GRABER, Circuit Judge:
Petitioner Sunil Rayamajhi fled Nepal in 2009 because a terrorist organization tortured and threatened him repeatedly. Before fleeing, Petitioner knowingly gave money to a member of the terrorist organization at least once. After arriving in the United States, Petitioner sought asylum, statutory withholding of removal, withholding of removal under the Convention Against Torture (CAT), and deferral of removal under CAT.
An immigration judge (IJ) granted Petitioner deferral of removal under CAT, but denied him asylum and both forms of withholding of removal. The IJ found Petitioner ineligible for asylum and withholding of removal because Petitioner provided material support to a terrorist organization, as defined in 8 U.S.C. § 1182(a)(3)(B)(iv)(VI). The Board of Immigration Appeals (BIA) affirmed the denials of asylum and withholding of removal and left undisturbed the grant of deferral of removal. Petitioner seeks review of the BIAs decision. We have jurisdiction under 8 U.S.C. § 1252(a). We deny the petition in part and dismiss it in part.
Petitioner is a Nepali citizen. In 2003, he took an administrative position with Doctors Without Borders, an international nongovernmental organization. During the early stages of his work for Doctors Without Borders, Petitioner became a target of a Nepali terrorist organization called the Maoists. The Secretary of State designated the Maoists as a terrorist organization under 8 U.S.C. § 1182(a)(3)(B)(vi)(II) in 2004, but revoked that designation in 2012. 77 Fed. Reg. 54,944 -02, 54,944 (Sept. 6, 2012).
From 2004 to 2008, Maoists beat Petitioner twice, demanded that he give them money and join their political party, and threatened him and his family. In February 2009, a Maoist approached Petitioner at a taxi stand and demanded money. Petitioner recognized the Maoist as one of the men who had beaten him in the past. Fearing what the Maoist might do to him if he did not comply, Petitioner gave the man the equivalent of about $50. Petitioner left Nepal soon after that incident.
Petitioner entered the United States in June 2009 on a visitors visa. He applied for asylum and withholding of removal in December 2009. An IJ found that, even considering only the 2009 donation, Petitioner gave material support to the Maoists in the form of money. Thus, the IJ ruled that the Immigration and Nationality Acts (INA) material support bar rendered Petitioner ineligible for asylum and withholding of removal. The IJ also held that she lacked jurisdiction to grant an exception on the ground of duress. The IJ ordered Petitioner removed to Nepal, but deferred his removal under CAT because he likely would suffer torture if sent back to Nepal. The material support bar does not apply to deferral of removal under CAT. 8 C.F.R. § 1208.17(a). Petitioner appealed the denial of asylum and withholding of removal, and the government appealed the grant of deferral of removal.
On appeal, the BIA rejected Petitioners argument that the material support bar did not apply to him, holding: There is no de minimis exception to the material support bar and no duress exception to the material support bar. The BIA also concluded that the IJ had not properly considered the country condition evidence in the record as it pertained to CAT deferral. Accordingly, the BIA remanded the case to the IJ solely for further consideration of Petitioners claim for CAT deferral. On remand, the IJ incorporated the facts and procedural history of her prior decision and the BIAs prior decision. She again granted Petitioner CAT deferral.
Petitioner again appealed to the BIA and contested the IJs denials of asylum and withholding of removal under the material support bar. In 2016, the BIA issued its second decision, reaffirming its dismissal of Petitioners asylum and withholding claims. The government did not appeal the IJs second grant of CAT deferral, so that portion of the ruling remains in effect.
Petitioner timely seeks our review. He argues that the BIA and the IJ erred by denying him asylum and withholding of removal under the material support bar, because he gave money to the Maoists under duress and gave only de minimis support. We review only the BIAs opinion, except to the extent that it expressly adopted portions of the IJs decision. Doe v. Holder , 736 F.3d 871, 877 (9th Cir. 2013). We review the BIAs fact-finding for substantial evidence and may grant a petition only if the evidence compels a conclusion contrary to the BIAs conclusion. Id. We review de novo the BIAs determination of purely legal questions, but defer to the BIAs legal interpretation of the INA unless that interpretation contradicts the statutes plain meaning. Simeonov v. Ashcroft , 371 F.3d 532, 535 (9th Cir. 2004) (citing Chevron U.S.A. Inc. v. Nat. Res. Def. Council, Inc. , 467 U.S. 837, 843 n.9, 104 S.Ct. 2778, 81 L.Ed.2d 694 (1984) ).
