Introduction

This commentary analyzes the Third Circuit’s non-precedential opinion in Askin Ozturk v. Attorney General, addressing the statutory “terrorism bar” to asylum and withholding of removal under 8 U.S.C. § 1182(a)(3)(B). The panel—Judges Shwartz, Krause, and Chung (opinion by Judge Chung)—affirmed the Board of Immigration Appeals’ determination that the Grey Wolves constitute a Tier III terrorist organization and that petitioner Askin Ozturk provided material support to that organization. The opinion clarifies three practical points that are likely to influence future adjudications even if not binding:

• A group need not have formal membership rolls or a rigid hierarchy to qualify as a Tier III terrorist organization; “organized or not” means exactly that.
• Leadership authorization of terrorist activity, required under Third Circuit precedent for Tier III designation, can be established through substantial evidence of a top-down structure and specific directives, including the petitioner’s own testimony.
• Common activities such as recruiting, purchasing supplies for events, and serving in leadership roles readily satisfy the “material support” element.

The case also underscores exhaustion and forfeiture rules: issues not raised to the BIA (e.g., a knowledge-based defense) or not briefed in the court of appeals will not be considered.

Summary of the Opinion

Petitioner Ozturk, a Turkish national who entered the United States without inspection, sought asylum and withholding of removal. The Immigration Judge (IJ) deemed him ineligible under § 1182(a)(3)(B)(iv)(VI) after finding that he provided material support to the Grey Wolves, treated as a Tier III terrorist organization. The BIA dismissed his appeal.

On review, applying substantial evidence review to factual findings and de novo review to legal questions, the Third Circuit held:

• Tier III designation: Substantial evidence supported finding the Grey Wolves engaged in terrorist activity, including historical evidence that the group “committed over 600 political murders,” “planned the 1981 assassination attempt of Pope John Paul II,” and engaged in torture (beating dissidents’ feet with batons). The court rejected petitioner’s argument that the Grey Wolves are insufficiently “organized,” noting that the statute covers groups “organized or not.”
• Leadership authorization: Consistent with Uddin, the court required evidence that leadership authorized the terrorism; it found such evidence in a “regimented, top-down” command structure and Ozturk’s testimony that the “head of the Grey Wolves” gave directives, including to torture members who disobeyed orders, with “inside members” carrying out the acts.
• Material support: Ozturk admitted recruiting members, purchasing event supplies, and serving as a leader; these actions qualify as material support under § 1182(a)(3)(B)(iv)(VI) and controlling case law.
• Unexhausted arguments: The court declined to consider Ozturk’s late-raised claim that he lacked knowledge of the organization’s terrorist nature because he failed to raise it before the BIA. It also refused to reach issues the BIA did not rely upon (past persecution/fear) and deemed his unbriefed credibility challenge forfeited.

The petition for review was therefore denied.

Analysis

Precedents Cited and Their Role

• Saravia v. Attorney General, 905 F.3d 729 (3d Cir. 2018): Establishes the scope of appellate review—courts review only the reasons the BIA provides, but where the BIA adopts IJ findings and discusses bases for the decision, both decisions are reviewable. The panel accordingly evaluated both the IJ’s and BIA’s rationales.
• Sunuwar v. Attorney General, 989 F.3d 239 (3d Cir. 2021): Reiterates the substantial evidence standard—factual findings are conclusive unless any reasonable adjudicator would be compelled to conclude otherwise. This standard guided the court’s acceptance of the BIA/IJ factual findings regarding the Grey Wolves’ activities and structure.
• Uddin v. Attorney General, 870 F.3d 282 (3d Cir. 2017): Central to the decision. Uddin holds that Tier III designation for an undesignated group requires a finding that leadership authorized the terrorist activity. The panel found this requirement satisfied by record evidence of a command hierarchy and leadership orders—bolstered by Ozturk’s own testimony.
• Sesay v. Attorney General, 787 F.3d 215 (3d Cir. 2015): Confirms that even relatively low-level actions can constitute “material support.” The panel cited Sesay’s survey of cases in upholding the IJ’s conclusion that recruiting, purchasing supplies, and leadership roles qualify.
• Singh-Kaur v. Ashcroft, 385 F.3d 293 (3d Cir. 2004): Holds that providing food and shelter to individuals engaged in terrorist activities is material support. This underscores the breadth of the bar, which does not require high-level or violent conduct.
• Matter of A‑C‑M‑, 27 I. & N. Dec. 303 (BIA 2018): The BIA held that cooking and cleaning for a terrorist organization is material support. The Third Circuit’s reliance aligns with the wide scope of “support.”
• Orabi v. Attorney General, 738 F.3d 535 (3d Cir. 2014): Reinforces that the court may consider only the reasons the BIA provided; helped limit the issues the panel addressed.
• John Wyeth & Bro. Ltd. v. CIGNA Int’l Corp., 119 F.3d 1070 (3d Cir. 1997): Establishes that unbriefed issues are forfeited; applied to Ozturk’s suggestion that credibility findings were insufficient.
• Bonhometre v. Gonzales, 414 F.3d 442 (3d Cir. 2005): Requires exhaustion of administrative remedies; applied to reject Ozturk’s unexhausted knowledge-based defense.

Legal Reasoning

The court’s analysis proceeds in three steps: (1) Does the Grey Wolves qualify as a Tier III terrorist organization; (2) Did Ozturk provide “material support” under the statute; and (3) Are any statutory defenses or arguments preserved and available?

