When Is a Refugee Not a Refugee?

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Immigration 101 tracks my course on immigration law at Hofstra University School of Law. This article is part of a series on Political Asylum and Refugees.

Over the last few months, I have told you how a person in danger of being persecuted can qualify for protection as a refugee. Now let me tell you how such a person can be disqualified.

As with every other area of immigration law, the minefields for the asylum or refugee applicant are extremely dangerous. There are the usual dis qualifiers for those who committed serious crimes or are a security risk to the United States. But there is one bar to asylum that, through its interpretation by the Bush administration, seemed to disqualify people from asylum for the very thing that led many of them to flee their countries in the first place-Providing support to terrorists.

Now, I know you’re thinking that this is just another case of a liberal prof going all soft on terrorism, but let me assure you it is not. We certainly should not provide asylum to those trying to kill us in terrorist attacks or those who murder innocent civilians to make a political point. And we have strict laws against doing so.

What I am concerned about are refugees whose very manner of being persecuted gives rise to the charge that they “materially assisted” terrorists.

During the Bush administration, “material support” for terrorism was redefined as the provision of “any property, tangible or intangible, or service, including currency or monetary instruments or financial securities, financial services, lodging, training, expert advice or assistance, safe houses, false documentation or identification, communications equipment, facilities, weapons, lethal substances, explosives, personnel…and transportation, except medicine or religious materials” to terrorist organizations. The definition is so broad that it encompasses millions of victims of terrorists.

For example, at various times over the last decade as much as 75% of Colombia has been in the hands of the FARC guerrillas, a group fitting the definition of a terrorist organization under current U.S. immigration law. The FARC extorts “war taxes” at the point of a gun from hundreds of thousands of rural villagers in their zones of control. If one of those villagers flees to the U.S. to escape persecution from the FARC, he may well find himself barred for having provided “material support” for a terrorist organization for paying “war taxes”, even though not doing so might have cost him his life.

Even more ridiculously, when a family has had a member abducted by a group like FARC and has paid a ransom to have the person released, they have been prevented from gaining asylum in the U.S. because they provided “material support” to terrorists.

There have also been a number of patently silly holds put on the granting of refugee status for alleged “material support” of terrorism. For example, a man gave his nephew a hat. His nephew was in a local militia organization involved in purely local politics, and the hat was deemed to constitute “material support” of terrorism.

Over the last two years there has been movement away from the patent injustice of the wholesale denial of asylum to the victims of terrorists for so-called “material support”, but much more needs to be done. This is a change the Obama administration can make right away.

Immigration 101 is a comprehensive series on American immigration law for the layperson. This series tracks my course on immigration law at Hofstra Law School and answers many of your questions about immigration policy.


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