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The Material Support Bar: Denying Refuge to the Persecuted?

Senate Judiciary Committee, Subcommittee on Human Rights and the Law Hearing

This statement for the record submitted by Jennifer Daskal, senior counterterrorism counsel for Human Rights Watch, calls on Congress and the administration to correct the unintended effects of the overbroad terrorism-related bars in United States immigration laws.

Submitted by Jennifer Daskal, senior counterterrorism counsel for Human Rights Watch.

Thank you for the invitation to submit a statement for the record on this important subject.

Thousands of vulnerable refugees and asylum seekers have been denied entry to the United States or face return to their countries of origin by the U.S. because of overbroad terrorism-related bars in the U.S. Immigration and Nationality Act. These bars define anyone who associated with or provided any “material support” to any armed group as terrorists – even if the group has been actively supported by the United States, and even if the individual was forced at gunpoint to provide the support.

Shockingly, Hmong and Montagnards have been defined as terrorists and barred entry into the United States because they fought against the Lao and Vietnam governments – alongside the US – during the Vietnam War; rape victims forced into domestic servitude have been labeled supporters of terrorism because of the cooking and cleaning they did while enslaved; and Burmese refugees have been labeled terrorists because they once fought against one of the world’s most repressive regimes.

Last fiscal year, the United States admitted over 12,000 fewer refugees than expected – largely due to the unintended consequences of these bars.1 At its peak, over 500 asylum cases were on indefinite hold, as the administration sorted out what to do with individuals who had cleared every other security hurdle but were being described as “material supporters of terrorism” because they had been forced against their will to provide food, water, or services to armed rebels. Tens of thousand of others who have already been granted asylum – including thousands of Hmong and Montagnards who fought alongside or supported US troops during the Vietnam War – have been told that they cannot naturalize because of these bars.

Over the last two years, a left-right coalition of groups representing a wide array of religious, human rights, civil liberties, refugee and immigration groups have joined forces to push for changes in the law and its application. We have called upon the administration to read an implicit duress exception into the law, so as to protect rape and kidnapping victims from being defined as terrorists because of what they were compelled to do by their captors. We have urged Congress to write an explicit duress exception into the law; to change the overbroad definition of “terrorist activity” and “terrorist organization” in the law, so that armed groups that do not target civilians but are engaged in legitimate resistance movements are not inadvertently labeled terrorists; and to broaden the administration’s discretion to avoid the unintended consequences of the law. And we have urged the administration to begin using the authority already provided under the current law to waive some of these bars in compelling cases.

A year ago, these efforts began to bear fruit, when Secretary of State Condoleezza Rice issued an order protecting supporters of the Chin National Front and Karen National Union, two ethnic Burmese resistance movements, from the application of these bars. Over the last year, Secretary of State Rice and Secretary of Homeland Security Michael Chertoff have issued waivers to protect supporters of eight groups – including several Burmese resistance groups and the US-supported Cuban Alzados – that would never have been considered terrorist organizations but for the overbroad definition in the law. As of the end of April, the administration also issued guidance to begin implementing so-called “duress” waivers, designed to protect victims of terrorism forced against their will to provide support to armed rebels from being barred as terrorists themselves.

The implementation of these waivers has been slow and painstaking, but we are now starting to see real results. To date, over 3,000 refugees – mostly Burmese refugees who had supported ethnic resistance movements – have been admitted into the United States pursuant to these waivers. Asylum cases are moving along a bit more slowly, with 9 granted and another 440 on hold as likely candidates for a waiver. And approximately 30 adjustment of status waivers have been granted to date.

While a huge step forward, the administration of this waiver authority remains problematic. In that regard, I would like to raise three main concerns – two dealing with the process or lack thereof for administering the waivers, and one with the limits in the law itself. As explained in what follows, I am very hopeful that the latter problem will be solved with legislation that has passed the Senate as part of the Foreign Operations Appropriations Bill and urge all members of this committee to help ensure this bill quickly becomes law.

First, the administration still has not yet issued, or set out procedures, for dealing with the many cases that are before immigration judges in some stage of removal proceedings, yet waiver-eligible. Consider the case of S.K. Over a year ago, on June 8, 2006, the Board of Immigration Appeals issued its opinion in her case, denying her asylum solely because she had provided money to the Chin National Front, a Burmese ethnic resistance movement that falls within the law’s overbroad catch-all definition of “terrorist organization.” In several footnotes, the court suggested that the administration should consider exercising its waiver authority in her case. The concurring opinion made the point even more bluntly, noting the absurd result:

We are finding that a Christian member of the ethnic Chin minority in Burma, who clearly has a well-founded fear of being persecuted by one of the more repressive governments in the world, one that the United States Government views as illegitimate, is ineligible to avail herself for asylum despite posing no threat to the security of this country… I suggest that DHS may consider this respondent as someone to whom the grant of such a waiver is appropriate.2

On February 20, 2007, Homeland Security Secretary Chertoff issued waiver authority to protect those, like S.K., who provided support to the Chin National Front from the bar on admission. Yet six months later, S.K. has not been granted a waiver. Nor have any of the other asylum seekers whose cases are in removal proceedings been granted waivers even though they, like S.K., meet the criteria that the Secretary of Homeland Security outlined half a year ago.