A. Duress
In Annachamy v. Holder , 733 F.3d 254, 267 (9th Cir. 2013), overruled in part on other grounds by Abdisalan v. Holder , 774 F.3d 517, 526 (9th Cir. 2015) (en banc), we held that the material support bar does not include an implied exception for individuals who give support to a terrorist organization while under duress. Annachamy forecloses Petitioners argument that a duress exception to the material support bar applies here.
Because Petitioners duress argument is not colorable in view of our precedent, we lack jurisdiction to consider it. Under 8 U.S.C. § 1158(b)(2)(D), we lack jurisdiction to consider a petition for review of the BIAs denial of asylum and withholding of removal pursuant to the material support bar. Under 8 U.S.C. § 1252(a)(2)(D), however, we retain jurisdiction (despite the BIAs applying the material support bar) only over colorable constitutional claims or questions of law. Bazua-Cota v. Gonzales , 466 F.3d 747, 748 (9th Cir. 2006) (per curiam). Accordingly, we dismiss the petition in part.
B. De Minimis Support
A noncitizen who has engaged in terrorist activity cannot obtain asylum or withholding of removal. See 8 U.S.C. § 1182(a)(3)(B)(i)(I) (stating that an alien who has engaged in terrorist activity is inadmissible); id. § 1158(b)(2)(A)(v) (stating that an alien described in § 1182(a)(3)(B)(i)(I) is ineligible for asylum); id. § 1227(a)(4)(B) (stating that any alien described in § 1182(a)(3)(B) is removable); id. § 1231(b)(3)(B)(iv) (stating that an alien described in § 1227(a)(4)(B) is ineligible for withholding of removal). As relevant here, engage in terrorist activity means to commit an act that the actor knows, or reasonably should know, affords material support, including a safe house, transportation, communications, funds, transfer of funds or other material financial benefit, false documentation or identification, weapons (including chemical, biological, or radiological weapons), explosives, or training, to a terrorist organization or a member of a terrorist organization, unless the alien did not know (and should not reasonably have known) that the organization was a terrorist organization. Id. § 1182(a)(3)(B)(iv)(VI).
In its decisions on Petitioners claims, the BIA held that no de minimis exception to the material support bar exists. In a published opinion issued several years later, the BIA held the same: [A]n alien provides material support to a terrorist organization, regardless of whether [the act] was intended to aid the organization, if the act has a logical and reasonably foreseeable tendency to promote, sustain, or maintain the organization, even if only to a de minimis degree . In re A-C-M- , 27 I. & N. Dec. 303, 308 (B.I.A. 2018) (emphasis added); see also id. at 307 (In sum, material support is a term of art that refers to aid of a material and normally tangible nature, and it is not quantitative. (footnote omitted) ). Whether or not we afford Chevron deference to the BIAs interpretation, we agree that the material support bar does not contain an exception for people who give merely de minimis funds to a terrorist organization.
If a statute is unambiguous, we end our analysis by enforcing its text. Chevron , 467 U.S. at 843, 104 S.Ct. 2778. In relevant part, § 1182(a)(3)(B)(iv)(VI) defines engaging in terrorist activity as giving something that affords material support, including a safe house, transportation, communications, funds , transfer of funds or other material financial benefit, false documentation or identification, weapons (including chemical, biological, or radiological weapons), explosives, or training, to a terrorist organization. (Emphases added.) The statute provides a list of things that constitute material support. Funds fall under this category, and the statute does not establish any numerical threshold for money to qualify as material support. The inclusion in the list of the phrase other material financial benefit does not assist Petitioner. Grammatically, that phrase relates only to transfer of funds and suggests that funds are material per se, because a person affords material support by transferring funds or some other material financial benefit. Under the plain text of § 1182(a)(3)(B)(iv)(VI), funds knowingly given to a terrorist organization are material support, regardless of the amount given.
