied 18 party alliance." See, e.g., Exh. 4, Tab N, p. 60. The Court also notes, however, that months passed between incidents citing BNP supporters or BNP-Jamaat supporters as the perpetrators, as the BNP-related violence appeared to be largely focused in the time surrounding the election and the blockades. Given the questionable reliability of this document, the Court considers this evidence lightly. and declines to find that each incident stated therein is factually accurate. The Court notes that this document suggests a number of incidents involving BNP affiliates have taken place, but does not grant its specific premises greater weight. Another source that presents some troubling information about BNP members is the Hindu American Foundation. Exh. 4, Tabs H, K. However, the Court notes that, again, no information regarding this unknown and undated source is provided. DHS has not presented any information regarding the reliability of this source, nor are the reports' methodology noted in either submission. Thus~ the Court also assigns this source little probative value. The reports claim there is a targeted campaign against Hindus, .presumably as retaliation for their support of the AL. Exh. 4, Tabs H, K. Both reports call for Jamaat - but not the BNP - to be labelled as a Foreign Terrorist Organization. Exh. 4, Tab H, p. 7. For example. the report claims that the BNP, with Jamaat and ICS, "launched violent riots and carried out targeted attacks on Hindu homes, businesses, and temples ... BNP and Jamaat supporters set off dozens of bombs, removed tracks from major railways, attacked security personnel, and forcibly shut down businesses." Exh. 4, Tab K. p. 1. Other reports refer to the "BNP coalition and its supporters," and the "BNP and Jamaat supporters." Exh. 4, Tab K, p. 4, Tab H, p. 6. None of the allegations are squarely leveled at the BNP standing alone: All the incidents refer to BNP and a least one other organization, or at times more vaguely refer to the BNP coalition. Here too, the Court is unwilling to assign each allegation included in this source definitive probative value, but generally notes its accusations against BNP and Jamaat members. The remaining evidence is unhelpfuL. Reliable reports from the Congressional Research Service and the Immigration and Refugee Board of Canada pre-date the acts of the past several years which would form the basis of a terrorist organization finding in this matter, and thus were irrelevant for this purpose. Exh. 4, Tabs A-B. A nUlllber of reports indicatethatBNP supporters have been arrested for violent activities, but another source states that such prosecutions are often politically motivated, which lessens the Court's reliance upon those reports. Exh. 4, Tab N, p. 24, Tab B, p. 4, Tab L. Several reports, although credible, describe violence associated with BNP protests and rallies, but do not identifY the perpetrators of these violent acts, and thus are not relevant to the analysis of whether the BNP is a terrorist organization. Exh. 4~ Tabs O-P. Further, a number of reports are wholly irrelevant to this analysis, as they do not mention the BNP or do not attribute any particular acts to the BNP. Exb. 4. Tabs C-E, I-J. And as discussed above, the Court declines to consider the content of the Indian Defence Review article in its entirety. Exh. 4, Tab F. However, at least some of the incidents credibly reported by Human Rights Watch, as well as some of the less reliable reports from more dubious sources, fall within the definition of terrorist activity. Congress intentionally drafted the language surrounding the terrorism bars 8 /xxx-xxx-xxx

broadly) and it encompasses a wide range of activity. Hussain v. Mu/casey, 518 FJd 534, 537 (7th Cir. 2008)C'the statutory definition of "terrorist organization" is broad enough to encompass a pair of kidnappers... Someone who sold the kidnappers a gun and rope, unless he could prove he had no reason to know they were kidnappers, would be 'engaged in terrorist activity. "'); See also Matter oJS~K-, 23 I&N Dec. 936, 941 (BIA 2006). Here, it appears that several acts which were reliably reported fall within the definition. For example, the attacks on villages reported in the reliable Human Rights Watch report, fall within the subclause "use of any ... 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." INA § 212(a)(3)(B)(iii)(V). Members of the BNP's student wing enticing street children to throw petrol bombs at buses also fits within INA § this provision in conjunction with the attempt and conspiracy provision. 212(a)(3)(B)(iii)(V)-(VI). A number of incidents reported by the South Asian Terrorism Portal also fall within this definition, especially the ones regarding the creation and detonation of explosives. Exh. 4, Tab N. The Court is satisfied that the record establishes that BNP supporters in the past have engaged in violent acts that likely fall within the broad definition of "terrorist activity." However, whether the BNP is "a group ... which engages in" terrorist activity is another question. INA § 212(a)(3)(B)(vi)(III).

