The Expansive Application of the Terrorism-Related Grounds of Inadmissibility and the Need for Comprehensive Legislative Reform

Carrie L. Rosenbaum   By Carrie Rosenbaum

Association with terrorism can prevent a noncitizen from entering the United States, cause her to be removed, or disqualify her from refugee status or asylum. This may at first seem logical, but Carrie Rosenbaum explains that in practice worthy people suffer. She discusses what "material support" is and whether duress provides an exception. She also points out the failures of measures taken in an effort to resolve problems with the statute.

“It is no secret that years after implementation of the USA PATRIOT Act of 2001 and the REAL ID Act of 2005, the government has still failed to adequately remedy problematic aspects of the terrorism-related grounds of inadmissibility that result in the denial of legal status to bona fide refugees and asylum seekers,” asserts Carrie Rosenbaum. “While legitimate in their goals of excluding people who pose a real threat to national security and denying refuge to those who have engaged in violence, these provisions have denied refuge to bona fide asylum seekers and refugees who pose no threat the United States. Even after Congress's most recent legislative fix many challenges persist, including denials, delay, detentions, and inapplicability of the new exemptions for many due to statutory limits.”

“The concept of ‘terrorist activity’ continues to be interpreted expansively,” Rosenbaum explains. “It generally includes acts commonly assumed to constitute terrorism, such as hijacking or kidnapping and the use of an ‘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.’ Broader interpretations have found dissemination of political materials, including publication of political materials regardless of the content, to be terrorist activity. Also considered ‘terrorist activity’ are activities deemed unlawful pursuant to the laws of the place where such activity took place.”

“In 2007 Congress expanded the discretionary exemption, which has assisted a limited number people affiliated with specific groups, but overall this legislative solution has proven to be a failure in addressing the overbreadth problem,” the author writes. “This Emerging Issues Analysis will briefly consider essential material-support concepts and the problems associated with each concept, provide practice pointers addressing the most common and persistent problems, and address the most significant changes in this area of law, including the expansion of the exemption and movement toward a duress exception.”

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Carrie Rosenbaum (www.immigrationappellatelaw.com) is an immigration attorney in private practice in San Francisco directly serving clients and providing immigration briefs for immigration attorneys. She has served as the co-chair of the National Lawyers Guild Immigration Committee, where she provided leadership and pro bono representation during immigration raids in San Francisco and founded an immigration court observation project. She is an American Immigration Lawyers Association member, former Continuing Education Subcommittee chair, and past co-liaison to ICE. She provides pro bono services to the National Immigration Project, Lawyers Committee for Civil Rights, AIDS Legal Referral Panel, and La Raza Centro Legal.

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Entrance to USA Denied