Two Hooligans Forever Barred: When the Immaterial Becomes Material

As victims of persecution, war, and forcible displacement, refugees and asylees are unprotected by their own governments and depend on the compassionate response of others. The United States asylum system, in support of international human rights efforts and humanitarian ideals, offers protection to those fleeing persecution. However, asylum seekers often face a convoluted web of immigration statutes, procedures, and grounds of exclusion that may deem them inadmissible. One ground of inadmissibility, the "material support bar," statutorily bars applicants from asylum if they have provided "material support" to a terrorist organization or for terrorist activity. This provision has been interpreted expansively by immigration and Article III courts and has created dangerous precedent that effectively treats immaterial support as material and victims of terrorism as terrorists.Part I of this Note details the history of refugee law and the historical purposes for excluding criminals and persecutors from refugee status. Part II analyzes the legislative development of the material support bar and demonstrates how broadly it was drafted. Part III evaluates how federal agencies, immigration courts, and Article III courts have interpreted the statutory text even more broadly to exclude not only the criminally dangerous but also their victims. Part IV proposes a two-fold legislative solution and an executive solution. First, Congress should amend the Immigration and Nationality Act to (1) define the word "material" so that insignificant and unrelated actions are exempt under the material support bar and (2) add an explicit duress waiver for asylum seekers during the asylum adjudication process. Second, the Attorney General should certify the Board of Immigration Appeals decision in A-C-M, reverse it, and release a decision defining what "material" means consistent with this Note's first legislative proposal.