After the September 11th terrorist attacks, a provision in the U.S. immigration laws, known as the Terrorist Related Grounds of Inadmissibility (TRIG), has prevented Asylum seekers, and refugees from gaining protection in the United States or changing their legal status. The TRIG applies to foreign nationals who the Department of Homeland Security has determined provided material support to undesignated terrorist organizations. These organizations range from groups whose ideologies are aligned with that of the United States to armed groups battling dictatorial regimes in their home countries. Over the years, the U.S. government has only provided a limited exemptions or waivers to those who have been accused of providing material support. One of those granted a rare form of limited exemption is a client of ours, S-K-, who after fleeing her native Burma and applying for asylum in the United States, was accused of providing material support to a terrorist organization; a group that provided protection to her and her community based on their Christian faith and ethnic Chin identity.
However, the fate of other asylum seekers and refugees who have not benefited from prior exemptions or waivers may soon change. On February 5, 2014, the Obama administration issued two separate regulations exempting certain foreign nationals from being prohibited from entering or gaining legal status in the United States as a result of providing material support to terrorist organizations. The administration’s decisions affect only those who provided limited material support to an undesignated terrorist organization that involves: (1) certain routine commercial transactions or certain routine social transactions, (2) certain humanitarian assistance, or (3) substantial pressure that does not rise to the level of duress; and foreign nationals who provided insignificant material support to an undesignated terrorist organization or to a member of such an organization, or to an individual who has committed or plans to commit a terrorist activity. In both scenarios, the foreign national must prove to the satisfaction of the U.S. government that he or she:
a) Is seeking a benefit or protection from the Department of Homeland Security and is eligible for the benefit or protection;
b) Has undergone and passed all relevant and background and security checks;
c) Has fully disclosed in all applications and/or interviews with U.S. government representatives and agents, the nature and circumstances of any material support provided and any other activity or association falling within the scope of undesignated terrorist organizations;
d) Has not provided the material support with any intent or desire to assist any terrorist organization or terrorist activity;
e) Has not provided material support that the they knew or reasonably should have known could directly be used to engage in terrorist or violent activity or to any individual who they knew or reasonably should have known had committed or planned to commit a terrorist activity on behalf of a designated terrorist organization;
f) Has not provided material support to terrorist activities that he or she knew or reasonably should have known targeted noncombatants persons, U.S. citizens, or U.S. interests;
g) Has not provided material support that the he or she knew or reasonably should have known involved providing weapons, ammunition, explosives, or components thereof, or the transportation or concealment of such items;
h) Has not provided material support in the form of military-type training;
i) Has not engaged in any other terrorist activity, including but not limited to providing material support to a designated terrorist organization to which no other exemption applies;
j) Poses no danger to the safety and security of the United States; and
k) Warrants an exemption from the relevant inadmissibility provisions in the totality of circumstances.
The implementation of this determination will be made by the U.S. Citizenship and Immigration Services, in consultation with the U.S. Immigration and Customs Enforcement or by U.S. consular officers, as applicable, who shall ascertain, to their satisfaction, and in their discretion, that the particular foreign national meets each of the criteria set above.