                                                      NOT PRECEDENTIAL


                  UNITED STATES COURT OF APPEALS
                       FOR THE THIRD CIRCUIT
                         ___________________

                          Nos. 12-2839 & 13-1446
                          ___________________

                              LAILA RAJABI,
                                          Petitioner

                                      v.

         ATTORNEY GENERAL UNITED STATES OF AMERICA,
                                                 Respondent

                           ___________________

        On Petition for Review from the Board of Immigration Appeals
                          BIA-1 No. A074-761-909
            Immigration Judge: The Honorable Robert P. Owens

              Submitted Pursuant to Third Circuit L.A.R. 34.1(a)
                              January 6, 2014

          Before: SMITH, SHWARTZ, and SCIRICA, Circuit Judges

                          (Filed: February 3, 2014)

                           ___________________

                                OPINION
                           ___________________

SMITH, Circuit Judge.

                                      1
                                           I.

      Laila Rajabi petitions for review of a June 15, 2012 order of the Board of

Immigration Appeals (C.A. No. 12-2839) affirming the denial of her application

for asylum and withholding of removal under the Immigration and Nationality Act

(INA), and withholding of removal under the United Nations Convention Against

Torture (CAT).1 See 8 U.S.C. §§ 1158(a), 1231(b)(3); 8 C.F.R. §§ 1208.16(c),

1208.17(a). She also petitions for review of the Board‟s February 4, 2013 order

denying her motion to reopen her removal proceedings (C.A. No. 13-1446). These

petitions have been consolidated for our review.2 For the reasons set forth below,

both will be denied.

                                          II.

      Rajabi, a native and citizen of Iran, entered the United States in 1996

without proper documentation and was immediately placed in removal

proceedings. She promptly filed an application for asylum and withholding of


1
       The BIA‟s June 15, 2012 order addressed only Rajabi‟s application for deferral of
removal under the CAT. Yet the order incorporated by reference a June 25, 2009
interlocutory decision denying Rajabi‟s applications for asylum and withholding of
removal under the INA. Thus, the BIA‟s June 15, 2012 order constituted a final order of
removal, bringing this matter within our appellate jurisdiction. See 8 U.S.C. § 1252(a).
2
       The BIA had jurisdiction over Rajabi‟s motion to reopen pursuant to 8 C.F.R. §
1003.2. This Court has jurisdiction to review final orders of the Board, including the
denial of a motion to reopen, pursuant to 8 U.S.C. § 1252(a)(1).

                                           2
deportation under the INA, which was denied by an immigration judge (“IJ”) on

July 7, 2000.3 Rajabi appealed to the BIA, who remanded the case to the IJ in

2003, and again in 2005, because tapes were missing from the record. As a result

of these decisions, Rajabi‟s case was heard de novo before a different IJ in 2007.

      In 2007, Rajabi once again applied for asylum and withholding of removal

under the INA, and also for protection under the CAT.4 Rajabi‟s application stated

that, beginning in 1995, she was a “student member and a recruiter” for

Mojahedin-e Khalq (“MEK”), an organization she claimed was purposed on

“replac[ing] the current regime in Iran with a democratic government” and

“promot[ing] social welfare.”5 Rajabi asserted that because of her MEK


3
        During the pendency of her removal proceedings, Rajabi met and married her
husband, a United States citizen from Iran. Rajabi‟s husband filed a petition for an
adjustment of her status in 1998, and the first IJ to hear her case administratively closed
the proceedings pending the outcome of that petition, which was denied on the merits in
1999. This explains the three year gap between the date Rajabi first applied for asylum
and the IJ‟s denial of her application in 2000.
4
        Relief under the CAT was not available at the time Rajabi filed her first
applications for asylum and withholding of removal in 1997.
5
        Formed in the early 1960s, MEK‟s origins reflect both Marxist and Islamic
influences. U.S. Dep‟t of State, Iran; Country Reports on Terrorism, 2005. In its early
days, MEK collaborated with Ayatollah Khomeini in his effort to overthrow the former
Shah of Iran. Throughout the 1970s and 1980s, the organization participated in a series of
terrorist attacks against the interests of the United States. In view of these actions, the
U.S. Department of State added MEK to its list of designated Foreign Terrorist
Organizations in October 1997. That designation, however, was removed in September
2012, in light of “MEK‟s public renunciation of violence, the absence of confirmed acts
of terrorism by the MEK for more than a decade, and their cooperation in the peaceful
closure of Camp Ashraf, their historic paramilitary base.” Supp. A.R. at 19, Media Note,

