"Material Support" and Related Bars to Refugee Protection Summary of Key Provisions for USCIS
I am afraid: INA: ACT 219 - Applies (in general) only to "DESIGNATION OF FOREIGN TERRORIST ORGANIZATIONS"... That would directly be classified as Tier I organization by definition. However, Tier II organization is also somewhat considered as partial FTO organization. Both Tiers have been properly classified as Designated Terrorist Organizations. Both Tier I and Tier II terrorist Organizations have been properly listed and published by the consultation of Secretary of state's permission to State Gov website. However, there is one more TIER and that is TIER III (Undesignated Terrorist Organization). These Tier III organizations, as the (definition states), are being classified as udesignated groups and these groups (lists) have never been published or properly documented (at least not available to the public knowledge or to anyone, so we have been told by law makers and other Human Rights Groups).
Anyway, There were total of 16 or 18 combination of groups (among these three Tiers) that were suppose to have been released / exempted from hold by being approved from USCIS-DHS after the consultation of all the other governing bodies before the end of December 2011. At least this is what has been promised by USCIS-DHS from their stakeholder's meetings, several times since later part of last year (openly in public). With that being said, I think the mistake that was made by USCIS (with the Denial Memo), is that they should have published all the exemption memos (for all those 16 or 18 groups) at first, and then after getting them processed completely, perhaps they should have had this denial memo published for public's knowledge so they could clear all the backlogged pending cases (that were perhaps) originally going to get denied (to begin with), because of the Extreme nature in Totality within...... Anyway, its just a thought... Again, I am waiting to see what new development comes out in the near future. I am very optimistic of a positive outcome, as most of the people that I get to know on this forum have been waiting for years and years for their cases to be approved including myself.
Anyhow, some really interesting and knowledgeable material that can definitely help everyone to understand what this mess is all about (I mean original Material Support mess) and what are the Different kinds of TIER's are being classified by DHS-USCIS, please see the following:
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Material Support" and Related Bars to Refugee Protection
Summary of Key Provisions of the Immigration and Nationality Act (INA)
1. "Terrorist Activity"
Definition: The current definition of "terrorist activity" under the Immigration and Nationality
Act (INA) includes “the use of any explosive, firearm or other weapon or dangerous device (other
than for mere personal monetary gain), with intent to endanger, directly or indirectly, the safety of
one or more individuals or to cause substantial property damage.” See INA §
212(a)(3)(B)(iii)(V).
Legislative History: The current broad definition of "terrorist activity" has not changed
substantially since it was first introduced under the Immigration Act of 1990. The phrase "or
other weapon or dangerous device" was added under the USA Patriot Act of 2001.
2. "Terrorist Organization"
Definition: Under current immigration law, there are three "tiers" of terrorist organizations,
referring to the three subsections of the INA that define them. See INA § 212(a)(3)(B)(vi)(I)-
(III).
"Tier I" terrorist organizations are known as "Foreign Terrorist Organizations" (FTOs) and must
be designated as such by the Secretary of State under INA § 219. To be so designated, the
Secretary of State must find: (1) that the organization is a foreign organization; (2) that it engages
in terrorist activity or terrorism; and, (3) that the terrorist activity or terrorism threatens the
security of United States nationals or the national security of the United States. INA § 219(a)(1).
The phrase "national security" is defined as "the national defense, foreign relations, or economic
interests of the United States." INA § 219(d)(2). The INA establishes procedures that must be
followed prior to designation, including publication in the Federal Register. The consequences of
a Tier I designation include freezing of organizational assets, criminal prosecutions for those
found to have provided "material support" to an FTO, and inadmissibility to the United States for
those who provide support to or are affiliated with an FTO. The Department of State maintains a
list of FTOs, available on its website, at <http://www.state.gov/s/ct/rls/fs/37191.htm>.
"Tier II" terrorist organizations are groups that are "otherwise designated" by the Department of
State, upon publication in the Federal Register, as a terrorist organization, after a finding that the
organization engages in certain terrorist activities defined under the INA. The consequences of a
Tier II designation is primarily inadmissibility to the United States for those who provide support
to or are affiliated with the organization. The Department of State maintains a "Terrorist
Exclusion List" (TEL) of all Tier II organizations, available on its website at
<http://www.state.gov/s/ct/rls/fs/2004/32678.htm>.
A "Tier III" terrorist organization is defined as a "group of two or more individuals, whether
organized or not, which engages in, or has a subgroup which engages in, terrorist activity."
Given the broad definition of "terrorist activity" (see above), essentially any resistance or rebel
group that is engaged in armed conflict with its government would be considered a "Tier III"
terrorist organization. The political purpose of the organization (i.e., pro-democracy) and its
1 See attachment for text of relevant provisions.
conduct during the armed conflict (i.e., compliance with the laws of war) are irrelevant to the
determination that it is a terrorist organization. In contrast to the procedures for the designation
of Tier I and Tier II terrorist organizations, there is no central government agency, such as the
Department of State, that determines whether a Tier III determination is, in fact, appropriate or
that acts as a central repository for all Tier III designations.
