Statement of National Immigrant Justice Center

Hearing on "The ‘Material Support' Bar:

Denying Refuge to the Persecuted?"

U.S. Senate Committee on the Judiciary

Subcommittee on Human Rights and the Law

September 19, 2007

Introduction

In recent years, Congress enacted several pieces of legislation that attempt to keep terrorists from obtaining immigration status in the United States as refugees or asylees.  The USA PATRIOT Act of 2001 and the REAL ID Act of 2005 amended our nation's immigration laws to expand the definition of a "terrorist organization" and, in turn, dramatically broaden the class of people that are barred from admission to the United States for having provided material support to terrorists.  In practice, however, these laws have prevented many genuine asylum seekers from gaining protection in the United States, even if they were themselves victims of terrorist activity. 

The new and modified definitions are so broad as to achieve an absurd result.  With asylum seekers, application of the law results in grave danger for individuals fleeing threats of persecution, harm, and death.  The experience of the National Immigrant Justice Center as a provider of legal representation to asylum seekers, torture survivors and other extremely vulnerable individuals prompts it to submit this statement to the Subcommittee on Human Rights and the Law.  The National Immigrant Justice Center urges the Congress to modify current law to ensure asylum seekers are not unintentionally barred from safety as a consequence of the law's broadly drafted provisions.   

The National Immigrant Justice Center, a partner of Heartland Alliance for Human Needs and Human Rights, promotes the human rights of non-citizens through legal services, advocacy, and strategic impact litigation.  Based in Chicago, Illinois, the National Immigrant Justice Center offers free or low-cost legal representation to approximately 8,000 immigrants, refugees, asylum seekers, unaccompanied immigrant children and victims of human trafficking each year, including approximately 500 asylum seekers per year.  The National Immigrant Justice Center is a leading national voice for immigration reform, advocating for access to legal counsel and due process protections for all non-citizens.  The organization is nationally recognized for its quality legal services and impact litigation, working with the largest pro bono network in the nation.  This network includes 700 pro bono attorneys, who handle individual cases and strategic litigation in the federal courts. 

The National Immigrant Justice Center is grateful to Chairman Richard Durbin for inviting the submission of this statement for the hearing record. 

The Material Support Bar in Current Law

Under current immigration law, a collection of individuals may now be considered a terrorist organization if it is a "group of two or more individuals, whether organized or not, which engages in, or has a subgroup which engages in" terrorist activities.[1]    Terrorist activity includes any "threat, attempt, or conspiracy" to use "any...explosive, firearm, or other weapon or dangerous device (other than for mere personal or monetary gain), with intent to endanger...the safety of one or more individuals or to cause substantial damage to property."[2]  A group's activity is terrorist activity if it is "unlawful under the laws of the place where it is committed (or which, if it had been committed in the United States, would be unlawful under the laws of the United States or any State)."[3] 

Under this framework, pro-democracy groups that struggle against dictatorships may be considered terrorist groups if the actions they take against their repressive regimes violate the laws of the country where the actions take place.  For example, before the fall of the Taliban, members of the U.S.-supported Northern Alliance would have been barred from receiving asylum in the United States because they would have been considered terrorists.  U.S. government attorneys have admitted that under this definition, even U.S. Marines operating in Iraq before the fall of Saddam Hussein would have qualified as a terrorist organization.[4] 

These hypothetical examples mirror the experience of actual asylum seekers who have been blocked, thus far, from seeking protection in the United States.  The Board of Immigration Appeals (BIA) recently found that a Burmese woman who provided financial support to pro-democracy freedom fighters was barred from receiving asylum because she provided material support to a terrorist organization.[5]  Thus far, the courts have found no defenses to this bar.  Duress, infancy, self-defense and mental incapacity do not excuse material support under the current statute.  Moreover, there is no de minimus exception.  Providing a meal for a rebel fighter could trigger the bar.  Being held hostage in one's home while members of a guerilla group lodge for the night could trigger the bar.  Paying a fee to keep terrorists from killing one's family could trigger the bar.  The statutory language is, as one BIA Board member observed, "breathtaking in its scope."[6] 

In an announcement published in the Federal Register on March 6, 2007,[7] the Department of Homeland Security (DHS) stated that, effective February 20, 2007, discretionary waivers will be available in some cases.  The waivers are available to certain asylum-seekers who provided material support under duress.  Waivers are also available to asylum-seekers who provided material support to certain groups that are favored by the U.S. government, including particular opposition groups from Burma, Cuba, and Tibet. 

