Saturday, March 11, 2017

Fulfilling Misguided Campaign Promises to the Detriment of American Values

Guest blogger:  Carolyn Widman, Law Student, University of San Francisco

President Trump’s new executive order regarding immigration is a travel ban and a restriction on refugees, the most vulnerable of all of humanity. The order is titled, “Protecting The Nation From Foreign Terrorist Entry Into The United States.” A refugee is a human being who has been forced to leave their country to survive and avoid becoming a victim of war, persecution, or natural disasters. Refugees are forced to abandon their chosen lives in order to seek safety and hopefully an opportunity to rebuild in safety and integrate into an unknown culture and society. Just the title of this order misrepresents the nightmare refugees face, as it implies refugees have chosen to flee to the US to seek the “American Dream.” In order to be granted admission in the U.S., these individuals go through the most extreme vetting process in the world, which includes checking against several bars on admission, including criminal, health, security, and terrorism. The process can take years and the applicants are detained in subhuman conditions and treated as criminals. National security is important, but protecting this nation and providing the right to life are not mutually exclusive.

One particularly concerning section of the Executive Order that has been overlooked by the public and media is Section 6, “Rescission of Exercise of Authority Relating to the Terrorism Grounds of Inadmissibility.  This section states the following:

The Secretaries of State and Homeland Security shall, in consultation with the Attorney General, consider rescinding the exercises of authority in section 212 of the INA, 8 U.S.C. 1182, relating to the terrorism grounds of inadmissibility, as well as any related implementing memoranda.”

An ordinary person may view this as one of the more logical and reasonable provisions; however, its broad scope is a potential death sentence for innocent persons who have evidence supporting their asylum claim beyond that which is needed. About a decade ago, Congress amended Section 212 of the Immigration and Nationality Act (“INA”), which expanded the grounds of inadmissibility by including broad definitions of terrorist related activity. As a result of these broad definitions, thousands of refugees were held up unjustly or forced to seek asylum elsewhere for a chance at life.

            This bar covers the kinds of activities reasonable people associate with terrorism but it also reaches beyond by defining nearly any “group of two or more individuals, whether organized or not, which engages in terrorist activities” as a terrorist group. People who provide any type of support to these “terrorist groups” are also subject to this bar. The problem is that thousands of people meet this definition of a terrorist and essentially anyone who provides any support, even a bowl of rice, and has knowledge of their activities may be barred. The concurring opinion in Matter of S-K alluded to the statute’s astounding scope expressing that, “Any group that has used a weapon for any purpose other than for personal monetary gain can, under this statute, be labeled a terrorist organization. This includes organizations that the United States Government has not thought of as terrorist organizations because their activities coincide with our foreign policy objectives.” Matter of S-K, 23 I&N Dec. 936 (BIA 2006). Here, George Washington and our founding fathers would be considered terrorists as they led and supported an armed rebellion against the British.

            Many senators recognized this problem and sponsored legislation that would exempt certain groups and give the Secretaries of Homeland Security and State and the Attorney General discretionary authority to waive this bar. The problem here is that applicants can only receive this waiver after they have been rejected asylum, which is often not obtained due to more bureaucratic hurdles. Also, these exemptions do nothing but merely lift one of the several bars on admission. They do not create an automatic grant of asylum or issuance of visas and asylum applicants are still required to provide substantial evidentiary support to satisfy the application requirements and are subject to the inconsistent discretionary results of immigration judges. What is alarming about Section 6 in the Executive Order is that these exemptions are being reviewed with the implication that they will be removed. The result is not the national security benefits Trump has been defending; rather, it weakens our national security and undermines our morality.  

            If Trump’s team decides to do away with this exemption power, this bar will resort back to being an unforgiving filter for asylum applicants. In Matter of S-K, the asylum seeker, Ma San Kywe was denied asylum by the material support provision because she donated $695 to the Chin National Front (“CNF”). The CNF is a group long recognized by the State Department as “freedom fighters” who have taken up arms against the oppressive military regimes in Burma in defense of the Chin peoples. Ma San Kywe’s fiancé was killed by the Tatmadaw, the Burma military regime, who has violated the laws of war by conducting airstrikes against ethnic areas and is responsible for extrajudicial killings, torture, sexual violence, and destruction of property. The Tatmadaw convicted Ma San Kywe’s fiancé under the Unlawful Association Act, which is used to suppress opposition and political dissent. Under this Act, Ma San Kywe ran the risk of torture, hard labor, or death for her donation and fled to seek refuge in the U.S. but was denied because of bureaucratic incompetence.

            It would be a public service to this country and the innocent peoples fleeing persecution and war for the Trump administration to review Matter of S-K and cases like this before rescinding the exemption authority. Congress and this administration should take it a step further to draft legislation that would prevent these individuals from being labeled terrorists for their activities and ensure the actual victims of terror are not further victimized but given a chance to survive. Exemptions and refined legislation are critical to allowing refuge or asylum for Iraqis who assisted U.S. troops fighting against the Iraqi regime, Afghans who opposed the Taliban, Cubans who supported armed resistance against the government of Fidel Castro, and many others in similar situations. If this administration fails to take these considerations into account, the U.S. will effectively designate allies and victims as terrorists while undermining our security interests, and further distance itself from its foundational values of being a nation of immigrants.


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