Senator Leahy Expresses Concerns About Refugees, Asylees Under Material Support For Terrorism Laws

On November 9, Senator Leahy sent a letter to Department of Homeland Security Secretary Janet Napolitano, expressing concerns about the implementation of current law on material support for terrorism in the refugee and asylee context.

November 09, 2011

The Honorable Janet Napolitano

Secretary of the Department of Homeland Security

U.S. Department of Homeland Security
Washington, D.C. 20528

Dear Madam Secretary:

I write on a topic I raised in the October 19, 2011, hearing of the Committee on the Judiciary on Oversight of the Department of Homeland Security.  I remain very concerned about implementation of current law on material support for terrorism in the refugee and asylee context.  

Medical Care Exemption

You mentioned in the October 19, 2011, hearing that you recently signed an exemption to the material support statute for the provision of certain types of medical care.  I was pleased to learn of that exemption, which I requested in a letter to you dated March 17, 2009.  However, it has been three weeks since that hearing took place and I have yet to see formal notice of the exemption in Federal Register.  Is this new policy currently in force, and is it being applied to cases?  When will the new policy be made public?   

Legal Interpretation of “Material” and “Routine Commercial Transactions”

Our immigration law contains a very broad definition of material support for terrorism. 

As a result, refugees can be barred from gaining protection in the United States, even if their actions were so minimal that no rational person would consider them supporters of terrorist activities or organizations. 

We have seen cases in which a refugee who sold flowers or gave a bowl of rice to a member of a terrorist organization was barred from protection.  I have always thought that we could resolve a large number of these cases by adopting a common-sense interpretation of the term “material.”  A person who donates hundreds or thousands of dollars has clearly made a material contribution to an organization. Such donations may or may not qualify for other exemptions.  But a person who hands over spare change cannot reasonably be considered to have made a material contribution.  

Moreover, a person who sells flowers to a terrorist is not providing support to the terrorist, but is actually taking money out of the pocket of the terrorist, money that they might otherwise put toward planning or executing an attack.  And yet, commercial transactions of that sort have been classified as material support for terrorism. 

The Honorable Janet Napolitano

November 9, 2011

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Will you revise the interpretation of the term “material” such that truly insignificant actions – actions that are immaterial -- are not deemed to be material support?   Will you also issue policy guidance on the scope of “routine commercial transactions” that may trigger material support concerns? 


Group-By-Group Exemption Process


Congress gave the Department authority to exempt deserving applicants from the so-called Tier III bar to admission in the Consolidated Appropriations Act of 2008, in language that I crafted with Senator Kyl.  While not mandated by that law, under both the Bush and Obama Administrations, the Department has engaged in a group-by-group process of reviewing Tier III terrorist organizations to determine whether they may be exempted from the material support bar.  On January 26, 2009, Acting Assistant Secretary of Homeland Security for Legislative Affairs, Jim Howe, wrote in a response to an October 3, 2008, letter from myself and Senator Jon Kyl, that “DHS is also examining possible alternatives to group-by-group exemptions.” 

That was nearly three years ago, but I was recently told, informally, that the Department has not progressed from this position and is still considering alternatives to the group-by-group process.  As a result, over 4,500 cases remain on hold.  I strongly urge you to promptly adopt alternatives to following only a group-by-group determination process. 

For example, one possibility would be to consider exemptions for those who were granted asylee or refugee status years ago, and who now seek to adjust their status to lawful permanent residence.  If no derogatory information has come to the attention of DHS in the intervening period, such persons’ immigration cases could be given a presumption of admissibility.  Similarly, if the group to which they purportedly provided material support either shared the goals of the United States at the time of the purported support, or if the group never expressed any intention or desire to harm the United States, that person could be given a presumption of admissibility.  Alternatively, groups might be considered for exemptions on a regional basis rather than a group-by-group basis.  Any number of possibilities can be explored.  Again, I urge you to consider these and other alternatives so that the thousands of cases still on hold can be adjudicated.

Thank you for your prompt attention to these issues.  I look forward to your response. 




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