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On September 1, 2011, the National Immigrant Justice Center (NIJC), with the pro bono assistance of SNR Denton US LLP, filed a Freedom of Information Act (FOIA) request with the Department of Homeland Security (DHS) regarding the terrorism-related immigration bars. The way immigration law defines terrorism is very different from how that word is ordinarily understood, and could include, for instance, the Founding Fathers, the Free French resistance forces during WWII, anti-Gaddafi rebels, and the Northern Alliance in Afghanistan.

The FOIA requests information related to the so-called “Tier III terrorist organizations.”  “Tier III terrorist organizations” are groups that are not designated terrorist organizations according to the Department of State, DHS, or the Department of Justice.  Rather, they are groups that DHS has determined do fall within a definition of a terrorist organization under the Immigration and Nationality Act, which defines a terrorist organization as “a group of two or more individuals, whether organized or not, which engages in, or has a subgroup which engages in, [terrorist activity].”  The definition of terrorist activity includes unlawful activity involving “the use of any explosive, firearm, or other weapon… with the intent to endanger the safety of one or more individuals or to cause substantial damage to property.”  The terrorist activity definition does not contain any exceptions for individuals who were forced to support such a group even if they were children at the time.

Due to the extremely broad definition of a “Tier III terrorist organization” and “terrorist activity,” many legitimate asylum seekers, refugees, and their families have been barred from protection in the United States even though they have never been involved in violence themselves and pose no threat to the security of the United States. For example, one of NIJC’s clients faced a terrorism bar for having belonged to a prominent political opposition party that did not use violence itself, but was part of a larger coalition, which included another party that allegedly used violence. The client was never involved in any violent activity himself and DHS did not claim that he posed a threat to the security of the United States, but it still refused to grant his application based on the Tier III terrorism bar.

The Tier III terrorist organizations are undefined. DHS has not made public any list of the groups that it considers to be Tier III terrorist organizations or the criteria it uses to determine whether a group is a Tier III terrorist organization.  Moreover, DHS does not have to provide any notice before raising the terrorism bar against an individual. As a result, asylum seekers and their attorneys have little opportunity to defend against the bar. The FOIA that NIJC filed requests information regarding any lists of Tier III organizations created by DHS, and research methods and material DHS uses to determine whether a group constitutes a Tier III terrorist organization. This information will provide greater clarity regarding DHS’s use of the Tier III terrorism bar and will help ensure that bona fide asylum seekers are not erroneously barred from the protection that they deserve in the United States.