Copyright © 2009, American Immigration Lawyers Association. Reprinted, with permission, from Immigration & Nationality
Law Handbook (2009–10 Edition), available from AILA Publications, 1-800-982-2839, www.ailapubs.org.
UNDERSTANDING THE TERRORISM-RELATED
INADMISSIBILITY GROUNDS: A PRACTITIONER’S GUIDE
by Melanie Nezer and Anwen Hughes *
1
Five years ago, the U.S. government began applying provisions of the USA PATRIOT Act of 2001 and
2
the REAL ID Act of 2005 —both intended as counter-terrorism tools—to refugees, asylum seekers, and applicants for immigration benefits who in some cases are themselves victims of terrorism. This article is intended for advocates working with noncitizens affected by the application of these “terrorism” grounds as
bars to asylum, withholding of removal, adjustment of status, or other immigration benefits, or as grounds of
inadmissibility or deportability, and provides guidance on obtaining a discretionary “exemption” from the
terrorism-related inadmissibility grounds. Thousands of refugees have been barred from admission because of
the terrorism-related inadmissibility grounds, but the particular issues pertaining to the processing of refugees
overseas will not be the focus of this article.
Ironically, for many of the individuals facing the terrorism bars, the very circumstances that form the basis
of their refugee or asylum claim have been interpreted in a way that has made them ineligible for protection
in the United States. For example, refugees, asylees, and asylum seekers who were coerced into giving goods
or services to nongovernmental armed groups are now being considered “terrorists” by the U.S. government
under these provisions of the Immigration and Nationality Act (INA). 3 For other refugees, their support of a
group that is associated with armed resistance against a government—even when that government has repressed the refugee’s ethnic or religious group and closed peaceful avenues to political change—has rendered
them ineligible for protection in the United States.
LEGISLATIVE HISTORY: THE USA PATRIOT ACT AND REAL ID ACT
For many decades, U.S. immigration law has excluded from entry into the country those intending to harm
the United States. When enacted in 1952, the INA made inadmissible individuals engaging “in activities
prejudicial to the public interest or safety.” 4
In 1990, Congress added a new ground of exclusion relating specifically to terrorist activities and barred
refugee resettlement for anyone who provided “material support” to an “organization engaged in terrorist activity.” 5 The Antiterrorism and Effective Death Penalty Act of 1996 (AEDPA) 6 created the definition of a
“Foreign Terrorist Organization” (FTO) (what is now often described as a “Tier I” terrorist organization) and
barred from asylum or withholding of removal anyone who provided material support to an organization engaged in terrorist activity or who was a member of an FTO.
After September 11, 2001, Congress passed the USA PATRIOT Act, which greatly expanded the definition of a “terrorist organization.” This expanded definition, in conjunction with changes made by the REAL
*
Melanie Nezer is Senior Director, US Programs and Advocacy, Hebrew Immigrant Aid Society.
Anwen Hughes is Senior Counsel, Refugee Protection Program, Human Rights First.
1
Uniting and Strengthening America by Providing Appropriate Tools Required to Intercept and Obstruct Terrorism (USA
PATRIOT ACT) Act of 2001, Pub. L. No. 107-56, 115 Stat. 272.
2
REAL ID Act of 2005, Pub. L. No. 109-13, div. B, 119 Stat. 231, 302–23.
Immigration and Nationality Act of 1952 (INA), Pub. L. No. 82-414, 66 Stat. 163 (codified as amended at 8 USC §1101 et
seq.).
3
4
Former INA §§212(a)(27), (28), (29), (33).
5
Immigration Act of 1990 (IMMACT90), Pub. L. No. 101-649, 104 Stat. 4978, §601(a) (adding INA §212(a)(3)(B)) and
§602(a) (adding INA §241(a)(4)(B)).
6
Antiterrorism and Effective Death Penalty Act of 1996 (AEDPA), Pub. L. No. 104-132, 110 Stat. 1214, adding INA §219.
577
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IMMIGRATION & NATIONALITY LAW HANDBOOK, 2009–10
ID Act, is partly to blame for the overbroad application of anti-terrorism provisions to noncitizens who have
not engaged in terrorist activity as the definition is commonly understood.
INADMISSIBILITY GROUNDS, DEPORTABILITY GROUNDS, AND BARS TO
REFUGEE PROTECTION
Section 212(a)(3)(B) contains a long list of acts and associations related to “terrorism” that make a person
inadmissible to the United States (and ineligible for adjustment of status). These inadmissibility grounds,
which have undergone considerable expansion over the past eight years, include not only persons who have
engaged in “terrorist activity,” but also members of “terrorist organizations,” persons who have received
“military-type training” from such organizations or persons who endorse or espouse “terrorist activity” or
persuade others to endorse or espouse a “terrorist organization,” as well as the spouses and children of persons inadmissible under these provisions.
Before the passage of the Real ID Act, the terrorism-related deportability ground at INA §237(a)(4)(B)
was considerably narrower, limited to persons who “engaged in terrorist activity.” The REAL ID Act, however, amended §237(a)(4)(B) to make deportable “any alien who is described in” subparagraphs (B) or (F) of
§212(a)(3)(B). This means that any noncitizen described in any of the long list of terrorism-related inadmissibility grounds at INA §212(a)(3)(B) is now deportable.
Moreover, since the statutory bars to both asylum and withholding of removal refer to the deportability
ground at §237(a)(4)(B), the net effect of the REAL ID Act changes is to bar anyone described in any of the
§212(a)(3)(B) inadmissibility grounds from all forms of refugee protection. 7 (Such persons do, however, remain eligible for deferral of removal under the Convention Against Torture (CAT), whose prohibition against
deporting people to torture is not subject to any bars.)
Practice Pointer: In any case in removal proceedings where there is a chance the Department of Homeland Security (DHS) will try to invoke a terrorism-related ground as a bar to asylum or other relief, it is critically important, if the applicant also has grounds to claim protection under CAT, to prepare and document
that claim carefully. A grant of CAT deferral would at least prevent the applicant’s actual deportation, and
allow him or her eventually to gain work authorization and stabilize his or her situation, while you pursue
appeals and possible exemptions in connection with any terrorism-bar issues.
Definitions
Terrorist activity: The term “terrorist activity” includes acts commonly associated with terrorism, such as
the hijacking of an airplane or kidnapping. 8 However, it also includes the following: use of an “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.” 9 This provision is so broad that it encompasses activity that is not normally associated with terrorism.
Because the statutory definition lacks any explicit limitation with respect to either the targets or the motive of
the violence it covers (other than the exception for “mere personal monetary gain”), DHS and the Board of
Immigration Appeals (BIA) have interpreted it to apply even to ordinary combat against a government
army. 10
The result of the government’s position is that association with armed resistance against a government—even
when that government’s repression of ethnic or religious minorities has generated the exodus of refugees from the
country—has rendered many applicants ineligible for protection in the United States. These have including Iraqis
who rebelled against Saddam Hussein, Afghans who fought the Soviet invasion of their country (or supported
those who did) or opposed the Taliban while they were in power, and Cubans who supported armed resistance to
7
INA §208(b)(2)(A)(v) (bar to asylum); INA §241(b)(3)(iv) (bar to withholding).
INA §§212(a)(3)(B)(iii)(I), (II).
9
INA §212(a)(3)(B)(iii)(V)(b).
10
Matter of S–K–, 23 I&N Dec. 936 (BIA 2006).
8
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the Castro government. Thousands of people in this situation who have already been admitted to the United States
as refugees and asylees have not been able to obtain green cards as a result of these interpretations.
In addition to this definition of “terrorist activity,” the INA contains a separate definition of what it means
to “engage in terrorist activity,” which, beyond engaging in the acts defined in the subsection referred to
above, also includes other acts that bear a much more indirect relation to actual violence. 11 These include soliciting funds for a “terrorist organization” or for a “terrorist activity,” as well as providing “material support”
to “terrorist activity,” to an individual “terrorist,” or to a “terrorist organization.” The “material support” bar
is discussed in greater detail below.
Terrorist organization: The USA PATRIOT Act created a three-part definition of “terrorist organization”
for immigration-law purposes. 12 “Tier I” groups, also known as FTOs, must be designated by the Secretary of
State under INA §219. 13 “Tier II” groups (listed on what is often referred to as the “Terrorist Exclusion List”)
are also designated by the Secretary of State after a finding that the group engages in certain terrorist activities defined in the INA. 14 The lists of Tier I and Tier II groups are publicly available on the State Department’s website. 15
Since the USA PATRIOT Act went into effect (with some amendments made by the REAL ID Act), the
term “terrorist organization” also refers to any “group of two or more individuals, whether organized or not,
which engages in, or has a subgroup which engages in, terrorist activities.” 16 These groups are often referred
to as “Tier III” groups. Any government adjudicator, such as a DHS asylum or refugee officer, a Service Center adjudicator, or an immigration judge, can determine on a case-by-case basis that a group is a Tier III
group—no formal designation by any executive branch agency or other public process is required. 17 Under
the government’s interpretation, the purpose and tactics of a “terrorist” organization are irrelevant, which has
resulted in many groups being labeled “terrorist organizations” even where the United States supports the
goals of the group and civilians are not targeted.
