BIA Concludes ‘de minimis’ Support No Exception to Terrorism Bar
The Board of Immigration Appeals, or BIA, recently decided in Matter of A-C-M-, 27 I&N Dec. 303 (BIA 2018), that the respondent had provided “material support” to a terrorist organization under INA § 212(a)(3)(B)(iv)(VI), even though the amount of support provided was “de minimis.”
The respondent in this case was a Temporary Protected Status recipient who was placed in removal proceedings after a trip abroad. She applied for cancellation of removal before the Immigration Judge, or IJ. The Department of Homeland Security, or DHS, argued that the respondent was not eligible for relief because she was kidnapped by guerillas in El Salvador in 1990 and coerced into undergoing weapons training and performing forced labor in the form of cooking, cleaning and washing their clothes. According to DHS, she provided material support to a terrorist organization. The IJ disagreed and granted the respondent’s cancellation application. DHS appealed and the BIA affirmed the appeal, thus reversing the IJ.
The BIA concluded that the respondent was ineligible for cancellation of removal because she was inadmissible under INA § 212(a)(3)(B)(i)(VIII) for providing material support to a terrorist organization. The case was remanded to the IJ to consider whether the respondent was entitled to any other relief. On remand the respondent applied for asylum, withholding of removal, and relief under the Convention Against Torture, or CAT. The IJ found that the respondent was barred from asylum and withholding of removal, but granted deferral of removal under CAT. The IJ stated that but for the material support bar, she would have granted the asylum application because of the horrific facts of the case. The respondent testified that not only was she kidnapped by the guerillas, they forced her to witness her husband’s digging his own grave before being killed. DHS appealed the CAT grant and the respondent cross-appealed the denial of all other relief.
The BIA first considered whether there was an exception to the material support definition that would include some quantitative limitation to the support. The respondent argued that the support was so small that it was too insignificant to be considered material. The BIA held, however, that there was no quantitative limitation to the bar because there was no legislative history to support such limitation. Thus, the BIA concluded that if a person provides support to a terrorist organization, the bar will apply regardless of how small the amount of support. The BIA found support in Singh-Kaur v. Ashcroft, 385 F.3d 293, 298-301 (3rd Cir. 2004), where the court defined “material support” as anything that would promote the aims of the terrorist organization, regardless of how de minimis. Thus, according to the BIA, the quantity of the support is irrelevant. Because the respondent in the case provided services and received military training, she furthered the aims of the guerillas and is barred as a terrorist.
In declining to find a de minimis exception to the terrorist bar, the BIA recognized the harshness and over-inclusive nature of the bar’s applicability to persons like the respondent. The BIA stated that Congress provided a waiver of these provisions in INA § 212(d)(3)(B)(i) that only DHS can consider and approve. DHS does have exemption authority to grant a waiver, but can only consider such a waiver after the respondent has been ordered removed because of the terrorist bar. Certain exemptions include duress, insignificant material support, and certain limited material support made under sub-duress pressure. These exemptions cannot be granted by the IJ or BIA, but only by U.S. Citizenship and Immigration Services after a final order of removal has been entered.
The BIA’s statutory interpretation is troubling – but not surprising – given its recent decision in Matter of M-H-Z-, 26 I & N Dec. 757 (BIA 2016) where it held that the material support bar contains no exception for duress. The BIA’s failure to allow for a quantitative limitation to the amount of support will, again, render many innocent victims of terrorist organizations, such as the respondent, with no protection from persecution. These absurd results were not intended by the drafters of the 1980 Refugee Act. Many innocent refugees and asylum seekers will continue to be barred for the smallest of actions made under duress or coercion.
Practitioners should be familiar with the available exemptions if the material support bar is applied and the removal order is final. They should include in the record evidence that would support approval of a waiver based on duress and insignificant support, among other factors. However, they should be aware of the long backlog in the adjudication of these exemptions, thus complicating the process.
The only exception to the material support bar provided in statute is one based on lack of knowledge. INA §212(a)(3)(B)(iv)(VI)(dd) states the bar should not apply, “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.”