                                            3
membership she feared being “imprisoned . . . , tortured, raped, and possibly

killed” if she returned to Iran. Rajabi claimed that her sister—who was the leader

of several MEK cells and involved with a “small military wing” of the

organization—was arrested by Iranian police at their parents‟ home in May 1996.

Rajabi alleged that the authorities searched for her as well, and as a result, she has

not returned home since the date of her sister‟s arrest.

      Despite the detailed description in her application, Rajabi minimalized her

involvement with MEK during her hearing before the IJ. She testified that she was

not actually a member of MEK, explaining that at the time she filed her application

she was unaware that the group required that an individual be involved for several

years before it would grant membership. Further, Rajabi claimed that she

participated in MEK for only about six months, during which time she merely

distributed pamphlets and assisted several families displaced by the war between

Iraq and Iran. Rajabi also testified that she did not know that MEK engaged in

violence until after she came to the United States.

      The IJ denied Rajabi‟s application for asylum and withholding of removal in

an order dated October 5, 2007. As an initial matter, the IJ found that Rajabi‟s

testimony was not credible, especially as to the “most crucial parts” related to her


U.S. Dep‟t of State, Delisting of the Mujahedin-e Khalq (Sept. 28, 2012).

                                            4
knowledge of MEK and the extent of her involvement with the organization. He

noted that Rajabi‟s application “disclosed a more intimate knowledge of the way

MEK worked and its political objectives and militant capacities” than she

professed in her oral testimony. He also disbelieved her assertion that she did not

know about MEK‟s violent activities, particularly considering her sister‟s

leadership role and Rajabi‟s mention in her application of the organization‟s

military branch.

      The IJ additionally concluded that Rajabi was statutorily ineligible for

asylum, withholding of removal, and CAT relief because, by distributing literature

and recruiting individuals to join MEK, Rajabi had provided material support to a

Tier III terrorist organization. See 8 U.S.C. §§ 1182(a)(3)(B)(iv)(VI)(dd), (vi)(III).

In determining that MEK was a Tier III terrorist organization, the IJ noted that the

organization‟s history is marked by anti-Western activity. Indeed, during the

1970s, MEK‟s members staged terrorist attacks inside Iran, assassinated at least six

American citizens, supported the takeover of the U.S. Embassy, and opposed the

release of American hostages. See People’s Mojahedin Org. of Iran v. U.S. Dep’t

of State, 182 F.3d 17, 20 (D.C. Cir. 1999) (quoting CIA Intelligence Research

Paper dated July 1993). In light of these actions, the U.S. State Department

designated MEK as a Tier I terrorist organization in 1997, just months after Rajabi

                                          5
arrived in the United States. See 8 U.S.C. §§ 1182(a)(3)(B)(vi)(I), 1189. Although

MEK was not listed as a Tier I terrorist organization while Rajabi was offering her

support, the IJ concluded that, given the organization‟s nefarious past, it was most

certainly a Tier III terrorist organization before its official designation.

      Despite concluding that Rajabi was statutorily ineligible for withholding of

removal under the CAT for engaging in terrorist activities, the IJ nonetheless

granted her deferral of removal under 8 C.F.R. § 1208.17(a).6 The IJ reasoned that

because Rajabi would be required to submit her deportation order to Iranian

authorities, the authorities would be notified about her previous MEK involvement.

He thus found that “it is more likely than not that upon her arrival [in Iran],

[Rajabi] will be detained and subjected to torture by the Iranian government.”

      The Department of Homeland Security and Rajabi both appealed to the BIA.

