Counterterrorism Laws Punish Legitimate Asylum Seekers

Ammar was 16 years old when his high school headmaster in his hometown about 60 miles outside of Baghdad signed him up to join the local government militia. It was the mid-1990’s, and Saddam Hussein was at the peak of his power. The government had established local militias across the country, often exploiting the service of teenage boys who had little choice but to join.

Ammar, whose name has been changed because he fears possible U.S. immigration consequences for speaking publicly about his case, was one of the lucky ones. In our conversations, he said that he had never had to use a gun, or participate in any sort of violence. Instead, Ammar’s responsibilities were limited to attending meetings every so often. His life, he recalls, remained dominated by “school and soccer.”

In 1998, roughly four years after Ammar was recruited into the militia and two years into his university studies, the militia revoked Ammar’s membership. The reason, he explained, was straightforward: he hadn’t been involved with the group since high school. By then he was 20, and on his way to a career as an engineer and eventually as a professor at Baghdad University.

But eight years later, in 2006, his time in the militia would come back to haunt him. At that point, Ammar had applied for asylum soon after arriving in the United States on a research fellowship — his ticket away from danger. He knew that conditions in Iraq were not improving and that he would need longer-term safety. But as a 28-year-old asylum seeker, Ammar learned that his high school headmaster’s decision to compel him to join the militia would likely result in his deportation back to Iraq.

Ammar’s case is not exceptional. The challenges he faced in applying for asylum are indicative of the ways in which exclusions to refugee status in U.S. law — originally developed to prevent Nazi war criminals from attaining asylum — have dramatically expanded in scope, preventing many innocent refugees from successfully applying for asylum and resettlement in the United States.

A Militia Roster

Ammar had been working as a professor at Baghdad University at the time of the U.S. invasion of Iraq in 2003. During that period, “there were a lot of professor assassinations,” He says because many academics had opposed Saddam’s rule. The perpetrators most often were pro-Saddam fighters who had lost power after the invasion.

Fearing for his life, Ammar moved back to his hometown, where he believed he might be safer. He was mistaken. There, Shia forces had begun a campaign of killing, detaining, and torturing those who had ever been associated with Saddam’s Sunni-dominated government. His name on the government militia roster in high school was enough to make him a target. In 2006, after two years of wondering whether he would be the next victim of assassination by anti-regime forces, he applied for opportunities abroad and fled to the United States on the fellowship.

But his previous affiliation with Saddam’s militia spurred a five-year-long battle against U.S. Customs and Immigration Services (USCIS) to remain in the United States. His legal struggle, which spanned the George W. Bush and Barack Obama administrations, centered on a bar to U.S. asylum law’s obligation to provide protection to those fleeing persecution, cases in which the U.S. government determines that an asylum seeker has previously “persecuted others.”

USCIS has increasingly relied on this bar in the years since the Sept. 11, 2001, attacks on the United States, particularly in cases where the individual was not associated with a State Department-designated “terrorist organization” that would give the agency another route to reject their asylum claim. In Ammar’s case, the bar led to an arduous legal fight, in which he continuously wondered whether he would be deported back to Iraq, where he believed he would face a high probability of being tortured or killed.

Sabi Ardalan, assistant director of the Immigration and Refugee Clinical Program at Harvard Law School, described the ubiquitous nature of these terrorism- and persecutor-related rejections for Middle Easterners fleeing persecution: “Pretty much any client from the Middle East who’s from a country where there’s any form of activity that the U.S. considers to be ‘terrorism-related’ has ended up with accusations of providing material support to terrorists.” And where the terrorism bar may not apply, such as in the case of the government-run militia into which Ammar was forcibly conscripted in high school, Ardalan says, the U.S. may try to apply what’s known as the “persecutor bar” — a bar to asylum for those who have “persecuted others” in their lifetime.

Fortunately, Ammar’s battle with USCIS ultimately ended in his gaining asylum. But just how many others have not been so lucky is difficult to ascertain.

Becoming a Refugee

There is no doubt that Ammar fit the definition of a refugee. Under U.S. and international law, a refugee is defined as “a person outside his or her country of nationality who is unable or unwilling to return to his or her country of nationality because of persecution or a well-founded fear of persecution on account of race, religion, nationality, membership in a particular social group, or political opinion.” This definition is based in the 1951 Refugee Convention and its Protocol, signed by 144 countries. The United States ratified the Convention in 1968, accepting the legal obligation to protect refugees.

Given the circumstances, Ammar fell squarely within the definition. He was a person with a “well-founded fear of persecution” due to his political opinion — or more specifically, his imputed political opinion. Whether or not he actually supported Saddam Hussein had no bearing on his safety. Ammar’s name appeared on a list as a member of one of Saddam’s militias, and his life was in grave danger because of it.

