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February 06, 2013

Immigration Law’s “Terrorism Bars” at Odds with U.S. National Security, Commitment to Refugees

An article in Saturday’s Washington Post describes the confusion of an Afghan interpreter for the U.S. military, Tariq, who after risking his life for years in support of U.S. forces in his home country, has been told that he is barred from the United States under the “terrorism”-related provisions of U.S. immigration law. Having been denied a U.S. visa under a special program set up to protect Afghan and Iraqi interpreters and others who have put their lives at risk in service to the U.S. government, Tariq remains in Afghanistan—where he continues to work for the U.S. Army.

The irony of this situation is nothing new.  Five years ago, an Iraqi interpreter, Samaan Kareem Ahmad, who had served with the U.S. Marine Corps in some of the most dangerous areas of conflict in Iraq, was working for the Marines at Quantico when he was informed that he was inadmissible to the United States under the immigration law’s “terrorism bars.”  Unlike Tariq, who according to the Post has not been informed whythe U.S. Department of State thinks he “may have provided material support to a terrorist organization,” U.S. Citizenship & Immigration Services (USCIS) explained it all to Samaan Kareem Ahmad: while living in Saddam Hussein’s Iraq, he had at one time joined the Kurdish Democratic Party (and had told the U.S. government this in his earlier immigration applications).  And the Kurdish Democratic Party, USCIS explained, was an “undesignated terrorist organization” by virtue of the fact that it “helped incite rebellions against [Saddam] Hussein’s regime, most notably during the Iran-Iraq war, Operation Desert Storm and Operation Iraqi freedom.”

Clearly it is not the position of the U.S. government that any attempt to overthrow an established government should be considered “terrorist activity.”  Both Tariq and Samaan Kareem Ahmad, after all, were helping U.S. forces that had recently toppled the Taliban and Saddam Hussein regimes.  Yet our immigration statute defines “terrorist activity” to include “the use of any . . . weapon or dangerous device (other than for mere personal monetary gain), with intent to endanger, directly or the safety of one or more individuals or to cause substantial damage to property.”  As the U.S. Departments of Homeland Security (DHS), Justice, and State understand it, this means any use of armed force by a non-state actor, other than armed robbery for personal profit.  A later amendment, passed as part of the USA PATRIOT Act in the immediate aftermath of September 11, defines a “terrorist organization” to include any group that engages in, or has a “sub-group” that engages in, “terrorist activity” as just defined, and defines “material support” to such “undesignated terrorist organizations” as “terrorist activity” in its own right.  (Human Rights First described these problems in greater detail in a 2009 report, available here, much of which is unfortunately still current.)

This is an overbroad law, and the federal agencies tasked with interpreting it have done little to focus it.  DHS, for example, remains locked in internal contemplation as to whether the law’s “material support” bar should apply to the owner of a flower shop from whom members of an armed group sometimes purchased bouquets.  Meanwhile, non-citizens affected by these provisions have been left to pin their trust in this country’s justice on the possibility that DHS Secretary Napolitano may grant them a discretionary exemption.

At the end of 2007, Congress, in a bipartisan effort led by Senators Patrick Leahy (D-VT) and Jon Kyl (R-AZ), amended the immigration law to broaden the administration’s authority to grant exemptions from the law’s over-breadth.  But to date, the relevant government agencies have failed to establish workable procedures to implement that authority effectively, and have continued the abuses that legislation was supposed to end.

After his story appeared on the front page of the Washington Post, Samaan Kareem Ahmad, the Iraqi interpreter for the Marines, was granted an individual exemption and received his green card.  But five years later, close to 4,000 people similarly situated remain “on hold.”  These are people who were granted asylum or refugee status in the United States, only to be classified as “terrorists” under the immigration laws when they applied for permanent residence or family reunification, based on the same information they had themselves given the U.S. government in their applications for refugee protection.  Others, harder to count because the government for the most part is not tracking them, are being denied asylum or refugee resettlement, or seeing those applications endlessly delayed, for the same reasons.

In August, Secretary Napolitano signed an exemption that was expected to allow the great majority of people already granted lasting status to have their applications for permanent residence adjudicated.  But implementation of that common-sense measure has been moving very, very slowly.  As of December, USCIS had yet to decide a single case under the new exemption.  Jamshid, an Afghan asylee also quoted in Saturday’s article in the Post, who fled to the United States over 24 years ago, at the age of 16, and has lived and worked here all his adult life, still has no idea when he may finally become a permanent resident.  His application has been pending since 1999.  His case is on hold because as a child he carried supplies for the National Islamic Front of Afghanistan, which was supported by the United States in its fight against the Soviet-backed regime in Afghanistan.

Perhaps the most confusing and frustrating aspect of this situation is that the U.S. government does, in fact, know the difference between Al-Qaeda and the Awami League.  The U.S. government does not consider people to be “terrorists” in any real sense simply because they fought in the 1980’s for the independence of Eritrea, or gave to a political party in a country like Bangladesh (all of whose major political parties DHS is treating as terrorist organizations for immigration-law purposes).   This is why those being treated as “terrorists” by the immigration laws may remain free to work in U.S. military installations, travel in and out of the United States if they already have status here, and hold positions of trust and responsibility for a broad range of U.S. employers.    Indeed, for those already in the United States, one of the criteria for having one’s case placed “on hold” by DHS based on a “terrorism-related inadmissibility ground” is that one is deemednot to pose a threat to the United States.   But that contradiction remains unresolved, and thousands of refugees and others who are suffering anguish, separation from their families, or physical danger as a result still have no real avenue for relief.

This problem requires a legislative solution, one that would focus the immigration law’s definition of “terrorist activity” on violence against civilians and non-combatants, and that would eliminate its definition of an “undesignated” (also known as “Tier III”) “terrorist organization.”  In the meantime, the Administration could greatly reduce the scope of the terrorism-bar morass by adopting sensible interpretations of the existing statute, and moving swiftly to implement the discretionary authority given to it by Congress.   (Specific recommendations are outlined in our blueprint for the second Obama Administration, available here.)  Until that happens, the immigration law’s “terrorism bars” will continue to work at cross-purposes with the real demands of national security and our nation’s commitment to refugee protection, and non-citizens who have placed their faith in the United States will continue to struggle with a sense of betrayal.