‘Duress Exception’ May Net Turkish Man Asylum

(CN) - A man who gave food and clothing to armed Kurdish terrorists may be eligible for U.S. asylum under a "duress exception" to the admissibility bar, the 2nd Circuit ruled.

Immigration officials ruled Ramazan Ay, a Kurdish ethnic and Turkish citizen, ineligible for asylum after finding that he provided "material support" to Kurdish terrorists.

At Ay's removal hearing an immigration judge determined Ay gave food and clothing, at least four times, to armed men he had reason to believe were Kurdish terrorists, possibly members of the Kurdistan Workers' Party.

For decades the party, also known as the PKK, waged war against the Turkish government, seeking to create an independent nation of Kurdistan, and more rights for Kurds in Turkey.

Marking the end of the 30-year conflict, however, talks between PKK's jailed leader Abdullah Ocalan and the Turkish government led to a cease-fire in 2013, and the PKK announced it was withdrawing its troops to Northern Iraq.

Ay apparently has no connection to the PKK, other than having given its members food and clothes. That was enough for the immigration judge to find he had supported them and rule him ineligible for asylum.

After the Board of Immigration Appeals affirmed the judge's decision Ay appealed to the 2nd Circuit in Manhattan.

A three-judge panel with that federal appeals court remanded the case Thursday, directing the Board of Immigration Appeals to "address in a precedential decision" whether the Immigration and Nationality Act should be interpreted to include a duress exception to those found guilty of supporting terrorists.

The panel pointed to a 2009 case, Negusie v. Holder, in the U.S. Supreme Court overturned the government's refusal to grant an Eritrean immigrant asylum after finding that he had persecuted others in his homeland.

In remanding the case the high court honed in on the uncertainty created by Congress' silence on a possible exception for those who involuntarily persecuted others.

The 2nd Circuit noted that "Ay's case presents very similar circumstances."

"Like the provision addressed in Negusie, the plain language of the material support bar is inconclusive as to whether a duress exception is implicit in its terms; the statute is silent on the question," the unsigned opinion states. "In addition, here, as in Negusie, the BIA's decision provides no analysis of the statutory question; rather, it appears to presume that there is no duress exception."

During Ay's removal hearing the government argued that concerns about a duress exception are unfounded because the secretary of State or Department of Homeland Security can grant exemptions to the admissibility bar, also known as the material support bar.

"However, the government was unable to identify any published process for seeking such a waiver," the 12-page opinion states.

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