U.S. counterterrorism laws and policies since the terrorist attacks of September 11, 2001, have focused heavily on identifying and restricting the potential security risk that incoming foreign nationals pose.
These counterterrorism policies have had a far-reaching effect on asylum and refugee resettlement in the United States.
The notion of material support to terrorism — the contribution of money, food, clothing, shelter, and other services to terrorist organizations — has been particularly harmful and has distracted policymakers from the humanitarian concerns that drive refugee resettlement and asylum.
Not coincidentally, refugee admissions fell immediately after September 11, 2001. Just 27,110 refugees were admitted in fiscal year (FY) 2002 (October 1, 2001, to September 30, 2002), less than half of the FY 2001 total of 69,304.
Though numbers eventually rose to 52,868 in FY 2004 and 53,813 in FY 2005, they remain far removed from pre-September 11 rates of admission. Most recently, only 31,912 refugees were admitted into the United States in FY 2006 although the ceiling for refugee admissions was 70,000 (see sidebar).
Three factors can explain either the expulsion or exclusion of individuals who may have provided material support: (1) an expanded post-September 11 statutory definition of "terrorist organization," (2) a broad legal understanding of "material support to terrorism," and (3) the individual's contribution of material support under duress.
Beginning in 2006, the U.S. government began to address the unintended effect of the material-support provision on refugees and asylum seekers. With focused efforts from the relevant governmental agencies, a practical solution may be on the horizon.
The Resettlement and Asylum Processes
What is Material Support to Terrorism?
A 1996 amendment to the Immigration and Nationality Act (INA) of 1952 extended immigration restrictions against members of terrorist organizations to more indirect affiliates of such groups. It defined, for the first time, the concept of "material support" as the provision of money, goods, personnel, and/or training to terrorist organizations. It also barred those who provided such assistance from entering the United States.
The Patriot Act of 2001, the Intelligence Reform and Terrorism Prevention Act of 2004, and the Real ID Act of 2005 significantly broadened this definition.
In its most up-to-date form, in Title 18 of the United States Code, material support to terrorism is defined as the provision of "any property, tangible or intangible, or service, including currency or monetary instruments or financial securities, financial services, lodging, training, expert advice or assistance, safe houses, false documentation or identification, communications equipment, facilities, weapons, lethal substances, explosives, personnel…and transportation, except medicine or religious materials" to terrorist organizations.
This is a nonexclusive list. Department of Homeland Security (DHS) resettlement officers who assess the admissibility of refugee applicants, or immigration judges deciding asylum cases, may declare any other kind of assistance equivalent to material support. For instance, a Burmese pastor's material support consisted of providing a hat and other small articles to a cousin who was a member of the Karen National Union, an antiauthoritarian minority rights group and militia.
Refugees who are found to have provided material support may have their appeals for asylum either rejected or put on hold. Noncitizens already living in the United States may not qualify for permanent residency. And refugees may be declared ineligible for resettlement in the United States.
DHS first began to apply the material support restriction to refugee and asylum cases in 2004. A March 2007 estimate from Refugee Council USA submits that around 15,310 such cases are on hold for material-support reasons. Refugee cases on hold include Chin, Karen, Karenni, Colombians, Montagnards, Hmong, Cubans, Liberians, Sierra Leonians, Congolese, Eritreans, Ethiopians, and Kunama.
Those rejected for refugee resettlement may face criminal consequences in their country of first asylum. Also, their chances for resettlement to another nation worsen once the U.S. government has turned them away on grounds of supporting terrorism.
The material-support bar may be circumvented in two ways. INA allows the secretaries of State and Homeland Security (with input from the attorney general) to waive the restriction in individual cases or for specific groups. This waiver's application is addressed in greater detail later in the article.
Asylum or refugee applicants who have provided material support to certain categories of terrorist organizations also qualify for an exemption if they can prove unawareness of either of the following: that their action constituted material support, or that the recipient group was involved in terrorist activities.
This waiver is most applicable to children of rebel soldiers or material-support providers. For example, one resident of the Mai Nai Soi camp for Burmese refugees in Thailand was 10 years old when her parents hosted rebel soldiers of the Karenni National Progressive Party (KNPP), during which time she continued to do her regular household chores. She was declared eligible for resettlement to the United States, unlike the majority of the 18,000 individuals in the camp.
Since most material-support providers knowingly assist the organization in question, this exemption is rarely exercised.
Broad Definition of Terrorist Organization
The definition of "material support" is directly tied to characterizations of "terrorist organization" and "terrorist activity," both of which were significantly expanded after September 11, 2001.
