Thursday, May 17, 2012

Guest Post: Professor Kristina Campbell: Barahona v. Holder and "Material Support" to a Terrorist Organization


Yesterday, we posted about a case that Professor Kristina Campbell argued before the U.S. Court of Appeals for the Fourt Circuit.  Here is a guest post by Professor Campell with more information about the case:

On Tuesday, March 15, 2012, the United States Court of Appeals for the Fourth Circuit heard oral argument in Barahona v. Holder. The Petitioner, Mr. Barahona, seeks review of the decision of the Board of Immigration Appeals (BIA) that he is inadmissible for having provided “material support” to a terrorist organization, the FMLN, under INA § 212(a)(3)(B)(iv)(VI), back in the early 1980s in his home country, El Salvador.

The Immigration and Human Rights Clinic at the University of the District of Columbia David A. Clarke School of Law (UDC-DCSL), of which I am the Director, has represented Mr. Barahona in his removal proceedings since Fall 2010. When our Clinic took Mr. Barahona’s case, we initially assisted him in applying for relief from removal under the Nicaraguan Adjustment and Central American Relief Act (NACARA) before the Immigration Court. Much to our shock and dismay, however, the DHS attorney in Mr. Barahona’s case argued that he was not eligible for NACARA relief because, by failing to prevent FMLN guerrillas from occupying his home in El Salvador more than 25 years ago, he was inadmissible for materially supporting terrorism. The Immigration Judge agreed with the DHS, and our Clinic represented Mr. Barahona in his appeal of that decision to the BIA. The BIA upheld the Immigration Judge’s decision, and we assisted Mr. Barahona in filing a Petition for Review with the Fourth Circuit in late 2011.

Mr. Barahona has been in the United States since the mid-1980s, working and raising a family after fleeing the violence of the civil war in El Salvador. Though his family home was burned down by the FMLN guerrillas and many family members – including his father – were murdered in the war, Mr. Barahona’s applications for asylum filed in 1987 and again in 1995 were denied. After losing his Temporary Protected Status (TPS) in 2010, Mr. Barahona was detained by Immigration and Customs Enforcement (ICE) that summer. Although the Immigration Judge granted Mr. Barahona a bond because he did not present a flight risk and is not dangerous, he has been unable to pay his bond and remains detained.

The legal issues in Mr. Barahona’s case that are being considered are matters of first impression in the Fourth Circuit. The only other Circuit Court of Appeals that has addressed Mr. Barahona’s primary legal argument concerning the meaning of the phrase “material support,” the Third Circuit, held in Singh-Kaur v. Ashcroft in 2004 that Congress intended the statute to be broad enough to encompass small amounts of support provided to terrorist organizations. In 2006, in Matter of S-K-, the BIA held in a precedent decision that while the argument that the word “material” should be given independent consideration in determining the meaning of the statute is not frivolous, they declined to reach that issue and interpret the meaning of “material support” consistent with the manifest intent of Congress.

While Mr. Barahona’s primary argument is that the occupation of his home by the FMLN guerrillas, and their forced use of the kitchen in his home to cook their food does not constitute “material support” within the meaning of the statute, his secondary argument is that the statute is ambiguous as to its application for persons who provided “material support” under duress. Mr. Barahona’s argument is based on the United States Supreme Court’s holding in 2009 in Negusie v. Holder, in which the Court – interpreting the similar “persecutor bars” to admissibility in the INA – remanded the case to the BIA in order for the agency to determine whether Congress intended the statute to apply to persons who assisted in persecution under coercion or duress. Like the persecutor bar, the material support bar in the INA is silent regarding the relevance of duress, and Mr. Barahona argues that the BIA must address whether Congress intended the bar to apply to persons whose conduct occurred under duress or threat of death.

At oral argument on Tuesday, the Court seemed to be concerned with the government’s position that the material support bar in INA § 212(a)(3)(B)(iv)(VI) is seemingly limitless, and could be theoretically be applied in a myriad of factual situations presumably not intended by Congress. For example, the government conceded at oral argument that the pilot of a hijacked commercial airliner who safely landed a plane full of civilians with a gun to his head could be inadmissible for providing “material support” to a terrorist organization within the meaning of INA § 212(a)(3)(B)(iv)(VI). By the same token, the Court appeared concerned about its ability to review the scope of the material support bar as interpreted by the BIA, which the Court is required to give deference to under the Supreme Court’s decision in Chevron U.S.A. Inc. v. Natural Resources Defense Council, Inc., unless the agency’s interpretation is arbitrary, capricious, and contrary to law.

The Court should issue a decision in Mr. Barahona’s case in the next several months. In the interim, the audio of the oral argument can be accessed here.


Professor Kristina M. Campbell is Director of the Immigration and Human Rights Clinic at the University of the District of Columbia David A. Clarke School of Law.


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