Immigrants Who Provide Support to Terrorists Under Duress Still Subject to Removal
A case recently came before the Board of Immigration Appeals asking them to determine whether or not the “material support bar” in section 212(a)(3)(B)(iv)(VI) of the Immigration and Nationality Act includes an implied exception for an immigrant who has provided material support to a terrorist organization under duress.
The case revolves around a Colombian national who owned a store and a hotel in the town of El Bordo. In the early 1990’s she began receiving messages from the FARC, the Revolutionary Armed Forces of Colombia. The FARC demanded goods and money and made a number of threats, including that they would kill her if she did not comply with their demands.
She relented and from 1997 to 1999, she supplied food and other products as the FARC requested. On March 7, 2000, the FARC attacked El Bordo, and her store and hotel were destroyed.
In 2001 she entered the United States on a nonimmigrant visitor visa. In August 2002, DHS demanded that she appear in court, charging her with removability as an overstayed nonimmigrant.
At a hearing before the Immigration Judge, the respondent admitted to the charge against her and applied for asylum in 2002. She also applied to withhold removal under sections 208(a)(1) and 241(b)(3)(A) of the Immigration and Nationality Act and she applied to have her removal withheld or deferred under the Convention Against Torture and Other Cruel, Inhuman, or Degrading Treatment or Punishment.
The Immigration Judge denied her applications on the grounds that the respondent was barred from relief because she had committed an act that she knew or reasonably should have known afforded material support to a terrorist organization. The Immigration Judge also determined that the respondent had failed to establish eligibility for deferral of removal under the Convention Against Torture.
On appeal, the Board of Appeals generally agreed with the Immigration Judge. But they asked the Immigration Judge to make an explicit determination whether, in the absence of the material support bar, the respondent would otherwise be eligible for relief, which would allow her to request a discretionary waiver of the material support bar from DHS.
On December 13, 2010, the Immigration Judge ruled that if not for the material support bar, the respondent would be eligible for asylum based on her past persecution by the FARC. The respondent filed a petition for review with the Second Circuit, which issued a summary order. The court ruled that the support that the respondent provided to the FARC was “material” because it aided the terrorist organization in its fight against the Colombian government. However, the Second Circuit remanded the Board of Appeals to determine whether the statute contains an implied exception to the material support bar for immigrants whose support was supplied under duress.
The respondent argued that she should not be accountable for her actions because she was under duress, specifically the threat of death. She asserted that she should be exempt from the material support bar.
But the Board of Appeals disagrees. The law makes it clear that any individual engaged in terrorist activity is inadmissible and is barred from establishing eligibility for asylum and for withholding removal. Individuals who have provided material support are subject to the material support bar, which contains no express duress exception. As such, the Board declined to recognize one, concluding that in the past, every court that has addressed this question has ruled that both voluntary and involuntary support are encompassed in the material support bar. Moreover, there are other instances where the law does include an express provision about voluntary and involuntary activity. Therefore, if Congress intended to make an exception for this case, they would have included a provision for that. In addition, the Board felt that an assertion that a duress defense should be read into the material support bar undermines the fact that Congress created a waiver for deserving foreign nationals to avoid the consequences of the bar. Congress’s use of the waiver in other circumstances implies that the omission of any duress exception was intentional.
The respondent claimed that because duress is a valid defense to negate criminal culpability, an exception for duress should be made to the material support bar. The Board found this argument to be misplaced because immigration proceedings are civil in nature. Moreover, the criminal law concept of duress does not excuse most acts listed in the definition of terrorist activity.
For all of these reasons the Board has ruled that without a waiver, any foreign national who provides material support to a terrorist organization is inadmissible and legally barred from establishing eligibility for asylum and for withholding of removal under the Immigration and Nationality Act and the Convention Against Torture, even if such support was provided under duress.
https://www.justice.gov/eoir/file/865856/download
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