The Patriot Act, which became law in October 2001, created a three-tier terrorist group classification system. The State Department was designated the responsibility (which it already held in a smaller capacity) of maintaining lists of Tier I (most dangerous) and Tier II organizations.
The act also defined a terrorist organization as any "group of two or more individuals, whether organized or not, which engages in, or has a subgroup which engages in, terrorist activity." This last category gives particular latitude to individual DHS case managers and immigration judges to classify groups as "nondesignated Tier III" terrorist organizations, and to bar or expel a material-support provider from the United States on that basis.
The availability of the Tier III designation has affected many individuals belonging to minority groups that have assisted prodemocracy antiauthoritarian organizations. For example, the Karen National Union and the Chin National Front have fought for the rights of minority refugees in Burma. Individuals who supported their causes are found to have provided material support to groups that qualify as nondesignated Tier III organizations, and have had significant difficulties entering the United States as refugees.
Paradoxically, affiliates of groups that have actively assisted the U.S. government have also been stigmatized. The material-support bar has excluded many relatives of the Cuban Alzados, an anti-Castro group that sided and fought with U.S. troops in the Bay of Pigs invasion.
The Hmong, an ethnic minority group in Southeast Asia, fought with U.S. and South Vietnamese troops during the Vietnam War. Though large numbers of Hmong were resettled in the United States immediately after the conflict, they faced restrictions in applying for refugee status after September 11, as their antigovernmental stance in Laos fell under the new definition of terrorist activity. The secretaries of State and Homeland Security waived the ban against material supporters of Hmong organizations in October 2006.
Broad Legal Understanding of the Material Support Definition
The absence of what is known as a de minimis threshold has characterized legal interpretations of the material-support bar. De Minimis means a minor claim that is not worthy of legal attention. Since U.S. law has devised no threshold on actions that may be considered material support, any level and any kind of support, however trivial, falls under the definition.
In the 2004 asylum case Singh-Kaur v. Ashcroft, for instance, the Board of Immigration Appeals maintained that material support meant "any support, no matter how insignificant." It argued that the defendant, an Indian citizen who belongs to the Sikh faith, provided material support by setting up tents for a religious congregation, which may have included members of a militant sect that could be designated as a Tier III group.
Without a minimum threshold, certain factors that are relevant to the candidate's security risk assessment are ignored. These include the intent (or political objective) of the contribution and the recipient organization's use of the materials. The only limitation on the scope of the term, as explained, is the waiver option for those able to prove their unawareness of the recipient organization's involvement in terrorist activity.
The court's arguments in a landmark Burmese asylum case illustrate the consequences of both an expansive definition and the absence of a minimum threshold.
Applicant Ma San Kywe had donated money to a prodemocracy organization for over a year. The defense argued that, since this money was not used to further terrorist activity, she had not provided material support to terrorism.
The Board of Immigration Appeals disagreed, arguing that — at the baseline — she had supported a group that fell under the Tier III classification of a terrorist organization. This was the final ruling, despite the court's admission that the applicant had acted consistently with U.S. foreign policy and "posed no danger whatsoever to the national security of the U.S.." The court even admitted, in this case, that the statutory language on material support was "breathtaking in scope."
Refugee advocates have argued that a de minimis argument is common in U.S. criminal law, where, for instance, self-defense is an acceptable plea. They recommend that similar thresholds be placed on the material-support bar.
Material Support under Duress
The absence of a de minimis threshold has also led to the exclusion of individuals who provided material support under duress. Those who were forced to assist terrorist organizations under threat of death or severe injury still fall under the material support bar and may not enter or remain in the United States.
The United States has put the lives of numerous refugees in limbo in such instances. A Liberian family was abducted by rebels from the National Patriotic Front of Liberia in 1993. The wife and daughter were raped several times. They were forced, as were the husband and other children, to cook and fetch water for the rebels. In February 2006, following an interview by a resettlement officer, DHS declared these actions indicative of material support to terrorism, and put their refugee resettlement case on indefinite hold.
In another case, a Sierra Leonean man was forced to fix cars for a rebel group that threatened to kill his family. His resettlement case has been stalled.
Duress pleas have also been rejected in material support-related asylum cases. In Matter of R.K., in May 2005, the immigration court ruled against a Sri Lankan man who was kidnapped by the Liberation Tigers of Tamil Eelam and forced to pay a ransom of 50,000 rupees.
The absence of a duress exception has had especially severe consequences for Colombian refugees. As 75 percent of Colombian territory is controlled by rebel groups, the majority of these individuals were forced to pay "war taxes" and provide other assistance to the local rebel authorities. This circumstance led to the all but complete halt of a joint program initiated by PRM and UNHCR to address the plight of Colombian refugees in Ecuador.
