practice advisory 1 the bangladesh national party … · practice advisory 1 the bangladesh...

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14 Beacon Street Suite 602 Boston, MA 02108 Tel. (617) 227-9727 Fax (617) 227-5495

PRACTICE ADVISORY1

The Bangladesh National Party is Not a Tier III Terrorist Organization:

Sample Brief2

August 24, 2015

I. Introduction

The Department of Homeland Security (“DHS”) recently has adopted the position that the

Bangladesh National Party (“BNP”), the second largest political party in Bangladesh, is an

undesignated ‘Tier III’ terrorist organization. In general, DHS argues that members of the BNP

are ineligible for asylum or withholding of removal due to alleged engagement in terrorist

activities. Similarly, DHS regularly denies bond to Bangladeshi BNP members and, in bond

proceedings, argues that immigration judges do not have jurisdiction to redetermine custody

status. Contrary to DHS’ assertions, the BNP is not a Tier III terrorist organization and therefore

membership in the BNP does not constitute engaging in terrorist activities.

DHS’s position on this issue is highly problematic. First, DHS is misapplying the terrorism bars

under INA § 212(a)(3)(B) by relying on vague legal arguments which confuses the broad term

“affiliation” with recruitment, solicitation of funds and material support. Second, due to the

recent crackdowns against the BNP by the current Bangladeshi government, which includes

extra-judicial arrests and killings, BNP members are particularly vulnerable to persecution and

may be in dire need of asylum.

This practice advisory is intended to inform advocates of DHS’ recent position regarding the

BNP which is based on review of DHS briefings shared with the authoring organizations. The

sample brief is intended to exemplify how one might respond to DHS’ position by providing

needed context on the various political factions in Bangladesh and explaining why the BNP does

not meet the statutory definition of a Tier III terrorist organization.

1 Copyright (c) 2015, National Immigration Project of the National Lawyers Guild. This

advisory is intended for lawyers and is not a substitute for independent legal advice provided by

a lawyer familiar with a client’s case. 2 This advisory and the attached sample brief were authored by Khaled Alrabe while he

was a Law Fellow at the National Immigration Project, with the help of Trina Realmuto at the

Project and Ahilan Arulanantham at the ACLU of Southern California.

2

II. DHS’ Position

DHS argues that the BNP is a Tier III terrorist organization as defined in § 212(a)(3)(B)(vi) of

the Immigration and Nationality Act (INA).3 This claim is based on DHS’ allegations that the

BNP engages in terrorist activity – specifically, activities defined in INA §

212(a)(3)(B)(iii)(V)(b)4 – through its own activities as well as the activities of its alleged

affiliates.

More specifically, DHS claims that BNP members provide “material support” to this Tier III

terrorist organization through their membership.5 Consequently, DHS claims that all BNP

members are ineligible for asylum,6 and/or ineligible for withholding of removal.

7 DHS also

argues that immigration judges do not have jurisdiction to redetermine the custody status of BNP

members because they have engaged in terrorist activities.8

Underlying all of DHS’ arguments is the mistaken premise that the BNP is a Tier III terrorist

organization. As explained below and in the attached brief, DHS is wrong.

III. Sample Brief and Additional Attachments

The attached sample brief provides a factual background about the political landscape in

Bangladesh and an overview of one paramilitary organization and two Tier I terrorist

organizations that DHS raises in its effort to link terrorism to the BNP. The brief further

explains why the BNP is a not a Tier III terrorist organization because: (1) the evidence does not

establish that the BNP, or its subgroups, are affiliated with organizations that engage in terrorist

activities; (2) even if the BNP were affiliated with such organizations, a Tier III designation

requires more the mere “affiliation”; and (3) the evidence does not establish that the BNP itself

engages in terrorist activities.

Footnote 50 of the sample brief references a letter from James F. Moriarty. As practitioners may

wish to attach the letter as an exhibit, it follows the brief.

The last attachment to the advisory is a July 7, 2015 decision from Immigration Judge Dorothy

Harbeck in Elizabeth, New Jersey finding that the BNP is not a Tier III terrorist organization.

3 A Tier III terrorist organization is defined as “a group of two or more individuals,

whether organized or not, which engages in, or has a subgroup which engages in, the activities

described in subclauses (I) through (VI) of clause (iv).” INA § 212(a)(3)(B)(vi). 4 This subsection defines terrorist activity to include the “use of any explosive firearm, or

other weapon or dangerous device (other than for mere personal monetary gain), with intent to

endanger, directly or indirectly, the safety of one or more individuals or to cause substantial

damages to property.” INA § 212(a)(3)(B)(iii)(V)(b). 5 INA § 212(a)(3)(B)(iv)(VI)(dd).

6 INA § 208(b)(2)(A)(v) (barring asylum to individuals described in INA §§

212(a)(3)(B)(i)(I-IV) & (VI) or INA § 237(a)(4)(B). 7 INA § 241(b)(3)(vi) (barring withholding to individuals described in INA § 237(a)(4)(B),

which, in turn, references individuals described in INA § 212(a)(3)(B)). 8 8 C.F.R. § 1003.19(h)(2)(i)(C).

