After the September 11th terrorist attacks at the hands of al-Qaeda operatives who slipped through the cracks of the US immigration system, immigration and asylum law became increasingly focused on ensuring that potential terrorists are not allowed into the United States. The USA PATRIOT Act and its subsequent legislation created what has become an unyielding bar to admission for any individual who is a member of a terrorist organization or who has committed terrorist activities. While the terrorism bar developed in response to real or perceived threats to US national security and has recently regained public light with the trial of the Nigerian “underwear bomber” and the New York foreign exchange student surveillance program, the terrorism bar as it exists today does not allow for a totality of the circumstances approach that accounts for all of the factors in an immigration applicant’s history. In addition, the overly broad definitions of the terrorism bar result in inconsistency and impossibility of predicting whether a particular group will be classified as a terrorist organization at any time in the future.
As a result of this inflexibility and overbreadth, the terrorism bar prohibits admission to the United States to genuine refugees and victims of terrorism. The waiver system, which ostensibly permits exemptions from the terrorism bar for immigration applicants who meet certain criteria, has developed into a cumbersome, complicated, and incomplete process that depends heavily on the cooperation within the Executive Branch and the discretionary whims of the individual adjudicator. A new approach to addressing terrorism in immigration law is required. This Paper proposes an alternative solution based on a fundamental principle of asylum law: individuals who have a well-founded fear that they will be persecuted based on their membership in a particular social group are deserving of protection in the United States. This Paper will propose a new particular social group of “former members or assistors of groups that engaged in terrorist activity” as a method of integrating terrorism analysis into the existing asylum framework, thereby clarifying the way that adjudicators must address applicants with terrorist pasts and eliminating many of the complicating factors that exist in the current terrorism and waiver schemes.
- particular social group,
- terrorism bar
Available at: http://works.bepress.com/emily_naser-hall/3/