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Humanitarian Necessity: Obama Administration Designates Exceptions to the Terror Bar

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Dept of Homeland Security

By: James Sellars

Coming on the heels of President Obama’s recent State of the Union promise to govern more forcefully through executive directives, the administration has quietly began making it easier for people with tangential connections to terror groups to begin receiving asylum in the United States.  On February 5, 2014, the Departments of Homeland Security and State, as a matter of discretion in accordance with the authority granted to it by INA section 212(d)(3)(B)(i), created two new exceptions to the Immigration and Nationality Act that were subsequently published in the Federal Register.  These new exceptions stipulate that individuals who have previously provided “insignificant” or “limited” material support for terror groups, will no longer be automatically denied eligibility from asylum or refugee status as stipulated under INA 212(a)(3)(B).  While the primary target of the recent exceptions is undoubtedly the proliferating number of Syrian refugees and the humanitarian concerns arising there from, the exemptions will also have a positive and profound impact on all individuals from conflict zones who are seeking asylum in the United States.  Moreover, this new rule provides exactly what our U.S. law is supposed to provide; a proper balance between providing protection to refugee populations in accordance with the 1951 Refugee Convention, and ensuring that potential national security threats do not take advantage of our immigration laws.

The terror bar has a long history of producing incredibly harsh results for individuals seeking asylum in the United States.  In Matter of S-K-, a 2006 BIA decision, the Board stated “that Congress intentionally drafted the terrorist bars…very broadly to include even those people described as freedom fighters, and it did not intend to give us discretion to create exceptions for members of organizations to which our government might be sympathetic.”  However, it has become increasingly clear that this interpretation of the statute is fundamentally unworkable.  This is because the previous rule has resulted in many deserving refugees and asylees being barred from the United States for actions so tangential and minimal that no rational observer would conclude that the actions of the petitioner constituted material support for a terrorist organization.  The new recently enacted exemptions apply to “limited material support,” which is defined as “material support that was insignificant in amount or provided incidentally in the course of everyday social, commercial, family or humanitarian interactions, or under significant pressure.”  Thus, as a practical matter, this new interpretation means that asylum speakers who previously may have been excluded for minor dealings with rebel groups, may now be eligible for asylum after they (1) pass a background check; (2) fully disclose the nature and extent of their support to designated terrorist organizations; and (3) can establish that the support provided by them was nothing more than “insignificant”.  Additionally, “implementation of this determination will be made by U.S. Citizenship and Immigration Services (USCIS), in consultation with U.S. Immigration and Customs Enforcement (ICE), or by U.S. consular officers….”

While the full ramifications of these new exceptions is yet to be seen, DHS has provided several examples of individuals who would have been ineligible for asylum or refugee status under the old rule, but will now be eligible to qualify under the new exception.   First, it is evident that these new changes will help displaced people who have no alternative than to deal with members of banned groups during the course of their daily lives, as is the case for Syrians currently living in areas of the country that are controlled by Jahbat Al-Nusra or the Islamic State of Iraq and the Levant.  According to the DHS spokeswomen, this group would include business owners who unwittingly rendered services to members of a terrorist organization.  DHS has also stated that the exemption would include “an owner of a restaurant who serves food to any paying customer, even though he knows some of them are members of an opposition group.”  Moreover, the exemption would also include “a mother or father who…fed and clothed their young adult child, even when they knew their child is part of a resistance movement.”   Under the old rule, all of individuals in the aforementioned examples would be denied asylum based on the terror bar despite the fact that their “support,” if you can call it that, was minimal.  Another example of individuals who are now eligible under the exemption are aid workers who have previously assisted members of terrorist organizations during the aftermath of a natural disaster or civil conflict.  Lastly, people who had to pay a toll or tax to a terrorist organization in order to pass through opposition-controlled territory will also be allowed to qualify for asylum under the new exceptions.

According to immigration experts like Anwen Hughes of Human Rights First, the new rule will have an immediate impact on approximately 3,000 asylum seekers who currently have cases pending before USCIS and the immigration courts.  However, according to Democratic Senator Patrick Leahy of Vermont, a long-time champion of changing the material support definition in INA 213(a)(3)(B), the immediate impact could reach as high as 10,000. Additionally, these numbers fail to take into account the foreign nationals who are currently in the process of being deported.  Under the new exceptions, some of these individuals would now qualify for relief as well.  Regardless of the numbers, this exception to the terror bar is a welcome reprieve from harsh realities that often resulted under the former rule.  This new rule provides exactly what our immigration law is supposed to provide, which is proper balance between providing protection to refugee populations in accordance with the 1951 Refugee Convention, and ensuring that potential national security threats do not take advantage of our immigration laws.

Filed under: Immigration Issues