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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