Fahamu Refugee Legal Aid Newsletter

This piece was submitted by Galya Ruffer, JD, PhD, the director of the Center for Forced Migration Studies (CFMS), Buffett Center for International and Comparative Studies, Northwestern University, and written with the assistance of CFMS student intern, Catherine Tyson, Anthropology and International Studies, Class of 2014. The article was written based on a discussion on the Immigration Law Professors listserv (Immprof),[i] initiated by Jeff Joseph, Esq., Senior Partner of the Joseph Law Firm, P.C., which specialises in immigration law.  

Individuals granted asylum or refugee status who qualify to file an application to register permanent residence (I-485) or family reunification often experience long delays of six to eight years because the United States Citizenship and Immigration Service (USCIS), in processing these applications, places the files on hold pending further investigation concerning the immigration law’s ‘terrorism’ related provisions. This note considers the use of mandamus to challenge the Tier III designation, concerns that such challenges might harm the applicant by triggering removal and a recent memorandum granting the USCIS discretion to release the hold on cases that can be clearly denied.

The USA Patriot Act defined ‘terrorist organisation’ in a three Tier approach where Tiers I and II include ‘foreign terrorist organisations’ designated by the US State Department under either pre-existing provisions of the law or publicly listed as such by the Secretary of State. A third category of groups, which have come to be known as ‘Tier III’ or ‘undesignated’ groups include ‘any group of two or more individuals, whether organised or not, which engages in, or has a subgroup which engages in “acts that the immigration law defines as ‘terrorist activity’”’. The provision extends to both any unlawful use of a weapon for purposes other than personal enrichment and to any person who provides ‘material support’ to such an undesignated terrorist group.

Once a file is placed on hold under the Tier III consideration of material support it most often remains there indefinitely. Legal advocates and council have been working to determine appropriate ways to get these applications out of administrative limbo. One question has been how to submit evidence that the group does not meet the definition of an undesignated terrorist group under INA 212(a)(3)(B)(vi)(III) so that USCIS can review the original finding that resulted in the conclusion of inadmissibility. The main problem is that it remains unclear what the appropriate channel is for requesting a court to review the administrative finding of fact that the application fell within the Tier III group in the first place.  Because the case is considered to be temporarily on hold, it has not been possible to file a motion to reopen or reconsider the decision or appeal it as an ‘adverse decision’ regarding the case. These motions cannot be filed because there is no ‘decision’. Even if it were possible to submit evidence, a further complication is how to have the USCIS conduct this finding without, at the same time, potentially deciding that the applicant should be removed.

An innovative approach that has just been upheld by the District Court of Colorado is the use of mandamus. In the case of Karim v. Holder, the attorney filed a mandamus for an asylee (Iraq) adjustment that had been pending for over six years regarding Tier III consideration.[ii] A writ of mandamus orders a public agency or governmental body to perform an act required by law when it has neglected or refused to do so. In Karim v. Holder, the Court held that USCIS had a nondiscretionary duty under its rules of procedure to issue a decision concerning Karim’s application for permanent residence status within a reasonable time. The rules of procedure governing the USCIS allow a court to compel agency action that has been ‘unlawfully withheld or unreasonably delayed’ (section 706 of the APA). Therefore, mandamus relief was appropriate. Concerns still remain, however, that filing the mandamus might cause the government to issue a decision that the applicant does, indeed, fall within the Tier III provisions of ineligibility triggering removal proceedings. Therefore, practitioners need to be careful and strongly consider the harm filing mandamus might cause to the client.

Another solution legal council have offered is to file an evidence packet that includes a step by step argument as to why the applicant does not fit within the Tier III category along with the application including evidence that the group alleged is not a terrorist group or was not one at the time the asylum application was filed, that the applicant did not know or could not reasonably have known, did not provide support or, if there was support, it was not material, or it was provided under duress. In a recent memorandum, the USCIS has been granted discretion to deny pending cases currently on hold. Since cases denied through an exercise of discretion are not viewed as a legal determination entitled to judicial review, it is important to supplement the application record and even, possibly, include evidence of country conditions and an expert affidavit in order to preserve a record should the case make it to federal court review.

[i] The Immprof list includes discussion of teaching and scholarship issues; immigration, nationality, asylum, refugee law. To subscribe, send a blank email to this email address. Subscription subject to approval by listowner.
[ii] Karim v Holder, District Court of Colorado, Civil action 08-cv-00671-REB (29 March 2010)