Changes to U.S. immigration law contained within the 2001 USA PATRIOT Act and the 2005 REAL ID Act and intended to protect the United States from terrorism are hurting thousands of legitimate refugees who pose no threat to American security, according to a new Human Rights First report released today. The report, Denial and Delay: The Impact of the Immigration Law’s “Terrorism Bars” on Asylum Seekers and Refugees in the United States, examines this troubling issue and offers a series of recommendations to fix this serious problem.
The immigration law’s definition of ‘terrorist activity’ has been overbroad since 1990. But over the past eight years, new definitions of “terrorist organization” and of “material support” have enlarged the law’s impact, and federal immigration agencies have interpreted all of these definitions in an extremely expansive way. Thousands of men, women, and children have had their applications for asylum, permanent residence, and family reunification denied or delayed as a result. Among these individuals are peaceful advocates for democracy in countries ranging from Sudan to Zimbabwe, children who were abducted by rebel armies, doctors who provided medical care to anyone who fought with non-state forces, and those who fought against the armies of repressive governments in their home countries — even with the support of the U.S. government.
“These were not the people Congress intended to target,” said Human Rights First’s Anwen Hughes, author of the report. “In fact many of these refugees supported the same causes the United States supports, or were victimized by forces the U.S. government also opposes. But attempts to solve this problem through piecemeal “waiver” announcements are not working.”
According to the report, more than 18,000 refugees and asylum seekers have been affected by these overbroad provisions to date, and of those, more than 7,500 cases remain on indefinite hold with the Department of Homeland Security. For the past four years, the Departments of Homeland Security, Justice, and State have been attempting to resolve this problem by granting discretionary “waivers” of the law’s effects. Unfortunately, this approach has left many refugees in limbo and others at risk of deportation.
To address these concerns, Human Rights First called for swift action to achieve a comprehensive solution to this problem. The group notes that Congress should:
• Eliminate the statutory concept of a “Tier III terrorist organization” (colloquially summarized as “two guys and a gun”). This definition continues to produce many unintended consequences without corresponding security gains.
• Amend the immigration law’s definition of “terrorist activity” (currently understood to cover any unlawful use of force by a non-state actor, against anyone or anything), so that a person is no longer defined as a “terrorist” for immigration-law purposes simply for having engaged in military action against an opposing army.
• Give immigration judges the power to grant “waivers” of these provisions in immigration court cases.
The Departments of Homeland Security, Justice, and State should:
• Support these necessary changes to the immigration law’s definitions.
• Interpret existing law consistently with its text and purpose, to target those who advance terrorist activity.
• Adopt a more effective and fair approach to granting “waivers,” one that allows people initially applying for asylum, refugee status, or other relief to be considered for waivers based on an individualized assessment of their actions, that permits prompt adjudication of the large mass of applications for permanent residence and family reunification of people already granted asylum or refugee status, and that ensures that no refugee is deported without being considered for a waiver if eligible for one under the law.
“Congress and the Administration must take a thorough and even-handed approach to address the roots of this problem,” Hughes concluded. “These changes are critical in order to ensure that our immigration laws are not used to exclude legitimate refugees from the protection the United States is committed to offering them.”