Practice Pointer: Note that this definition is phrased in the present tense—a Tier III organization is a
group that “engages in,” or has a subgroup that “engages in” terrorist activity. While DHS has been applying
this definition to groups that ceased to exist or ceased to engage in “terrorist activity” long before the statute
that so defined them was enacted, in any case where you are dealing with a group that is no longer engaged in
the use of armed force, you can document that fact and argue that the Tier III definition by its plain terms
does not cover that group. Moreover, in any case where the group was not engaged in the use of armed force
at the time when your client was involved with it, the “terrorist organization” definition should not be relevant
to your client’s case. Be sure to document your client’s case in a way that makes these distinctions clear.
11
INA §212(a)(3)(B)(iv).
INA §§212(a)(3)(B)(vi)(I), (II), and (III).
13
INA §212(a)(3)(B)(vi)(I).
12
14
INA §212(a)(3)(B)(vi)(II).
15
www.state.gov/s/ct/list/.
16
INA §212(a)(3)(B)(vi)(III).
17
Examples of groups identified by the Department of Homeland Security (DHS) in adjustment denials as “Tier III” terrorist
organizations include “the Mujahidin” generally, the National Islamic Front of Afghanistan, and Jamiat-e-Islami (Afghanistan
in the 1980s); Harakat-e-Islami (Afghanistan); “uprising against the Iraqi government” in southern Iraq in 1991; Kurdish Democratic Party (KDP) (Iraq); All-Burma Students Democratic Front (ABSDF) and God’s Army (Burma); Unspecified
“counter-revolutionary group” in Cuba; Sudan People’s Liberation Army (SPLA), National Democratic Alliance (NDA), Democratic Unionist Party (DUP) (Sudan); Eritrean People’s Liberation Front (EPLF) (Eritrea in the 1970s and ‘80s); Eritrean
Liberation Front-RC (ELF-RC) and unnamed Eritrean opposition movements; Oromo Liberation Front (OLF), Ethiopian People’s Revolutionary Party (EPRP), Coalition for Unity and Democracy (CUD), Alliance for Freedom and Democracy (AFD),
Ogaden National Liberation Front (ONLF) (Ethiopia); “the Chechen Militia”; Fédération Estudiantine et Scolaire de Côte
d’Ivoire (FESCI) (Côte d’Ivoire); Akali Dal Mann (India); Awami League (Bangladesh).
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IMMIGRATION & NATIONALITY LAW HANDBOOK, 2009–10
580
MEMBERS OF TERRORIST ORGANIZATIONS
The INA as amended by the REAL ID Act bars from admission (and makes ineligible for virtually all
forms of immigration status or protection) anyone who “is a member of a terrorist organization,” regardless of
whether the organization in question falls within Tier I, II, or III of the INA’s “terrorist organization” definition. Members of alleged Tier III organizations can escape this subclause only if they can show by clear and
convincing evidence that they did not know, and should not reasonably have known, that the organization was
a terrorist organization. 18
Practice Pointer: This is also a present-tense definition (“is a member”), and even DHS appears to agree
that it does not apply to former members. In any case where your client was formerly a member of a group
that arguably falls within some subset of the INA’s definition of a “terrorist organization,” however, you will
want to make clear in filings and testimony what made your client a member before, and how he or she is not
a member now. Be careful also with the term “member,” whose meaning can vary from one political group to
another and also in the minds of individual clients.
Another Practice Pointer: Remember that the I-485 form includes (on page 2) a very broad question asking applicants for adjustment of status about their past or present memberships in a very broad range of
groups or associations in the United States or abroad. Be sure to interview clients carefully about this—and
not just refugees and asylees. (If your adjustment applicant is an asylee, however, try if possible to review a
copy of the person’s asylum application, so that you can vet the case for possible terrorism-bar issues.)
“Material support” to terrorism: An individual has “engaged in terrorist activity” if he or she commits,
incites, prepares, plans, gathers information, or solicits funds or members for terrorism, or “commits an act
that the actor knows, or reasonably should know, affords material support” to a person engaged in terrorist
activity or to a terrorist organization. 19 With respect to “material support” provided to Tier III organizations
only, the statute allows a person to escape liability if he or she can show that he or she “did not know, and
should not reasonably have known, that the organization was a terrorist organization. 20
Practice Pointer: For purposes of determining whether a case should be considered to involve material
support to a Tier I, a Tier II, or a Tier III organization, what should matter is the group’s categorization at the
time the support was provided.
According to the INA, “material support” includes, but is not limited to, provision of “[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.” 21 DHS has taken the position that any amount of support will constitute “material” support, even a de
minimis level of support such as one-time provision of food, shelter, or minimal amounts of money. This is an
issue the BIA has not yet addressed at the time of this writing.
DHS has also taken the position that medical care falls within the definition of “material support,” with the
result that medical professionals who have provided medical care to persons who have “engaged in terrorist
activity”—either under duress or pursuant to the Hippocratic Oath—have found themselves barred from admission to or status in the United States. The BIA sided with DHS in at least one unpublished case, but has
yet to issue a precedential decision on the issue.
VICTIMS OF COERCION BY “TERRORIST ORGANIZATIONS”
DHS argues that the material support bar does not require that “support” be provided voluntarily, and is
applying this bar to persons who acted under duress, as children, or under other circumstances generally rec-
18
INA §§212(a)(3)(B)((i)(V), (VI).
INA §212(a)(3)(B)(iv)(VI).
20
INA §212(a)(3)(B)(iv)(VI)(dd).
19
21
INA §212(a)(3)(B)(iv)(VI).
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ognized as exculpatory. 22 There is good legal support for the contrary position, that the concept of “material
support” itself requires an element of voluntariness, and/or that this provision of the INA, like criminal law
and analogous civil law provisions, contains an implicit defense of duress. The BIA has not issued a precedential decision on this issue as of the date of this writing, but has issued several unpublished decisions agreeing with DHS’s position.
One of the most common situations in which a noncitizen will face a bar to admission under the terrorismrelated grounds is when the government asserts that he or she has provided “material support” to a terrorist
group under duress. Among the first to feel the impact of the material support policy were Colombian refugees, many of whom have been coerced to make payments to armed groups on the State Department’s list of
foreign terrorist organizations (Tier I groups), including the United Self-Defense Forces of Colombia (AUC),
the Revolutionary Armed Forces of Colombia (FARC), and the National Liberation Army (ELN). The material support bar has kept thousands of Colombian refugees from being resettled in the United States and hundreds from accessing U.S. asylum. The Bush Administration finally authorized the consideration of exemptions under INA §212(d)(3) in September 2007 for individuals who provided support under duress to the
FARC 23 and to the AUC and ELN soon after that. 24 At the end of 2008, the Administration finally eliminated
the disparate approach to Tier I/II duress cases that required an intelligence assessment of the terrorist group
before allowing exemptions to be granted to its victims, so that duress by Tier I/II groups should henceforth
be treated like duress by Tier III groups for exemption purposes. 25
The material support bar—and other terrorism-related bars—have also been applied to former child soldiers forcibly conscripted into rebel armies. Again, this raises issues on which there is as yet no precedential
decision from the BIA.
Practice Pointer: Beware of characterizing—or encouraging adjudicators to characterize—as “material
support” interactions your client may have had with an armed person or group that are more accurately described as armed robbery. If rebels invaded your client’s farm (or burst into your client’s store) and made off
with his cows (or the contents of the till) without any action on your client’s part (voluntary or otherwise),
you should describe those facts in filings and testimony in a way that makes that clear. Similarly, be sure to
be thorough and exact in interviewing your client, so as to be sure to catch other possible situations where the
bar clearly should not apply (e.g., a family member of the client, not the client, made a payment to an armed
group, and the client did not authorize it).
THE GOVERNMENT’S “EXEMPTION” AUTHORITY
When Congress expanded the terrorism definitions, it included provisions in both the USA PATRIOT Act
and the REAL ID Act to allow the government to exclude some individuals from the broad scope of the terrorism bars in cases where those provisions “should not apply.” 26 This discretionary authority was expanded
22
In support of this position, DHS has cited to the Supreme Court’s decision in Fedorenko v. United States, 449 U.S. 490
(1981), which the government (meaning both DHS and the Board of Immigration Appeals (BIA)) had understood to control the
interpretation of the INA’s persecutor bar. With respect to the persecutor bar, the Supreme Court recently clarified that Fedorenko is not controlling, and has remanded that issue to the BIA. Negusie v. Mukasey, No. 07-499 (Mar. 3, 2009). While the
interaction of these provisions is beyond the scope of this article, practitioners dealing with issues of duress (or other commonlaw defenses) in connection with the terrorism bars should keep track of developments in the Negusie case.
23
U.S. Citizenship and Immigration Services (USCIS) Fact Sheet, “USCIS Implements Authority To Exempt Certain Persons
Who Provided Material Support Under Duress To The Revolutionary Armed Forces Of Colombia (FARC)” (Sept. 26, 2007),
available at http://www.uscis.gov/files/pressrelease/MaterialSupportFS_26Sep07.pdf.
