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  • Article: “Terrorism-Related Mandatory Bars To Asylum” Training Materials For Asylum Officers Released After A Freedom Of Information Request By David L. Cleveland

    “Terrorism-Related Mandatory Bars To Asylum” Training Materials For Asylum Officers Released After A Freedom Of Information Request

    by


    100 pages of materials entitled “Terrorism-Related Inadmissibiity Grounds (TRIG),” dated February 2017, for asylum officers, was recently released after a FOIA request by Catholic Charities of Washington DC. A copy is available on the Asylum Officer Materials page on the Louise Trauma Center website: www.louisetrauma.weebly.com . It is also AILA Doc. No. 17121239.

    Some excerpts:

    INA § 212(a)(3)(B) applies to asylum, adjustment of status, and TPS. [Page 3]

    INA § 212(a)(3)(B) refers to three types of “terrorist organizations,” six types of “terrorist activity;” and six types of “engaging in terrorist activity.”

    TERRORIST ORGANIZATIONS There are three types of “terrorist organizations:”

    Tier I “Designated”

    Tier II “Exclusion list”

    Tier III; “Undesignated”

    = = = = = = = = = = =

    Tier I: an organization designated by Secretary of State [Page 7]

    (on June 21, 2017, the State Department designated “Hizballah” and “al-Qa’ida” as Foreign Terrorist Organizations). The Taliban is a Tier I terrorist organization. Page 7

    = = = =

    Tier II organizations are found on the Terror Exclusion List. Page 8.

    The Afghan Support Committee and Al-Hamati Sweets Bakeries are on this list.

    The Communist Party of Nepal (Maoist) has been taken off this list.

    = = = = = =

    Tier III organizations do not appear on a list. Page 9. Such an organization could be un-named or “unorganized” [!] It is “a group of two or more individuals, whether organized or not…or has a subgroup that engages in terrorist activity. “Freedom fighters” may be such an organization. Page 9.

    = = = =

    TERRORIST ACTIVITY

    There are six types of “terrorist activity” under INA § 212(a)(3)(B)(iii). The first five types are common-sense things, such as hijacking and assassination. The 6th type is “a threat, attempt, or conspiracy to do any of the foregoing.” Page 12.

    “even if they were supported by the U.S. government, this brings armed resistance groups under the definition of a ‘terrorist organization.’” Page 12.

    “INA § 212(a)(3)(B) does not include activity of a recognized and duly constituted government.” Page 14. “In a multi-party system, a political party with representation in the government is not considered the government of a country.” Page 14.

    An example on page 15: the MEK, an Iranian resistance organization founded in 1965, engaged government soldiers in armed skirmishes. It was designated as Foreign Terrorist Organization on October 8, 1997. It was de-listed on September 28, 2012. Applicant had dealings with the MEK in 1995, 2000, and in 2013. Which type of organization was he dealing with?

    “ENGAGE IN TERRORIST ACTIVITY” Page 16. This includes:

    -inciting to commit a terrorist activity

    -preparing or planning

    -gathering information on potential targets

    -soliciting funds or other things of value

    -soliciting an individual… to join a Tier III organization

    -giving “material support” … to a Tier III organization, unless he should not reasonably have known it was a terrorist organization

    MATERIAL SUPPORT is defined in INA § 212(a)(3)(B)(iv)(VI) [Page 20] and includes: “I had to pay a ransom” “They made me pay a war tax” “I paid them at a checkpoint”

    “I’m a doctor so I gave them medical care.”

    Being kidnapped, and forced to cook, is giving material support. Page 45.

    “Information” can be “material support.” Page 22. “There is no requirement that the support actually benefit the terrorist organization or terrorist activity.” Page 22.

    “Tier III rule: if the applicant knows the name of the organization at the time the support is given, but doesn’t know that the organization engages in violent activity, an exception to TRIG might apply if the asserted lack of knowledge is reasonable.” Page 24.

    “Material support does not include being raped or forced to perform sexual acts.” Page 27.

    Delivering ransom is material support; giving captors a phone number of someone they call to demand ransom is not. Page 28. Collecting money from other family members is not TRIG. Page 29.

    WHO IS INADMISSIBLE? Page 30.

    A person who has incited terrorist activity might be inadmissible. Page 31.

    A person who is a member of a Tier I, II, or III organization. “Note the present tense- these inadmissibility grounds cover current affiliation…and do not apply to past affiliation.” Page 32.

    A person who has received military-type training from or on behalf of a terrorist organization.

    “Marching and physical exercises alone are not considered military-type training.” Page 33.

    A person who is the spouse or child of an inadmissible alien is also inadmissible under certain conditions, such as the activity in question occurred within the past five years. “Note the present tense-…. [this] applies only to current spouses…” Page 34.

