U.S.

Department of Justice
Executive Office for Immigration Review

Board ofImmigration Appeals

Office ofthe Clerk
5107 Leesburg Pike, Suite 2000
Falls Church, Virginia 20530

OHS/ICE Office of Chief Counsel - BAL

31 Hopkins Plaza, Room 1600
Baltimore, MD 21201

Name: L

, J

-261

Date of this notice: 3/31/2015

Enclosed is a copy of the Board's decision and order in the above-referenced case.
Sincerely,

Donna Carr
Chief Clerk

Enclosure
Panel Members:
Cole, Patricia A.
Wendtland, Linda S.
Pauley, Roger

Userteam: Docket

For more unpublished BIA decisions, visit

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Cite as: J-F-L-K-, AXXX XXX 261 (BIA March 31, 2015)

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Crandell, Adam N., Esq.

Law Office of Adam N. Crandell
One East Chase Street, Ste. 1129
Baltimore, MD 21202

Decision of the Board of Immigration Appeals

U.S. Department of Justice

Executive Office for Immigration Review

Falls Church, Virginia 20530
261 - Baltimore, MD

File:
In re: J

MAi? 31 2015

REMOVAL PROCEEDINGS

APPEAL
ON BEHALF OF RESPONDENT:
ON BEHALF OF DHS:

Adam N. Crandell, Esquire

Jennifer Piateski
Assistant Chief Counsel

CHARGE:
Notice: Sec.

237(a)(l)(B), I&N Act [8 U.S.C. 1227(a)(l)(B)] In the United States in violation of law

APPLICATION: Asylum; withholding of removal; Convention Against Torture

The respondent, a native and citizen of the Central African Republic, has timely filed an
appeal of an Immigration Judge's decision dated June 24, 2013. The Immigration Judge found
the respondent removable as charged, determined that the respondent was statutorily ineligible
for asylum and withholding of removal pursuant to sections 208 and 241(b)(3) of the
Immigration and Nationality Act (the "Act"), 8 U.S.C. 1158 and 1231(b)(3), respectively, and
withholding of removal under the Convention Against Torture pursuant to 8 C.F.R.
1208.16(c)(2), due to the material support to a terrorist organization bar, but granted deferral of
removal under the Convention Against Torture pursuant to 8 C.F.R. 1208.17. On appeal, the
respondent contests the denial of all forms of relief apart from deferral of removal. The appeal
will be sustained, and the record will be remanded to the Immigration Judge for further
proceedings and for the entry of a new decision.
The basic facts of the respondent's claim are not in dispute. 1 The respondent testified that on
January 29, 2006, her village was raided by military forces led by Lieutenant Ngaikosse, who
were searching for anti-government rebels (I.J. at 6-8; Respondent's Group Exh. 2, Tab A; Tr. at
Tr. at 48-68). The respondent and members of her family were taken away. The respondent's

While the respondent did testify in some detail to her experiences, the respondent's counsel, at
the suggestion of the Immigration Judge, opted to stand .on the descriptions and information
contained in the respondent's detailed affidavit (Respondent's Group Exh. 2, Tab A) in an effort
to spare the respondent from testifying to many of the more emotionally traumatic events. We
note that the respondent's credibility as to what occurred to her in the Central African Republic
is not in question (I.J. at 13).
Cite as: J-F-L-K-, AXXX XXX 261 (BIA March 31, 2015)

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IN

Date:

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In assessing the respondent's claim, the Immigration Judge found that the forest rebel group
described by the respondent was a "Tier III" undesignated terrorist organization, as that term is
defined in section 212(a)(3)(B)(vi)(III) of the Act, 8 U.S. C. 1182(a)(3)(B)(vi)(Ill), during the
period in question, thus raising the issue of whether the respondent was barred from asylum and
withholding of removal as a result of having afforded material support to a terrorist organization
(l.J.at 13-14). See section 208(b)(2)(v) of the Act, 8 U.S.C. 1158(b)(2)(v) (indicating that an
alien described in various subsections of section 212(a)(3)(B)(i) of the Act, 8 U.S.C.
1158(a)(3)(B)(i), or in section 237(a)(4)(B) of the Act, 8 U.S.C. 1227(a)(4)(B), is ineligible
for asylum); see also section 212(a)(3)(B)(i)(I) of the Act (indicating that any alien who "has
engaged in a terrorist activity" is inadmissible); section 212(a)(3)(B)(iv)(VI) of the Act (defining
"engage in terrorist activity" to include committing "an act that the actor knows, or reasonably
should know, affords material support .. .to a terrorist organization described in clause (vi)(III),
or to any member of such organization, unless the actor can demonstrate by clear and convincing
evidence that the actor did not know, and should not reasonably have known, that the
organization was a terrorist organization"). The Immigration Judge further found that the
respondent's provision of domestic services to the forest rebel group constituted "material
support" of that organization (l.J. at 14). See generally Viegas v. Holder, 699 F.3d 798 (4th Cir.
2012) (agreeing that the alien's support was material where every month for 4 years, he
voluntarily paid dues to, and hung posters for, a terrorist organization); Matter of S-K-, 23 l&N
Dec. 936 (BIA 2006) (holding that the respondent's contribution of 8$1100 ( Singapore dollars)
over an 11-month period to the Chin National Front was sufficiently substantial to constitute
material support to an organization).
On appeal, the respondent makes a number of significant arguments. However, we find that
we need not reach most of them, as one argument is dispositive in this matter. Specifically, the
respondent argues that the Immigration Judge's determination that the unspecified "forest rebel
group" was a Tier III undesignated terrorist organization was in error. We agree. The Act
defines a Tier III (undesignated) terrorist organization as "an organization .. .that is a group of
two or more individuals, whether organized or not, which engages in, or has a subgroup which
engages in, the activities described in subclauses (I) through (VI) of clause (iv)." Section
212(a)(3)(B)(vi)(III) of the Act. Section 212(a)(3)(B)(iii) of the Act defines "terrorist activity"
to include, among other things, any activity which is unlawful under the laws of the place where
it was committed and which involves any of the following: "[t]he use of any . . . explosive,
firearm, or other weapon or dangerous device (other than for mere personal monetary gain), with
intent to endanger, directly or indirectly, the safety of one or more individuals or to cause
substantial damage to property." Section 212(a)(3)(B)(iii)(V) of the Act.