The United States put most Colombian resettlement cases on hold for material-support reasons in late 2004, resettling only 53 Colombians between October 2005 and June 2006.
Efforts to Alleviate the Problem
The material-support issue has become particularly difficult in the context of international terrorism and the real threat that some incoming foreign nationals have posed. Clearly, the exclusion of those who most need and deserve protection is not the government's intent.
The material-support bar is symptomatic, instead, of the current administration's better-safe-than-sorry policy. This stringency is viewed as the unfortunate but unavoidable outcome of a necessarily broad definition.
A practical and ideologically neutral solution to this dilemma lies in the previously mentioned INA waiver clause, which permits the secretaries of State and Homeland Security to exempt certain individuals or groups from the material-support bar.
The government first used this provision only in 2006, when Secretary of State Condoleezza Rice declared that Burmese Karen refugees residing in the Tham Hin camp in Thailand were eligible for refugee resettlement despite their provision of material support.
This action stemmed from an increased awareness of the material-support problem, which nongovernmental organizations (NGOs) have worked to bring to policymakers' attention since 2004.
The Refugee Council, a group of 23 refugee advocacy organizations, has frequently lobbied members of Congress and the administration to take steps to prevent refugees and asylum applicants from being unfairly targeted by the material-support bar. Representatives of these and other NGOs, and several academic institutions, have testified frequently before congressional committees and conducted extensive field research on the issue.
Use of the waiver has expanded since Secretary Rice's 2006 decision to admit the Karen refugees into the United States. In January 2007, she extended the waiver to refugees who had provided material support to eight groups. The Burmese organizations affected by this waiver are the Karen National Union, Chin National Front, Chin National League for Democracy, Karenni National Progressive Party, Kayan New Land party, and Arakan Liberation Party. The bar against supporters of the Tibetan Mustangs and Cuban Alzados was also lifted.
In February 2007, Secretary of Homeland Security Michael Chertoff expanded the scope of this eight-group waiver to those applying for other immigration benefits, including asylum. He also extended the waiver to those who had provided material support under duress to Tier III groups. In May 2007, he made this duress exception applicable to specific Tier I and II organizations that DHS had identified. The Revolutionary Armed Forces of Colombia (FARC) was the first group to fall under this classification.
In October 2007, Secretary Rice and Secretary Chertoff issued waivers for those who had provided material support before 1993 to the Vietnamese Montagnard group Front Unifié de Lutte des Races Opprimées and before 2005 to Laotian Hmong organizations.
Finally, the 2008 Appropriations Act (HR 2764) explicitly authorized all of the above waivers (except the FARC duress exception) and increased congressional oversight of the waiver process. It requires, for instance, that the secretary of Homeland Security provide a yearly report on the number of asylum applicants removed from the United States who had submitted a duress plea, and details on how those decisions were reached.
DHS has taken a nuts-and-bolts approach to galvanizing the waiver option. First, the secretary's discretionary authority is delegated to more junior USCIS officials, which expedites the decision-making process. Second, extensive guidelines for these officers identify minimum threshold factors — the level and frequency of support, how long ago it was provided, and the nature of the terrorist activities the group conducted — as determinants of waiver applicability.
Unfortunately, the new waiver process does not resolve two other issues related to resettlement and asylum. First, procedures for classifying groups as terrorist organizations have been known to confuse the material-support issue.
For instance, though the Department of State had placed the People's Mujahedin of Iran (PMOI) on its list of terrorist organizations, the Department of Defense declared all Iraqi members of the group "protected persons" under the Fourth Geneva Convention.
These Iraqi PMOI members are housed in U.S. military-run Camp Ashraf, where a number of noncitizen U.S. soldiers are stationed. Though these individuals have not yet faced immigration-related difficulties, they may be inadmissible in the United States or ineligible for a range of immigration benefits, as they have provided "material support" to a terrorist group on the State Department's list.
Second, many prodemocracy groups still fall under the definition of "terrorist organization." UNHCR has not been able to refer Burmese Karen National Union and Chin National Front members residing in Thai refugee camps.
Despite these unresolved matters, the recent efforts of the Departments of State and Homeland Security indicate progress. USCIS now has the difficult tasks of 1) training its officers in the legal mechanics of the material-support bar and 2) developing their broader understanding of the factors that drive the provision of material support, whether psychological or political.
USCIS's implementation of these measures will be the first step toward a U.S. refugee policy that gives equal weight to humanitarian and national-security priorities.
Swetha Sridharan is a research associate for civil liberties and national security at the Council on Foreign Relations.
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