Material Support As It Affects Refugees and Asylees in the United States

1. Material SupportAs It Affects Refugees and Asyleesin the United States © Church World Service, Lutheran Immigration and Refugee Service, and World Relief. 8/4/2006 May be used or reproduced with proper attribution.

2. Overview of the training • What the law says • Individual case examples • How to approach material support with clients applying for adjustment or naturalization • Discussion with training participants about cases you have encountered • Update on advocacy efforts

3. I. Law behind “material support”

4. Which laws are we talking about? • Patriot Act • REAL ID Act • Both amended the Immigration and Nationality Act (INA), expanding the definition of “terrorist group” and “terrorism” to include a lot of people we’d never otherwise think of as involved with terrorism.

5. New definition of “terrorist activity” • INA section 212(a)(3)(B)(iii) • TERRORIST ACTIVITY DEFINED.-As used in this Act, the term "terrorist activity" means any activity which 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) and which involves any of the following: 

6. “Terrorist activity” • (I) The highjacking or sabotage of  any conveyance (including an aircraft, vessel, or vehicle).  • (II) The seizing or detaining, and   • threatening to kill, injure, or continue to detain, another individual in order to compel a third person (including a governmental organization) to do or abstain from doing any act as an explicit or implicit condition for the release of the individual seized or detained. 

7. “Terrorist activity” • (III) A violent attack upon an internationally protected person (as defined in section 1116(b)(4) of title 18, United States Code) or upon the liberty of such a person.  • (IV) An assassination. 

8. “Terrorist activity” • (V) The use of any-  • (a) biological agent, chemical agent, or nuclear weapon or device, or  • (b) explosive, firearm, or other weapon or dangerous device (other than for mere personal monetary gain), with intent to endanger, directly or indirectly, the safety of one or more individuals or to cause substantial damage to property.  • (VI) A threat, attempt, or conspiracy to do any of the foregoing.

9. What it means to “engage in terrorist activity” •  INA section 212(a)(3)(B)(iv): • ENGAGE IN TERRORIST ACTIVITY DEFINED- As used in this chapter, the term "engage in terrorist activity" means, in an individual capacity or as a member of an organization- 

10. “Engage in terrorist activity” • (VI) to commit an act that the actor knows, or reasonably should know, affords material support, including a safe house, transportation, communications, funds, transfer of funds or other material financial benefit, false documentation or identification, weapons (including chemical, biological, or radiological weapons), explosives, or training-- 

11. “Material support” includes: • Safe house • Transportation • Communications • Funds (note that there is no minimum amount) • Transfer of funds • Other material financial benefit • False documents or ID • Weapons • Training

12. Support for: • (aa) for the commission of a terrorist activity;   • (bb) to any individual who the actor knows, or reasonably should know, has committed or plans to commit a terrorist activity;   • (cc) to a terrorist organization described in subclause (I) or (II) of clause (vi) or to any member of such an organization; or

13. Support to: • (dd) to a terrorist organization described in clause (vi)(III), or to any member of such an organization, unless the actor can demonstrate by clear and convincing evidence that the actor did not know, and should not reasonably have known, that the organization was a terrorist organization.

14. Family members also subject to material support bar • NOTE: Sec. 212(a)(3)(B)(i)(VII) says that “the spouse or child of an alien who is inadmissible under this section [is inadmissible] if the activity causing the alien to be found inadmissible occurred within the last 5 years.” • There is (supposedly) an exception if the family member has satisfactorily renounced or “did not know or should not reasonably have known of the activity causing the alien to be found inadmissible under this section.”

15. What is a “terrorist organization”? • INA Sec. 212(a)(3)(B)(vi)— • Designated under Section 219; • Designated by Secretary of State; • “a group of two or more individuals, whether organized or not, which engages in the activities described” above.

16. What are there NO EXCEPTIONS for? • Coerced activities, no matter how severe the coercion or duress was (threat of death to self or family members) • Minimal amounts of support

17. When does this arise as a problem? • Section 212 of the INA deals with “inadmissibility” • Anytime someone makes an application that requires her/him to be “admissible” to the US, this section would be relevant; • Note that being inadmissible at time of entry or adjustment of status makes a person deportable (under Section 237 of the INA).