2. There is no evidence that the BNP as a group actively engages in terrorist activity or authorizes such activity

While these reports are disturbing, none of the reliably reported incidents implicate BNP leadership 01' suggest that the party itself "engages in" terrorist activity. The fact that BNP supporters or activists or members have since 2013 engaged in acts that likely constitute "terrorist activities" does not ipso Jacto render the BNP a terrorist organization. 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 Court notes first that it has found no precedent of a court finding a group to be a terrorist organization based on facts analogous to those presented here. Other groups have had the articulated goal or mission of violent overthrow of the government, have been armed militias or have been actively involved in assassinations and kidnappings. See, e.g., Matter of S~K-, 23 I&N Dec. 936 (BIA 2006); Rajahi v. AtlY Gen., 553 Fed. App'x 251 (3d Cir. 2014); Matter ofChhun. 345 F. App'x 297 (9th Cir. 2009). In one of the few cases in which a group was found not to be a terrorist organization no evidence was presented to prove that the group's members had engaged in any activity resembling terrorist activity. Singh v. Wiles, 747 F. Supp. 2d 1223, 1229 (W.D. Wash. 2010). Thus, the facts at present - where members ofa large and long-recognized political party are seemingly engaged in violence but no evidence is presented to suggest the leadership of the party supports or commands these activities - fall somewhere in the middle. The Court turns to the plain language of the relevant statutory definition of a terrorist organization in considering its meaning. United States v. Moreno, 727 F.3d 255, 259 (3d Cir. 2013) cert. denied.. 134 S. Ct. 1278, 188 LEd. 2d 298 (2014); Lamie v. Us. Trustee, 540 U.S. 526, 534, 124 S.Ct. 1023, 157 L.Ed.2d 1024 (2004). The statute states that a group is a terrorist organization if it is "a group ... which engages in" terrorist activity. INA §§ 212(a)(3)(B)(i)(1), 212(a)(3)(B)(iv). The use of the present tense here suggests that the group, at the time the alien is charged with membership in it or provicUng material support to it, behaves in an ongoing and habitual manner. See, e.g., Haile v. Holder, 658 F.3d 1122, 1128 (9th Cir. 2011); Viegas v. 9

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Holder, 699 F.3d 798, 802 (4th Cit. 2012); Bojnoordi v. Holder, 757 FJd 1075, 1077-78 (9th Cir. 2014). It appears to require that the group, acting as a unit, express a conscious choice to undertake these acts. As noted by the Seventh Circuit, this creates an "ambiguity:" What if an organization contained people who resorted to violence without the organization's sanction; would the organized be "engaged in" that violence? That is a question about authorization. If an activity is not authorized, ratified, or otherwise approved or condoned by the organization, then the organization is not the actor.

Hussain, 518 F.3d at 538, citing NAACP v. Claiborne Hardware Co., 458 U.S. 886, 930-32, 102 S.Ct. 3409, 73 L.Ed.2d 1215 (1982). In order for an organization to be the actor, the act must have been "authorized. ratified, or otherwise approved or condoned" by the organization. ld; see also Boirn v. Holy Land Found for Relief & Dev., 549 FJd 685, 700 (7th Cir. 2008). Thus, 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." Hussain, 548 FJd at 538. Ultimately, in Hussain, although the leadership did not expressly authorize the violence, the group at issue engaged in almost daily armed conflicts with other militants and government forces, such as retaliatory killings, over a period that spanned years, and the group's leadership never criticized or attempted to curb the frequent violence. Id at 539. These facts led to an "inescapable" inference that the violence was in fact authorized by the group. ld Here, there is no evidence of explicit authorization. The Human Rights Watch report cites two instances of BNP Jeadership denying that the BNP was involved in the violence surrounding the blockades and protests. Exh. 4, Tab M. p. 16, 20. The remaining evidence regarding the party leadership's views on the violence are statements from a questionable source, the South Asian Terrorism Portal, whose reliability concerns were discussed in detail supra. Exh. 4, Tab N. Two statements from BNP Chairperson Begum Khaleda Zia are included, although as discussed above. it is unclear how the source obtained this infonnation. Exh. 4, Tab N. On November 22,2014, she "slammed key ally [Jamaat] saying 'You talk big but are absent on the field of action. You have called hartals [closing of stores as means of protest] but your people did not enforce it life went on as normal." Exh. 4, Tab N, p. 35. Besides calling for a nationwide blockade on January 5, 2015, the only other comment from Zia took place on January II, 2015. in which she "called upon the leaders and activists of her party to press ahead with their peaceful movement." Exh. 4, Tab N, p. 4. In considering the weight of these statements, the Court finds that none of these statements, nor any other evidence in the record, demonstrates express authorization of violence. The explicit denials suggest the leadership does not condone such violence. Chairperson Zia's criticism of Jamaat in November 2014 does not establish approval of violence: the vague comment appears to be stating that Jamaat's attempts to conduct hartals (described as strikes forcing businesses to close) - which are not violent in and of themselves, even if violence has been sparked around them - have been unsuccessful. She is not calling for violence, and the "tield of action" appears to refer to the zones in which the group is holding its protests, hartals and blockades - none of which require violence. Also, taken in the most positive light, Zia's comments in January 2015 indicate that the leadership intends the blockade to be "peaceful." IO /xxx-xxx-xxx

'

...