Legislative History: The definition of a "terrorist organization" has become much more refined
over the past 15 years, with key years being 1996 and 2001. Under the Immigration Act of 1990,
the phrase "engage in terrorist activity" was defined simply as committing an act that a person
knows, or reasonably should know, provides material support to any "individual, organization or
government in conducting terrorist activity." The Antiterrorism and Effective Death Penalty Act
(AEDPA) established the definition of a "Foreign Terrorist Organization" (FTO) in 1996. The
current three-tier terrorist organization structure was created under the USA Patriot Act in 2001,
adding Tier II and III organizations to the existing FTO definition (now considered a Tier I
organization). The REAL ID Act of 2005 expanded the Tier III definition by including groups
that have a subgroup which engages in terrorist activity.
3. "Material Support"
Definition: Under current immigration law, a person has "engaged in terrorist activity" if he or
she "commits an act that the actor knows, or reasonably should know, affords material support" to
a person engaged in terrorist activity or to a terrorist organization. INA § 212(a)(3)(B)(VI). The
phrase "material support" is not defined under the statute, but includes a list of examples,
including a safe house, transportation, communication, funds, transfer of funds, false
documentation, weapons, explosives or training. Litigation is pending as to whether the statute
contemplates a de minimis amount of support for it to be considered "material" support and
whether the statute includes an implied duress exception for those who are forced to provide
assistance under threat of harm to themselves or others. DHS and DOJ take the position that
there is no de minimis amount of support and that there is no duress exception.
Legislative History: The "material support" ground of inadmissibility has remained largely
unchanged since it was first introduced in 1990. The only significant change related to an
individual's required knowledge of a Tier III organization's "terrorist activity." Under the USA
Patriot Act (2001), which created the Tier III definition, an individual would not be subject to the
material support bar if s/he could show that s/he "did not know, and should not reasonably have
known, that the act would further the organization's terrorist activity." This exception was
narrowed under the REAL ID Act of 2005 to require that the person show by "clear and
convincing evidence" that he did "did not know, and should not reasonably have known, that the
organization was a terrorist organization." Since most of those who provide assistance to prodemocracy
"Tier III" terrorist organizations are aware of the groups' activities, and actively
support them, this exception has done little to mitigate the effects of the statutory bar.
Bar to Refugee Status and Asylum: Under the INA, individuals who are inadmissible to the
US are generally not eligible for refugee resettlement (there exist a few exceptions, for example
with regard to the public charge ground of inadmissibility) absent a waiver of the inadmissibility
ground by the Executive Branch. Given that the "material support" ground of inadmissibility has
existed since 1990, refugees subject to it have been legally ineligible for the US resettlement
program since that time. However, the term "terrorist organization" was not defined as broadly in
the early 1990s as under current law. The impact of the material support bar grew as a matter of
law with the expansion of the "terrorist organization" definition itself. Under AEDPA in 1996,
any person who provided "material support" to an FTO or to an "organization engaged in terrorist
activity" was barred from resettlement, asylum and withholding of removal. In 2001, with the
creation of the Tier II and, more notably, Tier III terrorist organization definitions, the material
support bar to resettlement, asylum and withholding of removal was expanded most significantly,
capturing assistance to any armed group. It was only recently, however, since 2004, that the
Administration began to apply this and related provisions in earnest, interpreting them very
restrictively where possible.
4. Membership in Resistance Movements
Definition: Any person who is a member of a Tier I or Tier II terrorist organization is
inadmissible to the United States. INA § 212(a)(3)(B)(i)(V). There is no stated exception for
people who are forcibly conscripted into such groups, such as child soldiers forcibly conscripted
into rebel groups. Any person who is a member of a Tier III terrorist organization is inadmissible
to the United States unless the person "can demonstrate by clear and convincing evidence that [he
or she] did not know, and should not reasonably have known, that the organization was a terrorist
organization." INA § 212(a)(3)(B)(i)(VI). Since most members of pro-democracy groups that
fall within the Tier III definition are aware of, and actively support, the organization's goals and
activities, the statute's limited exception has had little impact in mitigating the impact of this
provision. In addition, the person's spouse and children are inadmissible to the US if the person
was a member of the Tier III organization within the past five years. INA §
212(a)(3)(B)(iii)(IX).
Legislative History: Membership in a terrorist organization was not a separate ground of
inadmissibility until 1996, when it was included under AEDPA for members of Foreign Terrorist
Organizations (FTOs) (Tier I organizations). This ground of inadmissibility was extended to
spouses and children of members of FTOs in 2001 under the USA Patriot Act. It was further
expanded to include members of Tier II and Tier III organizations and their spouses and children
under the REAL ID Act (2005).