Under international law, the Refugee Convention lists several actions under Article 1F that may exclude an individual from receiving protection under the Convention, including acts such as war crimes and “serious non-political crimes.” However, these exclusions have a much higher bar than the exclusions to asylum under U.S. law. Both the U.S. persecutor bar and the terrorism bar, for example, encompass the provision of material support to terrorist organizations, even where there is no “specific intent” involved. And of particular relevance to Ammar’s case, there have been a number of cases in the United States. wherein individuals have been excluded under the persecutor bar even where their actions did not directly contribute to the persecution of others.

A Stand-In for `Terrorism Bars’

The “persecutor bar” to asylum was originally developed in the post-World War II era as a means to keep Nazi war criminals from entering the United States as asylum seekers. But in several cases since the bar’s inception, courts have vacillated on the degree of voluntariness and intent that must be behind the persecution to satisfy the persecutor bar. And often, the burden falls on the asylum seeker to demonstrate that they did not serve as an active participant, a task that is far from straightforward.

Over the last few decades, the persecutor bar has morphed into a barrier that has kept thousands of individuals who meet the refugee definition from receiving the protection they need. Both the terrorism bar and the persecutor bar are intended to keep out asylum seekers who might pose a danger to Americans. But they have come to include everything from active participation in organizations like ISIS (actions for which the bar was intended) to innocent individuals caught in the crosshairs of an armed conflict in their home country. Under U.S. law, merely living in or providing humanitarian aid to an area being governed by a terrorist organization could amount to providing “material support” to a terrorist organization.

Looking back, Ammar recalled thinking that the asylum application’s requirement to list all group associations, from student groups to religious organizations and more, might be a problem based on his time in the militia. But Ammar told the truth, hoping that the asylum officer would understand his situation, and recognizing that there could be serious consequences if he were found guilty of immigration fraud. Though he does not regret his honesty with the immigration officer, Ammar realized it came at a cost when he received the denial letter. “In this country, if you’re honest and you say the truth about your history or self, then you’re going to get hurt. They’ll put 1 million red flags [on you].”

Ardalan explained that these bars have impacted a number of her clients over the years. In a particularly notable case, the government asserted that a Syrian doctor should be barred from Temporary Protected Status because her work as a medical provider meant that she had given “material support” to terrorists, despite the fact that the Hippocratic Oath obligates doctors to provide care to anyone who needs it, and that medical care is protected under international humanitarian law.

The doctor’s story, like Ammar’s, appears extreme. But according to Ardalan, these cases are all too common.

Pushing the Limits of International Law

It is impossible to know how many people have been affected by terrorism and persecutor bars, as most asylum seekers affected are never told the reason they’ve been denied asylum or refugee status.

But it is clear is that this phenomenon has gone far beyond the original intent of the bars to refugee protection, explained Benjamin Saul, a professor of international law at the University of Sydney.Saul drew an analogy between Ardalan’s case of a doctor excluded on the basis of treating wounded terrorists and a 2009 U.K. Court of Appeals case. In MH (Syria) v. Secretary of State for the Home Department, a British court applied international refugee law and held that a Syrian nurse who had provided medical care to members of the Kurdistan Workers’ Party (the PKK, a Kurdish political group designated as a terrorist organization by the European Union and the United States) could not be excluded on those grounds.

Ammar, who was accused of “persecuting others” due to his membership in Saddam’s militia, was not a member of a terrorist organization, nor was he an active and voluntary participant in the militia. But, as Saul has pointed out, the United States has expanded the UN’s exclusions to refugee protection to extreme lengths, punishing innocent individuals like Ammar who are escaping the same violent groups threatening the United States. 

The Unlucky Ones

Ultimately, Ammar and his team of attorneys were able to prove that Ammar was not the war criminal that the persecutor bar was meant to keep out. He demonstrated that he had never been an active participant in Saddam’s militia, effectively proving that the bar did not apply.

But while Ammar won the battle and attained asylum, he counts himself among the “lucky ones.” Many of his friends faced the same hurdle and were deported back to Iraq. “The only reason [the asylum officers] believed me was because I went with five lawyers from Harvard,” he told me.

Today, Ammar is working as a professor in Massachusetts. Asked how he would change the asylum claims system to address security concerns without punishing people like himself, Ammar did not hesitate: “I just wish someone would be a human and listen and at least try to understand.”

(The author is a student at Harvard Law School and has worked with Professor Sabi Ardalan.)

Image: KARIM SAHIB/AFP via Getty Images

 

About the Author(s)

Niku Jafarnia

A joint law and public policy student at Harvard Law School and Harvard Kennedy School focused on the intersection of refugee rights, armed conflict, and counterterrorism. Follow her on Twitter (@NikuJafarnia).