Even construed more cynically, it does not expressly authorize~ call for or accept violence. Thus, the record does not establish that the BNP expressly condones or authorizes the violence. Further, the record does not support a finding of inferred authorization as that in Hussain. Here, the violence with which BNP members have been associated has been taking place for a shorter period of time, is far less frequent, and has taken a far less extreme and deliberate form than that in Hussain. The record suggests that, unlike the constant and unremitting violence present in Hussain, the violent attacks committed by BNP members took place primarily in the time surrounding the election and the blockades, and that months passed without any incidents involving BNP members engaging in violent acts. Exh. 4, Tab N, Bangladesh Assessment 2014, p. 15-36. Further, the majority of the acts associated with BNP members - disorganized street violence - are less severe and less likely to occur only with official authorization than the battles frequently waged in Hussain. As such, the record does not establish that the BNP authorizes explicitly or implicitly - the violent acts which have been carried out by l,Ulidentified members. Thus, it is not a "terrorist organization" as defined in INA § 212(a)(3)(8)(vi)(UI).

3. The BNP is distinguishable from other groups deemed to be Tier III terrorist organizations The finding that the BNP is not a terrorist organization is also supported by a review of comparable case law, as the BNP is notably distinct from a number of other groups found by other courts to be terrorist organizations. First, there is no reliable evidence that the BNP has taken up anus against the government, engaged in battle with it or attacked government buildings. Cf, Matter of S-K-, 23 I&N Dec. 936, 941-942 (BIA 2006)(finding that the organization was a terrorist organization because it used fireanns and/or explosives in order to engage in combat with the military); De Almeida Viegas v. Holder, 699 F.3d 798 (4th Cir. 2012)(considering the fact that many factions of the group in question engaged in. violence against the Angolan government and civilians and destroyed government property); Abdu v. Holder, 345 F. App'x 295, 296-7 (9th Cir. 2009)(finding an armed organization fighting against the government to be a terrorist organization); Haile v. Holder, 658 F.3d 112, 1124 (9th Cir. 2011)(finding a group to be a terrorist organization because it employed violence and weaponry in the fight for independence and the forcible overthrow of the government, when the record included evidence of kidnappings, hijackings of aircraft, shootings and car bombings); FH-T v. Holder, 743 F.3d 1077 (7th Cir. 2014)(finding that the group at issue was a terrorist organization at the relevant point in time as it was an organization involved in the violent war for independence in Eritrea that transformed itself into a political party after the war ended); Chhun v. Holder, 345 F. App'x 297, 299 (9th Cir. 2009)(finding a group was a terrorist organization when it had attempted a violent coup in 2000 by attacking three military bases); Matter of Majed Talat Hajbeh, A43703444, 2004 WL 1398663, at *3 (BIA Apr. 22, 2004)(finding a group was a terrorist organization when it "sought to change the leadership and political situation in Jordan by forcefully attacking the Jordanian government's interests."). Further, the record does not include any statement from an American governmental body suggesting that the BNP is a terrorist organization. While findings from other agencies are not necessary for a Tier 1I1 designation, courts have relied upon them in supporting their findings. See Singh-Kaur v. Ashcroft, 385 F.3d 293, 295-97 (3d Cir. 2004)(noting that the organization at issue had been named by the Department of the Treasury as a Specially Designated Global