24
DHS Authorization Document, P. Rozenzweig, “Authorization to Process Cases Involving the Provision of Material Support
to the ELN” (Dec. 18. 2007), available at www.rcusa.org/uploads///pdfs/ELN%20Memo%20DHS%2012.18.07.pdf; DHS Authorization Document, P. Rozenzweig, “Authorization to Process Cases Involving the Provision of Material Support to the
AUC” (Mar. 10, 2008), available at www.uscis.gov/files/nativedocuments/AUC_Auth_10Mar08.pdf.
25
A February 13, 2009, USCIS Memorandum issued by Acting Director Michael Aytes announced this change. At the time of
writing, the memo had not yet been posted on the USCIS website.
26
INA §212(d)(3)(B).
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by the Consolidated Appropriations Act of 2008 (CAA), 27 which was enacted on December 26, 2007, 28 and
may now be exercised in nearly all cases involving the terrorism-related bars, with some exceptions as described below.
This discretionary authority may be exercised by the either the Secretary of Homeland Security or the Secretary of State after consultation with one another and the Attorney General. 29 Practically speaking, because
of DHS’s role in refugee adjudications abroad, as well as asylum and immigration benefits granted in the
United States, the ultimate authority to issue an exemption for an individual seeking admission to the United
States rests with DHS. Within DHS, U.S. Citizenship and Immigration Services (USCIS) is responsible for
exemption adjudications, including in cases in (or formerly in) removal proceedings.
Because this authority is discretionary, judicial review of a determination to grant or revoke a favorable
exercise of this discretionary authority is limited to that provided at INA §242(a)(3)(D) (allowing judicial review of questions of law or constitutional claims).
Practice Pointer: Due to the discretionary nature of this exemption authority, the limitations on review,
and the extreme slowness with which it is being implemented by DHS, advocates must be sure to argue and
preserve their factual and legal claims with respect to the terrorism bars, in parallel to whatever exemption
consideration their clients may receive.
While the statute at §212(d)(3)(B) provides broad authority to DHS to grant exemptions from most of the
terrorism-related inadmissibility grounds, DHS has implemented this authority in a piecemeal and centralized
fashion, requiring announcements from the DHS Secretary before adjudicators can grant exemptions to the
particular category of applicants described in that Secretarial announcement.
The following categories of people may be exempted from the terrorism-related bars to admission under
the statutory provisions of §212(d)(3)(B):
ƒ Persons who provided material support under duress to a Tier I, II, or III group; 30
ƒ Persons who “engaged in terrorist activity” on behalf of a Tier I or Tier II group, but did not do so knowingly or voluntarily (this would include, for example, child soldiers and persons acting under duress or
other circumstances that would negate mens rea or offer them a defense); 31
ƒ Member and representatives of Tier III groups; 32
27
Consolidated Appropriations Act of 2008 (CAA), Pub. L. No. 110-161, 121 Stat. 1844 (Dec. 26, 2007).
Section 691 of Division J of this bill made amendments to the inadmissibility grounds of INA §212(a)(3)(B) related to “terrorism,” and to the authority codified at INA §212(d)(3)(B)(i) that gives the Secretaries of State and Homeland Security (in
consultation with the Attorney General) discretionary authority not to apply certain of these grounds in particular cases. The
CAA also provides that “the Taliban shall be considered to be a terrorist organization described in subclause (I)” of INA
§212(a)(3)(B), i.e., a “Tier I” terrorist organization, one that would otherwise be designated as a foreign terrorist organization
according to the procedure laid out in INA §219.
29
INA §212(d)(3)(B)(i). See also USCIS Memorandum, M. Aytes, “Implementation of Section 691 of Division J of the Consolidated Appropriations Act, 2008, and Updated Processing Requirements For Discretionary Exemptions to Terrorist Activity
Inadmissibility Grounds” (July 28, 2008), published on AILA InfoNet at Doc. No. 08081131 (posted Aug. 11, 2008).
30
In May 2007, USCIS issued a memorandum announcing that a separate intelligence analysis of each Tier I or Tier II group
would have to be completed before any individual waivers could be issued for people who provided material support under duress
to one of these groups. “USCIS Fact Sheet on Concerning Exercise of Authority under §212(d)(3)(B)(i)” (May 10, 2007). USCIS
said that when the intelligence panel clears a Tier I/Tier II group (i.e., determines that waivers may be issued to individuals coerced into providing support to one of these groups), USCIS will publish the name of the group on its website, presumably so that
refugees and asylum seekers will know whether they are eligible to be considered for a waiver. Only the FARC, ELN and AUC
(all operating in Colombia) have been “cleared” for purposes of issuing the waivers. DHS announced informally in December
2008 that these preliminary intelligence assessments for Tier I and Tier II groups would no longer be required before USCIS could
issue an exemption, effective immediately, and a formal announcement followed on February 13, 2009.
31
Eligible since the enactment of the CAA on December 26, 2007.
32
Eligible since the enactment of the CAA on December 26, 2007.
28
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ƒ Persons who have voluntarily “engaged in terrorist activity” (e.g., fought, received military training, solicited funds, recruited members) as long as they did not do so on behalf of a Tier I or Tier II group; 33
ƒ Spouses and children of persons inadmissible under §212(a)(3)(B) who are not covered by the statutory
exception of subclause (IX) (i.e., spouses and children who knew about their family member’s activity that
triggered the bar and did not “renounce” it). 34
The following categories of people are ineligible for an exercise of discretionary authority under
§212(d)(3)(B):
ƒ Members or representatives of Tier I or Tier II groups;
ƒ Persons who voluntarily and knowingly engaged in (or endorsed or espoused or persuaded others to endorse or espouse or support) “terrorist activity” on behalf of a Tier I or Tier II organization;
ƒ Persons who voluntarily and knowingly received military training from a Tier I or Tier II group.
In addition to expanding the government’s exemption authority, the CAA abolished the characterization of
certain Burmese and other insurgent groups as “terrorist organizations” based on any conduct that occurred
before December 26, 2007. The CAA provides that the following groups, which had been characterized as
“Tier III” terrorist groups under INA §212(a)(3)(B)(vi)(III), shall not be considered to be “terrorist organizations” “on the basis of any act or event occurring before the date of enactment of this section:”
ƒ Karen National Union/Karen Liberation Army (KNU/KNLA)
ƒ Chin National Front/Chin National Army (CNF/CNA)
ƒ Chin National League for Democracy (CNLD)
ƒ Kayan New Land Party (KNLP)
ƒ Arakan Liberation Party (ALP)
ƒ Karenni National Progressive Party
ƒ Mustangs (a Tibetan group)
ƒ Alzados (short for the Alzados en Armas, an anti-Castro movement in Cuba)
ƒ “Appropriate groups affiliated with the Hmong and the Montagnards” 35
The provisions of the CAA are retroactive, applying to “removal proceedings instituted before, on, or after
the date of enactment” of this legislation, and to “acts and conditions constituting a ground for inadmissibility, excludability, deportation, or removal occurring or existing before, on, or after” that date.
The categories of people for whom exemption announcements have been made by the DHS Secretary,
however, are considerably narrower. Some individuals, while eligible for an exemption under the INA, will
not be considered for an exemption until the Administration institutes procedures for adjudicating them, and
their case will likely remain “on hold” until that time. These include:
ƒ Individuals who are inadmissible under the terrorism-related grounds based on voluntary activities on behalf of a Tier III group that has not been listed by the government;
33
Eligible since the enactment of the CAA on December 26, 2007.
Eligible since the enactment of the CAA on December 26, 2007.
35
All of these groups had previously been the subject of exemption announcements from DHS and the Department of State
(DOS) that allowed persons who provided support to these groups, whether voluntarily or involuntarily, to be granted a discretionary exemption from the material support bar. The passage of the CAA, however, means that any person who might formerly have been inadmissible or deportable based on any ground that depended on the characterization of these groups as “terrorist organizations”—as a member or representative of one of these groups, as one who provided “material support” to one of
these groups, or as one who solicited funds or members for these groups or persuaded others to support them—is no longer
subject to those grounds of inadmissibility or deportability as a matter of law, without needing any “exemption” from DHS.
This is true as long as the material support or other relationship to the group took place before the date of enactment of this
legislation. Persons who solicit funds for these groups, provide them with material support, are members, etc., after December
26, 2007, are not automatically exempted from the terrorism bars, although they remain eligible for a discretionary waiver.
34
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ƒ Individuals who engaged in “terrorist activity” under duress other than material support (for example, child
soldiers forced to receive military training and individuals who were forced to solicit funds or members);
ƒ Individuals who voluntarily provided medical care to a terrorist or terrorist group pursuant to ethical requirements for medical professionals;
ƒ The spouse or child of anyone in one of these categories who is subject to inadmissibility under INA
§212(a)(3)(B)(i)(IX) and not covered by the exceptions at INA §212(a)(3)(B)(ii).