18. Which applications require “admissibility”? • Application for refugee status • Application for asylum • Application for adjustment of status • Application for naturalization • Re-entry into the US (using a Refugee Travel Document or Permanent Resident card) • I-730, I-130 and AOR – possible problem for petitioner as well as beneficiary – don’t require admissibility of petitioner but CIS might examine

19. When is material support NOT likely to be a problem? • Application for EAD • Application for Refugee Travel Document (but NOTE that it could arise on re-entry to the US using that RTD)

20. Specific case examples Frustrating but true

21. Slavery of Liberian refugee • During the war in Liberia, LURD rebels came to a woman’s house, shot and killed her father in front of her and then raped her repeatedly. The rebels then abducted her, held her hostage, and forced her to perform a variety of household tasks, such as cooking and laundry. She eventually escaped and is now in a refugee camp. Her US refugee case was put on hold because of tasks she had done for the rebels, such as doing laundry.

22. Youth Forced to Dig Graves for Paramilitaries • A Colombian young man was living with his uncle, who was attacked by paramilitaries. They then forced the young man to march for several days. The paramilitaries shot and killed many of those who marched with him.  He was forced to watch this, and at times, to dig the graves of the dead. He would be barred resettlement in the US under “material support” because he provided “services” to a terrorist organization when the paramilitaries forced him to dig graves, including possibly his own.

23. Group examples: Colombians • Colombian refugees, many of whom have been coerced under extreme duress to make payments to armed groups on the State Department’s list of foreign terrorist organizations (FTOs) such as the FARC.  The alleged material support has included money, confiscation of livestock and property, labor and numerous other examples.

24. Group examples: Burmese • Ethnic minority refugees and asylum seekers from Burma, many of whom are fleeing religious persecution. These refugees have been denied protection because they have contributed to ethnic and religious organizations that may be associated with sub-groups that oppose the repressive Burmese authorities. While these parent groups and sub-groups are not designated by the State Department as FTOs, the activities of certain associated sub-groups that advocate the overthrow of the military rulers of Burma have been construed as “terrorist activity.”

25. Court cases on material support: one BIA decision so far • The Board of Immigration Appeals, which is the appeals court for many immigration cases, has issued one decision relating to material support • This is significant, as it determines how immigration judges must deal with material support in future cases that come before them: they are bound to follow the interpretation of the law set out by the BIA

26. Matter of S-K- • 23 I&N Dec. 936 (BIA, June 8, 2006): http://www.usdoj.gov/eoir/vll/intdec/vol23/3534.pdf • Burmese asylum-seeker who is Christian and ethnic Chin established well-founded fear of persecution by oppressive Burmese military dictatorship, but the IJ denied asylum and withholding of removal based on statutory ineligibility imposed by the Material Support bar • The Burmese govt arrested S-K-’s brother and fiancé and killed S-K-’s fiancé; S-K- subsequently donated money (1,100 Singapore dollars – which is about $700 U.S.) to the Chin National Front (CNF)

27. Matter of S-K- (2) • On appeal, BIA agreed with IJ that CNF is a terrorist org. because they use force in self-defense against Burmese govt • Because S-K- provided material support (money) to the CNF & knew or should have known about CNF’s use of explosives, etc. in defense activities, S-K- was barred from asylum relief • The BIA found that S-K- did, however, meet her burden for CAT

28. Matter of S-K- Key Points • (1) The statutory language of section 212(a)(3)(B) of the INA does not allow a “totality of the circumstances” test to be employed in determining whether an organization is engaged in terrorist activity, so factors such as an organization’s purposes or goals and the nature of the regime that the organization opposes may not be considered. • (2) Neither an alien’s intent in making a donation to a terrorist organization nor the intended use of the donation by the recipient is considered in assessing whether the alien provided “material support” to a terrorist organization under section 212(a)(3)(B)(iv)(VI) of the Act.