Bar to Refugee Status and Asylum: Members of FTOs have been legally ineligible for refugee
resettlement since 1996, and their spouses and children (if membership within the past five years)
since 2001. Members of Tier II and Tier III organizations, and their spouses and children, have
been ineligible for resettlement since 2005. "Arriving" asylum-seekers (e.g., those who request
asylum at an airport or land border) who were members of FTOs have been barred from asylum
since 2001. The bar to asylum was extended to all asylum-seekers, and their spouses and children
(if membership within the past five years), who were members of a Tier I, Tier II, or Tier III
organization under the REAL ID Act in 2005.
5. Active Participants in Armed Resistance Movements
Definition: As noted above, the definition of "terrorist activity" is extremely broad, and includes
the use of a "firearm or other weapon" with the intent to endanger the safety of a person or to
cause substantial property damage. INA § 212(a)(3)(B)(iii)(V). Any person who has actually
taken up arms in support of, or received military training from, an organization that falls within
this definition, even if a pro-democracy group that respects the laws of war, is barred from
refugee protection on the grounds that he or she has personally "engaged in terrorist activity" or
received military training from a terrorist organization. INA § 212(a)(3)(B)(i)(I) & (VIII). In
addition, the person's spouse and children are also inadmissible to the United States if the person
took up arms or received training within the past five years. INA § 212(a)(3)(B)(iii)(IX).
Legislative History: The ground of inadmissibility for any person who has personally "engaged
in a terrorist activity" has existed under the INA since at least 1990. As noted earlier, the broad
definition of "terrorist activity" has remained largely unchanged since 1990. The expansion of
the ground of inadmissibility to include spouses and children occurred under the USA Patriot Act
(2001). The ground of inadmissibility for any person who has received military training from a
terrorist organization was added by the REAL ID Act (2005).
Bar to Refugee Status and Asylum: As a matter of law, refugees who fought with prodemocracy
groups, such as the Lao H'mong and the Vietnamese Montagnards, have been legally
ineligible for resettlement since at least 1990 given that they have "engaged in terrorist activity"
under the INA. Their wives and children have been legally barred from refugee resettlement
since 2001. Again, this bar has only been applied, however, to these refugees and their families
since 2005. Asylum-seekers who fought with pro-democracy groups have been ineligible for
asylum if subject to this ground of inadmissibility since 1996, but it has only been applied to
them recently. The REAL ID Act extended this bar to asylum to the person's spouses and
children and to those who received military training from a Tier III terrorist organization (and
their spouses and children) in 2005.
6. Waivers
a. Material Support Waiver
Definition: INA § 212(d)(3)(B)(i) provides that the Secretary of State or the Secretary of
Homeland Security, after consultation with each other and the Attorney General, may conclude in
such Secretary's "sole, unreviewable discretion" that the material support ground of
inadmissibility "shall not apply with regard to any material support an alien afforded to an
organization or individual that has engaged in a terrorist activity." Only the Secretary of
Homeland Security has the authority to waive the material support ground of inadmissibility for
persons placed in regular removal proceedings (INA § 240) in the United States.
Legislative History: The material support waiver was introduced under the USA Patriot Act
(2001), when the three-tiered system of terrorist organizations was first created. The waiver was
moved from INA 212(a) to INA 212(d) under the REAL ID Act (2005), although the substance of
the waiver did not change.
Impact on Refugee Status and Asylum: A waiver of the material support ground of
inadmissibility results in a waiver of the underlying bar to asylum and refugee resettlement. To
date, the Secretary of State has exercised this waiver authority only three times, for Burmese
Karen refugees in the Tham Him refugee camp in Thailand (May 2006), for Burmese Karen
refugees in six other designated camps in Thailand (August 2006), and for Burmese Chin
refugees living in Malaysia, Thailand, and India (October 2006). The waiver authority has not
been exercised for any asylum-seeker in the United States.
b. Waiver of Tier III Determination Based on Activities of Subgroup
Definition: INA § 212(d)(3)(B)(i) also provides that the Secretary of State or the Secretary of
Homeland Security, after consultation with each other and the Attorney General, may conclude in
such Secretary's "sole, unreviewable discretion" that the determination that a group is a Tier III
terrorist organization (INA § 212(a)(3)(B)(vi)III)) "shall not apply to a group solely by virtue of
having a subgroup within the scope of that subsection." This waiver authority has not been
exercised to date.
Legislative History: The Tier III terrorist organization waiver was first introduced under the
REAL ID Act (2005).