SAMPLE BRIEF

(FOR FILING WITH THE IMMIGRATION COURT)

This motion is not a substitute for independent legal advice supplied by a lawyer familiar with a

client’s case. It is not intended as, nor does it constitute, legal advice. DO NOT TREAT THIS

SAMPLE MOTION AS LEGAL ADVICE.

[If applicable: DETAINED]

UNITED STATES DEPARTMENT OF JUSTICE

EXECUTIVE OFFICE FOR IMMIGRATION REVIEW

IMMIGRATION COURT

[CITY], [STATE]

In the Matter of: )

)

_____________________________________, ) A Number:________________

)

Respondent. )

)

Insert one: )

In Removal Proceedings. )

In Bond Proceedings. )

)

Select one:

BRIEF IN SUPPORT OF ELIGIBILTY FOR BOND

[Note: This brief addresses the IJ’s jurisdiction to conduct bond proceedings.

It does not address the merits of a bond request (i.e, flight risk or danger to the community).

Readers are advised to make merits arguments as appropriate.]

BRIEF IN SUPPORT FOR ELIGIBILTY FOR ASYLUM / WITHOLDING

TABLE OF CONTENTS

Page

I. INTRODUCTION……………………………………………………………………….

II. FACTUAL BACKGROUND……………………………………………………………

A. The Awami League (AL) – Current Governing Party…………………………..

B. The Bangladesh Nationalist Party (BNP) – Second Largest Political Party,

Former Governing Party, and Main Opposition to the AL……………………….

C. Jamaat-e-Islami (JeI) – Third Largest Political Party…………………………….

D. Jamaat-ul Mujahideen Bangladesh (JMB) – Paramilitary Organization…………

E. Lashkar-e-Taiba (LeT) – Tier I Terrorist Organization……………………………

F. Harakatul-Jihad-i-Islami Bangladesh (HUJI-B) – Tier I Terrorist Organization….

III. THE BNP IS NOT A TERRORIST ORGANIZATION…………………………………

A. The Evidence Does Not Establish that the BNP, or Its Subgroups, Are

Affiliated With Organizations That Engage in Terrorist Activists…………………

1. The BNP is not affiliated with the JMB…………………………………….

2. The BNP is not affiliated with the LeT……………………………………..

3. The BNP is not affiliated with the HUJI-B…………………………………

B. Even If The BNP Were “Affiliated With” a Terrorist Organization, Under the

Plain Language of INA § 212(a)(3)(B), Mere Affiliation With a Terrorist

Organization Alone Cannot Justify a Tier III Designation…….……………...

C. The Evidence Does Not Establish that the BNP Engages in Terrorist Activities…

IV. CONCLUSION……………………………………………………………………………

I. INTRODUCTION

Respondent submits this brief in support of [her/his] claim that [her/his] membership in

the BNP does not constitute terrorist activity as defined in § 212(a)(3)(B)(iv)(VI)(dd) of the

Immigration and Nationality Act (“INA”) because the Bangladesh Nationalist Party (“BNP”) is

not a “Tier III” terrorist organization. Therefore, [insert as applicable]

[Respondent is not barred from asylum under INA § 212(a)(3)(B)(i)(I)]

[Respondent is not barred from withholding under INA § 208(b)(2)(A)(v)]

[the regulation at 8 C.F.R. § 1003.19(h)(2)(i)(C) is not applicable to this case and this

Court has jurisdiction to redetermine [his/her] custody status and should order Respondent’s

immediate release [on bond in the amount of $_____.].

DHS’ arguments are entirely premised on the erroneous assertion that the Bangladesh

Nationalist Party (“BNP”), of which Respondent [is/was] a member, is a Tier III terrorist

organization. As explained below, the evidence does not establish that the BNP or its subgroups

are affiliated with groups that engage in terrorist activities. Second, even if the BNP were

affiliated with a terrorist organization, under the plain language of INA § 212(a)(3)(B), mere

affiliation does not justify a Tier III classification absent an explicit finding that that the BNP

solicited funding, recruited individuals or provided material support to such terrorist

organization. Finally, the evidence does not establish that the BNP itself engages in terrorist

activities.

//

//

//

//

II. FACTUAL BACKGROUND1

This section sets forth an overview of Bangladesh’s recent political history through a

description of the country’s three major political parties. Bangladesh came into existence after it

successfully fought a war of independence from Pakistan in 1971.2 India supported Bangladesh

in that conflict. Since that time, it has been ruled by both democratically-elected and military

governments from time to time.