1) Tier III Designation

• Statutory framework: The INA recognizes three tiers of “terrorist organizations.” Tier III covers “undesignated” groups—“a group of two or more individuals, whether organized or not, which engages in, or has a subgroup which engages in,” terrorist activity. 8 U.S.C. § 1182(a)(3)(B)(vi)(III). The government must introduce evidence “indicating” the group qualifies; the burden then shifts to the applicant to show by a preponderance that the bar does not apply. 8 C.F.R. § 1208.16(d)(2); Uddin, 870 F.3d at 285.
• No formal hierarchy required: The court expressly rejects the argument that absence of formal membership records or rigid structure disqualifies a group. The statutory phrase “organized or not” forecloses that position.
• Leadership authorization (Uddin requirement): A Tier III designation in the Third Circuit requires proof that leadership authorized members’ terrorist acts. The court found substantial evidence of authorization:
  • Evidence of a “regimented, top-down organizational structure” and “clear chain of command.”
  • Evidence that leadership authorized “many international incidents” tied to the Grey Wolves.
  • Ozturk’s testimony that the “head of the Grey Wolves” issued orders, including instructions to torture noncompliant members, with “inside members” carrying them out.
  The petitioner’s assertion that leadership is unclear did not overcome this record.
• Evidence of terrorist activity: The IJ cited record evidence that the Grey Wolves “committed over 600 political murders,” “planned the 1981 assassination attempt of Pope John Paul II,” and engaged in torture (beating dissidents’ feet with batons). These acts fit statutory definitions of “terrorist activity.” See 8 U.S.C. § 1182(a)(3)(B)(iii), (iv).

2) Material Support

• Statutory definition: The bar covers actions that the alien “knows, or reasonably should know, afford material support” to a terrorist organization. 8 U.S.C. § 1182(a)(3)(B)(iv)(VI).
• Application to Ozturk: He testified that he “recruited many new members,” “purchased supplies for events,” and “served as a leader.” Courts have repeatedly treated analogous conduct as material support (Sesay; Singh-Kaur; Matter of A‑C‑M‑). No violent acts or high ranking are required.

3) Knowledge-based defense and issue preservation

• Knowledge defense: The INA provides a knowledge-based limitation in this context: an alien can avoid the bar if he “demonstrate[s] by clear and convincing evidence that [he] did not know, and should not reasonably have known, that the organization was a terrorist organization.” 8 U.S.C. § 1182(a)(3)(B)(i)(VI); Uddin, 870 F.3d at 285.
• Exhaustion and forfeiture: Ozturk did not raise this knowledge argument to the BIA, so the Third Circuit could not consider it (Bonhometre). The court also refused to consider other issues not relied upon by the BIA (past persecution/future fear) and deemed any unbriefed credibility challenges forfeited (Orabi; John Wyeth).

Impact

Although non-precedential, this decision has tangible implications:

• Undesignated groups: Adjudicators can designate a Tier III organization without proof of formal membership or rigid internal structures. Evidence of coordinated activity and an ability to issue and enforce orders can suffice.
• Leadership authorization proof: The decision illustrates acceptable proof for Uddin’s authorization requirement: documentary evidence of hierarchy and communications, plus first-person testimony attributing directives to leadership.
• Broad material-support exposure: Routine organizing work—recruitment, logistics and supplies, and local leadership—remain squarely within the material-support bar’s ambit. Applicants tied to organizations later found to meet Tier III criteria face significant eligibility hurdles even absent violent personal conduct.
• Burden shifting and litigation strategy: Once DHS introduces evidence “indicating” Tier III status, the applicant must affirmatively rebut by a preponderance. Preserving and developing a knowledge-based defense is critical and must be exhausted before the BIA.
• Procedural guardrails: The opinion reinforces strict adherence to issue preservation (only BIA-stated grounds are reviewable) and briefing requirements—key for counsel planning appeals.

Complex Concepts Simplified

• Tier I/II/III terrorist organizations:
  • Tier I and II include formally designated organizations (e.g., State Department designations).
  • Tier III are “undesignated” groups that, based on evidence in the record, meet statutory criteria by engaging in terrorist activity—even if loosely organized.
• Material support: Broadly covers assistance that helps a terrorist organization function—money, goods, services, recruitment, logistics, or leadership roles. No requirement that the support be high-level or violent.
• Substantial evidence review: A deferential standard. The court will not disturb agency factfinding unless any reasonable adjudicator would be compelled to reach the opposite conclusion.
• De novo review: Fresh review of legal questions with no deference to the agency’s legal conclusions (e.g., whether a definition fits).
• Exhaustion/forfeiture: Arguments must first be presented to the BIA (exhaustion). On appeal, issues must be adequately briefed (or they are forfeited).
• Non-precedential disposition: The decision does not bind future Third Circuit panels but can be persuasive, especially where it synthesizes controlling statutes and precedents.

Conclusion

The Third Circuit’s decision in Ozturk—while non-precedential—offers a clear, structured application of the INA’s terrorism-related ineligibility bars. It reaffirms that:

• A Tier III designation does not require formal organizational trappings; the statute’s “organized or not” language is operative.
• Within the Third Circuit, Uddin’s leadership-authorization requirement is satisfied by substantial evidence of a hierarchical command structure and directives attributable to leadership—including a petitioner’s testimony.
• Activities such as recruiting, purchasing supplies, and taking on leadership roles are classic examples of “material support.”
• Knowledge-based defenses and other arguments must be preserved at the BIA level and properly briefed on appeal.

For practitioners, Ozturk underscores the importance of building a thorough record on (i) whether the group’s leadership authorized terrorist actions; (ii) the applicant’s knowledge (or lack thereof) of the organization’s nature; and (iii) any potential statutory or discretionary waivers. For applicants with past involvement in politically active or violent groups, even modest contributions can trigger the material-support bar, significantly narrowing the path to asylum or withholding of removal.