FACTORS CONSIDERED IN ADJUDICATING EXEMPTIONS
In February 2007, DHS Secretary Michael Chertoff issued a statement that material support provided under duress would no longer apply to individuals who provided support to Tier III terrorist groups under duress
“if warranted by the totality of the circumstances.” In April 2007, Secretary Chertoff made the decision to
permit adjudicators to make exceptions to the material support bar for individuals who provided material support under duress to groups that the U.S. government has listed as “terrorist organizations” (Tier I and Tier II
36
groups). The factors for consideration of these exemptions are the same.
In determining whether the material support was provided under duress, USCIS will consider whether the
applicant “reasonably could have avoided” providing material support, the “severity and type of harm inflicted or threatened,” and other factors. USCIS will also consider the “amount, type, and frequency” of the
support provided, the “nature of the activities committed by the terrorist organization,” and the length of time
since the support was provided when deciding whether to admit an individual who was forced to support a
37
Tier III group.
Secretary Chertoff’s April announcement stated that the government will consider the following factors
when deciding to issue a waiver: (1) whether the individual could have avoided, or took steps to avoid, providing material support; (2) the severity and type of harm inflicted or threatened; (3) to whom the harm was
directed; and (4) in cases of threats alone, the perceived imminence of the harm threatened and the perceived
likelihood that the harm would be inflicted. In addition to the duress-related factors, the U.S. government will
also consider: (1) the amount, type, and frequency of the support provided; (2) the nature of the activities
committed by the terrorist organization; (3) the individual’s awareness of those activities (4) the length of
38
time since the support was provided; (5) the individual’s conduct since that time; and (6) other factors.
PROCEDURES FOR OBTAINING AN EXEMPTION IN CASES PENDING WITH USCIS
Starting in 2004, USCIS placed “on hold” all cases where the applicant faced a terrorism-related ground of
inadmissibility but was eligible for an exemption under the law. The cases were placed “on hold” because no
procedures were in place that allowed the government to exercise its exemption authority. Hundreds of asylum cases and thousands of adjustment of status cases have been placed on hold, with no clear timetable for
adjudicating the cases. The indefinite hold period has been challenged. 39
36
DHS Guidance, M. Chertoff, “Exercise of Authority Under Sec. 212(d)(3)(B)(i) of the Immigration and Nationality Act”
(Apr. 27, 2007), published on AILA InfoNet at Doc. No. 07050168 (posted May 1, 2007).
37
Id.
38
Id.
39
E.g., in Ahmed v. Scharfen, Jan. 7, 2009, the court said, “[T]his court has jurisdiction over plaintiff’s challenge to the amount
of time it has taken for USCIS to act on his application.... The government has argued that it is acting to determine which Tier
III terrorist organizations may be exempted from terrorism-related inadmissibility, and that plaintiff might benefit from the
review. But the government has presented no evidence explaining how the review is being conducted. Moreover, counsel for
the government stated at oral argument that USCIS maintains a list of “Tier III” terrorist organizations used to make determinations about inadmissibility in individual cases, but the government has not produced such a list. The provision of such evidence
would facilitate a determination of the reasonableness of USCIS’s seven-year delay.... the court ORDERS the government to
file, no later than January 26, 2009, a declaration from a USCIS official with personal knowledge of the following, explaining:
(1) the broad outline of how the review of Tier-III terrorist organizations pursuant to the CAA and USCIS’s March 26, 2008,
internal memorandum is occurring; (2) the number of groups for which a review is completed each month; (3) how many
groups have been exempted so far; (4) how many groups have not been exempted so far; and (5) how long the typical review
continued
Copyright © 2009 American Immigration Lawyers Association
UNDERSTANDING THE TERRORISM-RELATED INADMISSIBILITY GROUNDS: A PRACTITIONER’S GUIDE
585
As the Secretaries of State and Homeland Security began delegating exemption authority for certain individuals to USCIS, USCIS began to process the cases where an exemption became available. There was no
formal procedure for “applying” for an exemption; USCIS determined that it was capable of identifying and
adjudicating exemption-eligible cases on its own. This remains the procedure.
In early 2008, after the enactment of the CAA, USCIS started to deny asylee and refugee adjustment applications (as well as some asylee/refugee relative petitions) based on the terrorism-related provisions of INA
§212(a)(3)(B). USCIS denied cases where DHS perceived there to be an issue of inadmissibility under
§212(a)(3)(B), where waiver authority was available under INA §212(d)(3)(B)(i), but where that waiver authority had not yet been implemented by an announcement by Secretary Chertoff. The refugees who received these
denial letters included Iraqi refugees and asylees who took part in failed attempts to overthrow Saddam Hussein
in the 1990s; asylees from Afghanistan who in the 1980s provided support to the various mujahidin groups that
were then fighting the Soviet invasion—groups to which the U.S. government was itself providing support; and
South Sudanese Christians resettled in the United States as refugees who had provided support to the Sudan
People’s Liberation Army (SPLA). In almost all these cases, the facts that formed the basis for the Service Centers’ denial had been voluntarily disclosed on the applicant’s refugee or asylum application.
After public outcry, USCIS announced in March 2008 that it would no longer deny cases for which statutory waiver authority exists but where it has not been implemented. USCIS reviewed all denials of this kind
issued since the enactment of the CAA on December 26, 2007, and reopened nearly all of them. 40
The denials opened a window on the quality of DHS’s decision-making in this area. In many of these
cases, there were solid arguments that there was in fact no inadmissibility under §212(a)(3)(B). In many of
the cases where a person was granted asylum or refugee status years ago, the terrorism-related grounds of
inadmissibility were not even perceived as an issue at the time, so any evidence that would have been relevant
to assessing whether the applicant was barred under today’s version of §212(a)(3)(B) or in support of the person being granted an exemption would not have been included in the underlying applications.
In addition, the decisions were often based on no more than an internet search for the name of the group. In
many of these cases, the denials were not supported by the law or the facts. For example, in many cases DHS
invoked the same facts that were fully disclosed as part of the initial application for asylum or refugee status as
the basis for denying permanent residence, even though the initial application had been approved under the same
law currently in force. The INA’s definition of a “Tier III” terrorist organization was applied to groups that have
not existed in years, are no longer engaged in any use of violence, and that were not engaged in the use of force
at the time the applicant was connected to them. Other legally problematic denials included those where DHS
characterized as “material support” what would be considered First Amendment-protected activity under U.S.
law, assistance that refugees provided under duress, and support provided as minors.
Practice Pointer: Attorneys must be sure to make and preserve any arguments available, based on the specifics of your client’s case, that particular bars do not apply (e.g., your client did not know, and should not
reasonably have known, that the group to which he donated elementary school textbooks was a “terrorist organization”; his one-time donation of 12 textbooks does not constitute “material support” because it was unrelated to terrorist activity and also de minimis, etc.) or that your client had a legal defense for doing what he
did (e.g., your taxi-driver client who was hijacked at gunpoint by Colombian FARC guerrillas and made to
drive his hijackers into the mountains should not be subject to the “material support” bar because he was acting under duress—he should also be granted an exemption, but you should be sure to keep all his legal options open in case that should for some reason be denied). In many cases, the same facts that give rise to these
legal arguments will be factors that DHS will look at in exercising its exemption authority.
has taken. The court also ORDERS the government to file, also no later than January 26, 2009, an authenticated copy of the
Tier III terrorist organization list used by USCIS in its adjudications.”
40
USCIS Memorandum, J. Scharfen, “Withholding Adjudication and Review of Prior Denials of Certain Categories of Cases
Involving Association With, Or Provision of Material Support To, Certain Terrorist Organizations or Other Groups” (Mar. 26,
2008), published on AILA InfoNet at Doc. No. 08032747 (posted Mar. 27, 2008).
Copyright © 2009 American Immigration Lawyers Association
IMMIGRATION & NATIONALITY LAW HANDBOOK, 2009–10
586
EXEMPTIONS IN REMOVAL PROCEEDINGS
On October 23, 2008, DHS announced its process for implementing its authority under INA §212(d)(3) to
grant exemptions from the terrorism bars in cases that are or have been pending before the Executive Office
for Immigration Review (EOIR). 41 The announcement applies to non-detained cases that have orders of removal that became administratively final on or after September 8, 2008, and in detained cases with orders of
removal whatever the date of those orders. DHS has not announced procedures for non-detained cases with
final orders of removal that predate September 8, 2008. It is unclear whether the procedures announced on
September 8 have been implemented.
DHS announced that it would not consider a case for an exemption until after an order of removal is administratively final. DHS explained that this procedure was established in order to ensure that all issues were
fully litigated and that the possible exemption was the only issue remaining in the individual’s case. However,
for those whose eligibility for asylum or other form of relief, but for the terrorism bar, is undisputed, and who
assert factual or legal claims that they are not in fact subject to the terrorism bars (for example, because what
they gave was not “material support,” because they showed they could not reasonably have known that the
group in question was a “terrorist organization,” because the group they gave to did not in fact become involved in violence until several years after the applicant’s involvement in it had ended, or because the applicant was a child at the time), will be forced to wait until the BIA issues its decision before USCIS can consider them for an exemption that might make a decision on that appeal unnecessary.