Since the fall of absolute military rule in 1990, an intense rivalry between two major

political parties, the Awami League (AL), and the Bangladesh Nationalist Party (BNP) has

defined Bangladesh’s democratic landscape.3 This rivalry regularly escalates to political

violence, with major incidents having occurred in 1996, 2006, and most recently both 2014 and

2015.4 The third largest party is the Jamaat-e-Islami (JeI), which, at various times, has had

political alliances with both the BNP and AL.5

In addition, this section contains an overview of one paramilitary organization and two

1 All footnote citations contain at least one citation to either U.S. government publications

or sources that U.S. Citizen and Immigration Services refers to as “the most accurate accounts of

conditions in a particular country” which include: The Department of State, International Crisis

Group, Human Rights Watch, Amnesty International and IHS Jane’s List. See U.S. Citizen and

Immigration Services, Refugee, Asylum and International Operations Directorate – Officer

Training (September 6, 2012) at 22, available at http://www.uscis.gov/sites/default/files/USCIS/

About%20Us/Directorates%20and%20Program%20Offices/RAIO/coi-researching-using-

country-origin-information-raio-adjudications.pdf (last visited June 8, 2015). 2 International Crisis Group, Mapping Bangladesh’s Political Crisis (February 9, 2015) at

3. 3 International Crisis Group, Mapping Bangladesh’s Political Crisis (February 9, 2015) at

3; Victor Mallet, Bangladesh: A Dangerous Rivalry, Fin. Times, April 12, 2015. 4 International Crisis Group, Mapping Bangladesh’s Political Crisis (February 9, 2015) at

3-5; John F. Burns, Voters Are Few in Bangladesh As a Dozen Die in Clashes, N.Y. Times,

February 16, 1996; Vow of Bangladesh Protests, N.Y. Times, November 12, 2006; Julfikar Ali

Manik, Four Opposition Activists Die in Clashes in Bangladesh, N.Y. Times, January 5, 2015. 5 International Crisis Group, Mapping Bangladesh’s Political Crisis (February 9, 2015) at

3; Syed Zain Al-Mahmood, Bangladesh Court Srikes Down Jamaat-e-Islami’s Electoral

Registration, Wall St. J., August 1, 2013.

Tier I terrorist organizations that the Department of Homeland Security (DHS) raises in its effort

to link terrorism to the BNP.

A. The Awami League (AL) – Current Governing Party

The Awami League (AL), led by Sheikh Hasina, is the current governing party in

Bangladesh. It formed the first national government in 1972 and previously governed the

country from 1996 to 2001. After a seven year absence from power, the AL regained control in

2008.6

The AL won the most recent national election in 2014, a disputed election which the

country’s main opposition party (the BNP) boycotted because the AL refused to adhere to the

tradition of having a neutral caretaker government conduct the election.7 The United States,

United Kingdom, and the European Union strongly criticized the 2014 election.8 The

Department of State declared that “the United States is disappointed by the recent Parliamentary

elections in Bangladesh” and that “the results of the just-concluded elections do not appear to

credibly express the will of the Bangladeshi people.”9 The ideological leanings of the AL

include the principles of democracy, socialism, and secularism.10

Despite its purported

secularism, the AL has allied with Islamist parties in the past, including the JeI, had pledged to

6 Bureau of Democracy, Human Rights and Labor, U.S. Dep’t of State, Bangladesh

Country Reports on Human Rights Practices – 2008 (Feb. 25, 2009), available at

http://www.state.gov/j/drl/rls/hrrpt/2008/sca/119132.htm (last visited June 8, 2015). 7 Ellen Barry, Opposition Party Boycotting Bangladesh Election, N.Y. Times, January 4,

2014; Bangladesh's Bitter Election Boycott, British Broadcasting Corp. (BBC), January 3, 2014;

International Crisis Group, Mapping Bangladesh’s Political Crisis (February 9, 2015) at 5-6. 8 Julhas Alam, Violence, Low Turnout Mar Elections in Bangladesh, Wash. Post, January

5, 2014; International Crisis Group, The Threat from Jamaat-Ul-Mujahideen Bangladesh (March

1, 2010) at 7. 9 Bureau of Public Affairs, Press Release, U.S. Dep’t of State, Parliamentary Elections in

Bangladesh (Jan. 6, 2014), available at http://www.state.gov/r/pa/prs/ps/2014/01/219331.htm

(last visited June 8, 2015). 10

International Crisis Group, Mapping Bangladesh’s Political Crisis (February 9, 2015) at

at 3; International Crisis Group, Bangladesh Today (October 23, 2006) at 4.

declare Muslim minorities to be non-Muslims, and to enact blasphemy laws.11

B. The Bangladesh Nationalist Party (BNP) – Second Largest Political Party,

Former Governing Party, and Main Opposition to the AL

The Bangladesh Nationalist Party (BNP) is currently the main opposition party to the AL.

The BNP governed the country from 1991 to 1996 and again from 2001 to 2006.12

In late 2006,

as has been the tradition since democracy returned to Bangladesh, the BNP government

transferred power to a neutral caretaker government that would oversee the subsequent election.

