16‐2323‐ag Hernandez v. Sessions United States Court of Appeals for the Second Circuit AUGUST TERM 2017 No. 16‐2323‐ag MARLENY HERNANDEZ, Petitioner, v. JEFFERSON B. SESSIONS III, United States Attorney General, Respondent. ARGUED: NOVEMBER 30, 2017 DECIDED: FEBRUARY 28, 2018 Before: JACOBS, RAGGI, and DRONEY, Circuit Judges. 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), ll82(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. Appʹx 12, 15 (2d Cir. 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. GREGORY SILBERT (with Kevin Meade and Melanie Conroy on the brief), Weil, Gotshal & Manges LLP, New York, NY and Boston, MA; Anne Pilsbury and Heather Yvonne Axford, Central American Legal Assistance, Brooklyn, NY, for Petitioner. JEFFREY L. MENKIN, Senior Counsel for National Security, Office of Immigration Litigation (with Chad A. Readler, Acting Assistant Attorney General, and Ethan B. Kanter, Deputy Chief, on the brief), United States Department of Justice, Washington, D.C., for Respondent. 2 DENNIS JACOBS, Circuit Judge: Petitioner Marleny Hernandez, a native and citizen of Colombia, seeks review of a June 9, 2016 published decision of the Board of Immigration Appeals (“BIA”) finding her ineligible for asylum on the ground that she provided “material support” to a terrorist organization, notwithstanding that she acted under duress. See Matter of M‐H‐Z‐, 26 I. & N. Dec. 757 (B.I.A. 2016). The Immigration and Nationality Act (“INA”) deems ineligible for asylum any alien who has “engaged in a terrorist activity.” 8 U.S.C. §§ 1158(b)(2)(A)(v), 1182(a)(3)(B)(i)(I). In a provision known as the “material support bar,” the INA defines “[e]ngag[ing] in [a] terrorist activity” to ...
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