Where Terror Victims Are Treated as Terrorists

by Jason Dzubow on June 24, 2016

Let’s say you own a grocery store in Mosul, Iraq. Your town is conquered by the Islamic State, and an IS fighter comes to your store, grabs your teenage daughter, puts a gun to her head, and threatens to rape and kill her unless you give him a glass of water. You pour a glass of water, hand it to your daughter, and she gives it to the fighter. Now, lets say that you, your daughter, and the IS fighter get to the United States and request asylum. Question: Who is barred from receiving asylum? (a) The IS fighter; (b) You; (c) Your daughter; (d) All of the above.

If you can tell the difference between terrorists and terror victims, perhaps you should consider running for Congress. They need your expertise.

If you can tell the difference between terrorists and terror victims, perhaps you should consider running for Congress. They need your expertise.

If you guessed “d”, you win. By giving a glass of water to the IS fighter, you and your daughter have provided “material support” to a terrorist, and you are both barred from receiving asylum in the United States. Even though you gave the glass of water under duress to save your child’s life. And even though it was only one glass of water (what we lawyers call “de minimis“). How can this be?

After the attacks of September 11, 2001, Congress greatly expanded pre-existing law in order to prevent terrorists from taking advantage of our immigration system. These laws include the rules relating to “material support,” which one jurist has called “breathtaking in… scope,” see Matter of S-K-, 23 I&N Dec. 936 (BIA 2006) (Acting Vice Chairman Osuna, concurring). The opinion continues:

Any group that has used a weapon for any purpose other than for personal monetary gain can, under this statute, be labeled a terrorist organization. This includes organizations that the United States Government has not thought of as terrorist organizations because their activities coincide with our foreign policy objectives

Id. And anyone who provides any type of support to these “terrorists” is subject to the material support bar.

The problem is that under these rules, lots of people meet the definition of a terrorist or a person who provided material support to a terrorist. And it’s not just people like the shop owners from Mosul. Under our existing law, George Washington would be considered a terrorist. He led an armed rebellion against Great Britain. Ditto for the other founding fathers. Betsy Ross gave material support by sewing a flag for the rebels. There are more modern examples, of course. How about Nobel-prize winning author and Holocaust survivor Eli Wiesel, who was interned in a Nazi slave labor camp where he provided—you guessed it—material support to the Germans. And how about John McCain, who gave material support to the North Vietnamese by participating in a propaganda video (after being tortured while a prisoner of war). Indeed, even Luke Skywalker would be considered a terrorist under the current rules since he participated in armed resistance against the Empire.

Maybe the picture I am painting is a bit too bleak. While there is no statutory exception for the material support bar, the Secretary of State and the Secretary of Homeland Security have the authority to waive certain Terrorism-Related Inadmissibility Grounds (“TRIG”). In that vein, DHS has issued group-based exemptions that allow people involved with certain “terrorist” groups to obtain status in the U.S. It is also possible to receive an individual exemption through a Byzantine (and sometimes infinite) process. If your application is being held because of TRIG, you can inquire about your case status at [email protected].

One government entity that does not have the authority to grant a TRIG exemption is the Department of Justice (“DOJ”). This is significant because the Immigration Courts are part of the DOJ. Thus, Immigration Judges cannot grant asylum cases where the alien is subject to TRIG, even when the alien provided material support under duress. In a depressing, but not particularly surprising decision last week, the Board of Immigration Appeals confirmed that there is no implied duress exception to the material support bar:

[A]bsent a waiver [from the Secretary of State or the Secretary of Homeland Security], an alien who affords material support to a terrorist organization is inadmissible and statutorily barred from establishing eligibility for asylum and for withholding of removal under the Act and the Convention Against Torture, even if such support was provided under duress.

Matter of M-H-Z-, 26 I&N Dec. 757 (BIA 2016). The problem is that an alien can only get an exemption after he is ordered removed from the United States, and even then, there is no particular procedure to follow to request an exemption. It seems the best an alien (or his attorney) can do is to contact the DHS/ICE Office of the Chief Counsel and request consideration for an exemption. An exemption is only available if asylum would have been granted but for the TRIG issue. In other words, the alien needs to show that if it wasn’t for the TRIG problem, the Immigration Judge would have granted him asylum (helpful hint to lawyers: If your client is barred from asylum solely due to TRIG, try to get the Judge to state that explicitly in her decision; this will help when applying to DHS for an exemption). If the Secretary of Homeland Security grants the exemption, the alien then needs to re-open his court case in order to receive asylum. Legend has it that DHS does sometimes grant exemptions, so it certainly is worth a try, but my guess is that this is a slooooow process.

Blocking terrorists and their supporters from the U.S. is obviously an important goal–it protects our country and it protects our immigration and asylum system. However, the material support bar is much too broad. It fails to distinguish between terrorists and their victims. Worse, it treats victims as if they were terrorists. The recent ruling from the BIA underlines this sad fact. It also illustrates why the law needs to be changed. As we continue to work for immigration reform, I hope we will keep in mind those who have been victimized by terrorists and victimized a second time by our overly-broad anti-terrorism law.

{ 20 comments… read them below or add one }

Nuha October 20, 2016 at 6:17 pm

Dear Jason

I granted my asylum on 30 September 2016. Please let me know when will I apply for my green card. Do I need to wait for complete 12 months or less than?
Thank you

Reply

Jason Dzubow October 20, 2016 at 10:07 pm

We tell our clients to wait the full 12 months. We used to file after 11 months, but then USCIS rejected an application, and so now we wait the full 12 months. Take care, Jason

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Jessica July 17, 2016 at 4:36 am

Great article,
I have one question in here, my case is pending decision for more than 16 months so far (conducted the interview since 16 months with no answer yet). How can I know if my case is TRIG flagged or not? I don’t feel comfortable to send e-mail to TRIG group asking am I TRIG flagged or not!!. My question, are there indications showing that your case might be flagged as TRIG? Do they clearly tell you that you are a TRIG or they just stay silent forever? I am calling them, and they keep saying “we are checking your background” with no specific time frame to answer..