This was followed by a one year period of military rule; elections were held in 2008.13

When the

BNP was in power between 2001 and 2006, it was a strong ally of the United States, particularly

with respect to counterterrorism. At no point did the United States government suggest, even

remotely, that the BNP was a terrorist organization, or that Bangladesh was a state sponsor of

terrorism during the time it was ruled by BNP.14

11


3-4; Syed Zain Al-Mahmood, Bangladesh Court Srikes Down Jamaat-e-Islami’s Electoral

Registration, Wall St. J., August 1, 2013. 12

Bureau of Democracy, Human Rights and Labor, U.S. Dep’t of State, Bangladesh

Country Reports on Human Rights Practices – 2001 (Mar. 4, 2002), available at

http://www.state.gov/j/drl/rls/hrrpt/2001/sa/8224.htm; Bureau of Democracy, Human Rights and

Labor, U.S. Dep’t of State, Bangladesh Country Reports on Human Rights Practices – 1993

(Jan. 15, 1994) available at http://dosfan.lib.uic.edu/ERC/democracy/1993_hrp_report/93hrp_

report_sasia/Bangladesh.html (last visited June 8, 2015). 13



http://www.state.gov/j/drl/rls/hrrpt/2007/100612.htm (last visited June 8, 2015). 14

For example, the Department of State reported that:

Prime Minister Begum Khaleda Zia regularly condemned terrorism at domestic

and international forums. The government renewed bans on Jamaat ul Mujahedin

Bangladesh (JMB), Jagrata Muslim Janata Bangladesh (JMJB), and Harkat ul-

Jihad-i-Islami/Bangladesh (HUJI-B) as terrorist organizations. There was good

cooperation between law enforcement agencies on several cases relating to

domestic terrorism. With U.S. technical assistance, Bangladesh drafted a

The BNP boycotted the 2014 election (ultimately won by the AL) because the election

was not held under a neutral caretaker government, as had been the practice since the 1990s.15

Following the 2014 election, the AL-led government has detained and/or placed under house

arrest hundreds of BNP activists and leaders. Khaleda Zia, the leader of the BNP, remains one of

the few major BNP leaders not yet formally arrested.16

The BNP’s political platform is associated with Bangladeshi nationalism and economic

liberalism.17

However, the BNP has allied with groups that held different views on the national

question (e.g., JeI), despite its professed dedication to Bangladeshi nationalism.

C. Jamaat-e-Islami (JeI) – Third Largest Political Party

Jamaat-e-Islami (JeI) is the third largest political party in Bangladesh. It was officially

established in Bangladesh in 1979 and was banned for a period of time due to its anti-secular

nature, until the restoration of democratic rule in the 1990s.18

It is an Islamist party with ties to

other Islamist political parties in the Indian subcontinent.19

The JeI has allied with both the AL

comprehensive new anti-money laundering law. Bangladesh was also working

with the United States to strengthen controls at land, sea, and air ports of entry.

Bureau of Counterterrorism, Office of the Coordinator for Counterterrorism, U.S. Dep’t of State,

2005 Country Reports on Terrorism: South Asia Overview (April 28, 2006), available at

http://www.state.gov/j/ct/rls/crt/2005/64345.htm (last visited June 8, 2015). 15

See supra, n.6. 16

On the Boil: the Prime Minister has Backed the Opposition Up Against a Barricade, The

Economist, March 5, 2015. Bangladesh: Crackdown on Opposition, Media, Human Rights

Watch, January 8, 2015, available at http://www.hrw.org/news/2015/01/08/bangladesh-

crackdown-opposition-media (last visited June 8, 2015). 17


3; International Crisis Group, Bangladesh Today (October 23, 2006) at 4. 18


3; International Crisis Group, Bangladesh Today (October 23, 2006) at 15. 19

HIS Jane’s List, Internal Affairs, Bangladesh (October 17, 2012) at 7-8; International

Crisis Group, Mapping Bangladesh’s Political Crisis (February 9, 2015) at 3.

and the BNP in the past; it had an electoral alliance with the AL in 199620

and it was a coalition

partner in the BNP governments (1991-1996 and 2001-2006).21

The Islamic Chatra Shabir (ICS)

is the student wing of JeI and a gateway for students and youth to join politics.22

In 2010, the AL government established a domestic International Crimes Tribunal (ICT)

to prosecute individuals who committed war crimes during Bangladesh’s war of independence in

1971.23

The ICT has prosecuted and sentenced to death many JeI members, despite heavy

international criticism of the politically motivated nature of ICT prosecutions and the lack of due

process.24

The United States has publicly expressed concern with the proceedings of the ICT,

urging a halt to executions.25

A Department of State cable discussing the creation of the ICT

expressed that “[t]here is little doubt that hardline elements within the ruling [AL] party believe

that the time is right to crush Jamaat and other Islamic parties.”26

//

//

20

See supra, n.3. 21


3-4. 22

International Crisis Group, The Threat from Jamaat-Ul-Mujahideen Bangladesh (March

