Jose Barahona says that he would have been killed had he refused to open his door when the armed guerillas occupying his town demanded he let them use his kitchen and sleep on his floor. He says that's what happened to his father. Dead. And he says it was because of the fear of death during the war raging between the FMLN guerillas and the Salvadoran government that at the age of 24, with his new wife and baby boy, he left his Salvadoran mountain village and came to the United States where the couple would have two more children and where he'd spend the next two and half decades. He thought he'd left all the violence behind.
Twenty six years after that departure, on March 22nd 2011, now 51-year-old Barahona was shuttled from a Virginia immigration detention center to an immigration court where he listened in astonishment as a lawyer for the Department of Homeland Security argued that when he opened the door all those years ago for the armed Farabundo Martí National Liberation Front guerillas, he'd acted in support of terrorism. He "provid[ed] material support for a group engaged in terrorist activities," the Department of Homeland Security attorney said. And then Barahona listened as the judge ordered his deportation to El Salvador.
Barahona, who will appear in a federal appeals court on Tuesday to challenge the immigration court's ruling, has found himself the target of the government's reaching application of counter-terrorism laws to compel the deportation or exclusion of immigrants and asylum seekers. Using laws meant to stop people who would do the country harm from entering or staying in the United States, Barahona and an unknown number of others who pose no threat to the country are treated as terrorists on the grounds that they'd provided "material support" to terrorist organizations. The laws often flip reality on its head, casting the terrorism appellation far beyond a reasonable scope and treating victims as victimizers, the terrorized as terrorists.
A Widely Cast Net
For most of the last 27 years, Barahona lived in the United States as a documented immigrant. He was granted permission to stay in the county in the late 1980's when he applied for Temporary Protected Status, a kind of immigration relief available to people from designated countries to which a return would pose a safety risk. For years he worked in the construction business, as a carpenter, and in restaurants, supporting his children, who are now in their 20s. In 2010, things turned for the worse for Barahona when he lost his authorization to stay in the country after he was convicted of a misdemeanor. Without permission to work, he fell on hard times, was cited for domestic violence, separated from his wife and after he was ticketed for trespassing by Prince William County, Virginia cops he found himself detained in an federal immigration jail facing deportation proceedings.
Barahona applied for relief from deportation under the NACARA law, which created a pathway to legal residency for asylum seekers from eligible countries including El Salvador. His case should have been a strong one. He'd lived in the US for two and half decades and the judge agreed that Barahona showed "good moral character" and that his deportation would cause him and his family significant hardship.
But the government's attorney was not having it. She arrived in court committed to Barahona's expulsion from the United States and she pulled no punches. To Barahona's astonishment, the attorney argued that his interactions half a lifetime ago with the FMLN guerillas "rises to the level of material support" for terrorism and that he was therefore ineligible to remain in the country.
A decade after September 11, 2001, the government is continuing to wield it's broad counterterrorism powers against people who pose no threat. Material support laws have led to the prosecution of people alleged to have the most negligible connections to groups designated as terrorist organizations, the criminalization of human rights groups that have engaged with designated terrorist groups and to the intentional circumvention of the justice system when no crime has occurred but the government nonetheless seeks punishment.
In the context of immigration and asylum, material support laws have had major implications for non-citizens applying to enter or for the right to stay in the United States.
In the 1990's, Congress added specific provisions to immigration law that barred anyone who provided "material support" to a terrorist group from gaining lawful immigration status. Material support was defined broadly-- providing a "safe house, transportation, communications, funds, transfer of funds or other material financial benefit, false documentation or identification, weapons." The laws were meant to be applied to people who posed a real threat to the United States. But after September 11, 2001 the legal landscape changed when Congress vastly expanded the kinds of groups and activities treated as material support.
"2001 is the watershed year," according to Anwen Hughes, an attorney with the group Human Rights First and an expert on the material support bars in immigration and asylum law. She explained that the PATRIOT Act, the behemoth counter-terrorism law passed by Congress just six weeks after September 11, 2001 changed everything. "At that point, Congress swept a whole new range of organizations into this terrorist category," she said.
The PATRIOT Act and a set of other laws passed several years later including the Real ID Act of 2005 changed the rules so that people who'd had even a remote association with a group construed as a terrorist organization became a material supporter of terrorism. And the law was applied to people who acted under duress.
"By 2004," said Hughes, "we started seeing cases where DHS implemented the material support bar systematically, applying it to everyone--people who were coerced." Medical providers who'd cared for wounded insurgent soldiers were denied their asylum claims. Child soldiers who were forcefully conscripted, Iraqis who in the 90's battled Saddam Hussain with the express support of the United States, Cubans who resisted the Castro government and countless others were denied asylum, relief from deportation or a green card.
The ironies in the application of the laws are endless.
