DHS Changes Policy for Immigrants Held in Limbo for Terrorism-Related Bars

Human Rights First expressed concern over an announced policy change by U.S. Citizenship & Immigration Services (USCIS) that will affect individuals applying for permanent residence and other benefits who are deemed to be inadmissible for some association with a group characterized as an undesignated or Tier III terrorist organization under the Immigration & Nationality Act (INA). Specifically, the change will eliminate a hold for individuals for whom the statute allows a discretionary exemption, but no exemption has yet been implemented. Instead of holding these cases pending implementation of that exemption authority, USCIS may now immediately deny them.

“The immigration law’s definitions of ‘terrorist activity’ and ‘terrorist organization’ are extremely broad, and have swept up groups and individuals who were U.S. allies or actually fighting alongside U.S. forces, as well as those who have never at any point posed a threat to the United States,” said Human Rights First’s Anwen Hughes.

The immigration law defines “terrorist activity” to include any use of armed force that is against the law of the country where it was carried out, or would be illegal if done in the United States, for any purpose other than personal enrichment.  Tier III organizations are groups that are neither designated or listed as terrorist organizations by the U.S. government, but are characterized as such for immigration purposes based solely on the fact that they are non-state groups that use or have a sub-group that uses armed force as just described. Material support to such groups is itself deemed to be terrorist activity, and that term has been applied to acts that were themselves entirely peaceful.

In recognition of the sweeping breadth of these statutory definitions and their unjust effects on many deserving people, Congress in 2005 provided by statute for discretionary exemptions from these bars. At the end of 2007, in response to requests from the Bush Administration, Congress broadened that statutory exemption through bipartisan legislation allowing the Department of Homeland Security (DHS) to make provision for categories of cases that should not be barred from the United States but were excluded from the scope of the exemption authority as originally enacted in 2005. Implementation of that exemption authority over the years has involved a slow and careful inter-agency process involving the Departments of State and Homeland Security as well as the Justice Department and U.S. intelligence agencies.

Human Rights First continues to urge Congress to address the wild overbreadth of the INA’s “terrorism-related inadmissibility grounds” by amending the underlying statutory definitions. In the meantime, the exemption process has allowed a practical solution for thousands of deserving people. These individuals include:

• Iraqis who fought alongside U.S. forces to overthrow Saddam Hussein—or who aided those who did—and subsequently risked their lives working as interpreters to U.S. forces;
• Burmese refugee families who helped an insurgency against the military regime then in power in Burma;
• Children abducted by rebel groups that used them for forced labor;
• Medical personnel who treated patients without discrimination as required by medical ethics, who were deemed to be inadmissible if some of their patients were members of a terrorist organization.

These and other people falling into categories of cases for which exemptions have been implemented can be granted exemptions on a case-by-case basis, assuming they pass all required security and satisfy all other eligibility criteria.

But gaps in implementation of the exemption authority remain, notably for anyone who voluntarily gave any significant amount of assistance to any Tier III group for which there has not been a group-specific exemption. Pending further inter-agency progress in implementing the exemption authority, USCIS policy has been to hold applications by people who are otherwise eligible for the benefit they have applied for, do not pose a threat to safety or security of the United States, and for whom the statute would allow for an exemption. USCIS now indicates that it will proceed to deny these cases.

“Most of these people are applicants for permanent residence who were already granted asylum or refugee status many years ago, after telling the U.S. government the same facts based on which they are now being deemed to be inadmissible,” added Hughes. “Many of these applicants have been living peacefully in the United States for over a decade.”

Human Rights First notes that some individuals were brought to the United States by the U.S. government after being granted refugee status abroad, only to be redefined as inadmissible years later due to statutory changes and/or new interpretations by DHS of the same statutes under which they had previously been granted protection.

“Holding these applicants in limbo forever is not the solution, but giving up on the inter-agency exemption process goes against the intent of Congress and causes real hardship to vulnerable people,” added Hughes.