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Hernandez v. Sessions

INA's 'Material Support Bar' Lacks Implied Duress Exemption for Asylum Ineligibility

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*1  Marleny Hernandez petitions for review of a precedential decision of the Board of Immigration Appeals (“BIA”) finding her ineligible for asylum under the Immigration and Nationality Act (“INA”) on the ground that she provided “material support” to a terrorist organization, notwithstanding that she acted under duress. See 8 U.S.C. §§1158(b)(2)(A)(v), 1182(a)(3)(B)(i)(I), 1182(a)(3)(B)(iv)(VI). A 2014 Summary Order of this Court identified no error in the BIA’s conclusion that Hernandez provided material support to a terrorist organization, but the Order remanded for the BIA to determine in the first instance whether the so-called “material support bar,” which makes no explicit mention of duress, nevertheless has an implied duress exception that might exempt Hernandez. See Hernandez v. Holder, 579 F. App’x 12, 15 (2d Cir.*2

2014). The principal question presented by this petition is whether the agency’s determination on remand that the material support bar contains no such exception is entitled to deference under Chevron, U.S.A., Inc. v. Natural Resources Defense Council, Inc., 467 U.S. 837 (1984). We conclude that Chevron deference is warranted and join several other circuits in holding that the material support bar does not except aliens who acted under duress. We also reject the petitioner’s argument that aliens who are rendered ineligible for relief from removal by the material support bar have a due process right to some means of obtaining an exemption based on duress, other than the currently-available procedure for obtaining a discretionary waiver from the Department of State or the Department of Homeland Security. See 8 U.S.C. §1182(d)(3)(B)(i). Accordingly, we deny the petition.Judge Droney concurs in the opinion of the Court and files a concurring opinion.

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