The Catholic University of America



The Material Support Problem


Is the United States betraying its pledge to provide asylum to refugees by defining some victims of terrorism as terrorists?

The answer would appear to be yes—the result of complex, confusing and hazily defined changes to immigration law over the past decade that have had the unintended consequence of keeping asylum seekers out of the United States who have legitimate reasons to be admitted.
Often referred to as the “material support problem” by immigration experts, the legal conundrum was the subject of the Catholic University Law Review’s 2010 symposium, “Immigration and National Security: Material Support and the War on Terror,” held  Jan. 29 in the Rayburn House Office Building on Capitol Hill.
The carefully crafted program brought together five well-known experts in immigration law to discuss how to fix the evident injustice in current immigration regulations, which denies asylum to refugees who have provided “material support” to groups that are deemed terrorist organizations by the U.S. government.
According to 2005’s REAL ID Act, material support can include such things as the provision of a safe house, transportation, communications, funds, transfer of funds or other material financial benefit, false documentation or identification, weapons (including chemical, biological or radiological weapons), explosives or training."'
Refugee advocates say the problem with the law is that it contains no exception for duress. That is, a person can be threatened or intimidated into providing support to such groups against his will, and in turn be held accountable as a material supporter of terrorism by U.S. asylum policy. Panelist Steven Schulman, who leads Akin Gump's pro bono practice worldwide, noted that such logic would have relegated the Jews who led the uprising against the Nazis in Warsaw, Poland, during World War II to terrorist status, as well.   
The material support provisions of U.S. immigration law have also kept out many Columbian asylum seekers, for example, who say they were coerced into supporting the Marxist-Leninist revolutionary guerrilla organization known as FARC.
The four-hour program explored the legislative history of immigration law, with particular attention on provisions designed to keep people out of the country who wish to do harm to the United States.
After opening remarks from CUA law’s Dean Veryl Miles and David Brewer, editor-in-chief of the Law Review, the panelists were introduced. They included Carlos Ortiz Miranda, an adjunct professor at the Columbus School of Law who has written extensively on immigration law; Anwen Hughes, senior counsel and deputy director of the Refugee Protection Program at Human Rights First; Jedidah Hussey, deputy chief of the U.S. Citizenship and Immigration Services; Melanie Nezer, senior director for U.S. Programs and Advocacy for Hebrew Immigrant Aid Society: and Steven H. Schulman of Akin Gump.

The speakers appeared to broadly agree on a number of key points. First, that the two major overhauls to immigration law since 9/11, the Patriot Act of 2001 and the Real ID Act of 2005, did not adequately consider the ramifications of their tightened provisions upon legitimate asylum seekers. Second, that American immigration law is needlessly complex, in part because too many agencies have some jurisdiction over it.
“It involves so many branches of government. There are so many players involved,” said Nezer.
Finally, the panelists criticized a provision in the law that permits any government adjudicator, such as a Department of Homeland Security asylum or refugee officer or an immigration judge, to determine on a case-by-case basis that a group is a “Tier III” terrorist group, and thus turn down asylum applications.
Fixing the material support problem in the law won’t be easy or quick, the experts predicted. “Most of these legal issues are still up in the air. You [aspiring immigration] lawyers have a decade of amusement ahead of you,” Hughes wryly commented.