Has anyone told Biden about Article II, Section 3 in the U.S. Constitution?
The President “shall take Care that the Laws be faithfully executed.”

Apparently, when the Biden administration screened the Afghan nationals brought to the United States after the U.S. troop withdrawal, it discovered that some of them were inadmissible under the “terrorist activities” exclusion ground, INA section 1182(a)(3)(B) — because they had provided support for a terrorist organization, despite the fact that the support was insignificant or limited in nature.

The administration reacted to this situation the same way it reacted to the statutory enforcement provisions in the Immigration and Nationality Act (INA) that call for the deportation of undocumented migrants who have never been convicted of a serious criminal offense and who have lived, worked, and contributed to our economy and our communities: It tried to move the goalposts — almost certainly exceeding its authority in the process.

In the latter case, deportation was contrary to Biden’s Plan for Securing Our Values as a Nation of Immigrants, so Biden’s DHS Secretary Alejandro Mayorkas issued a memorandum that replaced the statutory enforcement provisions with the administration’s own enforcement “guidelines,” limiting enforcement to deportable migrants who pose a threat to national security, public safety, or border security. Mayorkas explained in the memorandum that, “The fact an individual is a removable noncitizen … should not alone be the basis of an enforcement action against them.” A federal judge determined this exceeded the administration’s prosecutorial discretion authority.

Now, in the case of the Afghans, the administration has published a notice in the Federal Register in which it uses its waiver authority under INA section 1182(d)(3)(B)(i) to change the definition of “material” to one that the administration prefers.

This almost certainly was not a proper use of the waiver authority.

The terrorist activities exclusion ground

One of the activities that makes a migrant inadmissible under the “terrorist activities” exclusion ground is committing an act the actor knows, or reasonably should know, affords material support to any individual or organization the actor knows, or should know, has committed or plans to commit a terrorist activity.

Unfortunately, Congress failed to provide adequate guidance on how to determine whether support should be considered “material.”

The Board of Immigration Appeals (BIA) found in Matter of A-C-M- that there is no legislative history to support taking a quantitative approach and separating out what amount of support is necessary to make it “material.”

“Material support” is a term of art that “relates to the type of aid provided” — that is, aid of a material and normally tangible nature. It is not quantitative.

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Published originally on The Hill.

Nolan Rappaport was detailed to the House Judiciary Committee as an Executive Branch Immigration Law Expert for three years. He subsequently served as an immigration counsel for the Subcommittee on Immigration, Border Security and Claims for four years. Prior to working on the Judiciary Committee, he wrote decisions for the Board of Immigration Appeals for 20 years. Follow him at https://www.blogger.com/blog/posts/2306123393080132994