The Board affirmed the IJ‟s adverse credibility determination and his finding that

Rajabi was statutorily barred from asylum and withholding of removal as an alien

who participated in terrorist activities. The BIA, however, vacated the IJ‟s decision

to grant deferral of removal under the CAT because the IJ‟s order was “unclear as


6
       The IJ purported to grant Rajabi CAT protection under 8 C.F.R. § 1208.16(a). This
regulation, however, provides for withholding of removal, a form of relief that is not
available to aliens who have provided material support to a terrorist organization. The
BIA, therefore, appropriately understood the immigration judge to have intended to grant
deferral of removal under 8 C.F.R. § 1208.17(a).

                                            6
to what evidence supports the finding of a clear probability of torture and whether

each „link‟ in the chain of events leading to her torture was demonstrated to be

more likely than not.”

      On remand, the IJ determined that Rajabi failed to establish that she was

entitled to deferral of removal under the CAT, in part because she did not provide

sufficient testimony or other evidence to prove that it was more likely than not that

the Iranian government would identify her as a political opponent. On June 15,

2012, the BIA affirmed the IJ‟s decision and dismissed her appeal. Rajabi timely

petitioned this Court for review.

      While her petition for review was pending, Rajabi filed a motion to reopen

her removal proceedings based on the fact that the Secretary of State had

decertified MEK as a Tier I terrorist organization on September 28, 2012. The BIA

denied the motion to reopen on February 4, 2013. The Board stated that the official

designation as a terrorist organization does not determine Rajabi‟s removability,

particularly where her removal was based on a finding that MEK was a Tier III

terrorist organization at the time of Rajabi‟s participation. Further, the BIA noted

that Rajabi‟s previous applications for relief were denied on the independent

ground that her testimony lacked credibility. Rajabi timely petitioned for review of

the denial of her motion to reopen. The two petitions have been consolidated for

                                         7
our review.

                                         III.

      We “review the administrative record on which the final removal order is

based.” Li Hua Yuan v. Att’y Gen. of the U.S., 642 F.3d 420, 425 (3d Cir. 2011).

Where the BIA‟s decision affirms and specifically references the IJ‟s decision, our

review includes the referenced portions of the IJ‟s decision. Id. “Our review of

factual findings, including findings [related to] persecution and fear of persecution,

is for substantial evidence, which means we must uphold findings of fact unless the

record evidence compels a contrary finding.” Id. (citing Sandie v. Att’y Gen. of the

U.S., 562 F.3d 246, 250 (3d Cir. 2009)). We review legal conclusions de novo. Id.

      Rajabi‟s primary contention, with respect to both her motion to reopen and

her application for asylum and withholding of removal, is that the Secretary of

State‟s September 2012 decision to delist MEK as a Tier I terrorist organization

somehow commands a different outcome in her removal proceedings. While the

decision to remove MEK from the list of Tier I terrorist organizations may reflect

the United States‟ current perception of the organization, we fail to see how this

has any bearing on whether MEK was a terrorist organization at the time of

Rajabi‟s involvement.

      Under our immigration laws, an alien is inadmissible and ineligible for

                                          8
asylum, withholding of removal, or CAT relief if she “has engaged in a terrorist

activity,” 8 U.S.C. § 1182(a)(3)(B)(i)(I), which includes committing “an act that

the actor knows, or reasonably should know, affords material support” to a terrorist

organization. Id. § 1182(a)(3)(B)(iv)(VI)(cc), (dd); see also id. § 1158(b)(2)(A)(v);

8 C.F.R. § 1208.16(d)(2). The INA defines a “terrorist organization” as a group so

designated by the Secretary of State (a “Tier I” organization), 8 U.S.C. §

1182(a)(3)(B)(vi)(I), or as an undesignated group that “engages in, or has a

subgroup which engages in,” terrorist activity (a “Tier III” organization). Id. §

1182(a)(3)(B)(vi)(III).7 To be sure, providing material support to a terrorist

organization—whether Tier I or Tier III—precludes an alien from obtaining

protection under our immigration laws.

