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Avoiding the Creation of "Paper Terrorists" Under Immigration Law

Professor Pooja Dadhania

The terrorism bar in the Immigration and Nationality Act (INA) may at first glance seem apparent and uncontentious.

Broadly, the Department of Homeland Security explains terrorism-related inadmissibility grounds (the terrorism bar) as follows:

“Generally, any individual who is a member of a ’terrorist organization’ or who has engaged or engages in terrorism-related activity … is ‘inadmissible’ (not allowed to enter) the United States and is ineligible for most immigration benefits.”

However, the INA’s terrorism bar is broad—it reaches far beyond ordinary definitions of terrorism, writes California Western Professor Pooja Dadhania in a scholarly article recently published in the California Law Review entitled Paper Terrorists: Independence Movements and the Terrorism Bar.

For example, writes Professor Dadhania, the terrorism bar can block immigration relief for noncitizens who nonviolently supported a militia fighting for independence against a repressive state or received military-type training from such an organization. The terrorism bar applies even if the United States supports that militia. 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 terrorism bar, which can be challenging for cases on the margins, continues Professor Dadhania. One such area that Professor Dadhania explores is applying the bar to noncitizens who have supported independence movements leading to the creation of new states, which often produce large numbers of asylum seekers and refugees.

Professor Dadhania proposes a uniform standard that immigration adjudicators can use to determine if a foreign entity is a state and thus more accurately apply the terrorism bar in these situations. Her proposal, which draws from international and domestic law, would mitigate against the creation of “paper terrorists”—the mistaken labeling of noncitizens who have lawfully participated in independence movements as terrorists.

This proposal stems from, and is consistent with, the INA's statutory language, and therefore does not require any legislative action. The proposed standard encourages immigration adjudicators to fully consider the statutory language in an effort to promote more accurate application of the terrorism bar.

It is of the utmost importance to accurately apply the terrorism bar to noncitizens, especially asylum seekers, writes Professor Dadhania. The consequences of reaching an erroneous decision are grave—a bona fide asylum seeker could be labeled a “paper terrorist,” turned away from the United States, and returned to their home country to face persecution, torture, and death for engaging in lawful conduct.

Read Professor Dadhania's complete California Law Review article here.