BY BENNETT BLACHAR- Dzhokhar and Tamerlan Tsarnaev’s horrific acts at the 2013 Boston Marathon deserve no introduction or citations.
Three days later, on the run, they hijacked a Mercedes SUV owned by a Chinese immigrant and entrepreneur known only as “Danny.” Danny facilitated the end of the Tsarnaev manhunt. He escaped their wrath, sprinted across the street, and summoned the police.
Danny doesn’t want to be a hero. Neither his picture nor full name appears on the Internet.
His desire to stay out of the limelight and move past that dark night can surely be understood. But presuming that Danny is not a United States Citizen, there are concrete repercussions deterring him from pursuing notoriety.
According to the Immigration and Nationality Act (INA), Danny is guilty of providing “material support” to the Tsarnaev brothers. INA Section 212 (a)(3)(B)(iv)(VI)(bb) bars him from obtaining lawful status in the United States. He afforded material support “to [individuals] who [he knew], or reasonably should [have known], committed or plan[ned] to commit a terrorist activity.”
To strike him with fear, Tamerlan told Danny that he was the Boston bomber. And in adherence to INA Section 212 (a)(3)(B)(iv)(VI), affording “material support” includes, among other things, affording transportation and funds to terrorists.
There is no precedential duress exception that gives Danny recourse here.
In Benitez v. U.S. Atty. Gen., 543 F. App’x 913, 915-16 (11th Cir. 2013), Henry (Bravo) Benitez was a supervisory airplane dispatcher in Colombia. Under threat of death by the FARC terrorist group, he “dispatched eight to ten flights for FARC members.” Bravo attempted to flee persecution and seek asylum in the United States. He was ineligible to obtain lawful status. The court ruled simply that “[t]he plain language of the material support bar lists ‘transportation’ as an example of material support, and Bravo provided the FARC with air transportation.”
Benitez cited cases from the 4th, 9th, and 11th Circuit Courts of Appeals to state that it was unnecessary to read a duress exception into the statute. It would be superfluous, Benitez ruled, because the Secretary of State and Secretary of Homeland Security have “sole unreviewable discretion” to waive the bar in certain instances. Benitez relied on Alturo v. U.S. Atty. Gen., 716 F.3d 1310, 1314 (11th Cir. 2013) for the proposition that “[i]t is up to Congress, not the courts, to correct any perceived inequity.”
Ay v. Holder, 743 F.3d 317, 320-21 (2d Cir. 2014) is making light of this faulty decision-making. Duress fueled Ramazan Ay into “materially supporting” Kurdish terrorist groups. The 2nd Circuit Court of Appeals remanded his case to the Board of Immigration Appeals (BIA) “for its careful consideration of whether the statute should be construed to contain a ‘duress exception’ to the material support bar.” In doing so, the court stated that:
“The possible availability of a discretionary waiver [INA Section 212(d)(3)(B)(i)] does little to enlighten us as to the reasoning behind [DHS’s] apparent view that the statute does not implicitly contain an exception to the bar for those who credibly testify that they provided minimal material support, and did so only under duress.”
Further, at Mr. Ay’s oral argument, “the Government was unable to identify any published process for seeking such a waiver . . . In operation, the relief that [the] waiver offers appears to be limited.”
If courts are indeed too preoccupied to “correct any perceived inequities,” they still do not have green lights to further perceived inequities. The presence of a murky discretionary waiver, available only after a full adjudication of an applicant’s claim, does not justify reading the material support bar with extreme rigidness.
Perhaps Danny will show his face if the Ay decision comes back favorably.
PHOTO SOURCE: The Telegraph