DHS indicated that it would mail a “notice of referral” to non-detained individuals and personally serve detained individuals who were being considered for an exemption. There is no process to apply affirmatively for
an exemption. Detained individuals must file for a stay of removal with DRO within seven days of being served
with the notice of referral in order to be considered for an exemption. If USCIS decides to grant the exemption,
USCIS will notify U.S. Immigration and Customs Enforcement (ICE), which will notify the individual and ask
the individual to join a Joint Motion to Reopen to be filed with the immigration court or the BIA so that relief
can be granted and the case can be closed.
Practice Pointer: Although USCIS (the Asylum Office and the Service Centers) has been carefully tracking and “holding” or, where it deems possible, adjudicating pending cases subject to the terrorism bars, the
same is not true for EOIR. If you are representing a client in removal proceedings who may be eligible for a
discretionary exemption under the INA—even where procedures to adjudicate exemptions are not yet in
place, such as cases where an individual voluntarily engaged in activities on behalf of a Tier III group not yet
listed for exemptions, you should notify the immigration judge or the BIA (depending on where your case is
pending) and DHS counsel to discuss how best to ensure that your client’s exemption is considered and that
your client is not removed before this can be done.
CONCLUSION
The INA’s terrorism bars are grounds of inadmissibility and deportability applicable to noncitizens generally, which also act as bars to asylum and withholding of removal provisions. Since their enactment and even
more since their recent expansion, the INA’s terrorism-related inadmissibility grounds have been applied
overwhelmingly to refugees and asylum seekers. The current U.S. statutory scheme of refugee protection was
enacted as part of the Refugee Act of 1980 in order to implement U.S. obligations under the 1951 Refugee
Convention and 1967 Protocol. The INA’s terrorism bars were enacted to protect the national security of the
United States. The government’s approach to applying the terrorism bars, unfortunately, threatens refugee
protection without enhancing national security.
Practitioners should be prepared for DHS asylum officers, trial attorneys, and immigration judges to
closely examine the circumstances of any affiliation their clients may have had, or goods or services they may
41
DHS Fact Sheet, “Department of Homeland Security Implements Exemption Authority for Certain Terrorist-Related
Inadmissibility Grounds for Cases with Administratively Final Orders of Removal” (Oct. 23, 2008), published on AILA
InfoNet at Doc. No. 08112066 (posted Nov. 20, 2008).
Copyright © 2009 American Immigration Lawyers Association
UNDERSTANDING THE TERRORISM-RELATED INADMISSIBILITY GROUNDS: A PRACTITIONER’S GUIDE
587
have provided, to groups that may be engaged in “terrorism” as broadly defined by the INA, and should expect that DHS trial attorneys will oppose asylum on the material support ground in cases where it could be
applied. Practitioners should also be aware of the possibility that the material support bar could present an
obstacle when other types of relief are requested in immigration court, or when adjustment of status applications (particularly those of asylees and refugees) are filed.
Copyright © 2009 American Immigration Lawyers Association
Copyright © 2007, American Immigration Lawyers Association. Reprinted, with permission, from Tenth Annual AILA New
York Chapter Immigration Law Symposium Handbook 117 (2007 ed.).
AN OVERVIEW: THE DEVELOPMENT OF THE “PERSECUTOR BAR”
IN THE CIRCUIT COURTS
by Eva (Rubinson) Saltzman ∗
applicant is barred from receiving asylee or refugee
status if he or she “ordered, incited, assisted, or otherwise participated in the persecution of any person
on account of race, religion, nationality, membership
in a particular social group, or political opinion.” 5
These provisions are generally referred to as the
“persecutor bar,” and render an asylum or withholding of removal applicant statutorily ineligible for
relief even if the applicant is otherwise eligible for
those forms of relief. 6 If the evidence indicates that
the applicant participated in the persecution of others, he or she bears the burden of establishing by a
preponderance of the evidence that he or she did not
so act. 7
ABSTRACT
This paper presents an overview of the development of the persecutor bar to asylum in the federal
courts, beginning by discussing the origins of the
persecutor bar and the U.S. Supreme Court’s seminal case on the subject: Fedorenko v. U.S. It then
tracks the development of the persecutor bar in the
Second Circuit and presents an overview of the persecutor bar as it has developed in the other circuits. 1
INTRODUCTION
Asylum is available to any person who establishes that he or she is a refugee under §101(a)(42)
of the INA, 8 USC §1101(a)(42). 2 Refugees are defined as persons who are unable or unwilling to return to their native country “because of persecution
or a well-founded fear of persecution on account of
race, religion, nationality, membership in a particular social group, or political opinion.” 3 Additionally,
the relief of withholding of removal is available to
any person whose “life or freedom would be threatened in that country because of the alien’s race, religion, nationality, membership in a particular social
group, or political opinion.” 4 However, an asylum
Relevant Legislation
Congress created the persecutor bar in response
to a concern that, following the end of the war, Nazi
war criminals were among those who had gained
admission to the United States. 8 In the years following World War II, more than 400,000 foreign nationals entered the United States under the Displaced
Persons Act of 1948 9 (DPA) and the Refugee Relief
Act of 1953 10 (RRA). 11
Articles do not necessarily reflect the views of the American
Immigration Lawyers Association.
5
INA §101(a)(42)(B); 8 USC §1101(a)(42)(B) (excluding
persecutors from the definition of “refugee”). See also 8
USC §§1158(b)(2)(A)(I) (asylum) and 1231(b)(3)(B)(I)
(withholding).
6
Gao v. U.S. Att’y Gen, 500 F.3d 93, 97–98 (2d Cir. 2007).
7
8 CFR §§208.13(c), 1208.13(c); see also Matter of A–H–,
23 I&N Dec. 774, 783–85 (AG 2005).
8
See Pub. L. No. 95-549, 92 Stat 2065 (1978) (amending the
INA to exclude “all aliens who persecuted any person…under the direction of the Nazi government”); see also
L. Walls, “The Persecutor Bar in U.S. Immigration Law:
Toward a More Nuanced Understanding of Modern “Persecution” in the Case of Forced Abortion and Female Genital
Cutting”, 16 Pac. Rim L. & Pol’y J. 227, 229 (2007).
9
Pub. L. No. 80-774, §2, 62 Stat. 1009, amended by Pub. L.
No. 81-555, 64 Stat. 219 (1950).
10
Pub. L. No. 203, §6, 67 Stat. 400.
11
Id. (citing M. Lippman, “The Pursuit of Nazi War Criminals in the United States and in Other Anglo-American Legal
Systems”, 29 Cal. W. Int’l L.J. 1, 49 (1998)).
∗
Eva (Rubinson) Saltzman is an associate supervisory staff
attorney in the immigration unit at the U.S. Court of Appeals
for the Second Circuit. Prior to joining the court, she practiced immigration law, specializing in criminal alien deportation defense and immigration-related appellate litigation. She
is a graduate of the University of Wisconsin and the Benjamin N. Cardozo School of Law, where she received the Telford Taylor Fellowship in Public International Law for research at Oxford University. She has worked on human
rights and international law issues in Oxford, Cairo, and Nairobi. She is a frequent speaker on the topics of immigration
and appellate advocacy.
1
The author would like to thank Kimberly Grant, Jessica
Segall, and Mario Sturla for their invaluable assistance in
preparing this article.
2
8 USC §1158(b)(1)(A).
3
8 USC §1101(a)(42); Gao v. U.S. Att’y Gen, 500 F.3d 93,
97 (2d Cir. 2007).
4
8 USC §1231(b)(3)(A).
117
118
TENTH ANNUAL AILA NEW YORK CHAPTER IMMIGRATION LAW SYMPOSIUM HANDBOOK
The following language from the Supreme
Court’s decision in Fedorenko v. U.S., 12 provides a
good background to the DPA:
In 1948, Congress enacted the Displaced Persons
Act (DPA or Act), 62 Stat. 1009, to enable European refugees driven from their homelands by the
war to emigrate to the United States without regard to traditional immigration quotas. The Act’s
definition of “displaced persons” 13 eligible for
immigration to this country specifically excluded
individuals who had “assisted the enemy in persecuting civil[ians]” or had “voluntarily assisted
the enemy forces ... in their operations ...” 14 Section 10 of the DPA, 62 Stat. 1013, placed the
burden of proving eligibility under the Act on the
person seeking admission and provided that
“[a]ny person who shall willfully make a misrepresentation for the purpose of gaining admission
into the United States as an eligible displaced
person shall thereafter not be admissible into the
United States.” The Act established an elaborate
system for determining eligibility for displaced
person status. Each applicant was first interviewed by representatives of the International
Refugee Organization of the United Nations
(IRO) who ascertained that the person was a
refugee or displaced person. 15 The applicant was
12
449 U.S. 490 (1981).
13
The DPA incorporated the definition of “refugees or displaced persons” contained in Annex I to the Constitution of
the International Refugee Organization of the United Nations
(IRO). See §2(b), 62 Stat. 1009. The IRO Constitution, 62
Stat. 3037–3055, was ratified by the United States on December 16, 1946 (T.I.A.S. No. 1846) and became effective
on August 20, 1948. See 62 Stat. 3037.