At almost exactly the same hour of the same March day that the immigration judge told Barahona that he was to be deported because of his previous involvement with the FMLN under force, President Barack Obama was in El Salvador where he was visiting Mauricio Funes, the new Salvadoran President who hails from the FMLN political party.
In the March decision, the immigration judge in Barahona's case explained that his hands were tied by the Department of Homeland Security's seemingly arbitrary use of the material support bar.
"I want to make it clear," said the judge, "were it not for this material support issues I would have found the respondent meets the criteria of relief under ... NACARA."
In other words, the judge would have allowed Barahona to stay in the United States and to become a permanent resident were in not for the government's claim that he'd acted in support of a terrorist group. The judge admonished federal immigration authorities to change course.
"I would urge whoever is making the decisions, Department of Homeland Security, to allow the duress exception."
Asylum seekers and immigrants like Barahona whose cases have been viewed favorably by immigration courts are then put into legal limbo when the Department of Homeland Security asserts their past activity amounts to material support. Data released to advocates who attended a Department of Homeland Security meeting in March shows that as of the end of February, over 4,600 people had their immigration cases on hold, awaiting a decision from immigration authorities on whether they'll be eligible for an exemption to the material support bar.
Barahona is represented in court by the immigration clinic at the University of the District of Columbia law school. Kristina Campbell, the director the clinic, says that if Barahona did not have legal support, he'd already have been deported. The clinic appealed the immigration court's decision to the Board of Immigration Appeals, the appellate authority in the immigration system. In September, the Board agreed with the lower court that he must be deported as long as the government's material support bar remained.
Anwen Hughes says the use of the material support bar in a case like Barahona's reflects little more than the impulse on the part of "Federal agencies... to retain as much power as they can."
"Immigrants in this dynamic are collateral damage and causalities of a desire of the government to have very broad enforcement powers," says Hughes.
Congress provided federal immigration authorities vast discretion to exempt from the material support bar anyone who acted against their will but without an express exemption the courts are bound. In 2007, in response to outcry from advocates, the federal government did begin issuing exemptions in some cases where people acted under duress and against their will. But according to Hughes, "the discretionary process continues not to reach a lot of applicants."
"Though the statute gives broad authority to Secretary of Homeland Security to give discretionary exemptions to anyone who did not voluntarily have connections, it's not always applied. You would think that involvement under duress with the FLMN" would fit the bill for an exemption.
According to Campbell there is no way for those pegged with a material support bar to formally appeal to the Department of Homeland Security for an exemption. "I don't really know who makes the decision about who gets an exemption," she said. "The process is arbitrary and capricious."
Two months ago, on March 22nd, exactly one year to the day that the immigration judge first ordered Barahona deported on material support grounds, the Department of Homeland Security's Terrorism Related Inadmissibility Grounds Working Group, which apparently makes discretionary decisions about the material support bar, sent Barahona a letter. It reaffirmed that his interactions with the FMLN guerillas amounted to material support and there would be no duress exemption.
"Although we have determined that you provided this material support under duress," the letter read, the government has "determined it will not exercise favorable discretion in considering your case."
What's To Come
Barahona will appear today in the 4th circuit federal appeals court in Richmond, Virginia where a panel of judges will hear arguments in his case.
Kristina Campbell plans to argue in court that what Barahona did cannot be construed as material support for terrorism, but that even if it could, the court should find that because her client had no choice in helping the FMLN, the bar should not be applied. If argument prevails, the decision could have significant implications for the breadth of the government's power to use the material support bar. If Barahona loses and the government gets its way, the case could help cement the government's ability to widely cast the material support bar in immigration cases.
The government's unyielding insistence on Barahona's deportation raises a set of questions about the possible misuse of the material support bar.
Campbell suspects that the working group charged with material support decisions denied Barahona an exemption because of his earlier misdemeanor convictions. "My clients crime was extremely minor," she said, "but the attorney wants him gone." What a few misdemeanor offenses have to do with support for terrorism is unclear.
Questions about the department of Homeland Security's use of discretionary power have been on the front burner of immigration debates recently. Memos from the head of Immigration and Customs Enforcement instruct immigration agents and attorneys to consider dismissing deportation for immigrations who are clearly eligible to gain lawful status in the United States. Though Barahona initially faced deportation proceedings only because of his undocumented immigration status and the immigration judge was clear that were it not for the material support bar he'd be on his way to legal residency, federal officials have continued to pursue his deportation.
"They don't want to concede anything on my client," said Campbell. "The government's position is that any conduct makes you inadmissible on the material support grounds."
At the close of his March 2011 hearing, Jose Barahona asked the judge if he could say one last thing.
"We didn't lend our kitchen to the guerillas. I mean, we were forced to do that. ... We had no choice."
Sympathetically, the judge responded, "Sir, I clearly understand that."
The federal government seems not to care.