Amending Inadmissibility for Syrian and Iraqi Victims of ISIL

Refugees on a boat crossing the Mediterranean sea, heading from Turkish coast to the northeastern Greek island of Lesbos, 29 January 2016. Taken by Mstyslav Chernov/Unframe - Own work, CC BY-SA 4.0, https://commons.wikimedia.org/w/index.php?curid=46776361
Refugees on a boat crossing the Mediterranean sea, heading from Turkish coast to the northeastern Greek island of Lesbos, 29 January 2016. Taken by Mstyslav Chernov/Unframe – Own work, CC BY-SA 4.0, https://commons.wikimedia.org/w/index.php?curid=46776361

Living Under ISIS

Under existing United States law, asylum-seekers having given material support to designated terrorist organizations cannot apply for asylum in the United States. This is called the material support statute under the Immigration and Nationality Act (INA) and is meant to protect the United States from admitting potentially dangerous refugees. In the Syrian and Iraqi context, tens of thousands of individuals live under the Islamic State’s (ISIL) control and are forced to pay taxes to ISIL or risk physical harm and even death. Should these individuals and/or households escape ISIL controlled territory, they are still ineligible to apply for asylum because of breach in the the INA’s material support clause. However, refugees living under ISIL rule may only be providing material support under duress and should therefore be exempt from the material support clause.

ISIL is distinct because it controls territory and considers itself a state, unlike al-Qaeda and other terrorist organizations. It is estimated that between 6-8 million people across Iraq and Syria live in ISIL-held territory. The terrorist organization swiftly captures territory and coopts economies and infrastructure in as much of the territory as it can, having captured territory across Syria and Iraq. ISIL finances its pseudo state by selling captured oil reservoirs and smuggling ancient artifacts to Western buyers. As previously mentioned, ISIL also collects taxes from the inhabitants under its control.

ISIL’s assault across Iraq and Syria has destroyed and displaced millions across the region. It is unclear how many Iraqis and Syrians have been displaced from the Islamic State, but the terrorist organization’s emergence has coincided with the ballooning of refugees in Turkey, Lebanon, and Jordan. Today, that crisis is reaching Europe, too. In Mosul, Iraq, for example, half a million people have fled since 2014. The New York Times reported in 2014 that more than one million people were displaced by ISIL across all of Iraq. It is no surprise that so many victims of ISIL’s terror have fled. In addition to previously mentioned factors contributing to the oppression of those living under ISIL control, many religious minorities, including Yazidis and Christians, are forced to comply with the terrorist group’s brutal regime. Human Rights Watch continues to report the human rights abuses ISIL’s victims face in Iraq and Syria: executions, slavery, child soldiers, and torture. There are surely many more Iraqis and Syrians who live under ISIL’s dominion and are trying to escape. However, Syrians and Iraqis trying to escape ISIL control face tremendous hurdles in finding safety. Many Syrians and Iraqis continue to face victimization in neighboring Turkey, Lebanon, and Jordan. Sunni Muslims who lived under the Islamic State are perceived as complicit in ISIL’s land-grabs. Shia’s are perceived as agents of Iran or the Assad Regime. Minorities are caught in the middle.

United States Legal Code

The Antiterrorism and Effective Death Penalty Act of 1996 was the first U.S. statute that criminalized material support to designated foreign terrorist organizations. After the tragic events on September 11, 2001, Congress passed the U.S. Patriot Act and, in 2005, the Real ID Act, the latter of which expanded the material support statute relating to terrorist activities.[1] Components of the material support statue are integrated into the Immigration and Nationality Act (INA). Material support is one [of many] inadmissible feature of asylum-seekers (i.e., asylum seekers are inadmissible to the United States if they breach certain criteria). Specifically, the INA defines material support to include, “a safe house, transportation, communications, funds, transfer of funds, or other material financial benefit […].”[2] Presumably, under this definition, material support through taxation may label victims of ISIL inadmissible for asylum in the United States. It is difficult to argue that individuals who support terrorism abroad should not be denied access to asylum in the United States. However, many of ISIL’s victims, especially in the current crises in the Middle East, are compelled to materially support terrorist activities across Syria and Iraq or face imminent danger. The INA’s inadmissibility grounds make no distinction of how the material support was transferred (i.e., forcibly or voluntarily). This is not the first criticism of these legal statutes, nor is it the first time they have been tested.

To date, there are a number of exemptions for actions and for specific groups that would otherwise be inadmissible for asylum in the United States. Specifically, the All Burma Students Democratic Front (ABSDF) is exempt from the material support statute because they were proclaimed to have provided “material support under duress.” Presumably, proven members of ABSDF, who may have provided material support under duress to designated foreign terrorists in Burma, are still eligible for asylum in the United States. Potentially a similar exemption could be afforded to Iraqis and Syrians within ISIL-held territory. This would require a submitted amendment to the Department of Homeland Security (DHS) requesting an exemption of inadmissibility for the relevant, persecuted group.

Next Steps

As Secretary General of the United Nations Ban-Ki Moon said, the Islamic State is un-Islamic and not a State. This is generally agreed upon by the international community as a whole. However, ISIL’s efforts at “statehood” in Iraq and Syria have wreaked havoc across the Middle East, not only displacing over a million people in Iraq, but imprisoning hundreds of thousands, if not millions, within its “borders.” ISIL’s victims have paid the price both literally and figuratively for their lives. Should these individuals escape ISIL’s grasp, they remain vulnerable as refugees in neighboring Turkey, Jordan and Lebanon. These asylum seekers must be afforded the right to apply for asylum in the Untied States. However, they face a particular obstacle within the U.S. refugee process: they violate the material support clause to a foreign terrorist organization (i.e., ISIL). This piece does not suggest the elimination of that statute. Rather, mechanisms exist within DHS to offer exemptions to groups and their actions should those groups and/or actions have manifested under particular circumstances. If victims of ISIL’s control were forced to pay taxes or provide material support to ISIL under duress, they should be granted exemption for an otherwise inadmissible offense under the Immigration and Nationality Act. Victims of ISIL’s territory grabs should not have to face rejection for asylum because they were forced to support a foreign terrorist organization against their will. As previously stated, offering asylum under specific exemptions in the United States is not unprecedented. Over a dozen groups are offered similar exemptions including the “material support under duress” exemption. We must advocate and educate our elected officials and executive departments to initiate these changes.

Although the language did not exist, the United States was founded with persecuted peoples from the European Continent. The acceptance of immigrants has oscillated throughout American history, however, we particularly commemorate the times our nation opened its arms to migrants and refugees alike. Many of this nation’s greatest businessmen, artists, soldiers, and scientists were refugees or decedents of refugees. Given the current refugee crisis in the Middle East, the world looks to the United States to find humane solutions. However, the United States is also a nation of laws, and must not abrogate the law to find hasty resolutions. Yet, when the purview of the law is incomplete, it must be amended. Given the circumstance of the hundreds of thousands of victims of terror, it is incumbent upon the United States to uphold its principles of openness. For many in the region, the United States remains a land of peace in a sea of danger.

[1] Kerwin, D. (2012). “The Faltering US Refugee Protection System: Legal and Policy Responses to Refugees, Asylum-Seekers, and Others in Need of Protection.” Refugee Survey Quarterly 31(1): 1-33.

[2] INA, section 212(a)(3)(B)(iv)(VI)

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