      Although MEK was not designated as a Tier I terrorist organization until

1997 (just after Rajabi arrived in the United States), the IJ concluded that, given its

history of violent anti-Western conduct throughout the 1970s and into the 1990s,

MEK was nonetheless a Tier III organization at the time Rajabi provided material

7
        For our purposes, there is only one distinguishing feature between Tier I and Tier
III organizations: for undesignated Tier III organizations, the material support bar does
not apply if the alien “can demonstrate by clear and convincing evidence that [she] did
not know, and should not reasonably have known, that the organization was a terrorist
organization.” 8 U.S.C. § 1182(a)(3)(B)(iv)(VI)(dd). The IJ concluded that, given MEK‟s
long history as an organization and her sister‟s leadership role, Rajabi could not
demonstrate that she should not reasonably have known that MEK was involved in
terrorist activities. Rajabi does not challenge this finding in her petition for review.

                                            9
support in 1995.8 Rajabi, however, contends that she should not be disqualified

based on her past support of MEK. She argues that the statutory definition for a

Tier III terrorist organization uses present tense language, and thus the material

support bar should not apply where the supported organization is no longer

actively engaged in terrorist conduct.

      Rajabi‟s position finds no support in either the plain language of the statute

or the statutory context. Importantly, the operative provision of the statute that

directly addresses an alien‟s eligibility for relief is plainly phrased in the past tense,

stating that an alien is inadmissible if she “has engaged in a terrorist activity.” 8

U.S.C. § 1182(a)(3)(B)(i)(I). This language is clearly directed both at past conduct

and ongoing behavior. Our reading is bolstered by the fact that the PATRIOT

Act—which amended the INA to add restrictions for aliens who previously

engaged in terrorist activities—includes a retroactivity provision that states that the

law applies to all “actions taken by an alien before, on, or after [the date of

enactment].” USA PATRIOT Act of 2001, Pub. L. No. 107-56, Title IV, §§

411(c)(1)(A), 115 Stat. 272, 348. Indeed, the authorization of retroactive

application would have no function if not to reach past conduct.

      The use of the present tense in the definition of a Tier III organization does
8
        Rajabi has not challenged the IJ‟s conclusion that distributing literature and
recruiting members constitutes “material support.” See 8 U.S.C. § 1182(a)(3)(B)(iv)(V).

                                           10
not alter our conclusion. Indeed, that definition includes any “group of two or more

individuals . . . which engages in [terrorist activity].” 8 U.S.C. § 1182(a)(3)(B)(iv)

(emphasis added). But here, the term “engages in” refers to the conduct of the

organization, not the individual alien‟s actions. It describes the acts the

organization must have undertaken at the time the support was given in order for

the alien to be deemed inadmissible. There is no basis for concluding this language

was intended to restrict the application of the INA‟s disqualification provisions to

aliens actively engaged in ongoing terrorist activities.

      Furthermore, our sister circuits that have considered the issue agree that an

alien‟s past support to an organization that qualified as a “terrorist organization” at

the time the support was rendered precludes that individual from relief under our

immigration laws. See, e.g., Alturo v. U.S. Att’y Gen., 716 F.3d 1310, 1313 (11th

Cir. 2013) (“[T]he fact that the AUC was demobilized in 2006 does not render the

material support bar inapplicable. When Alturo made those payments, the AUC

was active and designated as a Foreign Terrorist Organization . . . .”); Khan v.

Holder, 584 F.3d 773, 777 (9th Cir. 2009) (“[I]f an alien „has engaged in a terrorist

activity‟ under § 1182(a)(3)(B)(iv) at any time, he is ineligible for both asylum and

withholding of removal. It does not matter that the alien ceased participation in

terrorist activity at some point before seeking admission to or relief in the United

                                          11
States.”). Rajabi has not identified any case that holds to the contrary.

      For these reasons, we cannot accept Rajabi‟s argument that the State

Department‟s decision to delist MEK as a terrorist organization compels a different

outcome in her quest for asylum, withholding of removal, or CAT relief. The IJ

appropriately determined that MEK was a Tier III terrorist organization at the time

of Rajabi‟s involvement in 1995. Also, the IJ did not err when he concluded that,

by providing material support to MEK at that time, Rajabi is ineligible for

protection under United States immigration laws. Rajabi‟s consolidated petitions

for review will be denied.




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