Material Support: Eroding asylum in the United States

Since September 11, 2001, the United States government has been understandably concerned about the potential for terrorists to strike at targets within its territory. One response to this concern has been to broaden the scope of provisions intended to keep those involved in terrorism from entering the United States. Unfortunately, the provisions which were enacted in an effort to protect US citizens from terrorism have had the effect of excluding vulnerable refugees and asylum seekers from protection.

Of particular concern is a provision barring those who have supplied “material support” to terrorist organizations from protection as refugees. While passage of this legislation may have been motivated by a genuine desire to protect citizens, it has been interpreted in such a way as to exclude those genuinely in need of protection.

As an example, let us take the case of a Liberian woman who was referred by UNHCR to the United States resettlement program. This woman was attacked by LURD rebels during the course of Liberia’s civil war, she watched as her father was killed and was herself raped by rebels before being abducted. While in the custody of the rebels, the woman was forced to carry out menial tasks such as washing laundry. While processing her application for resettlement, the Department of Homeland Security expressed concern that the tasks that the woman had carried out in captivity might constitute material support and put her case on hold.

In another case, a member of Burma’s persecuted Chin minority who was applying for asylum in the United States was ruled not to be a refugee on the grounds that she had provided material support in the form of 1100 Singapore dollars (or about US $700) to the Chin National Front. The Board of Immigration Appeals held that the Chin National Front was a terrorist organization under the provisions of the statute despite the fact that it acknowledged the organization had “democratic goals and used force only in self-defense.”

How are these individuals caught in the web of the war against terror? The problem lies in the overly broad characterization of what constitutes both “material support” and a “terrorist organization.” According to the Immigration and Nationality Act, material support in the context of asylum can include “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.” Further, the Board of Immigration Appeals has already ruled that this list is not intended to be exhaustive and that other acts may be considered as providing material support. There is simply no threshold provision stating what level of support would be needed to be considered “material.”

Similarly, the definition of what constitutes a terrorist organization is also broad. In addition to including specific groups designated as such, the statute includes any “group of two or more individuals whether organized or not, which engages in, or has a subgroup which engages in” listed illegal activities. These include, “threat, attempt or conspiracy” to use weapons to endanger, directly or indirectly, the safety of one or more individuals. Under this definition groups may be considered as “terrorist” even if only a small number of their members used very limited violence. Therefore, the Chin National Front, for example, was considered to be a “terrorist organization,” even though the court took note of the United States Department of State’s proclamation that it had no indication that the group engaged in terrorism. That pronouncement, it claimed, was immaterial to the application of the term in the meaning provided for in the statute.

An additional problem with the statute is that there is no limit on the retroactive nature of the provision. As long as the law was in force at the time that an issue was adjudicated, action committed years in the past can potentially act as a bar. This has unfortunate potential effects in terms of integration, because refugees who were granted asylum under the old laws, but who may be excluded under the new regime, may not be allowed to obtain permanent residence status or citizenship.

The law does, however, grant a possibility for exemption. There is a possibility for the application of the provision to be waived, with the assent of the Department of State and the Department of Homeland Security. There is no clarity, however, as to how those waivers will be applied in practice. The Board of Immigration Appeals has ruled that the Courts have no role in applying this waiver, so even if such a procedure were to be put in place, it would very likely not be subject to judicial review.
 
While the need to exclude those who have committed serious crimes or who may be threats to the security of the host state has been widely recognized, it is clear that the provisions of the current law are unfairly curbing access to protection. Asylum seekers in the United States have had their claims denied, and those referred for resettlement have been placed in a semi-permanent holding pattern.

Many groups in the United States have already begun the campaign for legislative reform to address this concern. They are hoping to convince Congress to adopt a more restricted definition of who may be barred from refugee protection. For the most part, this is being pursued domestically, but there are two areas where NGOs from outside the US can be helpful. The first is to be vigilant about the possibility of copycat legislation in other countries; it is very possible that other countries may adopted similar legislation in an effort to exclude deserving refugees. Second, if NGOs in countries of origin or resettlement countries are aware of any cases where individuals were denied asylum or resettlement on the basis of this provision, it would be helpful if you could inform us about these cases. Having specific details about the individuals who are suffering as a result of this legislation is powerful ammunition for those advocating for change.