Balwinder Singh v. ERIC H. HOLDER, Jr., Attorney General

This disposition is not appropriate for publication and is not precedent*
except as provided by 9th Cir. R. 36-3.
The Honorable Richard Mills, Senior United States District Judge for the**
Central District of Illinois, sitting by designation.
NOT FOR PUBLICATION
UNITED STATES COURT OF APPEALS
FOR THE NINTH CIRCUIT
BALWINDER SINGH,
Petitioner,
v.
ERIC H. HOLDER, Jr., Attorney General,
Respondent.
No. 08-70546
Agency No. A077-421-841
MEMORANDUM*
On Petition for Review of an Order of the
Board of Immigration Appeals
Argued and Submitted September 2, 2011
San Francisco, California
Before: FISHER and RAWLINSON, Circuit Judges, and MILLS, District Judge.**
Balwinder Singh petitions for review of the Board of Immigration Appeals’
(BIA) decision denying him asylum, withholding of removal, adjustment of status
and Convention Against Torture (CAT) relief on the basis that he provided
material support to the Khalistan Commando Force (KCF). We deny his petition.
FILED
JUL 03 2012
MOLLY C. DWYER, CLERK
U .S. C OU R T OF APPE ALS

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1. The BIA did not err by denying Singh asylum and withholding of
removal based on the material support bar. See 8 U.S.C. § 1182(a)(3)(B)(iv)(VI).
First, relying on Cheema v. Ashcroft, 383 F.3d 848 (9th Cir. 2004), Singh argues
that he is eligible for relief unless, in addition to showing terrorist activity, the
government shows that there are “reasonable grounds to believe that [he] is a
danger to the security of the United States.” Id. at 855. This aspect of Cheema
was overruled by subsequent amendment to the Immigration and Nationality Act
(INA). See Bellout v. Ashcroft, 363 F.3d 975, 978 (9th Cir. 2004). Under the
current version of the INA, terrorist activity alone is a sufficient basis for denying
relief. See id. at 979 (citing 8 U.S.C. § 1158(b)(2)(A)(iv)-(v)).
Second, remand is not warranted because the immigration judge (IJ) stated
that Singh “engaged in terrorist activities within the meaning of [8 U.S.C.
§ 1182](a)(3)(B)(iv)(VI)(cc),” a provision that involves designated terrorist
organizations. The parties agree that the KCF is not a designated terrorist
organization, but is a terrorist organization under § 1182(a)(3)(B)(vi)(III).
However, “we review only the BIA’s decision, except to the extent that it expressly
adopts the IJ’s opinion.” Cordon-Garcia v. INS, 204 F.3d 985, 993 (9th Cir.
2000). The BIA’s analysis correctly recognized that the KCF was a terrorist
organization under § 1182(a)(3)(B)(vi)(III).

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Third, the BIA had substantial evidence to conclude that Singh materially
supported a terrorist organization. He concedes that the KCF is a terrorist
organization. He testified that he provided meals and shelter for KCF members on
multiple occasions, and allowed one of his employees to hide a gun on behalf of a
KCF member. See 8 U.S.C. § 1182(a)(3)(B)(iv)(VI) (including a “safe house,”
“communications” and “weapons” as examples of material support).
2. The BIA did not exceed its authority by failing to address Singh’s
motion for adjustment of status or, in the alternative, by rejecting his motion for
adjustment of status. The BIA expressly rejected Singh’s motion for adjustment of
status because he provided material support to a terrorist organization, and it did
not err in doing so. An individual who provides material support to a terrorist
organization is inadmissible, see 8. U.S.C. § 1182(a)(3)(B)(i), and is therefore
ineligible for adjustment of status, see id. § 1255(a); see also An Na Peng v.
Holder, 673 F.3d 1248, 1258 (9th Cir. 2012).
3. Singh argues that this case should be remanded for the BIA to
consider whether he is entitled to a waiver under 8 U.S.C. § 1182(d)(3)(B)(i)
because he assisted the KCF under duress. The waiver provision, however, gives
“[t]he Secretary of State, after consultation with the Attorney General and the
Secretary of Homeland Security, or the Secretary of Homeland Security, after

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The Secretary of Homeland Security, after appropriate consultations, has1
created a mechanism for U.S. Citizenship and Immigration Services (USCIS), in
consultation with U.S. Immigration and Customs Enforcement, to waive
applicability of the duress exception to aliens who assisted Tier III terrorist
organizations under duress. See Exercise of Authority Under Sec. 212(d)(3)(B)(i)
of the Immigration and Nationality Act, 72 Fed. Reg. 9958-01 (Mar. 6, 2007).
While this petition was pending, USCIS issued Singh a notice of determination
informing him that he was not eligible for a waiver.
For the reasons stated in the concurrently filed opinion in Annachamy v.2
Holder, No. 07-70336, the material support bar contains no implicit exception for
individuals who provide material support under duress.
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consultation with the Secretary of State and the Attorney General” the “sole
unreviewable discretion” to grant waivers. See id. The BIA has no authority to
grant a waiver under § 1182(d)(3)(B)(I).1,2
4. Finally, Singh’s argument that the BIA erred by denying his request
for CAT deferral is moot, as Singh conceded at oral argument, because he
requested deportation and has since returned to India.
DENIED.

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