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Material Support Bar For Asylum

Author: US Asylum Attorney Alena Shautsova

A person who is coming to the US in pursuit of asylum will be forgiven for illegal entry, certain immigration fraud, and misrepresentation, overstay of their legal time in the US, and some other violations of the US Immigration laws. If a person is convicted of certain crimes or admitted to committing certain crimes, the person may be disqualified from receiving asylum.

There are, however, some rare situations, when a person without being convicted of a crime will not be qualified to receive asylum.

Section 208(b)(2)(A)(v) of the Act bars the Attorney General from granting asylum to an alien who is inadmissible under sections 212(a)(3)(B)(i)(I), (II), (III), (IV) or (VI), or is removable under section 237(a)(4)(B) of the Act, 8 U.S.C. § 1227(a)(4)(B) (2012). The Attorney General is also barred from granting withholding of removal to an alien when “there are reasonable grounds to believe that the alien is a danger to the security of the United States.” Section 241(b)(3)(B)(iv) of the Act, 8 U.S.C. § 1231(b)(3)(B)(iv) (2012). For purposes of that provision, an alien who is described in section 237(a)(4)(B) of the Act—that is, inter alia, any alien who has engaged, is engaged, or at any time after admission engages in any terrorist activity, as that term is defined in section 212(a)(3)(B)(iv)—“shall be considered to be an alien with respect to whom there are reasonable grounds for regarding as a danger to the security of the United States.” Section 241(b)(3)(B) of the Act. Section 212(a)(3)(B)(iv)(VI)(dd) of the Act requires “only that the [alien] afford material support to a terrorist organization, with the sole exception being a showing by clear and convincing evidence that the actor did not know, and should not reasonably have known, that the organization was of that character.” Matter of S-K-, 23 I&N Dec. 936, 943–44 (BIA 2006). If the evidence indicates that the terrorism bar applies to an alien, he or she has the burden of proving by a preponderance of the evidence that the bar is not applicable. See 8 C.F.R. § 1240.8(d) (2018); see also Matter of M-B-C-, 27 I&N Dec. 31, 36–37 (BIA 2017); Matter of S-K-, 23 I&N Dec. at 939.

What would constitute a “material support”?

Will such activities as cooking, cleaning, delivering mail or let’s say distributing flyers be regarded as material support? According to the Board of Immigration Appeals, the list in section 212(a)(3)(B) of the Act was intended to “cover virtually all forms of assistance, even small monetary contributions.”

The BIA held that: "we conclude that an alien provides “material support” to a terrorist organization, regardless of whether it was intended to aid the organization, if the act has a logical and reasonably foreseeable tendency to promote, sustain, or maintain the organization, even if only to a de minimis degree." Matter of A-C-M, 27 I&N Dec. 303 (BIA 2018).

“In sum, “material support” is a term of art that “relates to the type of aid provided,” that is, an aid of a material and normally tangible nature,3 and it is not quantitative. Boim v. Quranic Literacy Inst. and Holy Land Found. for Relief and Dev., 291 F.3d 1000, 1015 (7th Cir. 2002); 4 see also Singh-Kaur v. Ashcroft, 385 F.3d 293, 298–99 (3d Cir. 2004) (noting that “material support” is a broad concept that is not limited to the enumerated examples and deferring to our determination that the “provision of food and setting up tents” was within the definition of “material support”). The Federal courts of appeals found that “material support” includes activities, both voluntary and involuntary, such as fundraising, making payments of money, providing food and shelter, and performing physical labor. See, e.g., Tahir v. Lynch, 654 F. App’x 512, 515 (2d Cir. 2016) (designing and printing communications materials, such as brochures, posters, and banners); Annachamy, 733 F.3d at 257 (making a monetary contribution and performing physical labor); Barahona, 691 F.3d at 351 (allowing the use of a home for shelter and meal preparation); Haile v. Holder, 658 F.3d 1122, 1124 (9th Cir. 2011) (fundraising and supplying provisions and secret documents); Singh-Kaur, 385 F.3d at 294 (providing food and shelter).

In Mater of A-C-M-, a lady from El Salvador applied for asylum and was found ineligible because she admitted that she was forced to cook and clean for gorillas in El Salvador in 1990. She also was forced to witness how her husband dug his own grave and was shot… The result of denying her asylum application seems harsh and unfair, because the applicant did not willingly assisted the gorillas, and was as much of a victim as the late husband.

Importantly, the fact that the support was provided under duress is not a defense, as agreed by various courts.

It should be noted that where the assistance to a terrorist organization or an individual was the sole cause of disqualifying the individual from a relief sought, and where a final order of removal is issued, USCIS/ICE may consider a waiver if the assistance was certain routine commercial transactions; certain routine social transactions; certain humanitarian assistance; or material support provided under sub-duress pressure. The exemption only after an order of removal is administratively final. See Fact Sheet: Department of Homeland Security Implements Exemption Authority for Certain Terrorist-Related Inadmissibility Grounds for Cases with Administratively Final Orders of Removal, USCIS (Oct. 23, 2008).

11 June 2018
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