Lutfi Ghousheh v. Jefferson Sessions

NOT FOR PUBLICATION FILED UNITED STATES COURT OF APPEALS APR 13 2018 MOLLY C. DWYER, CLERK U.S. COURT OF APPEALS FOR THE NINTH CIRCUIT LUTFI GHOUSHEH, No. 15-73386 Petitioner, Agency No. A070-064-547 v. MEMORANDUM* JEFFERSON B. SESSIONS III, Attorney General, Respondent. On Petition for Review of an Order of the Board of Immigration Appeals Argued and Submitted March 14, 2018 Submission Deferred March 15, 2018 Resubmitted April 13, 2018 San Francisco, California Before: WATFORD and FRIEDLAND, Circuit Judges, and RAKOFF,** Senior District Judge. Petitioner Lutfi Ghousheh challenges the Board of Immigration Appeals’ (“BIA”) determination that Ghousheh is subject to the “terrorism bar” and is thus * This disposition is not appropriate for publication and is not precedent except as provided by Ninth Circuit Rule 36-3. ** The Honorable Jed S. Rakoff, Senior United States District Judge for the Southern District of New York, sitting by designation. ineligible for cancellation of removal. We grant his petition and remand his case to the agency for further proceedings. An alien who “has received military-type training . . . from or on behalf of any organization that, at the time the training was received, was a terrorist organization” is barred from, among other forms of relief, cancellation of removal. 8 U.S.C. § 1182(a)(3)(B)(i)(VIII); see id. § 1229b(c)(4). As relevant here, “terrorist organization” means “a group of two or more individuals, whether organized or not, which engages in, or has a subgroup which engages in” terrorist activities. Id. § 1182(a)(3)(B)(vi)(III). It is uncontested that, if not for this terrorism bar, Ghousheh would be eligible for, and entitled to, cancellation of removal. In 1982, Ghousheh received three days of military training from the Palestinian Liberation Army in Lebanon (“PLA in Lebanon”). The Immigration Judge (“IJ”) found that, at the time, the PLA in Lebanon was a subgroup of the Palestinian Liberation Organization (“PLO”) and that the PLO was a terrorist organization. The BIA saw no clear error in these findings, and substantial evidence supports both.1 1 As to the former finding, record evidence indicates that in 1982 countries such as Jordan, Iraq, Syria, and Egypt had PLA brigades attached to, and taking orders from, their respective militaries. The same evidence, however, indicates that Lebanon did not. Ghousheh testified that, instead, the PLA in Lebanon was taking at least some of its orders from the PLO. 2 Based on these findings, the BIA concluded that the terrorism bar applied, reasoning that “the PLA [in Lebanon], as part of the PLO, thus was also a terrorist organization,” and so Ghousheh had “received military-type training from a terrorist organization.” This reasoning conflicts with the plain terms of the statute.2 Again, as relevant here the term “terrorist organization” means “a group of two or more individuals, whether organized or not,” which either (1) “engages in” terrorist activities itself, or (2) “has a subgroup which engages” in terrorist activities. Id. § 1182(a)(3)(B)(vi)(III). Although the PLA in Lebanon was clearly “a group of two or more individuals,” nothing in the record suggests ...

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