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husband and brother were both killed, and the respondent was raped by Lt.Ngaikosse during her
two days of captivity before she escaped into the forest. Once in the forest, she encountered a
group of armed men in civilian clothes, who forced her to perform domestic chores including
building a fire, cooking meals, fetching water, and serving coffee to the men. She testified that
these people did not identify themselves or wear uniforms, but that she believed that "certainly
they must be rebels or the people who cut the road," whom she described as persons who are
bandits who rob travelers who are passing by via automobile (Tr.at 66-67).

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In adjudicating the respondent's application for asylum, the Immigration Judge found that the
respondent suffered past persecution in the Central African Republic on account of a protected
ground under the Act, to wit, her political opinion (l. J. at 1 4-15). An applicant who
demonstrates that he or she was the subject of past persecution is presumed to have a well
founded fear of persecution. 8 C.F.R. 1 208.1 3(b)(l); Ngarurih v. Ashcroft, 371 F.3d 1 82, 187
(4th Cir. 2004). This presumption can be rebutted on a finding of a fundamental change of
circumstances so that the alien no longer has a well-founded fear, or a finding that the alien could
avoid persecution by relocating within the country of removal. 8 C.F.R. 1208.13(b)(l)(i)(A),
(B). The DH S bears the burden of proof for rebutting the presumption. Naizgi v. Gonzales, 455
F.3d 484, 486 (4th Cir. 2006). The Immigration Judge did not conduct such a rebuttal analysis.
Accordingly, we find that a remand is required to allow the DHS to have an opportunity to offer
argument and evidence that would tend to rebut the presumption. If the presumption is not
rebutted on remand, the Immigration Judge should determine whether the respondent merits the
relief of asylum in the exercise of discretion, and address her eligibility for withholding of
removal under section 241 (b)(3) of the Act.

The Merriam-Webster dictionary defines "bandit" as "a criminal who attacks and steals from
travelers and who is often a member of a group of criminals."

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The Immigration Judge appears to have found that the "forest rebel group" described by the
respondent met this definition, fmding that "[t]he Respondent testified that she thought the forest
rebels: (1) cut the road; (2) stole from individuals whom they encountered; (3) were armed; and
(4) would harm her if she disobeyed them, all of which indicates that this group constitutes a Tier
III terrorist organization" (l.J. at 1 5). While the record would support the Immigration Judge's
finding that the forest rebels engaged in illegal activities involving firearms, there is no evidence
that these persons committed these illegal "stealing" acts for anything other than "for mere
personal monetary gain," which is specifically set forth as an exception to the definition of
terrorist activities. The record, including the respondent's affidavit and her testimony, is rather
sparse as to what illegal activities these persons engaged in. However, the only specific activity
she described them as engaging in included "when you have car problems from village to village,
or a car coming from a capital city into an inner village, you have these people, bandit, cutting
the road and taking things from people" (Tr. at 67). The clear implication of this description,
including the respondent's use of the word "bandit," is that these persons were simply criminals
robbing vehicles for their own personal gain.2 The record contains no evidence to the contrary,
and assigning any other motive or goal to this unknown group would be, at best, speculative.
Accordingly, we find that the evidence does not support a determination that the "forest rebel
group" encountered by the respondent constituted a Tier III (undesignated) terrorist organization.
As such, we will reverse the Immigration Judge's determination that the material support to a
terrorist organization bar served to preclude asylum, withholding of removal under section
241(b)(3) of the Act, and withholding of removal under the Convention Against Torture.

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Accordingly the following orders will be entered.

ORDER: The appeal is sustained.
FURTHER ORDER: The record is remanded to the Immigration Judge for further
proceedings consistent with the foregoing opinion and for the entry of a new decision.

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