These waivers are discretionary, based upon a "totality of the circumstances" test, and can be revoked at any time.  Moreover, the waiver is so amorphous as to be nearly impossible to obtain.  There is no clearly articulated procedure that one can follow to request a waiver or to seek review if one is denied or if circumstances change.  While DHS issued a memo on May 24, 2007,[8] detailing how asylum officers should proceed in cases in which they suspect that otherwise eligible asylum seekers may have provided material support in violation of the law, there is no discussion in this memo of how an asylum seeker may affirmatively request a waiver.  This situation is fraught with risk for asylum seekers that apply for status without the benefit of legal representation.  These individuals may fail to comprehend the "totality of the circumstances" analysis and therefore fail to present the full set of facts that would provide the asylum officer with sufficient information to determine that a material support waiver is appropriate. 

The Material Support Bar and Asylum Seekers Inside the United States

Most of the attention paid to the material support bar has thus far focused on the plight of individuals outside U.S. borders who seek recognition as refugees and resettlement in the United States.  These include Burmese nationals who have lived for years in Thai refugee camps who may be barred for supporting organizations that oppose the military junta in their country of origin.  Colombians in Ecuador face a similar plight if they were forced to provide food, medicine or lodging to the FARC rebels, even if this "material support" was provided only under threat of violence. 

Less frequently discussed is the fact that there are asylum seekers presently in the United States who face the same legal obstacle to obtaining legal immigration status as their refugee counterparts overseas.  The numbers are admittedly smaller, but each case involves an individual seeking protection who deserves a fair opportunity to demonstrate his or her eligibility for asylum under U.S. law.

In response to changes in the law, the National Immigrant Justice Center modified its training program for pro bono attorneys who wish to handle the cases of adult and children asylum seekers.  Training presentations and manuals now explicitly address the need for attorneys representing asylum-seekers to keep the expanded definitions of terrorist organizations and material support in mind as they prepare their clients' asylum claims.  In the past, certain facts, such as coercion or threats from non-state actors that the government could not control, might have bolstered an applicants' claim for asylum.  Now the client and attorney must assess whether those same facts will render the client barred because he or she provided what is defined under law as material support. 

A Case Example Illustrating the Need to Anticipate a Charge of Material Support

The National Immigrant Justice Center carefully screens every potential case for validity, eligibility, and for potential challenges from the government.  As noted above, a material support screen is now a critical component of that intake process and remains significant throughout the case preparation.  Thus far, the government has not alleged that any of the National Immigrant Justice Center's clients are barred for having provided material support.  In several cases, however, staff attorneys and pro bono partners prepared arguments in response to anticipated charges.  One of these cases is described below.  Because this case is not fully resolved, and the client's ability to remain in the United States is not guaranteed, the client's name and identity have been obscured. 

The National Immigrant Justice Center and a pro bono attorney from a leading Chicago law firm represent a woman from a country in central Africa.  Married with an infant son, Ms. Haroun[9] lived in the capital city of her country and worked as a consultant.  The capital came under attack by a rebel army hostile to the government in power.  Rebels burst into Ms. Haroun's home and held her family hostage at gunpoint for three days, using their home as a base of operations, using their telephone, and relying upon the radio and television as sources of news.  The rebels slept in shifts so that the family members were under watch at all times and could not escape or contact outsiders for assistance.  The family had no connection to the rebels, but had no choice but to wait out the situation. After three days, police burst in and captured the rebels.  The police also arrested Ms. Haroun and her family, assuming they were sympathetic to the rebels.  Ms. Haroun was beaten after she refused to admit that she supported the rebels.  She and her child were released after she was interrogated.  She subsequently escaped the country with her son.  Her husband is believed to have been released but his whereabouts remain unknown to this day. 

