Posted by: emilyrfischer | February 22, 2015

Terrorism-related bars to asylum in the U.S.

Over the past couple of weeks, I’ve attended some of Human Rights First’s staff training sessions on terrorism-related inadmissibility grounds (TRIG). Both training sessions were run by the Refugee Representation program’s Deputy Legal Director, Anwen Hughes, who has an amazing knowledge of US asylum law (and TRIG in particular), so I feel pretty lucky that I got to go along and hear her share some of her expertise. A lot of what Anwen spoke about was quite technical, but there was also a bit of discussion about the broader policy issues surrounding TRIG.

Human Rights First has focussed a lot of its advocacy work on the terrorism-related bars to asylum. Under U.S. law, anyone who has engaged in ‘terrorist activity’ is barred from all forms of refugee protection. In and of itself this is not problematic, but there are significant issues surrounding the breadth of definitional provisions under U.S. legislation. The Immigration and Nationality Act (INA) defines ‘terrorist activity’ to include any unlawful use of a weapon against persons or property, for any purpose other than mere personal monetary gain. This extremely broad definition operates to bar innocent, bona fide refugees, who pose no threat to the U.S., from being granted asylum.

Membership of a Tier I, Tier II or Tier III ’terrorist organisation’ will also disqualify a refugee from obtaining protection in the U.S. Unfortunately, the definition of ‘a ‘Tier III terrorist organisation’ is also unduly broad. U.S. asylum law excludes any person who has been a member or supporter of any group comprising “two or more individuals, whether organised or not, [which] engages in” activities such as using an “explosive, firearm or other weapon or dangerous device.”

This definition is so broad that it can easily encompass groups that do not target civilians or pose any threat to the U.S. Increasingly, immigration officials have characterised political opposition parties as ‘Tier III terrorist organisations’ purely because there have been incidences of violence between their supporters and those of rival parties. As Human Rights First has pointed out, applying this logic, the rival party in this type of scenario would also be a Tier III organisation. Effectively, this renders any citizen who engages in democratic political participation in these situations potentially inadmissible. This is particularly problematic in countries like Bangladesh, where members and supporters of both major political parties often engage in violent tactics. Human Rights First’s reports have noted that the Movement for Democratic Change (MDC) in Zimbabwe, the main political opposition to President Robert Mugabe, has also been labelled a Tier III terrorist organisation.

Since the 1990s, providing ‘material support’ to a terrorist organisation has also existed as a bar to asylum. Under the USA PATRIOT Act, providing ‘material support’ to any terrorist organisation, including a Tier III organisation, enables immigration officials to deny a person’s asylum application, deport a person who is already present in the U.S., and bar him or her from all forms of refugee protection.

The application of these provisions has produced perverse results. One case, which we were told about in Human Rights First’s first TRIG training session, involved a florist from Iraq. Her otherwise valid asylum claim was rejected because she had sold flowers to members of a ‘terrorist organisation’ who came in to her shop. Another refugee from Somalia was denied asylum and detained because he was kidnapped by militants who forced him to stand in the middle of a room holding a gun for an entire day. This man was not even aware of whether or not the gun was loaded, and he only complied with the militants’ demands after a man who refused to do so was shot dead in front of him. He believes that the militants were using him as a human decoy, but the abuse which he suffered was found to constitute ‘material support’ to the very group that kidnapped him.

By 2014, even Congress had reached agreement that the operation of the material support bar was too broad. Exemptions to the bar were introduced which provide that persons who provide ‘limited material’ support will not be inadmissible. Essentially, if an asylum seeker provides insignificant support, or material support under significant pressure, his or her actions will not be caught by the material support bar. So, the Iraqi florist who supplied flowers to militia who came in to her shop would no longer be excluded. While this exemption is a welcome and necessary amendment, it does nothing for the refugees who were deported prior to 2014 because they had no alternative to dealing with members of armed groups during the course of their daily lives.

The REAL ID Act, enacted in 2005, also contains provisions which undermine the U.S.’ adherence to its international obligations. The Act provides that a person will be inadmissible if s/he is the spouse or child of a person who is found to be inadmissible under any of the terrorism bars, if that person’s inadmissibility was a result of activity that occurred within the past five years. Human Rights First has called this one of the Act’s “cruelest and most unnecessary strokes.” In one case, it resulted in a 14-year old Sudanese boy being inadmissible for the sole reason that his mother was a member of the democratic opposition in Sudan.

What makes these provisions especially objectionable is the fact that the Refugee Convention itself allows, and in some cases obliges, countries to exclude ‘terrorists’, at least if a more widely accepted definition of ‘terrorism’ is used. Under Article 33(2), a country may remove a refugee if “there are reasonable grounds for regarding” him or her as a danger to the security of that country, or if, having been convicted of a particularly serious crime, he or she “constitutes a danger to the community of that country.” Under Article 1F, a person will be ineligible for refugee status at all if there are serious reasons for considering that: (a) s/he has committed a crime against peace, a war crime, a crime against humanity, (b) s/he has committed a serious non-political crime before arriving in the country of refuge, or (c) s/he has been guilty of acts contrary to the purposes and principles of the UN. If an individual engages in actual acts of terrorism, or if there are reasonable grounds for suspecting that s/he will do so, it is likely that at least one of these provisions will apply to render him or her excludable.

Under international refugee law, Article 1F exhaustively enumerates the grounds for exclusion from refugee status. If Article 1F and other provisions of the Convention are properly applied, it should be adequate to deny refugee protection to individuals in the relatively few cases where such an extreme measure is warranted. The excessively broad aspects of the terrorism-related bars to asylum which currently apply in the U.S. not only do little to enhance national security, but also undermine the integrity of the refugee protection regime.

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