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U.S. immigration law bans from entering the United States those who provide “material support” to “terrorists.” Unfortunately, recent amendments have had perverse consequences. New expansive terms, applied overbroadly without regard to common-sense exceptions, have barred from U.S. protection large numbers of refugees who are victims of terrorists, not terrorists themselves. Consider these examples: • Last year, “Miguel,” a young Colombian refugee, fled to Ecuador after marauding paramilitary soldiers kidnapped him and forced him to dig graves for the victims of their killing spree.

• During the civil war in Liberia, rebels invaded the home of “Mrs. J,” killed her father, and gang-raped and abducted her. While a hostage, she was forced to perform household tasks for the rebels, including cooking and doing laundry. After several weeks, Mrs. J escaped and made her way to a refugee camp. • In 1992 Sierra Leonean rebels attacked the family of “Mrs. D.” The rebels brutally killed one family member with machetes, severely burned another, and raped Mrs. D and her daughter. The rebels held the family captive for four days in their own home.

Once Miguel, Mrs. J, and Mrs. D would have been eligible for protection in the United States. Today, they are not. In 2004 the Department of Homeland Security began to apply the material-support bar to overseas refugees seeking resettlement in the United States. The department alleges that Mrs. J and Mrs. D provided “material support” to terrorists, including the cooking and laundry services that the rebels forced Mrs. J to perform and the shelter that rebels obtained by force from Mrs. D. Likewise, Miguel’s grave-digging, performed under threat of death, also qualifies as material support under the current law. OVERLY EXPANSIVE This bizarre result springs from anti-terrorism provisions adopted in the USA Patriot Act of 2001 and the Real ID Act of 2005. These laws amended Section 212 of the Immigration and Nationality Act to expand dramatically the class of individuals who are inadmissible to the United States because they have “engaged in terrorist activity.” This includes providing “material support” to “terrorists” or “terrorist organizations.” As a result of its broad language and lack of a duress exception, the material-support bar already has prevented thousands of refugees from obtaining asylum or resettlement in the United States. Although this legislation may have restricted the ability of terrorists to pose as refugees, it has also had the perverse effect of shutting the door on thousands of refugees who are victims of terrorism. In effect, the United States has foreclosed entry for those individuals who have suffered at the hands of the very terrorist groups it targets. The first problem with the material-support bar is its overly broad definitions. A “terrorist organization” is defined as either an organization previously designated by the U.S. government as a terrorist organization or any “group of two or more individuals, whether organized or not, which engages in, or has a subgroup which engages in” certain enumerated terrorist activities, including a “threat, attempt, or conspiracy” to use “any. . . explosive, firearm, or other weapon or dangerous device . . . with intent to endanger, directly or indirectly, the safety of one or more individuals.” Activity that meets this definition is considered “terrorist” 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).” The definition of “terrorist organization” is thus based on whether illegal violence was used — not on the character of the organization, the nature of the conflict, or the type of government in question. Under this definition, an individual who gave support to almost any armed group — whether freedom fighters or genocidal gangs — can be excluded from refugee protection in the United States. The definition can apply equally to organizations that the U.S. government opposes or supports. For example, the Department of Homeland Security recently admitted in oral argument that a refugee who provided support to Afghanistan’s Northern Alliance in the 1990s would be barred from entry today. This is true even though the Northern Alliance was fighting the Taliban government, a regime the U.S. government considered illegitimate (and subsequently deposed with the Northern Alliance’s assistance). The Department of Homeland Security also recently put on hold the resettlement cases of 147 Cubans who provided support to the Alzados, an armed group that fought against Fidel Castro in the 1960s. Though Alzado members were resettled in the United States years ago, these individuals are now barred from joining them. Absurdly, the definition of a “terrorist organization” can extend even to U.S. military activity abroad. The Department of Homeland Security conceded in oral argument (in In re Ma San Kywe, argued before the Board of Immigration Appeals this year) that the Iraqi national who provided information to the U.S. Marines who helped rescue American soldier Jessica Lynch would be barred from entry under this law. As crazy as it sounds, the U.S. Marine Corps would qualify as a “terrorist organization” under this law because they are a group whose activity was unlawful under Iraqi law at the time and who were fighting against an established (Iraqi) government. Similarly, the Hmong people of Laos, many of whom were recruited by the CIA to fight alongside U.S. troops during the Vietnam War, could be ineligible for resettlement for providing material support to “terrorists” — that is, U.S. troops when their activity was unlawful under the laws of the Southeast Asian countries where they operated. And that risk is not fanciful. More than 100,000 Hmong refugees have already resettled in the United States, but the Department of Homeland Security recently put the resettlement cases of at least 30 Hmong refugees in Thailand on indefinite hold. The rationale was the material-support bar, presumably because of the refugees’ support of U.S.