The government has taken an extremely broad view of the material support to a terrorist organization ground of inadmissibility, using it to deny many victims of persecution the opportunity to be granted asylum or other relief from deportation.
According to the Immigration and Nationality Act (INA) ground of inadmissibility under section 212(a)(3)(B)(i)(VIII), material support to a terrorist organization is defined as the following:
(VI) to commit an act that the actor knows, or reasonably should know, affords material support, including a safe house, transportation, communications, funds, transfer of funds or other material financial benefit, false documentation or identification, weapons (including chemical, biological, or radiological weapons), explosives, or training–
(aa) for the commission of a terrorist activity;
(bb) to any individual who the actor knows, or reasonably should know, has committed or plans to commit a terrorist activity;
(cc) to a terrorist organization described in subclause (I) or (II) of clause (vi) or to any member of such an organization; or
(dd) to a terrorist organization described in clause (vi)(III), or to any member of such an organization, unless the actor can demonstrate by clear and convincing evidence that the actor did not know, and should not reasonably have known, that the organization was a terrorist organization.
The definition of material support as a ground of deportability or removability is exactly the same as the definition for the ground of inadmissibility.
In immigration, the material support ground of inadmissibility has been applied to deny many Central Americans, Columbians, and others who are victims of guerilla and terrorist organizations, any relief from deportation or removal. The material support ground is interpreted so broadly, that even if you are forced while looking at the barrel of a gun of a terrorist ready to send you out of this world, you will still be found to have provided material support and will be ineligible for immigration benefits.
In Matter of A-C-M-, 27 I&N Dec. 303 (BIA 2018) the BIA held that a woman from El Salvador was not eligible for cancellation of removal because she had provided material support to a terrorist organization. This unfortunate woman was a victim of the guerillas, who kidnapped and enslaved her, and forced her to watch her husband dig his own grave before they murdered him. However, in spite of the fact that she was a victim of the guerillas, the BIA held that she was not eligible for cancellation of removal because she had provided material support, as she was forced to cook, clean and wash their clothes while a slave to them.
This provision of law, clearly intended to stop bad guys (and bad gals!) who support terrorists from coming to the US or getting immigration benefits, is being used to punish women, children, and other weak and vulnerable populations who have been the victims of terrorists and transnational criminal organizations, as a cudgel to deny them any kind of immigration benefits or relief from removal and deportation.
The BIA has made clear, time and again, that even though an individual provides material support involuntarily, while under duress, he or she is still barred under the material support ground of inadmissibility. See, Matter of M-H-Z-, 26 I&N Dec. 757 (BIA 2016).
The definition of duress is the following: “threats, violence, constraints, or other action brought to bear on someone to do something against their will or better judgment. “confessions extracted under duress”. Synonyms: coercion, compulsion, force, pressurization, intimidation, threats, constraint, enforcement, exaction. Informal: arm-twisting. See, google definition, https://www.google.com/search?q=duress+definition&oq=Duress+definition&aqs=chrome.0.0l6.3471j1j7&sourceid=chrome&ie=UTF-8
It is a sad state of affairs that several of the federal appellate courts have gone along with this interpretation. For example, in Hernandez v. Sessions, 884 F.3d 107 (2d Cir. 2018), the petitioner, Marleny Hernandez, a citizen of Columbia, a successful business woman, under threat from the FARC, provided food and other goods to the FARC every three months from around 1997 to 1999. As retaliation against her for having government officials as guests at her hotel, the FARC attacked and destroyed her hotel and store. The Second Circuit in Hernandez deferred to the BIA’s interpretation, as they found the statute to be ambiguous, and applied Chevron deference. Chevron, U.S.A., Inc. v. Natural Resources Defense Council, Inc., 467 U.S. 837 (1984).
As if it is not bad enough that the government applies the material support bar when the applicant was under duress, the BIA’s recent decision in Matter of A-C-M- makes clear that no matter how de minimus, small or trivial the support, the material support bar still applies.
What can one do in such a situation? There is an exception to the bar if one “did not know and should not reasonably have known, that the organization was a terrorist organization”. However, even if the immigration judge finds an applicant ineligible, all is not lost. First, even if it is found that the material support bar to asylum applies, the applicant is still eligible for deferral of removal under the Convention Against Torture. Second, in federal court one can argue that the plain meaning of the statute requires that support be material. The statute would not specifically state “material support” if the word material did not mean anything. If support was not required to be material, Congress would have left out that word, and just had the word support with no qualifiers. While the government may argue that the statute is ambiguous with regard to duress, there is no such ambiguity with regard to whether the support may be de minimus. It cannot be, as the support must be “material” and Chevron deference does not apply in this situation.
Another argument is that this interpretation of material support with no exception for duress or de minimus support is contrary to the non-refoulement obligation of the 1976 United Nations Protocol Relating to the Status of Refugees (the “Protocol”), to which the United States is a party.
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