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June 2, 2014

F.H.-T. (a pseudonym used to protect him and his family) has asked the Supreme Court to overturn the Government’s process for deciding exemptions from the so-called “terrorist bars” which precluded him from obtaining asylum. 

F.H.-T. is an Eritrean man whom everyone agrees would be tortured if returned to his native Eritrea.  The government argues that his support for Eritrean independence from Ethiopia counts as support for terrorism, so that he’s barred from asylum.  Although Congress permits exemptions for people fitting into the “terrorism bars” for people who are no threat to anyone, complicated agency procedures prevent F.H.-T. from seeking one of those exemptions.  He was ordered deported, though the Board of Immigration Appeals also ordered that he can’t be deported to Eritrea because of the risk of torture.

The Seventh Circuit Court of Appeals declined to overturn the removal order against F.H.-T., finding that it is the role of Congress, not of the courts, to mend the procedures that have created a dead-end for F.H.-T. Counsel sought rehearing from the Court, and four judges of the Court dissented from the denial of rehearing.  Chief Judge Wood - joined by Judges Posner, Rovner, and Hamilton - concluded that F.H.-T. “has a statutory right to seek a waiver of the terrorism bar, but between them, the EOIR and DHS have created regulatory barriers that made it impossible for him to place his case before the Secretary of Homeland Security and obtain a ‘yes’ or ‘no’ answer.” Read the full dissent here.

Various reports have explained the unfortunate effects of the over-broad “terrorist bars,” which affect many thousands of genuine refugees every year.  The government argues that just about every form of support for any armed non-governmental group counts as “terrorism” – even support for the Northern Alliance.  The legal issues presented to the Supreme Court matter not only for the terrorism bars, but for all situations where multiple federal agencies are involved in deciding matters related to a removal order. 

F.H.-T. is represented at the Supreme Court by Chuck Roth, Lisa Koop, and Ashley Huebner from NIJC, and Thomas Maas from the law firm of Katten Muchin Rosenman LLP, appearing pro bono.

Legal Documents:

Read, also, the section, starting on page 70, titled "Material Support and Terrorism Bars in Immigration Law" from the transcript of the United States Senate's Hearing on August 5, 2009.