In a case that
had been pending almost twenty-five years, Arlington Immigration Judge Paul W.
Schmidt found that the theft of food and livestock by the FMLN (Farabundo Marti
Nation Liberation Front) from the Respondent’s home did not constitute material
support of terrorism. The ruling paved
the way for an El Salvadoran man, who had escaped his country’s civil war, to
receive permanent residency in the United States.
The
Respondent, who fled El Salvador in 1988 when he found a bomb in front of his
house, had been attempting to obtain some form of immigration relief since
1990, when he filed his first asylum application. His most recent attempt was through an
application through the Nicaraguan Adjustment and Central American Relief Act
(known as NACARA), which permits, among other things, certain Central Americans
who have been present in the United States since the early 1990s to adjust to
permanent residency, provided they can show good moral character and extreme
hardship if returned to their home country.
Eligibility
for immigration relief, however, is often not enough. Rather, those who meet the eligibility
requirements must still show that they are admissible under U.S. Immigration
law. One ground of inadmissibility applies
to those who have provided material support to a terrorist organization. This is called the material support bar.
U.S. courts
have upheld a broad interpretation of the material support bar made by the
Board of Immigration Appeals. The
material support bar can be triggered, for example, merely by providing food
and directions to a group that the U.S. Government labels as a terrorist
organization. The text of the statute
itself provides for no exception to the material support bar even if the
support was given under duress. Thus, a
credible threat of immediate death may not excuse someone who has given food to
a group labeled as terrorist.
In the
Respondent’s case, he testified that twice the FMLN came to his home and took
food and livestock. The first time, they
took about twenty tortillas. The second
time, they took one of his animals. The
Respondent did not stop the FMLN because he feared that he would be killed. Because the U.S. Government labeled the FMLN
a terrorist organization, U.S. Immigration and Customs Enforcement argued that
this triggered the material support bar in the Respondent’s case.
In a
written opinion, Judge Schmidt ruled that it did not. Citing an unpublished Board of Immigration
Appeals case, the Immigration Judge found that in order to be material the
support has to be active. The fact that
the FMLN stole food and livestock from the Respondent, therefore, did not
constitute material support. The Judge
granted the Respondent his NACARA application, paving the way for him and his
minor daughter to become permanent residents.
By: William J. Kovatch, Jr.
Call now for an appointment:
(703) 837-8832
(571) 551-6069 (ESP)
wkovatch@kovatchlegalservices.com
