On March 3, 2009, the Supreme Court reversed a lower court decision holding that the so-called “persecutor bar,” which prohibits granting refugee protection to anyone who “ordered, incited, assisted, or otherwise participated in the persecution” of another person, applied without regard to whether a refugee’s involvement in acts of persecution was the result of coercion. In its March 3rd decision in Negusie v. Holder, the Supreme Court held that the U.S. Court of Appeals for the Fifth Circuit and the Board of Immigration Appeals had mistakenly relied on a prior Supreme Court decision in ruling that duress was irrelevant to the application of the persecutor bar. The Supreme Court stated that its 1981 decision in Fedorenko v. United States did not apply to this case because it concerned the Displaced Persons Act of 1948 rather than the relevant Refugee Act of 1980. The Court remanded the Negusie case so that the Board of Immigration Appeals could interpret the “persecutor bar” of the Refugee Act in the first instance.
As the Supreme Court has previously recognized and noted again in this decision, Congress passed the Refugee Act in order to implement the United States’ obligations under the 1951 U.N. Refugee Convention and its 1967 Protocol. The Court’s decision in Negusie gives the Board of Immigration Appeals the opportunity to fulfill those obligations by recognizing that the persecutor bar applies only to culpable, voluntary acts, as other states parties to the Convention and the Protocol have done. As Justice Stevens noted in a separate opinion, “[w]ithout an exception for involuntary action, the Refuge Act’s bar would . . . treat entire classes of victims as persecutors.”
The Court’s decision was written by Justice Kennedy, joined by Chief Justice Roberts and Justices Scalia, Souter, Ginsburg, and Alito, with a concurring opinion by Justice Scalia (joined by Justice Alito) and an opinion by Justice Stevens (joined by Justice Breyer) concurring in part and dissenting in part. Justice Thomas dissented. The read the decision, click here
The petitioner in this case was represented by the law firm of Mayer Brown LLP and the Supreme Court Clinic at Yale Law School. Human Rights First helped coordinate amicus briefing in the case and submitted an amicus brief describing the range of refugees who could be affected by the ultimate decision in this case. To read the amicus brief, click here
For additional information about this issue, please contact Anwen Hughes at HughesA@humanrightsfirst.org.
Historically, the United States has symbolized freedom and safe haven for refugees who flee oppression and abuse in their homelands. But thousands of vulnerable refugees have been prevented from receiving asylum or being resettled in the U.S. because of sweeping immigration provisions included in the USA PATRIOT Act and the REAL ID Act that relate to "material support" to "terrorist" organizations.
The government's concept of "material support" is so broad that it ends up affecting refugees who do not support terrorism, and even refugees who are actually the victims of violent groups - like Colombian refugees who have been forced to pay money to armed militants. These flawed provisions have also prevented Burmese religious minorities from receiving asylum or resettlement. Their contributions to ethnic organizations that have armed wings opposing the Burmese regime have been categorized as "material support" to "terrorist" organizations - even though the U.S. government has roundly condemned the Burmese regime's repression of religious and ethnic minorities.
On September 26, 2006, Human Rights First issued a report entitled "Abandoning the Persecuted" documenting the impact of the "material support" bar on refugees who seek asylum in the United States. As detailed in the report, many refugees have had their asylum requests denied or relegated to a long-term administrative limbo because of this overly broad provision of the immigration law. The time that refugees have spent in immigration jails - and separated from their families - has been prolonged by months or even years.
To read the report, click here.
Some Steps Forward: Legislation, Congressional Hearings, and Waivers
Human Rights First and a diverse coalition of faith-based, refugee resettlement, and advocacy organizations representing a broad range of views have worked together to urge that the problems caused by the "material support" bar are addressed. To learn more about this issue, see the helpful background materials prepared by Refugee Council USA, with input from HRF and other members.
To read Human Rights First's November 29, 2006, letter to President Bush, click here.
Beginning in 2006, the U.S. State Department began issuing waivers for Burmese refugees affected by the "material support" bar. After increased public attention, the administration announced in early 2007 that both the Department of Homeland Security (DHS) and the State Department would take steps to address the "material support" bar by issuing waivers for some asylum seekers. Implementation of this waiver authority has been slow, however, and only a small number of asylum seekers have been extended waivers. More information about these waivers is provided below.
On December 26, 2007, President Bush signed into law a bill that included a provision expanding the discretionary authority of the Secretaries of State and Homeland Security to exempt some individuals and groups from the application of the immigration law's overly broad "terrorism"-related bars. The amendment also removes the names of some groups from the immigration law's definition of a "terrorist organization."
While the overly broad immigration law definitions that have mislabeled many refugees and asylum seekers as supporters of "terrorist organizations" or as having engaged in "terrorist activity" have not been rectified by the legislation, the expanded use of waivers - if properly implemented - should help address the protection needs of many refugees.
