11-18-2011By Anne Sovcik
Advocacy Counsel, Refugee Protection Program
Steps finally taken to mitigate the adverse impact of the immigration law’s “terrorism” bars on health care professionals
In May 2009 Physicians for Human Rights (PHR) sent a letter to Secretary of Homeland Security, Janet Napolitano, describing the case of a physician from Sudan who, in the course of his work with a humanitarian NGO, provided medical assistance to injured members of a Darfuri rebel group. As a result, the doctor was targeted by the government of Sudan – arrested, interrogated and tortured for giving aid to Darfuri rebels.
Fearing imprisonment and execution, the doctor fled Sudan and requested asylum protection in the United States. His case was put on hold. The legal complication in the doctor’s case was not whether his fear of persecution was legitimate or whether his story was credible. Both were sound. It was whether the medical assistance he provided to injured members of the rebel group constituted “material support” to a terrorist organization, thereby barring him from asylum protection in the United States.
Using the Sudanese doctor as an example, PHR’s letter, signed by over 100 health professionals, described a situation in which, “[d]octors and medical workers have had their applications for refugee protection or permanent residence in the United States denied or placed on indefinite hold based on their own statements that they provided medical care to sick or wounded people who belonged to various non-state armed groups. Some of the medical workers were actually kidnapped by armed groups that forced them to treat their sick or wounded. Others treated these patients because they believed themselves to be obligated by the principles of medical ethics to treat the sick and wounded without discrimination. All of these applicants have seen their exercise of their professional duties redefined as ‘material support’ to terrorism.”
Human Rights First, in its 2009 report on the adverse impact the “terrorism bars” in U.S. immigration laws have had on asylum seekers and refugees, described the case of “B.T.,” a Nepalese medic who was kidnapped by Maoist rebels and forced at gunpoint to provide emergency medical care to the rebels who kidnapped him. On appeal, B.T.’s application for asylum in the United States was denied on the ground that the medical care he provided constituted “material support” to a terrorist organization, even though an immigration judge found he otherwise qualified for asylum and had a well-founded fear of persecution if returned to Nepal. After over four years of litigation, B.T. was eventually granted asylum as a beneficiary of an exemption for “material support provided under duress” – because he treated the rebels under threat of being killed – but the question of whether U.S. immigration law considers medical care to constitute “material support” (a term the immigration law defines as 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”) if provided to a terrorist or terrorist organization, has largely remained unresolved.
While recent steps taken by the Obama Administration will mitigate the adverse impact these bars – and the expansive interpretation of what constitutes “material support” – have on health professionals, the underlying problem of over-expansive legal interpretations remains.
On November 14, 2011,the Department of Homeland Security published a notice in the Federal Registrar announcing that certain sections of the immigration law’s “terrorism bars” contained in INA §212(a)(3)(B), “shall not apply with respect to the provision of medical care” for an individual who is (i) otherwise eligible for the benefit or protection he or she is seeking; (ii) has undergone and passed all relevant background checks; (iii) has fully disclosed, to the best of his or her knowledge, in all relevant applications and interviews with U.S. government representatives and agents, the nature and circumstances of any medical care provided and any other activity or association falling within the scope of section 212(a)(3)(B); (iv) has not voluntarily and knowingly provided medical care on behalf of a designated terrorist organization; (v) has not voluntarily and knowingly provided medical care with the intent of furthering the terrorist or otherwise violent activities of an organization or individual; (vi) poses no danger to the safety and security of the United States; and (vii) under a totality of the circumstances warrants an exemption.
Human Rights First welcomes this long-awaited announcement, which will allow some innocent doctors and other medical workers applying for protection or other immigration status in the United States to have their cases adjudicated. These cases could, however, have been more effectively addressed by clarifying as a matter of legal interpretation that the provision of medical care to a sick or injured person is a neutral act and does not constitute “material support” to that patient or to any organizations or political goals with which that patient may be associated. As PHR explained, “DHS’s broad interpretation of the ‘material support’ bar puts it in conflict with internationally accepted principles of medical ethics and international humanitarian law. These principles protect healthcare workers who comply with their affirmative ethical duties to treat anyone in need regardless of the patient’s political affiliation. Denial of humanitarian protection to these health professionals also contradicts long-standing U.S. policy, which has supported the protection of health workers in war, and has condemned violations of medical neutrality by other governments.”
Ceasing to label medical care as “material support” would be more consistent with the text and purpose of the statute, and would allow these cases to be adjudicated without the other bureaucratic challenges posed by the exemption process, particularly for cases before the immigration courts that are often forced through years of litigation before an exemption can be considered. This would also bring U.S. immigration policy in line with long-standing U.S. commitments under international humanitarian law—respect for which also helps to protect U.S. forces – and give clear guarantees to U.S. servicemen and women, whose ranks include many immigrants who are not yet U.S. citizens, that their adherence to their humanitarian obligations to care for the sick and the wounded will not subject them to deportation from the United States.
The unintended effects of the immigration law’s “terrorism” bars have not been limited to health care professionals. Since 2001, thousands of men, women, and children, who do not pose a danger to the United States and have not committed any acts of wrong-doing have had their applications for asylum, refugee resettlement, permanent residence, and family reunification denied or delayed for years due to overly broad statutory definitions and expansive legal interpretations of “terrorism” and “terrorist” activity, including “material support,” in U.S. immigration law.
Where the Administration has acted to interpret these provisions of the immigration law in a manner more consistent with the statutory text and its purpose, those interpretations have been helpful in resolving many deserving cases. Resolution of debate over what makes one group a “subgroup” of another, for example, brought much-needed relief to large numbers of refugees who were members of the peaceful political opposition in the Sudan and other countries, without recourse to the discretionary exemption process.
That exemption process, unfortunately, continues to move at a glacial pace, particularly for the mass of refugees, asylees, asylum seekers, and other immigrants whose cases are being held up because the applicants told the U.S. government that they had had voluntary connections to groups that are now deemed to be “undesignated” or “Tier III” “terrorist organizations” under the immigration laws. Exemptions for such cases remain tangled in an interagency process among the Department of Homeland Security, Department of Justice, and Department of State, which has been proceeding with little success “Tier III” group by “Tier III” group. Since September 2009, DHS has authorized exemptions with respect to only five of the over 300 such groups it has identified in its caseload: the Iraqi National Congress, the Patriotic Union of Kurdistan, the Kurdish Democratic Party, the All-Burma Students’ Democratic Front, and the All-India Sikh Student Federation—Bittu Faction. As the problem continues without a systemic resolution, a September 2011 article in the New York Times noted how mislabels of “terrorism” continue to harm refugees, including U.S. allies from places like Iraq and Afghanistan.
Human Rights First’s 2009 report, “DENIAL AND DELAY: The Impact of the Immigration Law’s “Terrorism Bars” on Asylum-Seekers and Refugees in the United States,” describes these problems in greater detail and offers a series policy recommendations – the majority of which remain relevant in November 2011 – aimed to focus the scope and application of the terrorism bars on those individuals whom Congress intended to target.