I~xx-xxx-xxx

11

t,

Terrorist organization "in accordance with an asset-freezing program authorized in 2001 by Presidential Executive Order 13224," and that the State Department had commented on the alien's asylum application in 1992, describing one affiliated group as a "radical off-shoot" and another as a "notorious terrorist group"); see also Bojnoordi v. Holder, 757 F.3d 1075, 1077-78 (9th Cir. 2014)(relying in part on a 2001 terrorism~related report by the State Department in finding the group at issue was a terrorist organization). Lastly, there is no evidence of the BNP targeting American interests or nationals. Cf Bojnoordi, 757 F.3d at 1077·78 (finding a group to be a terrorist organization when it killed American military personnel and civilians working on defense projects, supported the 1979 takeover of the U.s. embassy in Tehran, opposed the release of American hostages and assassinated six Americans); Rajabi, 553 Fed. App'x at 254 (3d Cir. 2014). While none of these factors are per se sufficient to warrant a finding that a group is a terrorist organization, they provide the Court with guidance in what to consider in making the determination, and in so doing, significantly distinguish the BNP. Instead, here, the BNP appears to be one of two major political parties in Bangladesh, and that as stated in the report fi'om the Congressional Research Service: When in opposition, both parties have sought to regain control of the government through demonstrations, labor strikes and transport blockades ... the intense and at times violent political rivalry between the BNP and the AL, and the presence of radical Islamist parties and groups, have defined Bangladesh's political environment in recent years.

Exh. 4, Tab A, p. 2. Nothing suggests that a violent overthrow or terrorism is part and parcel to the BNP's mission. None of the violent activities are directly attributed to the BNP as an entity, and implicate activists or supporters, rather than party leadership. Absent such a showing, it is inappropriate to deem one of the largest political parties in Bangladesh a terrorist organization based on the acts of unidentified supporters and activists. Considering all of the relevant facts, the record shows that the BNP remains too distinct from groups which have been found to be terrorist organizations. It is also worth noting that the 2013 Human Rights Report by the State Department makes no mention of terrorism concerns in Bangladesh generally, nor with respect to the BNP. Exh. 2, Tab D; Bureau of Democracy, Human Rights, and Labor, State Department, Bangladesh Country Reports on Human Rights Practices - 2013 (Feb. 2014) ('·2013 Bangladesh Country Reports "). The Third Circuit Court of Appeals has held that the State Department Reports are the "most appropriate" and "perhaps best resource[sJ" for determining the current political situation in a particular country. Kayembe v. Ashcroft, 334 FJd 231, 235 (3d Cir. 2003) (quoting Lal v. INS, 255 F.3d 998, 1028 (9th Cir. 2001»; see also Xie v. Ashcro.fi, 359 F .3d 239, 243-44 (3d Cir. 2004); see also Matter o.f H-L-H- & Z-Y-Z-, 25 I&N Dec. 209 (BIA 2010) ("State Department reports 011 country conditions, including the Profiles of Asylum Claims & Country Conditions, are highly probative evidence and are usually the best source of infonnation on conditions in foreign nations"), abrogated on other grounds by Huang v. Holder, 677 J".3d 130 (2d Cir. 2012).

12 Ixxx-xxx-xxx

The report notes high levels of political violence, including intraparty violence within both the AL and the BNP. Exh. 2, Tab D, p. 1. 'The State Department Report states, citing a Bangladeshi non-governmental organization's findings: 189 persons were killed and 10,048 injured in political violence from January through September. There were 135 incidents of intraparty violence within the ruling AL, resulting in the deaths of 15 persons and the injury of 1,738 others. In the opposition Bangladesh Nationalist Party (BNP), there were 75 incidents of internal violence, which killed six individuals and injured 945. These incidents were often linked to criminal activities rather than to political motives. Incidents of nonlethal, politically motivated violence also occurred. Exh. 2, Tab D, p. 1. It also reports impunity for government in human rights abuses. Id The report cites only one incident of BNP being accused of criminal acts: On March 11, police raided the opposition BNP's central office and arrested more than 150 party officials during a BNP rally. Police claimed they found Molotov cocktails and bomb-making materials inside the BNP office. BNP leaders alleged the police claim was baseJess and a cover to justify the office raid and party leaders' arrest. Exh. 2, Tab D, p. 3. The only other references indicate that the government of Bangladesh denied BNP permission to hold rallies on two occasions in May, but pennitted them to hold them in October and at other times. Id at 6. The absence of further evidence and the complete omission of any concerns about terrorism in Bangladesh - especially near the end of2013, when by accounts in other reports, violence was escalating - fhrther suggest to the Court that although the political violence has continued in Bangladesh, deeming the BNP to be a terrorist organization is inappropriate at this time. While the Court is concerned by the escalating violence attributed to BNP members, it is not convinced that the evidence proves that this political party has evolved into a terrorist organization. Declining to designate this group as a terrorist organization best comports with Jogic and with existing case law. Thus, given the paucity of the evidence connecting the BNP leadership to terrorism, as well as this .case's clear distinctions from the vast majority of cases on the subject, the Court finds that the record does not establish that the 8NP is a Tier I1I terrorist organization pursuant to INA § 212(a)(3)(B)(vi)(III). Accordingly, Respondent is not subject to the mandatory bar to asylum in INA § 208(b)(2)(A)(v).

b. In the alternative, even if the BNP were a terrorist organization, Respondent has demonstrated that he did not know and should not have reasonably known that it was Even .if the BNP were a Tier I1I terrorist organization, Respondent has met his burden of establishing by clear and convincing evidence that he did not know and should not have reasonably known that the BNP was a terrorist organization. INA §§ 212(a)(3)(B)(i)(VJ); 2 I 2(a)(3)(B)(iv)(VI)(dd). Courts have considered an array of factors in determining whether a respondent knew or reasonably should have known a group was a terrorist organization. A respondent's credible testimony alone may be sufficient to meet his burden. Matter oj 13 Ixxx-xxx-xxx

..