Reply

Jason Dzubow July 17, 2016 at 7:25 am

I am not even sure that the TRIG email works any more. I suppose you can call/email/go in-person to the asylum office to ask (contact info for them can be found if you follow the link at right called Asylum Office Locator). Maybe you can specifically ask them why there is a delay. They may not tell you (it seems that so far they have not told you anything specific), but sometimes they give more info than other times – I think this is a matter of luck. Also, you can contact the USCIS Ombudsman about the delay (a link is at right) and maybe they will give you more detail about the reason for the delay. Take care, Jason

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Alex July 3, 2016 at 5:29 pm

I came to the usa on J1 visa and I have been working for a year, I filed for asylum which is pending.My question is since I have been working in the usa legally a year and will be staying here pending my asylum application Am I able to file for unemployment benefits.

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Jason Dzubow July 5, 2016 at 6:06 am

Good question – I have no idea. I guess you would have to contact the office of unemployment compensation, or maybe they have a website that explains who is eligible for benefits. Good luck, Jason

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Vijay Sharna July 2, 2016 at 4:35 pm

Hi Jason, I cannot thank you enough for the good work, you doing here. So kind of you. I have a query too. I entered the US on F-1 student visa and applied for Asylum and got my fingerprints done. So I am unsure on what’s my current legal status in US is? Now, I am a international student or an Asylee? Would be great, if you could enlighten me in this regard. Thank you for your time. Have a good day.

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Zac July 2, 2016 at 9:14 pm

Yes
You have two status you are an Asylum seeker with a pending application and F-1 international student and your asylum case will not impact your student visa, in my opinion if you want to stay in U.S try to maintain your status F-1 get OPT , H1B and EB2 or EB1 to get green card based on employment. good luck

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Jason Dzubow July 2, 2016 at 10:33 pm

If you are still a full time student, then you are in valid F-1 status. If you have stopped going to school, you are out of status, but you are allowed to remain here as a person whose asylum case is pending. Take care, Jason

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george June 27, 2016 at 7:02 pm

Hi Jason i’m pending asylum since 3/2013 in chicago asylum offiice.
But I made my intreview on 3/2013, and this days after every inquiry I received, i found many different answers. One time the office said waiting for background check, and other time said unresolved issues and last time may you will make another interview or we will ask more about you with your agency. Really i’m confused what all this answers mean?

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Jason Dzubow June 28, 2016 at 10:32 pm

It is very difficult to get accurate information from the Asylum Office in a delayed case. You may want to contact the USCIS Ombudsman (a link is at right) – they might give you better info. Good luck, Jason

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Daniel June 29, 2016 at 9:50 am

The ombudsman’s office website says that you have to both submit a USCIS customer service inquiry and make an Infopass appointment before you can submit a case to the ombudsman. That’s a problem, because while submitting a customer service inquiry is easy, getting an Infopass appointment can be nearly impossible, at least in the D.C. Field Office area. I recently tried for more than two weeks to get an Infopass appointment here and couldn’t. Do you know if the ombudsman ever waives the Infopass requirement if you simply can’t get one?

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rsv June 29, 2016 at 2:56 pm

There is also no such thing as infopass at the asylum offices. You just have to go there in person and inquire about your case. I don’t know in that case how one will be able to submit prove to ombudsman that they first tried to inquired from asylum office. However if you/lawyer write a letter to them they will reply by mail and you can have prove to submit to ombudsman.

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Jason Dzubow July 1, 2016 at 10:29 am

This is correct. You can make a written inquiry in-person or by email (you can see office hours and email addresses if you follow the link at right called Asylum Office Locator). Then you will have evidence you made the inquiry, but I think you can go to the Ombudsman without this. Anyway, it is another avenue to try, so there is no harm in doing it – Thank you for the comment, Jason

Jason Dzubow July 1, 2016 at 10:28 am

We try to do the Info Pass, but we have never been rejected by the Ombudsman because we did not make an Info Pass appointment. I think you can try the Ombudsman even if you cannot get an Info Pass appointment. If you try, let us know what happens – Thank you, Jason

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Daniel July 1, 2016 at 10:39 am

Thanks. I will.

Zac June 25, 2016 at 5:42 pm

Hi Jason
Very nice topic Jason, you really put your finger on the problem, because I know people who left Mosul after ISIS took over their city, these people lost everything,they lost loved ones,their houses, their girls took to slavery as sex slaves, these people have been persecuted because their believes, ISIS tried to wipe out even their history by destroying everything that shows their existence in this land, and when these people come to U.S seeking help, their request get denied because DHS has a concern that these people could be affiliated with ISIS, which make no sense to me and I think It is a big shame for the Asylum system.

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Jason Dzubow June 28, 2016 at 10:40 pm

It is a very sad situation for such people, and it is due to the law being written much too broadly. Take care, Jason

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Daniel June 24, 2016 at 1:47 pm

The ultimate refutation of those who say voting doesn’t make a difference is to take one look at the way the government treats people who can’t vote. Especially asylum applicants.

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Jason Dzubow June 28, 2016 at 10:54 pm

Good point – Thank you, Jason

Reply

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