Officials from the Department of Homeland Security claim that they plan to issue S.K. and others like her a waiver, but first need to sort out the internal procedures for transferring her case file into the division of DHS authorized to issue the waiver. But six months seems to be more than ample time to work out the process of case transfers, particularly given that some of those affected remain in detention while DHS decides whether to grant their asylum claim.

Second, the implementation of the duress waivers of so-called “Tier I” and “Tier II” designated groups has been unjustifiably slow. To date, only one person – a victim of the Revolutionary Armed Forces of Colombia (FARC) – has been granted such a waiver, while hundreds of other cases remain on indefinite hold.

Those on hold include a woman and daughter raped and abducted by the Revolutionary United Front (RUF) in Sierra Leone and forced to perform household chores for their captors; a Sri Lankan fisherman forced to pay a ransom to secure his release from the Liberation Tigers of Tamil Eelam (LTTE), a rebel group that the United States has long condemned for its brutality; and a Nepalese healthcare worker captured by the Nepalese Maoist guerillas, the People’s Liberation Army of Nepal, and forced at gunpoint to provide medical treatment to injured fighters.

Once again, the problem appears to be one of administrative process. In issuing duress waivers, the administration has set up two different processes depending on whether or not the group has been officially listed on either the Foreign Terrorist Organization (FTO) or the Terrorist Exclusion Lists (TEL). These are the so-called “Tier I” and “Tier II” groups – a label that derives from how they are defined in the Immigration and Nationality Act. The administration will not issue any Tier I and Tier II waivers until it has completed an intelligence assessment of the group. The administration asserts that this assessment is needed to help the adjudicators understand the group’s general practices and better assess the refugee or asylum seeker’s claim of duress.

While this seems to be a reasonable process, the implementation has undergone unreasonable delay. While the authority to issue these waivers was granted in April, five months later the administration has issued just one assessment – of the FARC. Both the Department of State and Department of Defense have issued numerous reports and statements about the FARC, an organization that is no doubt the subject of much intelligence analysis given its importance to the effort to combat drug trafficking in Colombia. Why did it take months for the administration to produce an intelligence analysis of a group that it could presumably have completed in a few days, if not hours? Over 350 asylum cases remain on hold because the asylum seeker has made what appear to be credible claims of duress by a Tier I or Tier II group. When are we going to see assessments completed of the other groups at issue – including groups like the National Liberation Army of Colombia (ELN), the United Self-Defense Forces of Colombia (AUC), and the LTTE in Sri Lanka – that the United States has long monitored and condemned?

Finally, even if exercised to its fullest extent possible, the administration’s waiver authority is limited. Under current law, the administration can exempt material supporters of groups like the Chin National Front or Karen National Union, but it cannot waive in members or combatants who actually fought alongside those groups. In some cases, the Department of State has been forced to split up family units. The father, for example, might be barred because he once fought to protect his village alongside the Chin National Front, while the mother and children are defined as mere “supporters” and eligible for a waiver.

Legislation that recently passed the Senate as part of the Foreign Operations Appropriations Act would solve this problem. The legislation provides immediate relief to members and combatants of the eight groups for whom the administration has already issued waivers, plus those associated with the Hmong and Montagnards. This provision alone will provide immediate relief to thousands who are being inadvertently defined as terrorists because of the overbroad definitions in the law.

Even more significantly, the law expands the current waiver authority, giving the administration the discretion it wants and needs to protect against the unintended consequences of these bars in the future. Notably, the legislation gives the administration the discretion to exempt members and combatants of groups that inadvertently fall into the catch-all definition of terrorist organization in the future. It also provides waiver authority to protect those – such as child soldiers – forced against their will to join or act on behalf of one of the designated (Tier I or Tier II) terrorists groups. And it ensures continued authority to issue duress waivers to supporters of any of these groups.

The administration has long stated that the lack of waiver authority has made it impossible to effectively mitigate the unintended consequences of the law. This legislation will give the administration the discretion that it wants and needs to effectively protect against the law’s unintended consequences.

We hope that Congress and the president will act quickly to pass this legislation into law. And once that happens, we look forward to working with the administration to ensure the prompt and responsible exercise of its new-found discretion.

1 Assistant Secretary of State Ellen Sauerbrey to Senator Edward Kennedy; Written Response to Questions for the Record, Subcommittee on Immigration, September 27, 2006. (“The Department of State estimates that some 12,000 refugee who were part? of the original planning for FY 2006 arrivals were not resettled in the United States as a result of the terrorism-related inadmissibility provisions in Section 212)(a)(3)(B) of the INA. Of these, the vast majority are associated with groups that do not appear on either the Foreign Terrorist Organization (FTO) or the Terrorist Exclusion Lists (TEL).The largest number from among this 12,000 (approximately 10,000) are ethnic minority refugees from Burma who are associated with either the Karen National Union or the Chin National Front. In addition, over 300 refugee applicants from Cuba are on hold because of ties to the U.S.-supported Alzados resistance movement. Colombian cases on hold or not processed as a result of material support provided – reportedly under duress – to either the FARC or the ELN, both organizations on the FTO list.”)

2In re S.K., 23 I and N Dec. 936 (BIA 2006), 946-950.

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