Paper Terrorists: Independence Movements and the Terrorism Bar

Abstract

This Article explores the application of the terrorism bar in immigration law to noncitizens who have participated in an independence movement. It proposes a uniform standard that immigration adjudicators can use to determine whether a foreign entity is a state in order to promote accurate applications of the terrorism bar. The terrorism bar in the Immigration and Nationality Act is broad — it can bar most forms of immigration relief, including asylum, and reaches far beyond ordinary definitions of terrorism. For example, the terrorism bar can block immigration relief for noncitizens who nonviolently supported a militia fighting for independence against a repressive state or who received military-type training from such an organization. The terrorism bar applies even if that militia is supported by the United States. The bar can also ensnare a noncitizen’s spouse and children who have not themselves participated in those activities. Especially in light of its far reach and harsh consequences, it is of the utmost importance to accurately apply the bar, which can be challenging for cases on the margins. One such area is the application of the bar to noncitizens who have supported independence movements leading to the creation of new states, which are situations that often produce large numbers of asylum seekers and refugees. The complexity arises because the terrorism bar requires unlawful conduct, but participation in and support of a state’s armed forces are not unlawful. During an independence movement, a new state can emerge, and support of its armed forces is not unlawful even though hostilities may continue with the state from which it seceded. Adjudicators need to be able to determine when an entity achieved statehood because it could mean the difference between a noncitizen participating in unlawful rebellion, which could trigger the terrorism bar, and supporting the armed forces of a state, which would not. However, there is currently no uniform framework for analyzing questions of statehood in the context of the terrorism bar. Drawing from international law and domestic law, this Article proposes a standard that immigration adjudicators can use to assess questions of statehood to avoid the creation of “paper terrorists” — noncitizens who have participated in independence movements and are mistakenly labeled as terrorists under the Immigration and Nationality Act. This proposal stems from, and is consistent with, the statutory language of the Immigration and Nationality Act, and therefore does not require any legislative action. The proposed standard encourages immigration adjudicators to give full effect to the statutory language to promote more accurate applications of the terrorism bar.