Terrorist Victim or Perpetrator?

Foreign Solutions to Challenges Posed by the U.S.’s Terrorist Bars to Asylum, by Stephanie Cooper Blum† and Dr. Nadav Morag††.

Study published by the International Comparative, Policy and Ethical Law Review of Cardoza School of Law.

The views in this Article are the author’s and do not necessarily represent the views of the agency or the U.S. Government.

Abstract

This article analyzes the challenges presented by the U.S.’s Terrorism-Related Inadmissibility Grounds (“TRIG”) for asylum applicants and looks overseas for potential solutions. TRIG is the method by which the U.S. government bars terrorists and those who materially support terrorism from obtaining asylum and related protections. TRIG, however, is overbroad and inefficient, encompassing terrorist victims who currently pose and never posed any threat to U.S. security. Specifically, TRIG does not consider duress, or the provision of trivial support, when analyzing whether applicants should be barred from asylum because of material support of terrorism. Additionally, current law defines a terrorist organization for immigration purposes to include any group of two or more people who violently oppose a governing regime, even if that group poses (and posed) no threat to U.S. security. While there is a subsequent “waiver” process to mitigate some of these incongruous results, this process is highly inefficient and time-consuming, making it largely unrealistic as a sound option for those denied asylum due to TRIG. In searching for potential solutions, this article considers the United Kingdom and Australia—two key U.S. allies who similarly confront international terrorism—to see if their terrorism-related bars to asylum are more narrowly-tailored and efficient to capture individuals who actually pose a present threat to their respective societies. This article concludes that our allies’ processes, while far from perfect, provide a more efficient, just, and accurate method of identifying genuine terrorist threats. Hence, the U.S. should consider adopting aspects of their approaches and revising TRIG so it encompasses present threats to the U.S.’s security instead of relying on overbroad generalizations that actually ensnare terrorist victims along with actual terrorists.

Keywords: immigration, Terrorism-Related Inadmissibility Grounds, asylum

I. INTRODUCTION

In May 2019, Customs and Border Protection (“CBP”) arrested and took into custody more than 144,200 migrants along the southwestern border, a 32% increase from the prior month and the highest monthly total in seven years.(1) As the humanitarian crisis at the southern border unfolds, the United States (“U.S.”) needs an effective and efficient way to determine who legitimately merits asylum under U.S. and international law, and of those who qualify for asylum, who should be barred because of ties to terrorism.

The U.S. and other democracies must balance humanitarian concerns with ensuring national security when assessing and granting asylum to refugees, as required by international convention. The U.S.’s asylum process is procedurally and substantively complex with different qualifying standards and different governmental entities deciding who qualifies for asylum—or other relief—based on a myriad of requirements that are not seen in other Western democracies such as the United Kingdom (“U.K.”) and Australia. Some of these standards in the U.S. include where the noncitizen is geographically situated when requesting asylum, and whether that noncitizen is in removal or expedited removal proceedings, or in some other lawful status when making the request. While the U.K. and Australia all have processes for ensuring that noncitizens who materially support terrorism do not receive asylum, the U.S.’s process for determining Terrorism-Related Inadmissibility Grounds (“TRIG”)(2) is convoluted, inefficient, and risks undermining the very principles of asylum that it is trying to uphold.(3)

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Ms Blum† has a J.D. from the University of Chicago Law School, an M.A. in security studies from the Naval Postgraduate School, and a B.A. in political science from Yale University. She has written a book and various articles on homeland security and civil rights issues. She currently works for the Transportation Security Administration, Department of Homeland Security. Previously she worked in the private sector, served as an adjunct professor, and served as a law clerk to three federal judges. The views in this Article are the author’s and do not necessarily represent the views of the agency or the U.S. Government.

Dr. Nadav Morag†† has a PhD from Tel Aviv University, an M.A. from UCLA, and a B.A. from UCLA. He has published pieces on a variety of topics relating to homeland security and terrorism. He is also the author of COMPARATIVE HOMELAND SECURITY: GLOBAL LESSONS, (2d ed. 2018). He currently serves as a Professor and Chair of the Department of Security Studies at Sam Houston State University.

Suggested Citation:

Blum, Stephanie Cooper, 'Terrorist Victim or Perpetrator? Foreign Solutions to Challenges Posed by the U.S.’s Terrorist Bars to Asylum,' (September 10, 2019). Forthcoming, 2020 International Comparative, Policy and Ethical Law Review of Cardoza School of Law.

Available at SSRN: https://ssrn.com/abstract=3690082