If § 1182(a)(3)(B)(iv)(VI) is ambiguous as to whether it contains an exception for de minimis funds, the BIAs interpretation merits Chevron deference even though it post-dates the BIAs decision on Petitioners claims. Pauly v. U.S. Dept of Agric. , 348 F.3d 1143, 1152 (9th Cir. 2003) (per curiam); see also Smiley v. Citibank (S.D.), N.A. , 517 U.S. 735, 744 n.3, 116 S.Ct. 1730, 135 L.Ed.2d 25 (1996) (Where, however, a court is addressing transactions that occurred at a time when there was no clear agency guidance, it would be absurd to ignore the agencys current authoritative pronouncement of what the statute means.). The BIAs determination that no de minimis exception exists is based on a permissible construction of the statute. Chevron , 467 U.S. at 843, 104 S.Ct. 2778. The BIA found no legislative history to support taking a quantitative approach to defining material support. In re A-C-M- , 27 I. & N. Dec. at 307. Moreover, the BIA noted that it would not make sense for § 1182(a)(3)(B)(iv)(VI) itself to contain a de minimis exception because, in § 1182(d)(3)(B)(i), Congress gave the Secretary of Homeland Security the discretionary authority to grant waivers to the material support bar to address excusable violations including, among other things, support provided under duress or to only a de minimis degree. Id. at 308. That grant of discretion would be meaningless if the material support bar did not apply in the first place.
We hold that the INAs material support bar contains no implied exception for de minimis aid in the form of funds. Petitioner admitted that, in 2009, he gave about $50 to someone whom he knew was a Maoist. Thus, substantial evidence supports the IJs finding, adopted by the BIA, that Petitioner gave material support to a terrorist organization, rendering him ineligible for asylum and withholding of removal.
DISMISSED in part and DENIED in part.
BENNETT, Circuit Judge, concurring in part and concurring in the judgment:
I fully agree with the majoritys discussion of the duress issue.
I also agree that the petition should be denied as to the material support issue. The agencys interpretation of the material support bar is permissible, and so we must defer to it under Chevron U.S.A., Inc. v. Nat. Res. Def. Council, Inc. , 467 U.S. 837, 843, 104 S.Ct. 2778, 81 L.Ed.2d 694 (1984), even if, de novo, we might interpret the statute in a different way. But my colleagues also conclude that, under the plain text of the statute, material support encompasses de minimis support. Maj. Op. at 1244-45. I respectfully disagree, as Congress has not directly spoken to the precise question at issue. Chevron , 467 U.S. at 842, 104 S.Ct. 2778.
The material support bar provides that an alien is deemed to engage in terrorist activity if he commits an act that he knows, or reasonably should know,
affords material support, including a safe house, transportation, communications, funds, transfer of funds or other material financial benefit, false documentation or identification, weapons (including chemical, biological, or radiological weapons), explosives, or training
to a terrorist. 8 U.S.C. § 1182(a)(3)(B)(iv)(VI). The question here is whether the statute unambiguously defines de minimis funds as material support.
I begin with a proposition that the majority does not dispute: the word material, when modifying support, is patently ambiguous. Material has several definitions, ranging from more or less necessary to important to merely having influence or effect. Blacks Law Dictionary 976 (6th ed. 1990). Not all of these definitions support the agencys interpretation that material support encompasses any act that has a logical and reasonably foreseeable tendency to promote, sustain, or maintain the [terrorist] organization, even if only to a de minimis degree. In re A-C-M- , 27 I. & N. Dec. 303, 308 (B.I.A. 2018).