Human Rights First has prepared an advisory on the new legislation for practitioners with cases affected by the "terrorism" bars. To read the advisory, click here.
To read the bill provision affecting the "material support" bar, click here
Although Human Rights First welcomes the December 2007 legislation relating to the "material support" bar, many problems remain that need to be addressed. For example, DHS has issued only a handful of waivers for asylum seekers. In addition, there is still no process for asylum seekers to seek "waivers" when their cases are pending before the immigration courts, the Board of Immigration Appeals, or the federal courts. Meanwhile, some refugees and asylum seekers continue to be mislabeled as supporters of "terrorism" under the immigration law's overly broad definitions. Handling these kinds of problems through a discretionary "waiver" process, without the kind of appeals process that is available in the asylum process itself, leaves many refugees without a fair and meaningful process for correcting mistaken decisions.
DHS also continues to view the provision of medical assistance as material support.
To read the Physicians for Human Rights Amicus Brief in the Matter of B.T. concerning a Nepali health professional forced to provide medical aid to rebel groups, click here.
On September 19, 2007, Anwen Hughes, Senior Counsel in the Refugee Protection Program at Human Rights First, testified before the Senate Judiciary Committee, Subcommittee on Human Rights and the Law, on "The 'Material Support' Bar: Denying Refuge to the Persecuted?" Other witnesses included Paul Rosenzweig, Deputy Assistant Secretary for Policy for the Department of Homeland Security; Bishop Thomas G. Wenski, Chairman of the International Policy Committee of the United States Conference of Catholic Bishops; and "Mariana," a refugee from Colombia.
At the hearing, several Senators closely questioned Mr. Rosenzweig about the progress on the material support issue, including the lack of a process for asylum seekers to seek exemptions if their cases are pending before the immigration courts or the federal courts.
To read the testimony of Ms. Hughes, Mr. Rosenzweig and the other witnesses, or to watch the web cast, click here.
On April 24, 2007, Ms. Hughes testified about the impact of the sweeping "material support" bar on child soldiers at a hearing before the U.S. Senate Committee on the Judiciary, Subcommittee on Human Rights and the Law.
Ms. Hughes explained: "We are currently experiencing a crisis in the U.S. asylum and refugee resettlement system, in which refugees who were victims of serious human rights abuses are being excluded from protection under immigration provisions intended to bar those who victimized them. Child soldiers in need of refugee protection represent a subset of those affected by this insanity." Other witnesses included Ishmael Beah, author and former child soldier, Kenneth Roth, executive director of Human Rights Watch, and Joseph Mettimano, director of public policy and advocacy at World Vision. Read more.
Click here for the complete testimony.
On January 11, 2007, the administration announced a plan to address the plight of asylum seekers and refugees affected by the "material support" bar. The Department of Homeland Security announced its intent - for the first time - to use its authority to exempt some asylum seekers and others from this bar. These exemptions do not, however, cover all of the affected refugees and asylum seekers.
On Friday, April 27, 2007, DHS Secretary Michael Chertoff signed a statement authorizing USCIS to exempt from the "material support" bar those who provided material support under duress to designated terrorist organizations if the individuals are determined to meet certain criteria.
On May 10, 2007, a fact sheet issued by the U.S. Citizenship and Immigration Services made clear that the Department of Homeland Security will only begin considering "waivers" for victims of duress at the hands of designated "terrorist organizations" (Tier I and II groups) after DHS has "identified" the specific group as one that will be included within the exemption. The name(s) of the group(s) will be published on the USCIS website.
On October 20, 2007, Secretary of State Condoleeza Rice and Secretary of Homeland Security Michael Chertoff authorized waivers of the "material support" provisions of the immigration law for individuals who provided "material support," prior to December 31, 1992, to the Vietnamese Montagnard group Front UnifiÃ© de Lutte des Races OpprimÃ©es. On the same day, Secretaries Rice and Chertoff issued a waiver exempting individuals who had provided material support to Hmong groups or individuals prior to December 31, 2004.
These waivers will allow Hmong and Montagnard refugees already in the United States, who had been prevented from becoming permanent residents for years now, to finally adjust their status and become legal permanent residents. The waivers will also allow other refugees who are abroad to be resettled in the U.S.
To read the Human Rights First press release on the January 11, 2007 announcement, click here.
To read the DHS Press Release regarding the January 11, 2007 announcement, click here.
To read the Federal Register notice on the March 6, 2007 DHS Material Support Waivers for members of eight Tier III designated organizations, click here.
To read the Federal Register notice on the March 6, 2007 DHS Material Support Waiver for non-citizens who provided "material support" under duress to Tier III designated organizations, click here.
