New group exemptions to TRIG
Twenty-one new group exemptions to the terrorism-related inadmissibility grounds (TRIG), found at INA § 212(a)(3)(B), were announced by Homeland Security Secretary Jeh Johnson on April 13.
TRIG has three essential, interrelated prongs: (1) “engaging in” (2) “terrorist activity,” and (3) belonging to or working on behalf of a “terrorist organization.” INA § 212(a)(3)(B) makes inadmissible any non-citizen who:
- has “engaged in a terrorist activity”
- a consular officer or the DHS knows or reasonably believes is engaging in or will after entry engage in “terrorist activity”
- has incited “terrorist activity” with an intent to cause death or serious bodily harm
- is a representative or member of a “terrorist organization”
- endorses or espouses terrorist activity
- has received military-type training from a terrorist organization, or
- is the spouse or child of such a non-citizen if the activity occurred within the last five years.
The INA sets out three different tiers of “terrorist organizations.” The groups in the first two tiers are specifically designated by the State Department as terrorist organizations. Groups in the third tier are not specifically named anywhere; the third tier comprises any “group[s] of two or more individuals, whether organized or not,” which engage in, or have subgroups that engage in, terrorist activities. Anyone who is a representative of a terrorist organization from any of the three tiers is inadmissible.
The Secretary of Homeland Security, in consultation with the State Department, has authority to exercise exemptions to some of the terrorism-related bars to admission. The following people may be exempted from the terrorism-related bars: members and representatives of Tier III groups; people who knowingly and voluntarily engaged in terrorist activity as long as it was not on behalf of a Tier I or Tier II group; people who engaged in terrorist activity on behalf of a Tier I or Tier II group, but did not do so knowingly or willingly; and spouses and children of people inadmissible under INA § 212(a)(3)(B).
Over the last several years, certain group and situational exemptions have been issued by DHS. Group exemptions apply to individuals who engaged in activities or associations with a specific group. Situational exemptions relate to the type of activity an individual engaged in, such as providing material support to a terrorist group under duress or receiving military-type training under duress. For helpful charts with all of the exemptions that have been given, visit USCIS's TRIG Home Page.
Johnson’s latest exercise of exemption authority said that INA § 212(a)(3)(B) shall not apply to a non-citizen who engaged in any activity or association with one of 21 groups in Myanmar. A complete list of those groups can be found here in the announcement in the Federal Register. In order to qualify for an exemption, the non-citizen must be otherwise qualified for the immigration benefit he or she is seeking, must have passed all relevant background and security checks, must have fully disclosed the activities or association with the group in all applications and interview, must not have participated in or knowingly provided material support to terrorist activities that targeted non-combatants or U.S. interests, must pose no danger to the safety and security of the United States, and warrants an exemption in the totality of the circumstances.