14
The IRO Constitution provided that the following persons
would not be eligible for refugee or displaced person status:
1. War criminals, quislings and traitors.
2. Any other persons who can be shown:
(a) to have assisted the enemy in persecuting civil
populations of countries, Members of the United Nations; or
(b) to have voluntarily assisted the enemy forces since
the outbreak of the second world war in their operations against the United Nations.
Annex I, Part II, 62 Stat. 3051-3052.
15
The IRO was established in 1946 as a temporary specialized agency of the United Nations to deal with all aspects of
the refugee problem in postwar Europe. The IRO established
and administered a network of camps and resettlement centers where the refugees were registered, housed, fed, and
provided with medical care. Where possible, the IRO procontinued
then interviewed by an official of the Displaced
Persons Commission, 16 who made a preliminary
determination about his eligibility under the
DPA. The final decision was made by one of
several State Department vice consuls, who were
specially trained for the task and sent to Europe
to administer the Act. 17 Thereafter, the application was reviewed by officials of the Immigration
and Naturalization Service (INS) to make sure
that the applicant was admissible into the United
States under the standard immigration laws. 18
A few years later, the RRA was enacted, containing a similar provision barring foreign nationals who
had participated in the persecution of others from
gaining admission to the United States. 19 The Holtzman Amendment of 1978 20 subsequently provided a
new ground of exclusion 21 and a corresponding new
ground of deportation, 22 which stated that any alien
who, in conjunction with the Nazi government or an
associated government, “ordered, incited, assisted,
or otherwise participated in the persecution of any
person because of race, religion, national origin, or
political opinion” was removable. Congress ultimately enacted a categorical “persecutor exception”
as part of the comprehensive revision of asylum
standards in the Refugee Act of 1980. 23 The Refuvided for the refugees’ rehabilitation and training, arranged
legal protection for as long as they were stateless, and negotiated agreements for resettlement. See generally, L. Holborn, The International Refugee Organization: A Specialized
Agency of The United Nations: Its History and Work 1946–
1952 (1956).
16
The DPA established a Displaced Persons Commission to
oversee and administer the resettlement program envisaged
by the Act. 62 Stat. 1012-1013.
17
According to testimony presented at trial by one of the
government’s witnesses who served as a vice consul, between 35 and 40 vice consuls were involved in administering
the Act. Record 715. Each vice consul spent three months in
training in Washington and was then sent to Europe where
he received further training before he was put to work reviewing applications. Id., at 711–712, 719–721, 723, 726–
727.
18
Federenko, 449 U.S. 490, 495–96 (1981) (footnotes in the
original, renumbered 13-17).
19
Walls, supra note 8, at 230.
20
Pub. L. No. 95-549, 92 Stat. 2065 (1978).
21
INA §212(a)(33) (now codified at INA §212(a)(3)(E), 8
USC §1182(a)(3)(E)).
22
INA §241(a)(19) (now codified at INA §237(a)(4)(D), 8
USC §1227(a)(4)(D)).
23
Pub. L. No. 96-212, 94 Stat. 102.
AN OVERVIEW: THE DEVELOPMENT OF THE “PERSECUTOR BAR” IN THE CIRCUIT COURTS
gee Act brought U.S. asylum law in line with the
international standards contained in the 1951 United
Nations Convention and its 1967 Protocol. 24
cuit, of how the circuit courts have attempted to resolve this problem.
THE PERSECUTOR BAR IN
SECOND CIRCUIT CASELAW
Fedorenko v. United States
In Fedorenko v. United States, 25 the Supreme
Court considered the persecutor bar in the context of
de-naturalization proceedings brought against a former concentration camp guard in Nazi-occupied Poland. The Court discussed the “ordered, incited, assisted, or otherwise participated” standard as applied
to alleged involuntary service, where Fedorenko had
claimed that his service was compulsory. 26 The
Court concluded that no basis for an “involuntary
assistance” exception existed. 27 In addition, the
Court disagreed with Fedorenko that his actions did
not constitute assistance in the persecution of others,
stating in the following oft-quoted language:
[A]n individual who did no more than cut the
hair of female inmates before they were executed
cannot be found to have assisted in the persecution of civilians. On the other hand, there can be
no question that a guard who was issued a uniform and armed with a rifle and a pistol, who was
paid a stipend and was regularly allowed to leave
the concentration camp to visit a nearby village,
and who admitted to shooting at escaping inmates on orders from the commandant of the
camp, fits within the statutory language about
persons who assisted in the persecution of civilians. 28
The above language has become, in many cases,
the standard by which persecutor bar findings are
measured. The Supreme Court in Fedorenko admitted that “[o]ther cases may present more difficult
line-drawing problems” in determining when an individual’s actions constituted assisting in the persecution of others. 29 The sections below present a nonexhaustive overview, focusing on the Second Cir24
INS v. Aguirre-Aguirre, 526 U.S. 415, 426–27 (1999)
(“‘[O]ne of Congress’ primary purposes’ in passing the
Refugee Act was to implement the principles agreed to in the
1967 United Nations Protocol Relating to the Status of Refugees to which the United States acceded in 1968.” (citations
omitted)).
25
449 U.S. 490 (1981).
26
Id. at 512.
27
Id.
28
Id. 512 n.34.
29
Id.
119
In one of the earliest cases in the Second Circuit
discussing the persecutor bar, United States v.
Sprogis, the court found that the government had
failed to meet its burden of proof in establishing that
Sprogis was subject to the persecutor bar and
thereby ineligible for an immigrant visa. 30 The court
found that Sprogis, a former Latvian police officer,
had not participated in anything other than “ministerial tasks” by paying farmers who had transported
Jewish prisoners and signing documents reflecting
those payments. 31 The court distinguished “active[]
participat[ion] in some act of oppression directed
against persecuted civilians,” such as formerpolicemen who patrolled the streets and detained
Jews or acted as interpreters for detained Jews, from
“passively accomodat[ing] the Nazis, while performing occasional ministerial tasks which his office demanded, but which by themselves cannot be considered oppressive.” 32
In Maikovskis v. INS, the court quoted a House
Judiciary Report for the proposition that “[i]n making a ‘persecution’ determination, emphasis should
be placed on the governmental nature of the conduct
involved; isolated instances of mistreatment on the
part of one individual against another, without Government support or complicity, would clearly not
meet that criterion.” 33 The court clarified, “We do
not mean to suggest ... that an alien’s inactive membership in an organization bent on politically-based
persecution or that his tangential provision of services to such an organization would suffice to show
that the alien assisted or otherwise participated in
such persecution ....” 34 However, petitioner, a police
chief who, on orders from the Nazis, ordered his
men to arrest all of the inhabitants of a village and
30
763 F.2d 115 (2d Cir. 1985).
Id. at 122.
32
Id.
33
Maikovskis v. INS, 773 F.2d 435 (2d Cir. 1985).
34
Id. at 446; see also Matter of Rodriguez-Majano, 19 I&N
Dec. 811, 814–15 (BIA 1988) (“[M]ere membership in an
organization, even one which engages in persecution, is not
sufficient to bar one from relief, but only if one’s action or
inaction furthers that persecution in some way.”).
31
120
TENTH ANNUAL AILA NEW YORK CHAPTER IMMIGRATION LAW SYMPOSIUM HANDBOOK
burn the village to the ground, was found to have
assisted in persecution. 35
Subsequently, in Linnas v. INS, the court stated
that the clearest case of involvement in persecution
is “one in which an individual, often while employed at a concentration camp, has personally arrested, or fired upon detained civilians, or has ordered others to do so.” 36 Nonetheless, in United
States v. Sokolov, the court affirmed an order denaturalizing an individual who was employed as a
literary editor for an anti-Semitic newspaper in
which he edited and wrote anti-Semitic comments,
where he had misrepresented his position. 37
In more recent years, the court has shifted its persecutor bar analysis from Nazi-era concentration
camps to other forms of persecution. In Ofosu v.