I am unable to resolve the ambiguity by consulting various judicial interpretations of material. The meaning of material depends on the context in which it is used. See Jabateh v. Lynch , 845 F.3d 332, 344-45 (7th Cir. 2017) (Hamilton, J., concurring in part and concurring in the judgment). For the crime of making fraudulent statements to immigration officials, material means has a natural tendency to influence, or was capable of influencing, the decision of the decisionmaking body to which it was addressed. Kungys v. United States , 485 U.S. 759, 770, 108 S.Ct. 1537, 99 L.Ed.2d 839 (1988) (internal quotation marks omitted) (reviewing historical examples and adopting the most common formulation of the materiality standard in the context of concealment or misrepresentation). In the False Claims Act context, however, the Supreme Court has rejected the view that any statutory, regulatory, or contractual violation is material so long as the defendant knows that the Government would be entitled to refuse payment were it aware of the violation. Universal Health Servs., Inc. v. United States , --- U.S. ----, 136 S.Ct. 1989, 2004, 195 L.Ed.2d 348 (2016). Unlike in A-C-M- , the materiality standard is demanding in the False Claims Act context and does not encompass minor or insubstantial noncompliance with a condition of payment in a government contract. Id. at 2003.
There are many other interpretations of material, but none of them changes the fact that the word is ambiguous in most contexts. See, e.g. , Fed. R. Evid. 401 advisory committees note (explaining that the rule has the advantage of avoiding the loosely used and ambiguous word material ). It is not surprising, then, that the only other circuit to consider the issue concluded that the term material support is ambiguous with respect to the question of de minimis support. See Ayvaz v. Holder , 564 F. Appx 625, 628 (2d Cir. 2014) (unpublished) (Because the term material is ambiguous and the BIA did not address whether the single meal Ayvaz provided qualified as material support, remand is appropriate for further clarification in a precedential decision.).
This case involves support in the form of funds. The majority reasons that Congress rendered the term material support unambiguous in the context of funds. Maj. Op. at 1244-45. In particular, the majority relies on the clause including ... funds in section 1182(a)(3)(B)(iv)(VI) to conclude that material support unambiguously includes any funds, regardless of amount. Maj. Op. at 1244-45.
I respectfully disagree. In general, terms that follow the word including are illustrative, not definitional. Fed. Land Bank of St. Paul v. Bismarck Lumber Co. , 314 U.S. 95, 99-100, 62 S.Ct. 1, 86 L.Ed. 65 (1941). Here, the term funds is intended to be illustrative of material support. When interpreting a statute, we should not prioritize the meaning of illustrative terms over the meaning of the illustrated term. See Chickasaw Nation v. United States , 534 U.S. 84, 89-91, 122 S.Ct. 528, 151 L.Ed.2d 474 (2001) ; United States v. Collins , 854 F.3d 1324, 1333 (11th Cir.), cert. denied , --- U.S. ----, 138 S.Ct. 503, 199 L.Ed.2d 391 (2017).
Thus, when a list of terms follows the word including, not every conceivable definition of every term in that list necessarily falls within the purview of the statute. See Chickasaw Nation , 534 U.S. at 89-91, 122 S.Ct. 528 ; Collins , 854 F.3d at 1333. When, for example, it appears that Congress inadvertently included an illustrative term that conflicts with the plain meaning of the term it is intended to illustrate, courts should disregard the illustrative term as simply a bad example. Chickasaw Nation , 534 U.S. at 90, 122 S.Ct. 528. So too, when a statute uses an illustrative term that is overly broad, courts should adopt a narrowing construction of that illustrative term so that it fits the meaning of the term it illustrates. See, e.g. , Collins , 854 F.3d at 1333 (construing 18 U.S.C. § 3663A(c)(1)(A)(ii) such that the illustrative phrase including any offense committed by fraud or deceit refers only to an offense against property). Therefore, were material given a quantitative interpretation, funds would mean not any and all amounts of money, but instead a non-de minimis amount of money.
I agree that Congress might have used the phrase including ... funds to define material support as encompassing any funds, however small the amount. That construction fits with one permissible interpretation of material. And, indeed, given the devastating worldwide harms inflicted by terrorists, such a decision by Congress would be understandable. But Congress did not unambiguously define material in that way. Another permissible interpretation of material is more than de minimis. Under that interpretation, the statutes illustrative use of the term funds should not be construed to encompass de minimis funds. If the agency can permissibly interpret material to mean more than de minimis, as surely it can, then it can also permissibly interpret funds to fit that interpretation.
