Bipartisan Call to Address Impact of Immigration Inadmissibility Provisions

Sweeping Definitions Block Case by Case Refugee Determinations, keep U.S. from living up to its Ideals.

In today’s USA Today, Elliot Abrams, former deputy national security advisor to President George W. Bush, and Eric P. Schwartz, former assistant Secretary of State for Population, Refugees and Migration in the Obama administration, shine a light on a key problem in U.S. immigration law: overbroad inadmissibility provisions that unnecessarily prevent refugees from entering the country. The piece hails recently issued waivers to allow case-by-case assessments for some refugees, while calling for additional steps.

Abrams and Schwartz—both members of the bipartisan U.S. Commission on International Religious Freedom—draw attention to the impact of sweeping immigration law definitions on U.S. resettlement of refugees from Syria and other countries. As a result of these provisions, U.S. immigration law “defines terrorists to include any collection of individuals that uses armed force against any government, even a murderous tyranny opposed by the United States. It does not recognize that in a civil war, it is often impossible for civilians to avoid contact with such people.” The authors note that “[T]he rules block refugees who have provided non-lethal support to the very groups our government backs…” and ask “[W]hy should we punish Syrians for following our lead?”

Due to the impact of these provisions on innocent people, Congress gave the Departments of Homeland Security and State, in consultation with the Department of Justice, the authority to grant waivers (known technically as “exemptions”), authority that was expanded by a bipartisan effort led by Senators Patrick Leahy (D-VT) and Jon Kyl (R-AZ) in 2007. For example, exemptions have been available on a case-by-case basis since 2007 to anyone who provided “material support” to any armed group while under duress.

In February, DHS announced exemptions & that clear the way for case-by-case assessments of some refugee cases. These exemptions are subject to numerous additional conditions and security safeguards, which block anyone who presents a threat to U.S. security.

While these exemptions are important, Abrams and Schwartz call on the administration to go further by using its exemption authority to allow case-by-case determinations for other refugees, including former combatants who never acted against U.S. interests and have laid down their arms, and refugees who had innocent contacts with groups designated or listed as terrorist groups. All such exemptions would specifically exclude anyone who presents a threat to the U.S., fails to meet any one of a long list of additional restrictions, or doesn’t pass rigorous background and security checks.

Case-by-case determinations in additional cases could change the future for many refugees, including a widow from Iraq who was denied U.S. resettlement because members of a group designated as a terrorist organization bought flowers from her flower shop. DHS deemed these flowers bought from the widow, who supported herself and her daughter by working as a florist, as “material support” to the Iranian MEK, which, ironically, was under the protection of the U.S. military in Iraq at the time. This woman is separated from her daughter, who was resettled to the United States years ago with the expectation that her mother would soon follow.

Human Rights First has outlined specific recommendations for next steps here.

As Abrams and Schwartz point out, the United States has long provided safe haven to those escaping tyranny. By issuing the February waivers and taking additional steps, the United States would restore “a measure of justice and commons sense to the process while doing no injury to the nation’s security needs” and provide “a ringing affirmation of our heritage and history as a compassionate, welcoming country.”

For more background on the impact of these provisions on the resettlement of Syrian and other refugees, read Human Rights First’s backgrounder on inadmissibility exemptions, Refuge at Risk: The Syria Crisis and U.S. Leadership, and Denial and Delay: The Impact of the Immigration Law’s “Terrorism Bars” on Asylum Seekers and Refugees in the United States.