Despite the fact that Ms. Haroun and her family were victims of rebel violence, under the material support law, she could be barred from admission as an asylee in the United States.  Her "support" was provided under duress and was limited to the lodging that the rebels demanded and took without invitation.  She had no prior or subsequent contact with the rebels and took no steps to aid them.  Nonetheless, the current administration views all support as fungible, such that lodging is considered material support just as if it were a cash contribution or a weapon.  The law contains no duress defense such that Ms. Haroun's involuntary contribution of lodging would be excused.[10]  DHS issued regulations in 2007 stating that it would consider duress exceptions based on the "totality of the circumstances," but as with the exceptions noted above, DHS has total discretion to grant or deny duress waivers and the asylum seeker has no opportunity to appeal or seek judicial review of a denial of discretion. 

Recommendations

1. Enact a duress defense for those who provide material support under threat, coercion or duress 

The following language should be enacted to ensure that those who provide material support under duress are not barred from protection: 

DURESS EXCEPTION- Section 212(a)(3)(B)(iv)(VI) of the Immigration and Nationality Act (8 U.S.C. 1182(a)(3)(B)(iv)(VI)) is amended by adding at the end: "It shall be an affirmative defense to inadmissibility under this subsection that the actor provided material support under duress."[11]

2. Conduct vigorous oversight of administrative waivers

The National Immigrant Justice Center urges Congressional committees and subcommittees, including the Subcommittee on Human Rights and the Law, to conduct vigorous oversight of the implementation of the material support bar and the granting of waivers to eligible asylum seekers and refugees who provided material support against their will. 

3. Consider the particular needs of child soldiers in any material support legislative fix

The National Immigrant Justice Center commends the work of Chairman Durbin and Ranking Member Coburn to protect child soldiers both in their countries of origin and in their quest for safety in the United States as refugees or asylees.  Many of the children who are abducted from their families and forcibly conscripted are made to commit horrifying acts of violence against members of their own families and communities, as well as civilians targeted by the armies or rebels they are coerced into joining. 

The asylum claims of these children require special attention because the child victim may be forced to commit crimes that would otherwise trigger a bar to protection.  For example, a person who commits certain non-political crimes is ineligible for asylum in the United States.  Those who persecute others are also ineligible.  Child soldiers fall into a complex area of law because they may commit such crimes but not of their own volition.  Just as these acts have potential to trigger criminal or persecutor bars, they may also meet the technical definition of material support to a terrorist organization.

The National Immigrant Justice Center has been forced to confront such questions in a small number of cases involving child soldiers who escaped their captors and sought protection in the United States.  The Center's staff would be pleased to work with the Subcommittee to draft legislative proposals to address this problem.

The National Immigrant Justice Center expresses its appreciation to Chairman Durbin and Ranking Member Coburn, for holding this hearing and seeking solutions to the challenges posed by the material support bar.  The National Immigrant Justice Center also thanks those members of Congress, especially Senator Leahy, Senator Coleman, and Representative Pitts, who have worked tirelessly to ensure that the material support bar is amended so that its application serves the stated intent of barring those who actually support terrorist organizations.  America's longstanding commitment to welcome and protect refugees and asylum seekers has been dishonored by application of this law.  It is time for Congress to act to restore America's place as a beacon of light for these vulnerable populations. 

[1] Immigration and Nationality Act (INA) §212(a)(3)(B)(vi)(III).

[2] INA §212(a)(3)(B)(iii)(V).

[3] INA §212(a)(3)(B)(iii). 

[4] In re S-K-, 23 I&N Dec. 935 (BIA 2006), Oral Argument Transcript at 25.

[5] In re S-K-, 23 I&N Dec 936 (BIA 2006).  

[6] In re S-K at 948. (Osuna, J., concurring).

[7] 72 Fed. Reg. 9954.

[8] Interoffice Memorandum from Jonathan Scharfen, Deputy Director, USCIS, to Associate Directors, Re: Processing the Discretionary Exemption to the Inadmissibility Ground for Providing Material Support to Certain Terrorist Organizations, May 24, 2007.

[9] A pseudonym.

[10] Senator Patrick Leahy of Vermont, Chairman of the U.S. Senate Committee on the Judiciary, has fought to include a duress defense in law, but thus far his attempts to enact such language have been blocked.

[11] This language was included as section 694(c) of the FY08 Foreign Operations Appropriations bill, H.R.2764 RS (110th Congress), but was struck during Senate floor debate.