| Failing to Protect Refugees and Asylum Seekers: Overly Broad Definition of Material Support for Terrorism |
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I. The Problem Changes made by the PATRIOT Act of 2001 and the REAL ID Act of 2005 to the Immigration and Nationality Act (INA) have blocked access to refugee protection in the United States for bona fide refugees and asylum seekers who pose no risk to national security or danger to American communities. These laws contain definitions of “terrorist activity” and “terrorist organization” that are so broad that they strain any common sense understanding of the concept. Rape victims who were forced into domestic servitude by armed rebels have been barred from protection for providing “material support” to terrorists, as have refugees who were forced to pay money or provide food or medical care to armed militants. Afghans who fought against the Soviet Union in the 1980’s and Iraqis who banded together to fight Saddam Hussein have been defined as members of “terrorist organizations” and similarly turned away. These sweeping definitions of terrorist activity and terrorist organization and the misguided interpretation adopted by the current administration extend far beyond any legitimate purpose and thwart the United States’ longstanding humanitarian commitment to refugee protection. In an effort to avoid punishing refugees and asylum seekers in the name of counter-terrorism, Congress enacted legislation in late 2007[1] that expanded the discretionary authority of the executive branch to waive the terrorism bars in appropriate cases, ensuring that deserving cases would not be statutorily barred because of an overly broad definition of terrorist activity and terrorist organization. Unfortunately, the new legislation did not modify these sweeping definitions, and the potential for the expanded use of waivers to make a dent in the problem has not been realized. To date, DHS has issued only a handful of waivers in asylum cases and the process for issuing exemptions in removal proceedings, which was only announced in late October 2008, leaves asylum seekers in a precarious situation by requiring full adjudication of all elements of the case before an exemption is considered. Thousands of deserving asylum seekers and individuals previously granted asylum who are applying for permanent legal status have been told that their cases are on permanent hold.
The new administration should work with Congress to pass legislation to fix the overly broad definitions of terrorism in the INA. In the interim, the administration should make full use of the waiver process to address the protection needs of refugees. The new administration should: a) Streamline and improve the process for issuing waivers in appropriate cases so that far more deserving asylum applicants have access to protection b) Direct DHS to establish a more effective policy for consideration of waivers in immigration court cases that does not leave the consideration of the waivers until the very end of the process. c) Ensure that victims of terrorism who were forced against their will to provide goods or services to rebel groups are no longer labeled “terrorists” and thereby barred from refugee protection d) Work with Congress to pass legislation that would adopt reasonable definitions of terrorist activity and terrorist organization under the INA
American Library Association Bill of Rights Defense Committee (BORDC) The Constitution Project Defending Dissent Foundation Essential Information Government Accountability Project International Justice Network Liberty Coalition OpenTheGovernment.org Open Society Policy Center Sara B. Greenberg, JD, MALD sgreenberg(at)phrusa.org202-728-5335 South Asian Americans Leading Together Stanford Law School - Mills International Human Rights Clinic U.S. Bill of Rights Foundation * These groups and individuals support the general principles expressed in the policy proposals described above. The allies listed do not necessarily endorse the specific language in every proposal, but they do agree that the proposals reflect the general principles that should govern policy in this area. Please contact the individuals and organizations listed in this section for more information.
A. If we adopt these changes, will the asylum program and the refugee resettlement program be vulnerable to fraud and abuse by “terrorists”? Such assertions are made without engaging in a serious debate about whether the terrorism definitions sweep too broadly and actually serve the purpose they claim to serve. Barring rape victims from asylum or refugee resettlement because they were forced to provide domestic services to the armed rebels who captured them not only serves no legitimate purpose, counter-terrorism or otherwise, but also flies in the face of sensible refugee protection policy. The asylum process has numerous background checks and gathers substantial amounts of information on applicants and their activities. The U.S. government can ensure appropriate screening of applicants while carrying out the refugee and asylum programs, which advance U.S. interests as a global leader on humanitarian issues.
a. Fighting Terrorism Fairly and Effectively: Recommendations for President-Elect Barack Obama http://hrw.org/reports/2008/us1108/ b. Jesselyn Radack, You Say Defendant, I Say Combatant: Opportunistic Treatment of Terrorism Suspects Held in the United States and the Need for Due Process, 29 N.Y.U. REV. L. & SOC. CHANGE 525 (2005), available at http://2009transition.org/liberty-security/administrator/index2.php?option=com_docman§ion=documents&task=download&bid=4 [1] Consolidated Appropriations Act of 2008, Division J, Section 691, which amended |