A Sudanese doctor treats severely wounded members of a rebelgroup from Darfur while working for a humanitarian NGO. As a result of theassistance he provides, the doctor is then targeted by the Sudanese government-captured, interrogated and tortured for aiding Darfuri rebels. Fearing arrestand potentially execution, he flees to the United States in search of safetyand requests asylum.
Up until earlier this month, the doctor’s asylum claim wouldhave been denied, even if he legitimately feared persecution and immigrationauthorities found him to be credible. Providing medical assistance to injuredDarfuri rebels was considered “material support” to a terrorist organizationand therefore barred him from receiving asylum in the US. In response toadvocacy from groups like Physicians for Human Rights, however, Secretary ofHomeland Security Janet Napolitano fixed this flaw by creating an exemptionto the material support bar for health professionals who have provided medicalassistance to wounded combatants as part of their ethical and moralresponsibilities.
The “material support bar,” created by the USA PATRIOT Actin 2001 and codified in the Immigration and Nationality Act (INA), providesthat a noncitizen who commits an act that he or she “knows, or reasonably should know, affordsmaterial support” to a terrorist organization may not be admitted to the US.Because an applicant for asylum must be “admissible” before he can win asylum,the material support bar excludes many bona fide victims of torture andpersecution from gaining protection in the US for doing something as benign asgiving water to a family member who happens to be a member of a groupdesignated as a “terrorist organization” by the US government. Before the recent change, the provisionsquarely conflicted with internationally-accepted principles of medical ethicsand humanitarian law and contradicted ahealth care provider’s ethical duty to treat anyone in need, regardless of thepatient’s affiliation. Denial of asylum to these health professionals alsoclashes with US policies which support medical neutrality and the protection ofhealth care workers in war.
While this exemption is laudable, the material support barremains overbroad. It still makes no exemption for situations in which anasylum seeker assists a terrorist organization under duress or coercion. Thismeans that asylum seekers who are victimized by groups that the US hasofficially designated as terrorist organizations are treated as terroriststhemselves, even if they had no choice but to do what they were told underthreat of death. And the government has yet to define what exactly it means by“material support,” leaving it open to uneven and sweeping interpretation bythose who are charged with enforcing the immigration laws.
A 2009 Human Rights First Report estimated that over 18,000refugees and asylum seekers have been directly affected by expansiveterrorist-related provisions in immigration law. Rather than trying to addressthe negative impact of these provisions through piecemeal statutory changes andwaivers to individual classes of refugees, Congress should enact legislation toensure that all victims of persecution and torture who are neither guilty ofcriminal wrongdoing nor pose a threat to US security have a chance to winasylum. Anything less will continue to undermine our obligation to protectrefugees while doing nothing to protect the US against terrorism.