    MOST COMMON TRIG Page 35

    “Engaging in terrorist activity through involuntary and voluntary material support to a terrorist organization (e.g., food, water, commercial transactions, paying membership dues, and medical care.” Page 35. INA § 212(a)(3)(B)(i)(I).

    EXEMPTIONS Page 37

    Duress. This exemption is available for all tiers. Page 48. Was there a reasonably-perceived threat of serious harm? Page 49. Was it likely and imminent? Page 49. Was there sufficient duress on each occasion he gave assistance? Page 51.

    See The Exemption Worksheet (EWS): Page 52.

    Certain Limited Material Support (CLMS) and Insignificant Material Support (IMS)

    -this exemption is only available if: the material support was voluntary, given to a Tier III organization, and the person did not know “the support could be directly used to engage in violent or terrorist activity.” Page 55.

    Routine commercial transactions (RCT) Page 56

    -a shop or restaurant owner who sells at a normal price in the course of normal business.

    -a person who sells groceries in Mexico to a member of the UBISORT probably can get this exemption. Page 57.

    Routine social transactions (RST) Page 58

    -most common is serving food/drinks to a Tier III member in one’s home

    -serving because of family/social obligation is OK; serving because applicant wants to support the organization is not

    Certain Humanitarian Assistance (CHA) page 61

    -most common is giving assistance during or after an environmental disaster

    -is it short-term, and triggered by an emergency? Not meant to be “a gesture of affinity to” the members of the organization?

    Sub-Duress Page 62

    -most common is paying utilities and paying at checkpoints

    -was providing the support the only reasonable means by which the applicant was able to carry out important activities of daily life?

    Insignificant Material Support Exemption (IMS) Page 63

    -it must be minimal and inconsequential; without intent to support the terrorist activity

    Example on page 64: a woman served one meal to 4 members of a terrorist organization. This is minimal and inconsequential.

    Voluntary Medical Care Exemption Page 67

    -helping members of Tier I, II, and III organizations is OK

    -working for a Tier III organization is OK: not OK for Tier I and II

    Limited General Exemption (LGE) Page 69

    -applies to persons granted legal status in U.S. before August 10, 2012, and to beneficiaries of I-730 petitions

    -Example on page 71: some beneficiaries of I-730 petition who collected money for certain terrorist organizations in Syria will be rejected! Did the terrorist organization use child soldiers, or target U.S. persons or interests?

    Group-Based Exemptions Page 72

    -a chart on page 73 lists groups from Iraq, India, Ethiopia, El Salvador and other countries

    The Consolidated Appropriations Act (CAA) Page 77

    -lists 10 groups that are not to be considered Tier III organizations

    -exempts certain TRIG activity done before December 26, 2007

    The KDP and PUK are excluded from being Tier III organizations Page 79

    There shall be mandatory denials for voluntary activities with Tier I and II organizations, except for medical care. Page 85.

    Comments by the author

    Some recent cases:

    Uddin v. Att’y Gen, 870 F.3d 282, 292 (3d Cir. 2017) involved the Bangladesh National Party {BNP). The BIA deemed it to be a Tier III terrorist organization. But is it? Only if “party leaders authorized terror acts by its members.” Held: case remanded.

    The relevant statute defines a Tier III terrorist organization as a “ group of two or more individuals” that engages in terrorist activity, or a group that “has a subgroup” that engages in terrorist activity. 8 U.S.C. § 1182(a)(3)(B)(vi)(III) (emphases added). Had the statute stated that a Tier III terrorist organization is “a group whose members engage in terrorist activity,” then a group's Tier III designation could be based on the individual actions of its members, regardless of authorization. But the text speaks to concerted actions of a group, not uncoordinated activities by individual members: an organization receives Tier III status only if a group itself engages in terrorist activity.

    = = = = =

    S.A.B. v. Boente, 847 F.3d 542, 545 (7th Cir. 2017) involved an Oromo from Ethiopia. She paid monthly dues to the Oromo Liberation Front (OLF). No asylum, because “minor material support is still material support within the meaning of the statute.”

    = = = = =

    Matter of M-H-Z-, 26 I&N Dec. 757, 761 (BIA 2016) involved an applicant from Colombia, who gave merchandise from her store and foodstuffs to the Revolutionary Armed Forces of Colombia (FARC). She gave those things only because of threat of death. The FARC is indeed a “terrorist organization.” The items she gave constitute “material support.” Is she barred from asylum? Yes. The statute has no implied exception for giving material support under duress or coercion.

    However, she may seek a waiver under INA § 212(d)(3)(B)(i).

    Reprinted with permission.


    About The Author

    David L. Cleveland. David L. Cleveland, a staff attorney at Catholic Charities of Washington, DC, was Chair of the AILA Asylum Committee (2004-05) and has secured asylum or withholding for people from 46 countries.


    The opinions expressed in this article do not necessarily reflect the opinion of ILW.COM.

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