The ambiguity is made starker by Congresss use of the illustrative phrase transfer of funds or other material financial benefit. 8 U.S.C. § 1182(a)(3)(B)(iv)(VI). On the one hand, this phrase suggests that funds per se constitute a material financial benefit, as the majority points out. Maj. Op. at 1244-45. On the other hand, under the majoritys interpretation, the word material as used this second time is entirely superfluous, as under the majoritys interpretation, any financial benefit is necessarily material. If Congress did not intend material to be superfluous when used this second time, then material cannot be read as anything other than a quantitative term that excludes from its reach the transfer of de minimis (i.e., non -material) financial benefits. What else could material financial benefit mean, if the word material is to be ascribed any meaning at all? See Jabateh , 845 F.3d at 345 (Hamilton, J., concurring in part and concurring in the judgment) (While the precise meaning of material depends on its context, it always has the effect of raising the threshold of the word it modifies.). And if material means more than de minimis the second time it is used, as I believe it must, we would ordinarily presume it has the same meaning elsewhere in the same statute-particularly elsewhere in the same subsection (indeed the same sentence). See Dept of Revenue v. ACF Industries, Inc. , 510 U.S. 332, 341-42, 114 S.Ct. 843, 127 L.Ed.2d 165 (1994).
Although I concur in the judgment here, the majoritys reasoning will have consequences that extend beyond this case. In light of todays decision, the agency will be unable to adopt a different permissible interpretation of the material support bar in the context of de minimis funds in the future. See Natl Cable & Telecomms. Assn v. Brand X Internet Servs. , 545 U.S. 967, 982, 125 S.Ct. 2688, 162 L.Ed.2d 820 (2005). We should not prevent the agency from continuing to consider the meaning of an ambiguous, context-specific term based on its expertise and experience in this area. See id. at 1002-03, 125 S.Ct. 2688.
Because I believe Congress did not speak directly to the question whether material support encompasses de minimis funds, I cannot join in the majoritys application of Chevron step one. Otherwise, I concur.
The parties dispute whether Petitioner also knowingly gave money to Maoists in 2004 and 2005 when they demanded money from him. We need not resolve that dispute because, as explained in text, the unchallenged event in 2009 is disqualifying.
As noted, an exception applies when the person affording support did not know, and should not reasonably have known, that he was dealing with a terrorist organization. § 1182(a)(3)(B)(iv)(VI). That exception does not apply here because Petitioner testified that he knew that the man to whom he gave money in 2009 was a Maoist.
As discussed below, the word material is used twice in the statute. I find material unambiguously quantitative when used the second time-as an adjective modifying financial benefit.
The first iteration of the material support bar was enacted in the Immigration Act of 1990, Pub. L. No. 101-649, § 601(a), 104 Stat. 4978, 5067-70. The varying definitions of material have not meaningfully changed since then. See Blacks Law Dictionary 1124 (10th ed. 2014) (defining material as, inter alia, [h]aving some logical connection with the consequential facts, significant, essential).
If the statute read material support, including ... any funds, then I would agree that it is unambiguous as to the issue of de minimis support. See United States v. Gonzales , 520 U.S. 1, 5, 117 S.Ct. 1032, 137 L.Ed.2d 132 (1997). Congress has included such language in other statutes, but not here. See, e.g. , 18 U.S.C. § 2339A(b) (defining material support or resources to mean any property, tangible or intangible, or service ...).
Before its precedential decision in A-C-M- , the BIA concluded in a reasoned unpublished decision that one packed lunch and the equivalent of about $4 U.S. dollars, which the terrorists expressly stated would be used to buy beer ... cannot be said to be material. In re *** , 2009 WL 9133770, at *2 (B.I.A. 2009) ; see also In re S-K- , 23 I. & N. Dec. 936, 945 (B.I.A. 2006) (declining to address the respondents claim that material support does not include de minimis support, but recognizing that such a claim was by no means frivolous).