Immigration Law

Immigration Court: BNP Not a Terrorist Organization

Matter of X-, July 7, 2015, Immigration Judge Dorothy Harbeck, Elizabeth, NJ Immigration Court

"Respondent is seeking asylum on account of his political opinion, as a member of the Bangladesh Nationalist Party ("BNP"). On March 2, 2015, DHS submitted a legal memorandum and evidence, claiming that Respondent is mandatorily barred from asylum, as having "engaged in terrorist activity" based on his membership in the BNP, which DHS alleges is a terrorist organization.

... In arguing that the BNP is a terrorist organization, DHS presents two alternative theories: One, that the BNP is a terrorist organization due to its current and past ties to terrorist organizations, and two, that the BNP is a terrorist organization on its own merits due to its member's having been involved in violence. ... The Court carefully and thoroughly considered these arguments, the evidence in the record and relevant case law, and rejects both for the reasons that follow.

... As a preliminary matter, the Court notes that DHS's claim that the BNP is a terrorist organization appears to be a novel one, and that no BlA or circuit court decision published up to date has considered the question.

... The finding that the BNP is not a terrorist organization is also supported by a review of comparable case law, as the BNP is notably distinct from a number of other groups found by other courts to be terrorist organizations.

... Further, the record does not include any statement from an American governmental body suggesting that the BNP is a terrorist organization.

... While the Court is concerned by the escalating violence attributed to BNP members, it is not convinced that the evidence proves that this political party has evolved into a terrorist organization. Declining to designate this group as a terrorist organization best comports with logic and with existing case law. Thus, given the paucity of the evidence connecting the BNP leadership to terrorism, as well as this case's clear distinctions from the vast majority of cases on the subject, the Court finds that the record does not establish that the BNP is a Tier III terrorist organization pursuant to INA § 212(a)(3)(B)(vi)(III).  Accordingly, Respondent is not subject to the mandatory bar to asylum in INA § 208(b)(2)(A)(v).

... Even if the BNP were a Tier III terrorist organization, Respondent has met his burden of establishing by clear and convincing evidence that he did not know and should not have reasonably known that the BNP was a terrorist organization."

[Hats off to Ashok K. Karmaker!]