Following the devastating attacks of September 11, 2001, Congress
passed the Patriot Act and the REAL ID Act, an effort to prevent
further terrorist invasion of U.S. soil. The Patriot Act extends the
material support bar to include fundraising for terrorist groups, and
is retroactive towards all aliens whatever their entry date. In
addition, a 2001 Department of Justice memorandum states that the
Patriot act requires the government to deport an alien for fundraising
or recruitment on behalf of a terrorist organization “even if the alien
did not intend to fund terrorist activity and/or did not know the
organization was a terrorist organization.”

Paul Rosenzweig, Deputy Assistant Secretary for Policy at the Department of Homeland Security (DHS),
testified in September before a Senate Judiciary Subcommittee hearing
that the material support bar “provides absolutely vital protections to
American national security.” The bar, he notes, has recently allowed
the Department of Homeland Security to deport a Saudi who maintained
the website of an Al-Qaeda front group, the Committee for the Defense of Legitimate Rights, as well as to deport a financial supporter for the Benevolence International Foundation, a Taliban support group.

Both BIF and CDLR remain unlisted Tier III organizations, and their
alien supporters were immune to prosecution prior to the Patriot Act.
Rosenzweig believes that these provisions equip the U.S. government
“with the means to take offensive against those who fuel the
maintenance of the terrorist infrastructure,” and the Act is therefore
“an essential weapon of the Administration’s counter-terrorism
arsenal.”

However, Orlando Bishop Thomas Wenski
and other critics consider such measures gratuitous. “We need not
undermine our honored traditions and democratic principles in order to
achieve security. In fact, we can achieve both with the proper
balance,” argues Bishop Wenski. A strong refugee-rights advocate,
Bishop Wenski Chairs the International Policy Committee of the United States Conference of Catholic Bishops,
pushing for larger refugee quotas in the United States. He also
sympathizes with the plight of illegal immigrants, whom he described in
an October 2, 2007 Orlando Sentinel Special as “the faces of millions
of men, women and children who, because of the lack of legal remedies
to address their immigration status live,[sic] in a fearful limbo with
their lives and their futures put indefinitely on hold.” Wenski extends
the same humanitarian sympathies to those denied access by the material
support bar.

Critics of the waiver process argue that the DHS
has been granting material bar exemptions far too slowly. However, the
real numbers remain elusive. According to Rosenzweig, more than 3,000
new exemptions have been made since May 2006; since April 2007, 124
duress-based exemptions have been issued. “That’s up from the numbers
cited in my testimony, because each day that goes by sees more
additional grants,” noted Rosenzweig. Bishop Wenski notes that while
3,000 refugees have been admitted, “442 asylum cases remain on hold,
with only 9 waivers for asylees granted.”

Some human rights advocacy groups, such as the radical Human Rights First—a
civil rights organization which filed amicus briefs on behalf of
alleged dirty bomb builder, Jose Padilla—view the ‘broadly written’
provisions of the Patriot and REAL ID acts as discriminatory toward
refugees, who can now be more easily refused access to the United
States. Prior to 2007, the U.S. government defined material support to
include laundry, medical, or grave-digging services to terrorist
subsidiaries— even when performed at gunpoint. Human Rights First
representative, Anwen Hughes, argued that the waiver process is largely
inefficient, because it places the burden of proof on applicants.
“Administrative agencies are not infallible,” she asserts, “and many of
the asylum seekers who come before them are unrepresented by counsel
and struggle to communicate their stories through inadequate
translation” and other barriers. In the case of Colombia, avoiding
material support is highly unlikely; Bishop Wenski estimates that
70% of the Colombian population has been forced to offer material
support to the Revolutionary Armed Forces of Colombia (FARC).

However, failing to balance asylum permissiveness with national
security can have serious implications, as has been demonstrated by
lenient Canadian immigration policies. In 2003, Former Canadian Ambassador Martin Collacott, Senior Fellow at the Frasier Institute,
told a Center for Immigration Studies audience that “in the case of
Canada our largest problem area has been our system for processing
asylum seekers… since this is the channel through which most
terrorists have entered Canada.” According to Collacott, the Canadians
have “stretched” the definition of refugee so far that a British minor
was granted refugee status in 1998 because he feared persecution by his
deceased father.

Of course, the Canadian example has some
exceptions. In 2006, the Canadian government attempted to deport 20
Coptic Christians because the Immigration & Refugee Board ruled
that the refugees did not face a reasonable threat, even though the
refugees reported significant, life-threatening religious
discrimination.

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