.

.

Mahmood, A075 007620,2009 WL 523125, at ". 1 (BIA Feb. 17, 2009)(finding the respondent had shown by clear and convincing evidence that he was unaware and should not reasonably have been aware of an organization's terrorist acts based on his testimony). A respondent's testimony and statements regarding his activities are particularly relevant to establish what the respondent knew or should have known. See, e.g., Haile v. Holder, 658 F.3d 1122, 1130 (9th Cir. 201 l)(finding that the alien failed to meet her burden of establishing that she did not know and should not have reasonably known the group in question was a terrorist organization when she testified that the group used armed violence against the government and that she knew ELF members had hijacked a plane); Sor v. Att'y Gen, 152 F. App'x 231, 232 (3d Cir. 2005)(finding the respondent had engaged in terrorist activity when she testified that she knew the relevant organization's mission was to overthrow the government, using violence if necessary, and that the organization had attacked a government installation with a grenade). Other factors that courts may consider include the length and uature of a respondent's membership in the group. A/after of R-S-H-, 23 I&N Dec. 629, 635 (BIA 2003)(upholding IJ's finding that a respondent had actual or constructive knowledge that the group in question was a terrorist organization given his high-level position and lengthy affiliation with the group). Whether the group's terrorist activities were widely known or publicized are also relevant. FH-T, 723 FJd at 837 (noting that the violent activities of the group at issue. including "attacks on United Nations relief convoys, a large-scale 1982 attack on Asmara, and assassinations of Eritrean civilians" were "well-known" and the alien's claim that he did not know ofthese events was unpersuasive); Mahmood. 2009 WL 523125 at *I.

Here, Respondent testified credibly that he did not know or believe the BNP to be a terrorist organization. Respondent stated that he joined the party because he agreed with its political beliefs and "truly believed that only the BNP, with its political and economic plans, could take Bangladesh towards prosperity by eradicating poverty." Exh. 2, Tab B, p. 1. Respondent testified that he was never aware of any BNP member engaging in or advocating for violence. When asked what he would do if he found a BNP member engaging in violence, Respondent stated that he would report to his superiors and leave the BNP if such conduct continued. Additionally, according to his statement, when pressured to leave the BNP and join the Awami League, Respondent stated that he refused because he did not want to engage in violence associated with the Awami League. Exh. 2, Tab B, p. 3. In his testimony, Respondent stated that he has never harmed anyone nor engaged in violence. He also has never-ad\'ocated-fot the use of violence. He does not claim to have been a leader in the orgatlizatiou and his activities were limited to participating in meetings, campaigning for the party and delivering letters to other BNP officers. Further, the Court notes that a review of the record does not establish the extent to which the terrorist acts committed by BNP members and others were well-known or whether they were widely reported. The Court is satisfied that Respondent has demonstrated that he did not know - and should not have reasonably known - that the BNP was a terrorist organiz.ation. UI.

Conclusion

The evidence does not indicate that a ground for mandatory denial of asylum applies. 8 C.F.R. § 1240.8(d); see also Malter of R~S-H-, 23 I&N Dec. 629, 640 (BIA 2003). The Court finds that the BNP is not a Tier III terrorist organization, and thus, Respondent is not subject to 14 /xxx-xxx-xxx

the terrorism-related mandatory bar to asylum. In the alternative, even if the BNP were a terrorist organization, the Court finds that Respondent has met his burden of establishing by clear and convincing evidence that he did not know - and should not have reasonably known - that the BNP was a terrorist organization. and as such, is exempted from the mandatory bar. INA §§ 208(b)(2)(A)(v); 212(a)(3)(B)(i)(VI). The Court will therefore proceed to adjudicate the merits of his asylum application.

ORDER IT IS ORDERED that Respondent's application for asylum is not subject to the mandatory terrorist activity bar pursuant to INA § 208(b)(2)(A)(v).

Dorothy Harbeck Immigration Judge

15 /xxx-xxx-xxx