To read the text of the authorizing statement signed on April 27 by DHS Secretary Chertoff, click here.
To read Human Rights First's response to the Chertoff announcement on April 27, 2007 regarding the material support bar, click here.
To read the May 2007 USCIS fact sheet, click here.
To read the State Department press releases on October 20, 2007 waivers relating to the Hmong and Montagnard, click here and here.
On September 26, 2006, Human Rights First issued a report entitled "Abandoning the Persecuted" documenting the impact of the "material support" bar on refugees who seek asylum in the United States. As detailed in the report, many refugees have had their asylum requests denied or relegated to a long-term administrative limbo because of this overly broad provision of the immigration law. The time that refugees have spent in immigration jails - and separated from their families - has been prolonged by months or even years. The report includes recommendations for the Department of Homeland Security, the Department of Justice, the Department of State, and the U.S. Congress. Click here to read the report.
In May 2006, Georgetown University Law students released their report "Unintended Consequences: Refugee Victims of the War on Terror," documenting research on the application of the "material support to terrorists" bar to Colombian refugees. The report recommends that Congress amend the material support bar to include an exception for support provided involuntarily and that DHS establish clear administrative guidelines to prevent improper refugee exclusion. Click here to read the report.
In February 2006, Harvard Law School's International Human Rights Clinic and Immigration and Refugee Clinic released their report "Preliminary Findings and Conclusions on the Material Support for Terrorism Bar as Applied to the Overseas Resettlement of Refugees from Burma," based on research and fieldwork with Burmese refugees. The study concluded that thousands of legitimate Burmese refugees ran the risk of being labeled by the U.S. as terrorists, finding that the definition of terrorism, as now employed, encompasses the activities of long-established groups in Burma, both civilian and military, that have been opposing the current authoritarian regime over the past five decades. Click here to read the report.
Press and additional useful materials:
Washington Post Article (8/13/07)
Pittsburgh Post-Gazette Op-Ed by HRF Senior Counsel Anwen Hughes (7/15/07)
Washington Post PHR Op-Ed (3/5/07)
Washington Post Article (1/12/07)
Los Angeles Times Article (1/12/07)
New York Times Article (1/12/07)
AP Article - cited in the Washington Post (1/12/07)
Washington Post Article (1/8/07)
Legal Times article (6/12/06)
New York Times editorial (4/3/06)
Washington Post editorial (3/18/06)
New York Times article (3/8/06)
Sign-on letter from Refugee Council USA to the National Security Council (2/13/06)
Sign-on letter to Secretary of Homeland Security Michael Chertoff (1/6/06)
Read more about Human Rights First Amicus Briefs on Material Support at Amicus Briefs and Special Projects
S-K- v. Gonzales (January 2007)
Fifth Circuit: Human Rights First, along with Human Rights Watch, the Harvard Law School Immigration and Refugee Clinical Program and the Harvard Law School Human Rights Program's International Human Rights Clinic filed an amicus in the case S-K- v. Gonzales. The brief addresses the problematic application of the material support bar by the Board of Immigration Appeals in a case where the Board itself found the asylum seeker to have a well-founded fear of future persecution. Not only is this position inconsistent with U.S. treaty obligations concerning refugees, the decision could result in a more frequent application of the material support bar, which in turn would prevent asylum-seekers fleeing or resisting massive human rights violations from getting refuge in the United States. Human Rights First and other Amici Supporting Petitioners were represented by Scott T. Williams of Akin Gump Strauss Hauer & Feld LLP.
Matter of R-K- (August 2006)
Board of Immigration Appeals: Human Rights First filed an amicus brief addressing whether an asylum seeker who was kidnapped by a terrorist organization and forced to pay the organization money for his own ransom can be barred from asylum on the theory that his ransom payment constituted "material support" to the terrorist organization. The Immigration Judge in this case recognized that the asylum seeker acted under coercion, but held that the "material support" statute barred from protection even refugees who acted under duress. The Board of Immigration Appeals requested supplemental briefing on this issue, and Human Rights First filed this brief in support of the asylum applicant. The brief was prepared by Anwen Hughes, staff attorney in the Refugee Protection Program, and law student intern Theodore Roethke (Columbia Law School 2008).
Physicians for Human Rights Amicus Brief and Press Release (December 2006)
Board of Immigration Appeals: Physicians for Human Rights has filed an amicus brief in a Board of Immigration Appeals case of a Nepalese health professional who was kidnapped by Maoist rebels and forced to provide medical aid to injured rebels. The brief stresses that the DHS position - that a healthcare worker engages in "terrorist activity" by providing medical treatment - is unprecedented and fundamentally conflicts with principles of medical ethics as well as the Geneva Conventions and their two Additional Protocols.