Impact on Refugee Status and Asylum: If an individual is barred from refugee resettlement or
asylum under a provision of the INA specifically relating to material support to or membership in
a Tier III terrorist organization, then the waiver of the Tier III determination would result in a
waiver of the bar to refugee protection. If the person personally participated in armed resistance,
however, and is inadmissible for having engaged in "terrorist activity," then this waiver would not
result in a lifting of the bar to refugee protection.
c. Waivers for Members of Resistance Movements and Those Who Take Up
Arms in Support of Them
There is no specific waiver authority for those who are barred from refugee resettlement or
asylum based on their membership in a resistance organization that is considered a Tier III
terrorist organization or based on their active participation in a legitimate armed struggle.
IMMIGRATION AND NATIONALITY ACT (INA)
INA: ACT 212 - GENERAL CLASSES OF ALIENS INELIGIBLE TO RECEIVE VISAS
AND INELIGIBLE FOR ADMISSION; WAIVERS OF INADMISSIBILLITY
(a) Classes of Aliens Ineligible for Visas or Admission.-Except as otherwise provided in this Act,
aliens who are inadmissible under the following paragraphs are ineligible to receive visas and
ineligible to be admitted to the United States:
……….
(3) Security and related grounds.-
……………………….
(B) Terrorist activities-
(i) IN GENERAL.-Any alien who-
(I) has engaged in a terrorist activity,
…..….
(V) is a member of a terrorist organization described in
subclause (I) or (II) of clause (vi);
(VI) is a member of a terrorist organization described in clause
(vi)(III), unless the alien can demonstrate by clear and
convincing evidence that the alien did not know, and
should not reasonably have known, that the organization
was a terrorist organization;
……..
(VIII) has received military-type training (as defined in section
2339D(c)(1) of title 18, United States Code) from or on
behalf of any organization that, at the time the training was
received, was a terrorist organization (as defined in clause
(vi)); or
(IX) is the spouse or child of an alien who is inadmissible under
this subparagraph, if the activity causing the alien to be
found inadmissible occurred within the last 5 years,
is inadmissible.
………………….
(ii) ………
(iii) TERRORIST ACTIVITY DEFINED.-As used in this Act, the term
"terrorist activity" means any activity which is unlawful under the
laws of the place where it is committed (or which, if it had been
committed in the United States, would be unlawful under the laws
of the United States or any State) and which involves any of the
following:
…………..
(V) The use of any-
…………
(b) explosive, firearm, or other weapon or dangerous
device (other than for mere personal monetary
gain), with intent to endanger, directly or indirectly,
the safety of one or more individuals or to cause
substantial damage to property.
(iv) ENGAGE IN TERRORIST ACTIVITY DEFINED- As used in
this chapter, the term "engage in terrorist activity" means, in an
individual capacity or as a member of an organization-
(I) ………………………………
……………………………..
(VI) to commit an act that the actor knows, or reasonably should know,
affords material support, including a safe house, transportation,
communications, funds, transfer of funds or other material financial
benefit, false documentation or identification, weapons (including
chemical, biological, or radiological weapons), explosives, or training--
(aa) for the commission of a terrorist activity;
(bb) to any individual who the actor knows, or reasonably should
know, has committed or plans to commit a terrorist activity;
(cc) to a terrorist organization described in subclause (I) or (II)
of clause (vi) or to any member of such an organization; or
(dd) to a terrorist organization described in clause (vi)(III), or to
any member of such an organization, unless the actor can
demonstrate by clear and convincing evidence that the actor did
not know, and should not reasonably have known, that the
organization was a terrorist organization.
INA: ACT 212 - GENERAL CLASSES OF ALIENS INELIGIBLE TO RECEIVE VISAS
AND INELIGIBLE FOR ADMISSION; WAIVERS OF INADMISSIBILLITY
(d) Temporary Admission of Nonimmigrants
………………………
(B)(i) The Secretary of State, after consultation with the Attorney General and the
Secretary of Homeland Security, or the Secretary of Homeland Security, after
consultation with the Secretary of State and the Attorney General, may conclude in such
Secretary's sole unreviewable discretion that subsection (a)(3)(B)(i)(IV)(bb) or
(a)(3)(B)(i)(VII) shall not apply to an alien, that subsection (a)(3)(B)(iv)(VI) shall not
apply with respect to any material support an alien afforded to an organization or
individual that has engaged in a terrorist activity, or that subsection (a)(3)(B)(vi)(III)
shall not apply to a group solely by virtue of having a subgroup within the scope of that
subsection. The Secretary of State may not, however, exercise discretion under this
clause with respect to an alien once removal proceedings against the alien are instituted
under section 240.
http://www.rcusa.org/uploads/pdfs/ms-summ-unhcrkeyprov12-06.pdf
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Everyone, keep your faith strong and hope for the best!
Just Hang in there.....
Thanks,
May GOD Bless!
Free Life
