The Irony of Unintended Consequences

By William Fisher

Thousands of legitimate refugees and asylum seekers — who pose no danger to the United States and who have committed no acts of wrongdoing — are being labeled “terrorists” and their applications for protection are being denied or delayed because of overly broad “terrorism” provisions in the Immigration and Nationality Act (INA).

These are the conclusions of a report by Human Rights First (HRF), a legal advocacy organization. They come as Homeland Security Secretary Janet Napolitano, the White House point person on immigration, is calling on Congress to provide temporary worker programs and a path to citizenship for 12 million unauthorized workers when it takes up a reform bill next year.

Napolitano is optimistic that immigration reform could pass in an election year, because she says border security goals have been met and the economic downturn has decreased unauthorized immigration significantly since a bipartisan bill died in the Senate two years ago.

But Congressional Republicans dispute the administration's claims that the border has been secured, and have repeated their opposition to citizenship for unauthorized immigrants.

Earlier, Napolitano outlined the efforts her department plans to make to improve and reform conditions for thousands of refugees currently being held in detention centers, county jails, and privately run prisons, most of them awaiting decisions on their applications for asylum in the U.S. Many of these centers, which are run by DHS’s Immigration and Customs Enforcement agency (ICE), have been severely criticized for denying detainees legal due process and basic medical care.

The HRF report -- Denial and Delay: The Impact of the Immigration Law’s ‘Terrorism Bars’ on Asylum-Seekers and Refugees in the United States -- describes the adverse and unintended consequences the overly broad “terrorism” provisions in the Immigration and Nationality Act (INA) are producing for asylum-seekers and refugees.

The report says that more than 18,000 refugees and asylum seekers have been directly affected by these provisions to date.

Anwen Hughes, Senior Counsel in HRF’s Refugee Protection Program, told Truthout that there are currently over 7,500 cases pending before the Department of Homeland Security. She said these cases are “on indefinite hold based on some actual or perceived issue relating to the immigration law’s ‘terrorism’-related provisions.” The overwhelming majority of the cases are applications for permanent residence or family reunification filed by people who were granted asylum or refugee status several years ago and have been living and working in the United States since then,” she said.

She added that there is a need for a comprehensive review of the program.

HRF’s report cites a number of examples of refugees who have been characterized as “terrorists” under the legal definitions currently in use:

- A refugee from Burundi, who was detained for 20 months in a succession of county jails because the U.S. Department of Homeland Security, and the immigration judge who would otherwise have granted him asylum, took the position that he had provided “material support” to a rebel group because armed rebels robbed him of four dollars and his lunch.

- A young girl kidnapped at age 12 by a rebel group in the Democratic Republic of the Congo, used as a child soldier, and later threatened for advocating against the use of children in armed conflict, who has been unable to receive a grant of asylum, as her application has been on hold for over a year because she was forced to take part in armed conflict as a child.

- A man who fled political and religious persecution in Bangladesh, who has had his application for permanent residence placed on indefinite hold because he took part in his country’s successful struggle for independence—in 1971.

--The minor children of members of the democratic opposition from Sudan who were granted asylum in the United States years ago, who have been prevented from becoming permanent residents because the peaceful political activities of their parents have been deemed to constitute “material support to a terrorist organization.”

HRF says the provisions of the INA “are being applied to refugees who were associated with groups that the U.S. government does not consider to be ‘terrorist organizations’ in any other context. The INA’s sloppy definition of a ‘Tier III terrorist organization’ is causing groups that the United States does not treat as ‘terrorist’ in any other context to be defined in this way.”


The INA defines “terrorist activity” as any unlawful use of a weapon for any purpose other than personal enrichment and a “Tier III terrorist organization” as any group of two or more people who engage in—or has a subgroup that engages in—“terrorist activity.” These laws are overly broad, and for the past several years the immigration agencies have been interpreting them in an increasingly expansive way.

As a result, the report asserts, thousands of legitimate refugees and asylum seekers—who pose no danger to the United States and who have committed no acts of wrongdoing—have been labeled “terrorists” and had their applications for protection denied or delayed.

While the INA also provides broad authority to the Secretary of Homeland Security and the Secretary of State, in consultation with the Attorney General, to grant “waivers” of most of the terrorism-related inadmissibility grounds, HRF says “the federal agencies involved have implemented this authority in a piecemeal and centralized fashion that has proved to be unworkable as a long-term, meaningful solution.”

Examples of groups labeled “Tier III terrorist organizations” include:

- - Iraqi groups who rose up against Saddam Hussein in the 1990’s, including those who took part in the failed uprising at the end of the Gulf War of 1991 that was encouraged by the first President Bush;

-- Iraqi groups that later fought against Saddam Hussein’s government at any other time, including in conjunction with the Coalition forces that ultimately overthrew his regime in 2003;

- - Afghan mujahidin groups that fought the Soviet invasion in the 1980’s, with U.S. support;

- - The Democratic Unionist Party and the Ummah Party, two of the largest democratic opposition parties in Sudan, many of whose members were forced to flee the country in the years after the 1989 military coup that brought current President Omar Al-Bashir to power;

- - Groups that fought the ruling military junta in Burma and were not included in the 2007 legislation that removed the Chin National Front and other Burmese insurgent groups from the scope of the Tier III definition;

Many of the refugees affected by the “Tier III” definition’s overbreadth were involved only in peaceful political activity in connection with groups that are now deemed to be “terrorist organizations” for immigration-law purposes, the report says..

It adds, “The federal immigration agencies charged with applying these laws—the Department of Homeland Security, the Department of Justice, and the Department of State — have also been interpreting all these provisions in a very expansive way. The immigration law’s ‘material support’ bar, for example, is being applied to minimal contributions, to people who were forced to pay ransom to armed groups, to doctors who provided medical care to the wounded in accordance with their medical obligations, and to persons who engaged in other forms of lawful activity. These interpretations have exacerbated the impact of the law’s overbroad definitions.”

The report’s policy recommendations focus on the scope and application of the INA’s “terrorism”-related provisions on those individuals whom Congress intended those provisions to target: people who threaten U.S. national security and those who have engaged in or supported acts of violence that are inherently wrongful and condemned under U.S. and international law. HRF is calling on Congress to:

-- Eliminate the statutory definition of a “Tier III” terrorist organization, which has led to numerous unintended consequences but is not needed as an enforcement tool against its intended targets;

-- Amend the immigration law’s definition of “terrorist activity” so that it (a) targets only the use of violence for purposes of intimidation or coercion (of a civilian population or of a government or an international organization), and (b) no longer applies to uses of armed force that would not be unlawful under international humanitarian law;

-- Amend the immigration law’s definition of “material support” to make clear that it does not apply to acts done under coercion;

-- Eliminate the provision that makes a person inadmissible simply for being the spouse or child of a person inadmissible under the immigration law’s “terrorism”-related grounds;

-- Give waiver authority to the Attorney General for cases pending before the Department of Justice, with the provision that the Attorney General delegate this authority to the immigration courts;

In addition, the report says, the Departments of Homeland Security, Justice, and State should support its recommendations to Congress; interpret existing law consistently with its text and purpose, to target those who advance actual terrorist activity; and implement a more effective and fair approach to waivers.