-backed Hmong armed resistance against the government of Laos. This denial of admission to myriad refugee populations, particularly those who are effectively being punished for aiding U.S. interests, was surely not Congress’ intent in passing the statute. IMMATERIAL SUPPORT A second problem with the material-support bar is that the law does not evaluate the amount and nature of the support given when determining whether an individual provided material support and does not include an explicit exception for de minimis support. The Department of Homeland Security construes material support as though all support, no matter how nominal, is per se material. Its counsel has argued before the Board of Immigration Appeals and the U.S. Court of Appeals for the 3rd Circuit that Congress intended “material support” as a legal term of art that means any support, no matter how insignificant. This interpretation effectively reads the word “material” out of the statute. Unfortunately, in Singh-Kaur v. Ashcroft (2004), the 3rd Circuit agreed with the agency. The court found that providing food and setting up tents for a religious congregation, which may have included members of the religion’s militant sect, constituted material support. By not applying a de minimis exception, the Department of Homeland Security and U.S. courts are failing to limit the material-support bar to actual terrorists and their supporters. Instead, they extend the bar to innocent civilians in war-torn regions who are often forced to pay negligible amounts of currency or goods to rebel or terrorist groups. UNDER DURESS A third problem is that the material-support bar provides no explicit defense for duress. Consequently, the bar has been applied equally to terrorists and their victims. Without a duress exception, the bar requires the United States to refuse to protect an individual who provided support involuntarily or under the threat of death. The lack of an explicit duress defense and refusal by the Department of Homeland Security and some courts to read one into the material-support bar is inconsistent with general principles of U.S. law. The principle of duress is recognized in U.S. criminal law and, according to United States v. Bailey (1980), may be raised as a common-law defense even when certain conduct violates criminal statutes with no express duress exception. Moreover, canons of statutory construction require that laws be read to avoid absurd results. It is both absurd and incongruent with congressional intent to apply the material-support bar to victims of terrorism instead of limiting it to terrorists themselves and to those who intentionally and voluntarily support terrorism. And the absurd results have included even the most extreme cases of threats of imminent bodily harm. In one case, In the Matter of R.K. (2005), an immigration judge declined to recognize a defense of involuntariness when a Sri Lankan refugee was kidnapped by the Liberation Tigers of Tamil Eelam and forced to pay 50,000 rupees for his release. The judge deemed the ransom payment “material support.” In the asylum context, interpretations of the material-support bar that do not permit a duress defense arguably violate U.S. treaty obligations. Under Article 33 of the 1951 Refugee Convention, which the United States adopted in 1968, the United States cannot expel or return a refugee to face persecution unless there are “reasonable grounds for regarding [the refugee] as a danger to the security of the [United States]” and the refugee “ constitutes a danger to the community of [the United States.]“ Applying the material-support bar to asylum seekers who provided support to terrorists under duress is inconsistent with this restriction. Providing material support at gunpoint or under the threat of death does not make a refugee a danger to the security of the United States. As they do with other bars to admission, refugees should have the opportunity to prove factually that they acted under duress. A duress exception poses no problem of opening the floodgates, nor would it hamper prosecution of terrorists. But it would safeguard the country’s longstanding commitment to providing safe haven to the most vulnerable refugees. In early May, the departments of State, Justice, and Homeland Security reached an agreement that will waive the application of the material-support bar to some of the 9,300 Burmese refugees awaiting resettlement in a refugee camp in Thailand. But the waiver will only apply to those refugees who provided “material support” to the Karen National Union, not to the many refugees who were actual members of the group, even though the United States supports their opposition to the military junta of Myanmar. Moreover, the waiver is no solution for the thousands of refugees elsewhere in need of resettlement or the hundreds of asylum seekers already in the United States now affected by the material-support bar. It is urgent that Congress amend the material-support bar. Any amendment should (1) limit the scope of what constitutes a terrorist organization, (2) provide a de minimis exception to material support, and (3) create an exception for support performed under duress. Sens. Patrick Leahy (D-Vt.) and Norm Coleman (R-Minn.) recently proposed an amendment that would accomplish both the first and third prongs, but it was voted down in mid-May. Lawmakers must continue to push for a fix. Without legislative change, the material-support bar will continue to vindicate the very terrorists the United States opposes while abandoning the victims of terrorism that the United States has long sought to protect.
Jennie Pasquarella is a recent graduate of Georgetown University Law Center. She took part in a student project on the material-support bar, including a fact-finding trip in March to interview Colombian refugees barred from resettlement in the United States. A report is available. A longer version of this article will be published in American University’s Human Rights Brief .

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