McElroy, the court noted that it had “never addressed the meaning of the phrase ‘ordered, incited,
assisted, or otherwise participated in ... persecution’
as employed in the exception to the definition of a
refugee, INA §101(a)(42), 8 USC §1101(a)(42), or
as employed in the exception to the statutory eligibility of an alien for the withholding of return, INA
§243(h)(2)(A), 8 USC §1253(h)(2)(A).” 38 There, the
court considered whether a Ghanian petitioner, who
for eight years was a senior officer of the Committees for the Defense of the Revolution (CDR) in
Ghana, a government organization that persecuted
enemies of the government, was barred as a persecutor, where he testified in immigration court that he
belonged to a government organization the purpose
of which was, in part, to persecute enemies of the
regime through the use of force. 39 He claimed that
he feared returning to Ghana because he had made
many arrests for this organization, although he denied participating in any killings, and was thus “an
enemy to the government.” 40 Because this decision
was issued in the context of a motion for a stay of
deportation, the court did not ultimately decide
whether Ofosu’s actions constituted persecution. 41
The court cited, without adopting, McMullen v. INS,
for the proposition that “personal culpability” is re-
quired to deny asylum on the ground of participation
in persecution and noted that Ofoso’s circumstances
were unique in that he “ultimately rejected the repressive activities in which he was involved [and]
put himself at risk in order to protect those who were
persecuted.” 42
In a return to the Nazi-era context, in United
States v. Reimer, the court concluded that a Ukrainian individual who was forcibly drafted into German
forces (the Wachmannschaften) and participated in
operations resulting in killings, was a persecutor,
regardless of the fact that he was ordered to participate in the persecutorial acts. 43 The court upheld,
based on language contained in the DPA, the denaturalization of the former Nazi prisoner of war—
who had allegedly served as a Nazi guard, finding
that while his service may have been involuntary, he
had personally participated in persecution by standing armed at the edge of a pit into which people had
been thrown, thereby forcing the victims to remain
waiting to be murdered. 44
In 2006, the court addressed the persecutor bar in
the context of the Chinese family planning policy. In
Zhang Jian Xie v. INS, the court discussed the progeny of Fedorenko in the circuit, and reasoned that
“in each of [the discussed cases], in assessing the
character of the individual’s conduct, we looked not
to the voluntariness of the person’s actions, but to
his behavior as a whole. Where the conduct was active and had direct consequences for the victims, we
concluded that it was ‘assistance in persecution.’
Where the conduct was tangential to the acts of oppression and passive in nature, however, we declined to hold that it amounted to persecution.” 45 In
that case, the court found that “transporting captive
women to undergo forced abortions was assistance
in persecution” because, unlike in Sprogis, the
transportation of women contributed directly to the
persecution. 46
Most recently, in Xu Sheng Gao v. U.S. Att’y
Gen’l, the court found that an immigration judge
erred in concluding that Gao was subject to the persecutor bar. 47 Gao, a Chinese citizen, was the chief
35
773 F.2d 435, 446 (2d Cir. 1985).
790 F.2d 1024, 1027 (2d Cir. 1986) (internal citations
omitted).
37
814 F.2d 863, 874 (2d Cir. 1987).
38
98 F.3d 694, 701 (2d Cir. 1996).
39
Id. at 696.
40
Id. at 697
41
Id. at 697, 701.
36
42
Id. at 701 (citing 788 F.2d 591, 598 n.2 (9th Cir. 1986)).
356 F.3d 456, 462 (2d Cir. 2004).
44
Id. at 462 and n.7.
45
434 F.3d 136, 142–43 (2d Cir. 2006).
46
Id. at 143.
47
500 F.3d 93, 103 (2d Cir. 2007).
43
AN OVERVIEW: THE DEVELOPMENT OF THE “PERSECUTOR BAR” IN THE CIRCUIT COURTS
officer of his city’s Culture Management Bureau,
which was responsible for inspecting bookstores to
determine if they were selling prohibited materials. 48
Gao’s bureau confiscated prohibited items and reported “serious cases” to the vice president, who
could order a possible maximum sentence of 10
years imprisonment for violations. 49 The court held
that there was no evidence of any actual persecution
in Gao’s testimony. 50 The court noted with approval
the Seventh Circuit’s analysis in Singh v. Gonzales
(discussed below), which cautioned present day adjudicators (those not evaluating the persecutor bar’s
original application to Nazi-era guards) to “take care
to distinguish between ‘genuine assistance in persecution and inconsequential association with persecutors.’” 51
THE APPLICATION OF THE
PERSECUTOR BAR IN OTHER CIRCUITS
First Circuit
The First Circuit in Castenada-Castillo v. Gonzales 52 found that in order to be barred from asylum as
a “persecutor,” an asylum applicant must have “culpable knowledge” of the acts of persecution. Petitioner, a former Peruvian military lieutenant, was in
charge of a patrol ordered to block escape routes out
of a village while two other patrols entered the village searching for members of Sendero Luminoso or
“Shining Path” (an anti-government organization).
Seemingly unbeknownst to Castenada and breaking
from the plan, one patrol carried out a brutal massacre on innocent villagers. The court remanded for a
determination of whether contemporaneous knowledge of the massacre was required for Castenada to
be barred as a persecutor. 53 The court concluded that
“presumptively the persecutor bar should be read not
to apply to Castaneda if his version of his state of
mind is accepted [even if the objective effect of his
actions was to aid in the massacre].” 54
which lie a series of rocks. Among the problems are
the nature of the acts and motivations that comprise
persecution, the role of scienter, whether and when
inaction may suffice, and the kind of connection
with persecution by others that constitutes ‘assistance.’” 55
Fourth Circuit
The Fourth Circuit found in Higuit v. Gonzales 56
that a military intelligence officer for the Marcos
government in Philippines, who acknowledged that
people he provided information about were imprisoned or killed, ‘assisted’ or otherwise participated in
the persecution of others, even if he had not been
directly involved in their physical harm or torture. 57
Fifth Circuit
The Fifth Circuit in Bah v. Ashcroft 58 held that
the petitioner was barred from the relief of withholding of removal as a persecutor because of his actions
with Sierra Leone’s Revolutionary United Front
(RUF). 59 Bah claimed that the insurgent group captured Bah, forced him to join their ranks and killed
his father and sister. As part of this group, Bah shot
a female prisoner and chopped off the hands, legs
and heads of civilians with a machete. The court
concluded that Bah’s personal motivation for committing these acts was irrelevant. 60
Sixth Circuit
The Sixth Circuit in Hammer v. INS 61 considered
the persecutor bar in the context of deportation proceedings following de-naturalization proceedings.
Petitioner, formerly an armed SS guard at the
Auschwitz and Sachsenhausen concentration camps,
was found to have assisted in persecution. The court
found that no evidence of petitioner’s personal involvement in specific atrocities was necessary for
him to be found deportable. 62
In so holding, the court noted that: “The statute
that bars persecutors has a smooth surface beneath
48
Id. at 95.
49
Id.
50
Id. at 98.
51
Id. at 100–101 (citing 417 F.3d 736, 739–740 (7th Cir.
2005)).
52
488 F.3d 17 (1st Cir. 2007) (en banc).
53
Id. at 20, 26.
54
Id. at 22 (emphasis in original).
121
55
Id. at 20.
433 F.3d 417 (4th Cir. 2006).
57
Id. at 420–421.
58
341 F.3d 348 (5th Cir. 2003).
59
Id. at 351.
60
Id.
61
195 F.3d 836 (6th Cir. 1999).
62
Id. at 843.
56
122
TENTH ANNUAL AILA NEW YORK CHAPTER IMMIGRATION LAW SYMPOSIUM HANDBOOK
Seventh Circuit
Ninth Circuit
63
The Seventh Circuit in Doe v. Gonzales found
that no per se bar to eligibility existed for petitioner,
a former army lieutenant in El Salvador who was
ordered to and did participate in a mission to kill a
Jesuit priest and university president. The court
noted that “mere presence [during the murders] does
not seem like assistance.” 64
In Singh v. Gonzales 65 the court held that substantial evidence supported the agency’s findings
that Singh actually assisted or otherwise participated
in persecution where, as a police officer, he brought
Sikhs into custody when he knew they would be
physically abused. 66
Eighth Circuit
The Eighth Circuit in Hernandez v. Reno 67 remanded to the Board of Immigration Appeals (BIA)
after concluding that it had failed to analyze the record in accordance with Fedorenko. 68 Hernandez, a
native of Guatemala, had been forced to join the Organization for People in Arms (ORPA). As part of
this organization, he blew up a bridge, stopped cars
and beat up the drivers, and in an ORPA attack
herded approximately 100 villagers from their
homes and opened fire on 15 of them who were suspected government informants. Hernandez testified
that he committed each of these acts under duress
and that he aimed to the left of the villagers upon
whom he was ordered to open fire. The court stated
that even when the burden shifts to the alien, it
“does not mean, however, that a petitioner will necessarily be held responsible for any involvement
with a persecutory group.” 69
63
484 F.3d 445 (7th Cir. 2007).
Id. at 448.
65
417 F.3d 736 (7th Cir. 2005).
66
417 F.3d 736, 739–41 (7th Cir. 2005). See also United
States v. Kumpf, 438 F.3d 785, 790 (7th Cir. 2006) (denaturalization of a Nazi guard and member of the SS who had
been in the United States nearly 50 years at the time of his
proceedings.)
67
258 F.3d 806 (8th Cir. 2001).
68
Id. at 813–14.
69
Id. at 814.
