The Obama administration has issued new exemptions to a law that bars certain asylum-seekers and refugees who provided “limited material support” to terrorists who are believed to pose no threat from the U.S.
The Department of Homeland Security and the State Department published the new exemptions Wednesday in the Federal Register to narrow a ban in the Immigration and Nationality Act excluding refugees and asylum seekers who had provided limited material support, no matter how minor, to terrorists.
“These exemptions cover five kinds of limited material support that have adversely and unfairly affected refugees and asylum seekers with no tangible connection to terrorism: material support that was insignificant in amount or provided incidentally in the course of everyday social, commercial, family or humanitarian interactions, or under significant pressure,” a DHS official explained to The Daily Caller.
Secretary of Homeland Security Jeh Johnson and Secretary of State John Kerry signed the exemptions.
DHS contends that the law change is “commonsense” and that immigration procedures will remain the same in other respects.
“In addition to rigorous background vetting, including checks coordinated across several government agencies, these exemptions will only be applied on a case-by-case basis after careful review and all security checks have cleared,” the official added. “This exemption process is vital to advancing the U.S. government’s twin goal of protecting the world’s most vulnerable persons while ensuring U.S. national security and public safety.”
While the administration says the rule change is reasonable, former State Department official and current director of policy studies for the Center for Immigration StudiesJessica Vaughan questioned the administration’s right to unilaterally change the law.
“[T]here is a very legitimate question as to whether the administration actually has the authority to change the law in this way,” Vaughan wrote in an email to TheDC. “It seems to me that they are announcing that they will be disregarding yet another law written by Congress that they don’t like and are replacing it with their own guidelines, which in this case appear to be extremely broad and vague, and which are sure to be exploited by those seeking to game our generous refugee admissions program.”
According to DHS, Section 212(d)(3)(B) of the INA allows either the secretary of state or DHS secretary in consultation with each other and with the U.S. Attorney General “to determine that certain terrorism bars of the INA do not apply.”*
While Vaughan conceded that there are a number of immigrants seeking protection who have been denied due to unintentional contact with terrorists, she sees the exemptions as likely another opportunity for people to get around the system. (RELATED: Is spotty immigration enforcement to blame for MS-13 gang havoc?)
“If the recent past is any guide, those evaluating these cases will be ordered to ignore red flags in the applications, especially if the applicant is supported by one of the many advocacy groups that have the ear of senior DHS staff,” she explained. “The administration already approves of the admission of gang members as asylees and criminals in the DACA program and grants of prosecutorial discretion, so I don’t expect them to be troubled by the admission of terrorists and garden variety fraudsters in our refugee program. This is how we end up with families like the Tsarnaev brothers [the Boston marathon bombers], who were originally admitted for political asylum.”
On the other side of the spectrum, Senate Judiciary Chairman Patrick Leahy cheered the changes to that law passed by Congress following the September 11, 2001 terrorist attacks.
According to Leahy’s office, the senator has been pushing for such exemptions for years.
“The existing interpretation was so broad as to be unworkable. It resulted in deserving refugees and asylees being barred from the United States for actions so tangential and minimal that no rational person would consider them supporters of terrorist activities,” the Vermont Democrat said in a statement. “These changes help return our nation to its historic role as a welcoming sanctuary to the world’s most vulnerable populations. It is long past time to return common-sense to our refugee and asylum laws and these new exemptions are an important step in that process.”
There are the types of asylum or refugee status seekers who would have been previously barred from entering the U.S., according to DHS include:
1) Individuals who provided small or inconsequential amounts of support without an intent to further any terrorist or violent activities, such as a refugee who gave a bowl of rice to a member of an opposition group.
2) Individuals who, in the ordinary course of business transactions or social or family interactions, have incidentally provided support with no intent of abetting violent or terrorist activity. For instance, an owner of a restaurant who serves food to any paying customer, even though he knows some of them are members of an opposition group; or a mother or father who-as any parent would-fed and clothed their young adult child, even when they knew their child is part of a resistance movement.
3) Individuals who have provided certain humanitarian assistance – for example, an aid worker who handed out bottled water and blankets to victims of a natural disaster or those displaced by civil conflict, some of whom happen to be members of an opposition group.
4) Individuals who have provided support under significant pressure that does not quite rise to the level of duress (for which there are already exemptions in place), but that is significant enough that anyone in the same situation would see no reasonable alternative and would do the same. We have seen, for example, a farmer who regularly pays a toll to a resistance group in order to cross a bridge to take his food to market, or a Syrian refugee who pays an opposition group to gain safe passage out of Syria.
Vaughan pointed out that in some cases, only the word of the individual would be used to make a determination.
“In my experience as a former State Dept. consular official, I know that there are some qualified applicants that get excluded because we cannot be sure if they are truly associated with terrorist or criminal groups, but it is better to err on the side of caution when it comes to national security and public safety,” she explained. “After all, there are usually other resettlement options for these people – they don’t have to come to the U.S., even if that’s what they want.”
And while the changes will affect those seeking protection in the short term, the manner in which the Obama administration changed the law will not be lost on Republican skeptics of immigration reform in the long term.
“This glaring end-run around Congress underscores that immigration reform is doomed to failure,” a Senate GOP aide told TheDC.
* This article has been updated with additional information about the secretaries’ authority to change the law.