FOR PUBLICATION UNITED STATES COURT OF APPEALS FOR THE NINTH CIRCUIT SUNIL RAYAMAJHI, No. 16-70534 Petitioner, Agency No. v. A099-912-460 MATTHEW G. WHITAKER, Acting Attorney General, OPINION Respondent. On Petition for Review of an Order of the Board of Immigration Appeals Argued and Submitted November 15, 2018 San Francisco, California Filed January 15, 2019 Before: Susan P. Graber, Stephanie Dawn Thacker,* and Mark J. Bennett, Circuit Judges. Opinion by Judge Graber; Concurrence by Judge Bennett * The Honorable Stephanie Dawn Thacker, Circuit Judge for the United States Court of Appeals for the Fourth Circuit, sitting by designation. 2 RAYAMAJHI V. WHITAKER SUMMARY** Immigration The panel dismissed in part and denied in part a petition for review of Board of Immigration Appeals’ denial of asylum and withholding of removal to a citizen of Nepal under the material support terrorist bar. The panel held that petitioner’s argument for a duress exception to the material support bar is foreclosed by Annachamy v. Holder, 733 F.3d 254 (9th Cir. 2013), overruled in part on other grounds by Abdisalan v. Holder, 774 F.3d 517 (9th Cir. 2015) (en banc), and therefore does not constitute a colorable legal or constitutional question providing jurisdiction over the otherwise unreviewable material support determination. The panel held that there is no de minimis funds exception to the material support bar. The panel explained that the plain text of the statute, 8 U.S.C. § 1182(a)(3)(B)(iv)(VI), states that funds knowingly given to a terrorist organization are material support, regardless of the amount given. The panel further held that even if the statute is ambiguous on this point, the Board’s interpretation in In re A-C-M-, 27 I. & N. Dec. 303 (B.I.A. 2018), that there is no de minimis exception, was based on a permissible construction of the statute, and therefore is entitled to Chevron deference. ** This summary constitutes no part of the opinion of the court. It has been prepared by court staff for the convenience of the reader. RAYAMAJHI V. WHITAKER 3 The panel held that because petitioner admitted that he gave about $50 to someone whom he knew was a member of the Maoists, a designated terrorist organization at that time, substantial evidence supported the Board’s determination that he gave material support to a terrorist organization, rendering him ineligible for asylum and withholding of removal. Concurring in part and concurring in the judgment, Judge Bennett disagreed with the majority that the plain text of the statute unambiguously excludes de minimis funds from the definition of material support, but agreed with the majority that the Board’s interpretation of the statute in In re A-C-M- was permissible, and therefore entitled to Chevron deference. COUNSEL George T. Heridis (argued), Law Offices of Gill & Heridis, San Jose, California, for Petitioner-Appellant. Daniel I. Smulow (argued), Senior Counsel for National Security; Christopher C. Fuller, Deputy Chief, National Security Unit; Office of Immigration Litigation, Civil Division, United States Department of Justice, Washington, D.C.; for Respondent-Appellee. 4 RAYAMAJHI V. WHITAKER OPINION GRABER, Circuit Judge: Petitioner Sunil ...
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