1, 2010) at 3. 23



http://www.state.gov/j/drl/rls/hrrpt/2009/sca/136085.htm (last visited June 8, 2015). 24

Bangladesh: Justice for the past requires fair trials, warn UN experts, Office of the High

Commissioner of Human Rights, February 17, 2013, available at

http://www.ohchr.org/EN/NewsEvents/Pages/DisplayNews.aspx?NewsID=12972&LangID=E

(last visited June 8, 2015); Bangladesh: Conviction of Journalist Chills Speech, Amnesty

International, 6 December 2014, available at https://www.amnesty.org/en/press-

releases/2014/12/bangladesh-conviction-journalist-chills-speech/ (last visited June 8, 2015);

International Crisis Group, Mapping Bangladesh’s Political Crisis (February 9, 2015) at ii. 25

Bureau of Public Affairs, Press Release, U.S. Dep’t of State, Statement on the

Bangladesh International Crimes Tribunal (ICT) Death Sentence of Kamaruzzaman (Apr. 11,

2015), available at http://www.state.gov/r/pa/prs/ps/2015/04/240591.htm (last visited June 8,

2015). 26

Joseph Allchin, The Midlife Crisis of Bangladesh, Foreign Policy, December 21, 2012.

D. Jamaat-ul Mujahideen Bangladesh (JMB) – Paramilitary Organization

The Jamaat-ul Mujahideen Bangladesh (JMB) is a paramilitary organization founded in

1998 by Sheikh Abdur Rahman, who was dissatisfied with the JeI’s commitment to the

democratic process.27

Between 2002 and 2005, when the BNP and JeI had formed a coalition

government, the JMB engaged in violence, including bombings. On August 17, 2005, the JMB

synchronized 500 bombings across Bangladesh, killing 2 people and injuring 50 others.28

Subsequently, in 2006, the then BNP-led government cracked down on the JMB, arresting,

prosecuting and convicting hundreds of JMB members and top leaders of the JMB, many of

whom were sentenced to death.29

This crackdown significantly reduced the JMB’s power,

although it remains a threat.30

Notably, the United States partnered with the BNP-led

government in tackling domestic and international terrorism.31

E. Lashkar-e-Taiba (LeT) – Tier I Terrorist Organization

The LeT is a Pakistani militant organization founded in the late 1980s whose focus is on

ending Indian control over its state of Kashmir.32

The LeT has been responsible for a number of

27

International Crisis Group, The Threat from Jamaat-Ul-Mujahideen Bangladesh at 2-4. 28

Bureau of Counterterrorism, Office of the Coordinator for Counterterrorism, U.S. Dep’t

of State, 2005 Country Reports on Terrorism: South Asia Overview (April 28, 2006), available

at http://www.state.gov/j/ct/rls/crt/2005/64345.htm (last visited June 8, 2015); International

Crisis Group, The Threat from Jamaat-Ul-Mujahideen Bangladesh at 12. 29

Bureau of Counterterrorism, Office of the Coordinator for Counterterrorism, U.S. Dep’t

of State, 2006 Country Reports on Terrorism: South Asia Overview (April 30, 2007), available

at http://www.state.gov/j/ct/rls/crt/2006/82734.htm (last visited June 8, 2015); Top Bangladeshi

Militant Held, British Broadcasting Corp. (BBC), March 6, 2006; International Crisis Group, The

Threat from Jamaat-Ul-Mujahideen Bangladesh (March 1, 2010), at 13. 30


1, 2010), at 1. 31

2006 Country Reports on Terrorism: South Asia Overview. 32

Bureau of Counterterrorism, Country Reports on Terrorism 2013, Chapter 6, Foreign

Terrorist Organizations, available at http://www.state.gov/j/ct/rls/crt/2013/224829.htm (last

visited June 8, 2015).

high profile attacks on civilians, including the 2008 attacks in Mumbai, India.33

Since 2001, the

United States government has listed LeT as a Tier I terrorist organization pursuant to INA §

219.34

However, the Department of State’s 2013 Country Reports on Terrorism does not state

that the LeT has any activities in Bangladesh.35

F. Harakatul-Jihad-i-Islami Bangladesh (HUJI-B) – Tier I Terrorist

Organization

HUJI-B is a branch of the Pakistani-based Harakat-ul-Jihad al-Islami (HUJI). The branch

was formed in 1992 and consists of veterans of the Afghan jihad.36

Since 2008, the United States

government has listed HUJI-B as a Tier I terrorist organization pursuant to INA § 219. The BNP

banned the HUJI-B in 2005.37

The HUJI-B has engaged in various bombing campaigns,

including a grenade attack on the British High Commissioner in Sylhet, Bangladesh.38

III. THE BNP IS NOT A TERRORIST ORGANIZATION.

Contrary to the assertions by the Department of Homeland Security (DHS), the BNP is

not a terrorist organization as defined in § 212(a)(3)(B)(vi) of the Immigration and Nationality

Act (INA), which defines a Tier III terrorist organization as:

a group of two or more individuals, whether organized or not, which engages in,

or has a subgroup which engages in, the activities described in subclauses (I)

through (VI) of clause (iv).

