Page:Kerry v. Din.pdf/31

From Wikisource
Jump to navigation Jump to search
This page has been proofread, but needs to be validated.
8
KERRY v. DIN

Breyer, J., dissenting

For one thing, the statutory provision to which it refers, §1182(a)(3)(B), sets forth, not one reason, but dozens. It is a complex provision with 10 different subsections, many of which cross-reference other provisions of law. See Appendix, infra. Some parts cover criminal conduct that is particularly serious, such as hijacking aircraft and assassination. §§1182(a)(3)(B)(iii)(I), (IV). Other parts cover activity that, depending on the factual circumstances, cannot easily be labeled "terrorist." One set of crossreferenced subsections, for example, brings within the section’s visa prohibition any individual who has "transfer[red] . . . [any] material financial benefit" to "a group of two or more individuals, whether organized or not, which . . . has a subgroup which engages" in "afford[ing] material support . . . for . . . any individual who . . . plans" "[t]he use of any . . . weapon . . . with intent . . . to cause substantial damage to property." §§1182(a)(3)(B)(iv)(VI), (vi)(III), (iv)(VI)(bb), (iii)(V). At the same time, some subsections provide the visa applicant with a defense; others do not. See, e.g., §1182(a)(3)(B)(iv)(VI)(dd) (permitting applicant to show "by clear and convincing evidence that the actor did not know, and should not reasonably have known, that the organization was a terrorist organization"). Taken together the subsections, directly or through crossreference, cover a vast waterfront of human activity potentially benefitting, sometimes in major ways, sometimes hardly at all, sometimes directly, sometimes indirectly, sometimes a few people, sometimes many, sometimes those with strong links, sometimes those with hardly a link, to a loosely or strongly connected group of individuals, which, through many different kinds of actions, might fall within the broad statutorily defined term "terrorist." See, e.g., Daneshvar v. Ashcroft, 355 F. 3d 615, 628 (CA6 2004) (alleging material support for selling newspapers); Singh v. Wiles, 747 F. Supp. 2d 1223, 1227 (WD Wash. 2010) (alleging material support for letting individuals