29. Key Points (2) • (3) The respondent’s contribution of S$1100 (Singapore $) over an 11-month period to the CNF was sufficiently substantial to constitute material support to an organization, which despite its democratic goals and use of force only in self-defense, is defined by statute as a terrorist organization acting against the Government of Burma (Myanmar), so the respondent is barred from asylum and withholding of removal.

30. Matter of S-K-, Concurring opinion • This is a case of relatively small amount of support to an org. that opposes one of the most repressive govts in the world that engages in brutal campaigns against ethnic minorities • Clear that S-K- poses no danger whatsoever to the security of the U.S. and should be considered for a waiver of the MS bar

31. Countries to be especially careful about • REMEMBER – MATERIAL SUPPORT CAN APPLY TO ANY NATIONALITY • Burmese • Colombians • Cubans • Tibetans and Nepalese • Liberians

32. Practical guidance on dealing with material support

33. Review underlying refugee/asylum claim • You’ll need an understanding of the basic underlying refugee or asylum claim • You may well need to do some research/reading on the client’s organization and/or country

34. For asylees: • For asylees: get a copy of the I-589 (asylum application) and any other statements from the asylee that were filed with the application. Read them – do they raise any possible material support issues? • If the asylee doesn’t have these materials, you can do a FOIA request to obtain them.

35. FOIA requests for asylum applications • It’s best practice to look at the asylum application before filing for adjustment, even aside from the material support issue. Why? You want to be sure that the I-589 is consistent with the I-485. • Instructions and forms for filing FOIA: http://www.uscis.gov/graphics/formsfee/forms/g-639.htm

36. Refugees • If refugee has a copy of the I-590, review that application • Agency should make an effort to keep copies of all I-590s, for refugees who enter with a copy of the I-590 • If you think there might be a material support issue for a refugee, you will want to do a FOIA request to get the I-590

37. Filling out specific applications • I-485 now has questions relating to material support: http://www.uscis.gov/graphics/formsfee/forms/i-485.htm

38. Some possible questions to ask clients • Have you ever participated in a group that opposed the government or is involved in political activity,whether or not you did so voluntarily? • Have you ever given any amount of money to an armed group that opposed the govt? • Were you ever forced or coerced into giving money to a group that wasn’t part of a government? What was the group? • Were you ever forced or coerced into doing anything for any non-governmental group? What was the group?

39. What should you do if you suspect a material support issue? • Investigate thoroughly • Discuss with your national office’s attorney • Seriously consider not filing the application for the time being • Explain to client why you think it’s best not to file

40. What happens to asylee and refugee applications with material support issues? • Currently, there are over 700 asylee and refugee adjustments on hold at the Nebraska and Texas Service Centers for material support issues. • They are on hold pending guidance from USCIS headquarters on how to deal with them.

41. What might happen to these applicants? • No one knows what will ultimately happen with these cases. It might be bad. • It’s entirely possible that these cases could be denied, and the applicants put in removal proceedings. • If your client is put into removal proceedings, do what you can to help that client get an immigration attorney

42. Naturalization • We have heard that material support bar also has been applied in some naturalization cases, leading to referral to Immigration Court • Removability would be based on INA § 237(a)(1) – inadmissible at time of entry or adjustment of status

43. Discussion – who has run into material support problems? • Anyone encountered cases with a possible material support issue? What did you do? • Anyone have a case or cases on hold b/c of material support?

44. Update on material support advocacy Efforts to change the law, or its application, or both

45. Advocacy efforts • Refugee/asylum advocacy community has met with numerous members of DHS and the Administration to advocate for waiver and more rational interpretation of “material support” • Only positive results thus far: Secretary of State Rice has applied the waiver to Burmese Karen in Tham Hin camp. See http://www.state.gov/r/pa/prs/ps/2006/65911.htm

46. Advocacy efforts • Senate bill was introduced in April to change material support definition in law, as amendment to comprehensive immigration reform—amendment was not passed • Still left with no solution for vast majority of those affected by material support • Rep. Pitts (PA) planning to introduce stand-alone bill week of July 24, 2006 – he is looking for Republicans to co-sponsor this bill • Continued advocacy on material support greatly needed

47. If you have questions or feedback regarding this presentation, please contact Melisa Rivera at mrivera@wr.org. Thank you!