INA § 212(a)(3)(B)(vi)(III). The BNP is not engaged, and does not have a subgroup which

engages in, terrorist activity as described in INA § 212(a)(3)(B)(iv)(I)-(VI). Specifically, the

33

Id. 34

Bureau of Counterterrorism, Designated Foreign Terrorist Organizations, available at

http://www.state.gov/j/ct/rls/other/des/123085.htm (last visited June 8, 2015). 35

Id. 36

Id. 37

Id.; 2006 Country Reports on Terrorism: South Asia Overview. 38


1, 2010) at i.

BNP does not engage in, or have a subgroup which engages in, terrorist activity through the use

of “an explosive firearm, or other weapon or dangerous device (other than for mere personal

monetary gain), with intent to endanger, directly or indirectly, the safety of one or more

individuals or to cause substantial damages to property.” INA § 212(a)(3)(B)(iii)(V)(b).

Consequently, even assuming arguendo that Respondent provided “material support” to

the BNP, Respondent has not provided “material support . . . to a terrorist organization” under

INA § 212(a)(3)(B)(iv)(VI)(dd) since the BNP is not a terrorist organization.

The entirety of DHS’ claim that the BNP is a Tier III organization is based on DHS’

unsupported allegation that the BNP is engaged in “activities and affiliation with Islamic

Extremist groups in and near Bangladesh” including the JMB and the LeT. See [Name of DHS

Doc at *]. First, BNP is simply not affiliated with any of the groups at issue. On the contrary, it

is a mainstream political party that has governed one of the largest democracies on Earth on

several occasions over the last forty years, and it cannot be deemed to be “affiliated” with the

organizations to which DHS refers. Second, even if the BNP has an affiliation with a terrorist

organization, under the plain language of INA § 212(a)(3)(B), a Tier III designation requires that

a group have more than a mere ‘affiliation with’ a terrorist organization. The statute’s plain

language requires more than mere “affiliation with” a terrorist organization. A major political

party cannot be classified as itself a terrorist organization absent a showing that it solicited

funding, recruited individuals, or provided material support to the group, as the statute’s

language plainly contemplates. Third, there is no evidence that the BNP itself engages in terrorist

activities. Therefore, this Court must reject DHS’ allegation and find that the BNP is not a Tier

III terrorist organization.

A. The Evidence Does Not Establish that the BNP, or Its Subgroups, Are

Affiliated With Organizations That Engage in Terrorist Activists.

DHS has not, and cannot, establish that the BNP is affiliated with “Islamic Extremist

groups,” including the JMB, the LeT, and the HUJI-B. See [Name of DHS Doc at *].

1. The BNP is not affiliated with the JMB.

DHS’ claim that the BNP is affiliated with the JMB is particularly striking given that,

between 2005 and 2006, the BNP-led government cracked down on the JMB, charging,

prosecuting and convicting hundreds of JMB members and leader.39

DHS provides no examples

where the BNP has supported the JMB, either directly or indirectly, since this crackdown.

Furthermore, other than a fleeting reference to a disputed and politically motivated allegation by

the AL concerning the HUJI-B (addressed below in § III. A.3), DHS provides no evidence of any

BNP association with the JMB after 2006.

In the early 1990s, the BNP (then the controlling government party) allowed ICS and JeI

to reenter Bangladeshi politics, however, this action does not demonstrate that the BNP provided

material support to the JMB in any way, let alone that it did so during any relevant time period.

While the JMB has recruited members from ICS and to some extent JeI, DHS’ own evidence

clearly states that those recruited were individuals who were “disgruntled with the policies of

their leaders.”40

Furthermore, the JeI was a coalition partner with the BNP during the crackdown

on the JMB, and in any event the JeI and the BNP are distinct parties whose relationship is

characterized as a “solely political, not ideological alliance, like that between UK Conservatives

39

See supra, n.26. 40


1, 2010), at 5.

and Liberal Democrats.”41

Thus, any tie between the BNP and JeI cannot form a basis for

concluding that BNP provides material support to, or is even affiliated with, JMB.

2. The BNP is not affiliated with the LeT.

DHS provides no evidence linking the BNP to the LeT, but rather cites to possible ties

between the LeT and the JMB. See [Name of DHS Doc at *].42

Given that the BNP is not

affiliated with the JMB, there is simply no evidence of a connection between the LeT and the

BNP. Moreover, given LeT’s allegiance to Pakistan and BNP’s nationalism, which is borne of

Bangladesh’s historical opposition to Pakistan, any suggestion even of affiliation, let alone

support, between the BNP and LeT could not be taken seriously.

