Biden administration steps in it again with Afghans who helped US

Apparently, when the Biden administration screened the Afghan nationals brought to the United States after the U.S. troop withdrawal, it discovered that some of them were inadmissible under the “terrorist activities” exclusion ground, INA section 1182(a)(3)(B) — because they had provided support for a terrorist organization, despite the fact that the support was insignificant or limited in nature.

The administration reacted to this situation the same way it reacted to the statutory enforcement provisions in the Immigration and Nationality Act (INA) that call for the deportation of undocumented migrants who have never been convicted of a serious criminal offense and who have lived, worked, and contributed to our economy and our communities: It tried to move the goalposts — almost certainly exceeding its authority in the process.

In the latter case, deportation was contrary to Biden’s Plan for Securing Our Values as a Nation of Immigrants, so Biden’s DHS Secretary Alejandro Mayorkas issued a memorandum that replaced the statutory enforcement provisions with the administration’s own enforcement “guidelines,” limiting enforcement to deportable migrants who pose a threat to national security, public safety, or border security. Mayorkas explained in the memorandum that, “The fact an individual is a removable noncitizen … should not alone be the basis of an enforcement action against them.” A federal judge determined this exceeded the administration’s prosecutorial discretion authority.

Now, in the case of the Afghans, the administration has published a notice in the Federal Register in which it uses its waiver authority under INA section 1182(d)(3)(B)(i) to change the definition of “material” to one that the administration prefers.

This almost certainly was not a proper use of the waiver authority.

The terrorist activities exclusion ground

One of the activities that makes a migrant inadmissible under the “terrorist activities” exclusion ground is committing an act the the actor knows, or reasonably should know, affords material support to any individual or organization the actor knows, or should know, has committed or plans to commit a terrorist activity.

Unfortunately, Congress failed to provide adequate guidance on how to determine whether support should be considered “material.” 

The Board of Immigration Appeals (BIA) found in Matter of A-C-M- that there is no legislative history to support taking a quantitative approach and separating out what amount of support is necessary to make it “material.”

“Material support” is a term of art that “relates to the type of aid provided” — that is, aid of a material and normally tangible nature. It is not quantitative.

The BIA decided that the term “material support” covers any action that “has a logical and even reasonably foreseeable tendency to promote, sustain, or maintain the [terrorist] organization, even if only to a de minimis degree.”

The BIA is the highest administrative body for interpreting and applying immigration laws, but its decisions can be challenged in court or by having them referred for review by the attorney general. While the administration cannot challenge a BIA decision in court, it could have had Merrick Garland refer it to himself for review.

Instead, it used its authority to waive excludability for terrorist activities to replace the BIA’s definition of “material support” with a definition it prefers.

The administration’s declaration

The administration now says it has determined that grounds of inadmissibility under the terrorist activities exclusion ground “bar certain individuals who do not pose a national security or public safety risk from admission to the United States and from obtaining immigration benefits or other status.” 

Accordingly, the administration, claiming to be using its section 212(d)(3)(B)(i) authority, declared that that exclusion ground “shall not apply with respect to an individual who provided: (1) insignificant material support (i.e., support that was minimal in amount and inconsequential in effect); or (2) limited material support under circumstances involving certain routine commercial transactions, certain routine social transactions … certain humanitarian assistance, or substantial pressure that does not rise to the level of duress, to a designated terrorist organization.”

The pertinent part of section 1182(d)(3)(B)(i) states that the administration may determine in its “sole unreviewable discretion that subsection (a)(3)(B) [the terrorist activities exclusion ground]shall not applywith respect to an alien within the scope of that subsection.” (Emphasis added.)

That’s not what the administration did.

The administration declared that migrants who provide support for a terrorist organization that would be considered “material” under the BIA’s definition of “material” are no longer subject to exclusion for engaging in terrorist activities if they meet specified waiver eligibility requirements, such as passing a security check — and substituted its own definition of “material.” 

Unnecessary

The administration didn’t have to do this to achieve its stated objective.

It said in a press release that it was using its section 1182(d)(3)(B)(i) authority to ensure that vulnerable Afghans who have supported and worked with the United States in Afghanistan can qualify for protection and other immigration benefits in the United States.

It could have granted an exclusion waiver to the Afghans who fit that description without changing how “material support” is interpreted.  

My take

Frankly, I don’t like the BIA’s interpretation of “material support” or the one that the administration wants. 

The main difference between these interpretations is that they foster errors in different directions. The BIA’s interpretation can result in the exclusion of migrants who are not a threat of any kind, and the interpretation the administration wants can result in the admission of migrants who should be excluded for supporting terrorist activities.

Neither is acceptable.

Congress created this problem by not including adequate guidance on the meaning of “material support” in its terrorist activities exclusion provision. Congress should fix it.

Nolan Rappaport was detailed to the House Judiciary Committee as an Executive Branch Immigration Law Expert for three years. He subsequently served as an immigration counsel for the Subcommittee on Immigration, Border Security and Claims for four years. Prior to working on the Judiciary Committee, he wrote decisions for the Board of Immigration Appeals for 20 years.  Follow him at https://www.blogger.com/blog/posts/2306123393080132994