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BIA Holds That The “Material Support Bar” Of INA 212§(a)(3)(B)(iv)(VI) Contains No Implied Exception For The Provision Of Material Support To A Terrorist Organization While Under Duress And, Absent A Waiver, One Who Affords Such Support Is Inadmissible And Statutorily Barred From Establishing Eligibility For Asylum, Withholding Of Removal, Or CAT Relief.

June 27, 2016 Philip Levin

On June 9, 2016 the Board of Immigration Appeals (BIA or Board), in a decision on remand from the Second Circuit Court of Appeals, held that there is no duress exception to the material support bar. The respondent, a Colombian citizen, had been forced by threats to provide merchandise from her store to the Revolutionary Armed Forces of Colombia (FARC) for several years. After admission to the U.S., she applied for asylum, withholding of removal, and Convention Against Torture (CAT) relief before the Immigration Judge (IJ), who denied her applications, finding her barred from relief because she had afforded material support to a terrorist organization.

On appeal, the BIA agreed with the IJ but remanded to the Immigration Court to make an explicit determination whether, in the absence of the material support bar, the respondent would otherwise be eligible for relief, which would allow her request a discretionary waiver of the material support bar from DHS. The IJ subsequently found that, but for the material support bar, the respondent would be asylum-eligible based on past persecution by the FARC.

A petition for review to the Second Circuit followed, with the Court of Appeals both agreeing that the Appellant had provided material support to the FARC and remanding to the Board to determine whether there is an implied exception to the bar for those whose material support was supplied under duress.

In analyzing the issue, the Board first noted that INA §212(a)(3)(B)(iv)(VI) defines “engage in terrorist activity” as including an act by one who knows or reasonably should know said act affords material support to a terrorist organization or for a terrorist activity. Finding that anyone who has engaged in terrorist activity is inadmissible per INA §212(a)(3)(B)(i)(I) and is thus barred from establishing eligibility for asylum, withholding or CAT, the BIA concluded that anyone who “has provided material support to a terrorist organization is subject to the ‘material support bar’.”

As to whether there is an implied exception for those who provide support under duress, the Board stated that all Federal circuit courts that have addressed the issue have answered in the negative. Because the plain language of the bar is vague as to the existence of such an exception, courts have looked to the language and design of the statute to determine the legislative purpose. Perhaps most tellingly, the BIA found that the argument that such an exception exists was undermined by the fact that Congress has created a waiver for deserving aliens to avoid the bar’s consequences, such that the waiver balances the bar’s harsh provisions and therefore indicates Congress’s “omission of ameliorative provisions in §212(a)(3)(B)” was intentional. Because, by analogy, the omission of a duress exception must have been intentional, the Board held that the only remedy for one who has provided material support is the waiver provision. Therefore, absent a waiver, one who provides material support to a terrorist organization is inadmissible for asylum-type relief even if such support is provided under duress. Matter of M-H-Z-, 26 I&N Dec. 757 (BIA 2016).

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TN

The TN nonimmigrant classification allows qualified Canadian and Mexican citizens to enter the U.S. and engage in professional business activities. LPPC will help you navigate through the TN application process by evaluating your eligibility, preparing supporting documentation for your application, and ultimately filing your application. 

B-1

LPPC will guide you through the consular process to receive a B-1 visa for specific short-term business purposes ranging from contract negotiations to seminars and conferences.

O-1

O-1 visas are for persons of extraordinary ability in the sciences, arts, education, business or sports. 

J-1

Administered by the Department of State, the J-1 visa is for students, trainees, academics, researchers, professionals or experts participating in an approved Exchange Visitor program. LPPC will assist you and your sponsor with preparing the necessary paperwork and the consular process so you can begin your program at ease. 

E-1 & E-2

E-1 visas and E-2 visas are for nationals of countries with which the United States has a treaty of friendship, commerce and navigation (FCN) or bilateral investment treaty (BIT). If you are a nonimmigrant trader or investor seeking to conduct business operations or develop a new enterprise in the U.S., we will help you file for the appropriate visa. As a recognized expert in this area, Mr. Levin will provide experienced and dependable assistance with E-1 or E-2 visa applications. 

  • E-1: If you are a national of a country that conducts a significant volume of trade with the U.S. (or if you intend to develop trade between the U.S. and your home country) you might be eligible for entry under an E-1 visa. 
  • E-2: The E-2 visa allows investors from treaty countries to enter the U.S. for purposes of directing and developing a business, with all the commitments and risks implicit in entrepreneurial activity. 
L-1

The L-1 visa category is for executives, managers or professionals employed by foreign affiliates of U.S companies. The L-1 visa is divided into two classifications:

  • L-1A Intracompany Transferee Executive or Manager
  • L-1B Intracompany Transferee Specialized Knowledge
H-1B

Many companies in the United States find themselves increasingly dependent on the talent, experience and energy of foreign national workers in professional, technical or specialized occupational fields. These employees typically enter the U.S. on nonimmigrant H-1B visas for “specialty occupations.” 

With extensive experience in business immigration, you can count on LPPC to guide your company or Human Resources department in preparing and filing an H-1B visa petition.

Green Card

Family preservation and reunification is a priority for our firm. Our attorneys have advised and assisted families from all over the world with entry visas, adjustment of status, and other immigration problems. 

  • Immediate Relatives: If you are the spouse, child, or parent of a U.S. citizen, we can help you obtain a green card through an Immediate Relative petition. 
  • Family-Based Preference: If your relative is a U.S. citizen or lawful permanent resident, we can assist you with your green card application through one of the family based preference categories.
Fiances

If you are a U.S. citizen and your fiancé/fiancée or spouse is overseas, our office will assist you to navigate the CIS requirements and regulations to have the case approved and then prepare you and your spouse for the interview at the U.S. Embassy. LPPC will also help you find the best ways to resolve any problems you encounter if a waiver is required in your case.

Marriage

Immigration through marriage is a common means of obtaining permanent residence in the U.S.  Since 1991, Philip Levin & Associates has helped hundreds of couples immigrate to the U.S. and build their lives together. 

  • I-130 Petition and Adjustment of Status: If you are married to a U.S. citizen, present in the U.S. and eligible to do so, our attorneys will assist you in preparing and filing the necessary I-130 petition and I-485 adjustment of status application in the U.S.
  • Immigrant Visa Consular Processing: If you are married to a U.S. citizen and reside abroad, we will assist you in preparing and filing the IV petition with an Embassy or Consulate-General in your native country. 
  • I-751, Remove Conditions on Residence: If you have been married less than two years at the time your green card was initially approved, our office will help you in the joint petition process to become a permanent resident.