3. The BNP is not affiliated with the HUJI-B.

To the extent that DHS asserts that the BNP is connected to HUJI-B, a Tier I terrorist

organization (see [Name of DHS Doc at *]), that assertion must fail as it is entirely premised on

unsubstantiated and politically motivated allegations regarding the son of the BNP’s leader,

Khaleda Zia.

As a threshold matter, the fact – even if true - that a single individual related by blood to

a leader of the BNP has ties to a terrorist organization would not suffice to establish that a group

or subgroup of the party engages in terrorist activity. See INA § 212(a)(3)(B)(vi)(III).

In any event, the charge against Ms. Zia’s son cannot serve as a basis for such a finding

because it is an entirely political charge that has never been accepted by any court.43

In 2007, the

AL party charged Tarique Rahman, Ms. Zia’s son, with abetting HUJI-B in the attempted

41


1, 2010), at 10. 42

DHS cites to International Crisis Group, The Threat from Jamaat-Ul-Mujahideen

Bangladesh (March 1, 2010), at 21-22. 43

International Crisis Group, Mapping Bangladesh’s Political Crisis (February 9, 2015), at

13.

assassination of the AL’s leader in 2004. In the intervening eight years, no court has ever

substantiated this charge, and the AL party similarly charged twenty seven other individuals with

the attempted assassination, including Ms. Zia herself, who was Prime Minister at the time.44

These charges were made as part of the AL’s larger, politically-motivated anti-BNP campaign.45

This type of suppression, through the use of trumped-up charges presented to the

judiciary, is not uncommon in Bangladesh. For example, the ruling AL also interfered with the

efforts of the Anti-Corruption Commission (ACC), a government agency tasked with

investigating corruption. The AL party forced the ACC to drop thousands of corruption cases

involving the AL, while maintaining most charges against the BNP and bringing new charges

against Khaleda Zia and her son Tarique Rahman.46

. The Department of State has noted that:

the government subjected the judiciary to political pressure, and cases involving

opposition leaders often proceeded in an irregular fashion. Corruption remained a

serious problem within the judiciary and was a factor in lengthy delays of trials,

which were subjected to witness tampering and intimidation of victims..47

* * * *

In sum, the evidence does not support DHS’ contention that the BNP party is a Tier III

terrorist group. The BNP is one of the two largest political parties in Bangladesh and previously

led a government that cracked down on international and domestic terrorist groups, for which it

received praise from the United States as a staunch counterterrorism ally. Neither the JMB nor

the HUJI-B are subgroups of the BNP, nor are they even affiliated with it. Similarly, there are

44

Id. 45

Id. 46


Country Reports on Human Rights Practices – 2010 (Apr. 8, 2011), available at

http://www.state.gov/j/drl/rls/hrrpt/2010/sca/154478.htm (last visited June 8, 2015). 47



http://www.state.gov/j/drl/rls/hrrpt/humanrightsreport/index.htm#wrapper (last visited June 8,

2015).

no connections of any kind between the LeT and the BNP.

B. Even If The BNP Were “Affiliated With” a Terrorist Organization, Under

the Plain Language of INA § 212(a)(3)(B), Mere Affiliation With a Terrorist

Organization Alone Cannot Justify a Tier III Designation.

Even assuming arguendo that the BNP were affiliated with a terrorist organization,

absent an explicit determination that the BNP solicited funding, recruited individuals or provided

material support to said organization, the plain language of INA § 212(a)(3)(B)(vi)(III)

forecloses a finding that the BNP is a Tier III terrorist organization.

Under INA § 212(a)(3)(B)(vi)(III), a Tier III terrorist organization is defined as a “group

of two or more individuals, whether organized or not, which engages in, or has a subgroup which

[engages in terrorist activity].” The phrase ”engage in terrorist activity” is defined in INA §§

212(a)(3)(B)(iv)(I-VI); it includes, inter alia, committing and planning terrorist activities,

soliciting funds or recruiting individuals for terrorist activities or terrorist organizations, and

affording material support to a terrorist organization. Congress knows how to render

inadmissible individuals who are merely “affiliated with” a disfavored group, as it did so in a

neighboring provision.48

Given that Congress did codify an “affiliation with the Communist or

any other totalitarian party,” see, e.g., INA § 212(a)(3)(D), its decision not to codify an

“affiliation with” a Tier III group creates a strong inference that Congress did not intend to

impose inadmissibility based on mere affiliation. See Hamdan v. Rumsfeld, 548 U.S. 557, 578

(2006) (“a negative inference may be drawn from the exclusion of language from one statutory

provision that is included in other provisions of the same statute.”). A group’s mere affiliation

with a terrorist organization cannot justify classification as a Tier III terrorist organization.

48

See, e.g., INA § 212(a)(3)(D) (rendering inadmissible “[a]ny immigrant who is or has

been a member of or affiliated with the Communist or any other totalitarian party (or subdivision

or affiliate thereof), domestic or foreign.”) Emphasis added.

C. The Evidence Does Not Establish that the BNP Engages in Terrorist

Activities.

