Thousands of innocent refugees are being turned away by the United States because of the unintended consequences of  language in the Patriot Act that bars admission to the United States for anyone who provides �material support� to any armed group � even if the group is supported by the United States, and even if the refugee was forced at gunpoint to provide the support.

The problems with the law are two-fold: 

• First, the definition of �terrorist organization� � defined as a group of two or more persons who bear arms against the law of the ruling country � is so broad as to include groups that the U.S. supports.  According to this definition, even the U.S. military is a �terrorist organization� any time it enters another country uninvited.   In fact, Montagnard refugees are currently being turned away from the United States because of support they gave the U.S. military during the war in Vietnam.

• Second, the law does not make any exception for persons forced to provide �material support� to terrorist organizations under severe coercion or duress.  As a result, the very facts that make up individuals� refugee claims � that they were terrorized by armed rebel groups � become the same facts that are used to deny their admission.  As just one example, a Liberian refugee, who was  gang-raped in her own home and forced into domestic servitude by armed rebels, was recently denied entry into the United States because she provided �material support� to these rebels in the form of laundry and other domestic services.    

(2)   Who is being affected?

Burmese, Columbian, Cuban, Hmong, Montagnard, Liberian, and Sudanese refugees are currently being denied a chance to resettle in the United States.  This fiscal year, an estimated 10,000 to 15,000 refugees who would otherwise be admitted will be barred entry because of this law, absent some sort of fix.

Asylee-seekers within the United States are being impacted by this bar.  Currently, there are more than 550 reported cases on hold at the Asylum Office in DHS due to this bar, while an unknown number of other asylum claims before the immigration courts have also been rejected because of this bar.

(3)   How would legislation solve this problem?

Legislation would solve this problem with two simple fixes to the law. 

• First, legislation would restore some discretion in the definition of �terrorist organization� thereby preventing groups that have supported the United States or that the United States itself supports from inadvertently being labeled a �terrorist organization.�  This is essential to protecting groups like Burmese pro-democracy movements from being inadvertently labeled �terrorist organizations� for taking up arms in self-defense against the incredibly repressive military junta.  It is also needed to protect Cuban refugees who supported anti-Castro movements and Montagnards who aided American forces in Vietnam from being labeled supporters of terrorists. 

• Second, legislation would provide a discretionary exemption to the material support bar.  Refugees who do not pose a national security threat can, at the adjudicator�s discretion, be exempted from the material support bar. This discretionary exemption gives Department of Homeland Security adjudicators the needed flexibility to admit individuals, like the Liberian woman, who would otherwise be barred for �material support� that was clearly provided against their will.

(4)   Why is an amendment needed?  Doesn�t the administration have the authority to waive the application of the law?

The administration does have the authority to waive the application of the law but the authority is limited.  It can waive in �material supporters,� but not �members� of the groups that inadvertently fall within the overbroad definition of �terrorist organization.�  It could, for example, waive in persons who provided food or shelter to U.S. troops in Afghanistan, but could not waive in those members of the Northern Alliance who fought alongside the U.S. troops in Afghanistan.

Moreover, the waiver has proven difficult to implement.  To date, the administration has utilized the waiver just once: for a subset of the Burmese refugees in the Tham Him camp in Burma. 

(5)   What about the recent waiver for the Burmese in the Tham Hin Camp?  Is it sufficient?

Earlier this month, the administration decided to waive in some portion of the 9,500 Burmese refugees awaiting resettlement in the Tham Hin camp in Thailand.  These are refugees that the U.S. had agreed to resettle almost a year ago.  All of their cases were put on hold because almost everyone in the camp either supported (often in the form of payment of taxes) or participated in the Karen National Union (KNU), a pro-democracy movement that has acted as a de facto government along the Thai-Burmese border. 

The waiver, however, is limited.  It can only protect the �material supporters� of the KNU, and not the �members� of the KNU - including the nurses, teachers, and civil servants that work in the areas it occupies.  Spouses and children of members are also barred.  UNHCR estimates that about half of the refugees in the Tham Hin camp will continue to be barred admission because of the bar on members.

Most importantly, the waiver does not provide any relief for any of the other Burmese refugees in Thailand or Malaysia.  And it fails to protect any of the other Cuban, Colombian, Hmong, Montagnard, Liberian, and Sudanese refugees being hurt by this bar.     

(6)   Why not just expand the waiver to allow an exception for members?

The administration�s difficulty in deciding whether and how to apply the waiver has resulted in inaction.  There is no reason to believe that an expanded waiver would be any easier to implement.

Even if the United States does decide to apply the waiver in limited circumstances, there is something disturbing about defining groups that support the United States and that the United States supports as �terrorist organizations� under the immigration law. 

Moreover, a waiver is inadequate protection for asylum seekers who will be sent back to face the persecution they fled. Protecting asylum seekers from return to persecution should not be decided on the basis of an unreviewable discretionary waiver. 

(7)   Does this Amendment go to far?  Will administration officials be forced to admit individuals associated with terrorism that would otherwise be excluded?

No.  The only thing that the law does is introduce discretion where there previously has been none. 

It allows adjudicators to determine that, in a particular case, a refugee who does not pose a national security risk should not be barred admission because of material support provided under threat of death or serious bodily injury.   But the default remains the same: material supporters of terrorism are denied admission absent an explicit determination that the individual poses no security threat.

The Amendment also allows the Secretary of State to declare almost any group of two or more persons who bear arms a terrorist organization, as long as they pose a threat to the United States or United States interests.   But the amendment protects groups, such as the Northern Alliance and members of the U.S. military, from being inadvertently labeled a terrorist organization based on an extremely broad definition that applies to all groups without exception. 

Moreover, it is important to note that any alien who is any way engaged in terrorism will be barred on an array of other grounds.   Aliens who in any way pose a security threat, whose admission would have adverse foreign policy consequences, who have previously engaged in criminal activities, or are in any way connected to terrorist activity are subject to separate bars on admission.    

(8)   What will happen if this problem is not fixed?

Each fiscal year, Congress allocates a certain number of slots, broken down by region, for refugees to be admitted into the United States for the fiscal year. For the past several years, the United States has allocated 65,000 to 70,000 slots for refugees.  This fiscal year, Congress allocated 70,000 slots. 

If the refugees� feet are not on U.S. soil by September 30, the end of the fiscal year, their slots will disappear. The best estimate suggests that without some sort of fix the United States will admit 10,000 to 15,000 fewer refugees than expected this year. Without some sort of fix, this shortfall will continue year after year.  Many of these refugees will be left stranded � without any other options for resettlement.