64
The Ninth Circuit in McMullen v. INS 70 considered the BIA’s finding that the persecutor bar applied to McMullen because he was an active member and leader of the Provisional Irish Republican
Army (PIRA). McMullen participated in a bombing,
housed PIRA members, trained members (“terrorists”) and coordinated illegal arms shipments from
the United States to Northern Ireland. The court ultimately affirmed the agency’s denial of relief on
other grounds. However, it discussed the persecutor
bar issue at some length. 71
In an unpublished opinion, the Ninth Circuit
found that a Petitioner was ineligible for asylum because, as a former general in the Egyptian police
force, he participated in the persecution of fundamentalist Muslims. 72 Specifically, he followed then
Egyptian President Nasser’s orders for the mass arrest of Muslims in retaliation for an attempted assassination of the President; he arrested suspects and
delivered them to an internal security detail, which
was known to torture and abuse prisoners. 73
In Vukmirovic v. Ashcroft, 74 the court considered
the case of a Bosnian Serb who was a member of a
“chekne,” a group committed to the Serbian Orthodox religion, that defended petitioner’s town against
attacks from neighboring Croats. As a member of
this group, Vukmirovic admitted to beating Croats
with sticks and pistols and to breaking their “nose
and foreheads” when Croats attacked his town. He
claimed to have committed these acts in self defense
or defense of others in his town. In finding that the
persecutor bar was improperly applied, the court
noted that “the only affirmative evidence in the record is that Vukmirovic acted in self-defense.” 75 The
court concluded that the agency erred as a matter of
law in “determining categorically that acts of selfdefense constitute persecution under the statute.” 76
The court undertook a comprehensive review of
its caselaw on the persecutor bar and highlighted
70
788 F.2d 591 (9th Cir. 1986), overruled in part on other
grounds by Barapind v. Enomoto, 400 F.3d 744 (9th Cir.
2005).
71
Id. at 598 n.2, 599.
72
Riad v. INS, 161 F.3d 14 (9th Cir. 1998).
73
Id.
74
362 F.3d 1247 (9th Cir. 2004).
75
Id. at 1253.
76
Id.
AN OVERVIEW: THE DEVELOPMENT OF THE “PERSECUTOR BAR” IN THE CIRCUIT COURTS
possible discrepancies between the circuits in
Miranda Alvarado v. Gonzales. 77 There the court
found that the record “present[ed] a case perhaps at
the margin of the culpability required under the statute.” 78 Miranda served as an interpreter for the Peruvian Civil Guard; she translated while suspected
Sendero Luminoso or “Shining Path” members (a
“Maoist guerilla organization ... that opposes the
current Peruvian government”) were interrogated,
beaten on the feet and legs, and subjected to electric
shock torture. The court ultimately concluded that
substantial evidence supported the immigration
judge’s finding that Miranda was barred from relief
as a persecutor. 79
Most recently, in Im v. Gonzales, the court addressed the persecutor bar in the context of a Cambodian prison guard’s challenge to the denial of his
application for relief. 80 The court found that petitioner, a former guard for the occupying Vietnamese
army, who unlocked the cells of prisoners (many of
whom were Khmer Rouge members) and handed
them over to another guard for interrogation, “did
not assist in the persecution of others.” 81 Petitioner
therefore was not barred as a persecutor. The court
stated that “the touchstone of the assistance analysis
... is the degree to which petitioner’s conduct was
central, or integral, to the relevant persecutory
acts.” 82
123
CONCLUSION
Over two million individuals have escaped persecution and begun new lives in this country since
the end of World War II. 83 In passing such legislation as the DPA and RRA, the United States has ensured that its refugee policy conforms its law to the
1951 United Nations Convention and its 1967 Protocol. 84 This legislation, and subsequent regulations,
made certain that those who do not merit a grant of
asylum because of their persecution of others will be
denied relief. However, as reflected in the varying
interpretations of the persecutor bar by the circuit
courts discussed above, the question of who is a
“persecutor” and who is a “victim” is not easily resolved with bright-line rules. 85 Looking forward, the
courts will be faced with difficult issues in applying
the persecutor bar in a way that is neither over- nor
under-inclusive to account for trends such as female
genital mutilation, family planning policies and
child soldiers. 86
77
449 F.3d 915 (9th Cir. 2006).
Id. at 929.
79
It is noteworthy that even though the text of the persecutor
bar requires that the alien has persecuted the victim “on account of” a protected ground, this requirement appears to be
met even where a person is conscripted or forced to commit
certain acts. The only case that seems to discuss this at
length is Miranda Alvarado v. Gonzales, 449 F.3d 915, 930933 (9th Cir. 2006).
80
Im v. Gonzales, 497 F.3d 990 (9th Cir. 2007).
81
Id. at 995.
82
Id. at 997. See also E. Grant, “Persecution and Persecutors:
No Bright Lines Here”, Immigration Law Advisor, Vol. 1.,
No. 8 (Aug. 2007) (discussing the difficulty in reconciling
Im with Fedorenko and Miranda Alvarado and in determining “who is and who is not” a persecutor for purposes of the
statutory bars to asylum and withholding of removal).
78
83
Testimony of Anwen Hughes, Hearing on Child Soldiers,
Before the U.S. Senate Committee on the Judiciary Subcommittee on Human Rights and the Law (Apr. 24, 2007).
84
Id; see also Introduction.
85
See generally Grant, supra note 82.
86
See Walls, supra note 8, at 255–56.
Groups not currently considered to be Tier III groups (with period, if relevant)1
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Burma: AAYSC (All Arakan Students’ and Youths’ Congress); ASYC (Arakan Student Youth
Committee); ABYMU (All Burma Young Monks Union); AKSYU (All Kachin Students and Youth
Union); KYO (Karen Youth Organization); KSDF (Kuki Students Democratic Front); NCUB
(National Council of the Union of Burma); NLD (National League for Democracy); NLD-LA
(National League for Democracy-Liberated Areas); MPU (Members of Parliament Union); SYCB
(Students and Youth Congress of Burma); ABSU (All Burma Students’ Union); DAB (Democratic
Alliance of Burma); ALD (Arakan League for Democracy); DPNS (Democratic Party for a New
Society); Mon Democratic Party; MNDF (Mon National Democratic Front); MLOB (Muslim
Liberation Organization of Burma); NDD (Network for Democracy and Development); YCOWA
(Yaung Chi Oo Worker Association); ZNC (Zomi National Congress); PDP (Parliamentary
Democracy Party - not a Tier III from 1960-1980 only).
Cameroon: SCNC (Southern Cameroon National Council); SCYL (Southern Cameroons Youth
League); SDF (Social Democratic Front); UPC (Cameroon People’s Union/Union of the Peoples of
Cameroon- not a Tier III after 1971 only).
El Salvador: FMLN (Farabundo Marti National Liberation Front - not a Tier III after 1993 only).
Ethiopia & Eritrea: AAPO (All Amhara People’s Organization); AEUP (All Ethiopian Unity Party);
AFD (Alliance for Freedom and Democracy); CAFPDE (Council of Alternative Forces for Peace and
Democracy in Ethiopia); CUDP (Coalition for Unity and Democracy Party); EDA (Eritrean
Democratic Alliance); EDP (Eritrean Democratic Party); ELF-RC (Eritrean Liberation Front –
Revolution Council); ENSF (Eritrean National Salvation Front -not a Tier II before 9/20/08 only);
ENUF (Ethiopian National United Front); ERDF (Eritrean Revolutionary Democratic Front); EPRDF
(Ethiopian Peoples’ Revolutionary Democratic Front --not a Tier III after 5/27/91 only); EPRP
(Ethiopian People’s Revolutionary Party -- not a Tier II after 1/93 only); Oromo National Congress;
PDFLE (People’s Democratic Front for the Liberation of Eritrea); SEPDC (Southern Ethiopia
People’s Democratic Coalition); TAND (Tigrean Alliance for National Democracy); UEDF (United
Ethiopian Democratic Forces).
Haiti: NFCD (National Front for Change and Democracy).
Indonesia: Al-Nahda.
Iraq: ADM (Assyrian Democratic Movement); ADF; Al-Amin.
Kosovo: LDK (Democratic League of Kosovo).
Lebanon: March 14 Movement.
Liberia: ALCOP (All Liberia Coalition Party).
Mauritania: FLAM (African Liberation Forces of Mauritania) not a Tier III after April 1992 only.
Nepal: Nepali Congress Party; Nepali Students Union; Tarun Dal (not a Tier III after 1969 only).
Pakistan: PPP (Pakistan Peoples’ Party).
Russia: Nashi
Sudan: Beja Congress (not a Tier III before 1995 and after 1996 only); DUP (Democratic Unionist
Party); NDA (National Democratic Alliance); UDF (United Democratic Front); Umma Party (not a
Tier III before 1/1/95 and after 12/31/97 only).
Turkey: HADEP (Peoples’ Democracy Party).
1
Because DHS has not released a list in writing, this list may not be completely accurate. Please use the list as a
guide only and pursue further inquiry if your client is on hold for engaging in activity related to one of the groups
listed. 2011 AILA Teleconference/Web Conference
© 2011 American Immigration Lawyers Association
The Material Support and Persecutor of Others Bars
August 16, 2011
Additional Resources
USCIS Bars to Asylum and Inadmissibility Grounds Related to Terrorist Activity
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id=cf0d4b5bbfb73210VgnVCM100000082ca60aRCRD&vgnextchannel=f39d3e4d77d73210Vg
nVCM100000082ca60aRCRD
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© 2011 American Immigration Lawyers Association