DHS likewise has not established, and cannot establish, that the BNP has engaged in

terrorist activities by participating in and inciting violence. See [Name of DHS Doc at *]. This

assertion is mistakenly based on a deep misunderstanding of Bangladeshi politics and an

incorrect understanding of the nature of the political activity that the BNP advocates.

First, while the BNP has routinely called for strikes and protests, this is a regular feature

of Bangladesh’s democracy. In contrast, the BNP has consistently condemned any violence

associated with strikes or other protests. For example, when the AL government refused to allow

an election overseen by a neutral care-taker government, as had been the practice since the

1990s, the BNP called for political protests.49

But, consistent with its historical position, the

BNP called for peaceful protests and denounced any associated violence.50

While there have

been recent violent political clashes in Bangladesh, the Department of State has described them

as “linked to criminal activities rather than to political motives.”51

Second, if DHS’ assertion were true, and routine violence arising from otherwise-lawful

strikes and protests constituted terrorist activity, DHS would have to deem every political party

49

International Crisis Group, Mapping Bangladesh’s Political Crisis at 1. 50

Letter from James F. Moriarity, U.S. Ambassador (ret.) to Bangladesh (April 17, 2015)

(“In the democracies of South Asia, calling for strikes and closures is a time-honored way of

movements and political parties… indeed the right to call for strikes is protected in Bangladesh’s

legal system”) see Exhibit __; Bangladesh firebomb attacks on bus and truck kill nine, British

Broadcasting Corp. (BBC), February 7, 2015, available at http://www.bbc.com/news/world-asia-

31191812

(last visited June 8, 2015); Bangladesh opposition leader Khaleda Zia charged over arson

attack, British Broadcasting Corp. (BBC), January 3, 2014, available at

http://www.bbc.com/news/world-asia-31127763 (last visited June 8, 2015). 51



http://www.state.gov/j/drl/rls/hrrpt/humanrightsreport/index.htm#wrapper (last visited June 8,

2015).

in Bangladesh, and, indeed, most of the political parties in South Asia, as terrorist organizations.

This designation would include the governing AL party, to which the United States gave more

than $700 million dollars of aid between 2010 and 2012 and will give at least $5 billion dollars

in aid between 2012 and 2017.52

Violent protests and clashes regularly occur in Bangladesh, with political violence flaring

up in 1996, 2006 and most recently 2014 and 2015.53

According to the legal aid and human

rights NGO Ain o Salish Kendra (ASK), which the Department of State regularly cites, in 2014

more than 664 incidents of political violence occurred, resulting in 8,373 individuals injured and

147 deaths.54

Of the 664 incidents that occurred, only 146 involved the BNP in any way

(resulting in 31 deaths). Indeed, the AL fomented nearly twice as many political incidents; with

280 violent incidents involving 64 deaths.55

Significantly, these numbers do not include violence

committed by AL security forces, who have cracked down on the opposition through

extrajudicial killings of protestors - including bystander children - destruction of property, and

widespread arbitrary arrests.56

Any reading of INA § 212(a)(3)(B)(vi) that would classify the BNP as an undesignated

Tier III terrorist organization based on this type of political violence necessarily would require

52

See U.S. Overseas Loans and Grants (Greenbook), Program and Account Reports,

available at https://eads.usaid.gov/gbk/, accessed June 8, 2015; Embassy of the United States of

America in Dhaka – Public Affairs Section, USAID Celebrates 50th

Anniversary and 40 years

with Bangladesh, January 2012, available at

http://dhaka.usembassy.gov/embassy_press_releases_2012.html (last visited June 8, 2015). 53

See supra, n.3. 54

Bangladesh Country Reports on Human Rights Practices – 2010, Ain O Salish Kendra,

Breakdown of Inter Party and Police Clashes, January-December 2014. 55

Ain O Salish Kendra, Breakdown of Inter Party and Police Clashes, January-December

2014. 56

Human Rights Watch, Blood on the Streets: The Use of Excessive Force During

Bangladesh Protests, (August 2013), at 12-19, International Crisis Group, Mapping

Bangladesh’s Political Crisis (February 9, 2015) at 13.

the same finding with respect to the AL and every other political party in the country. Such a

reading would certainly run counter to Congressional intent, given the fact that Congress is

giving the AL billions of dollars in U.S. economic and military aid. Similarly, the resulting

implication—that Congress is materially supporting a terrorist organization—would be absurd.

IV. CONCLUSION

For the reasons stated above, the BNP is not a Tier III terrorist organization.

Accordingly, this Court should find that [insert as applicable]

[Respondent is eligible for asylum / withholding]

[this Court has jurisdiction to redetermine Respondent’s custody status and should order

Respondent’s immediate release [on bond in the amount of $_____ ]].

Dated: Respectfully submitted,

______________________

NAME OF ATTORNEY

[LIST OF EXHIBITS]

[ATTACH PROOF OF SERVICE]

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