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Abstract
This Article explores the application of the terrorism bar inimmigration law to noncitizens who have participated in anindependence movement. It proposes a uniform standard thatimmigration adjudicators can use to determine whether a foreignentity is a state in order to promote accurate applications of theterrorism bar. The terrorism bar in the Immigration and NationalityAct is broad—it can bar most forms of immigration relief, includingasylum, and reaches far beyond ordinary definitions of terrorism. Forexample, the terrorism bar can block immigration relief fornoncitizens who nonviolently supported a militia fighting forindependence against a repressive state or who received military-typetraining from such an organization. The terrorism bar applies even ifthat militia is supported by the United States. The bar can also ensnarea noncitizen’s spouse and children who have not themselvesparticipated in those activities.
Especially in light of its far reach and harsh consequences, it isof the utmost importance to accurately apply the bar, which can bechallenging for cases on the margins. One such area is the applicationof the bar to noncitizens who have supported independence movementsleading to the creation of new states, which are situations that oftenproduce large numbers of asylum seekers and refugees. Thecomplexity arises because the terrorism bar requires unlawfulconduct, but participation in and support of a state’s armed forces arenot unlawful. During an independence movement, a new state canemerge, and support of its armed forces is not unlawful even thoughhostilities may continue with the state from which it seceded.Adjudicators need to be able to determine when an entity achievedstatehood because it could mean the difference between a noncitizenparticipating in unlawful rebellion, which could trigger the terrorismbar, and supporting the armed forces of a state, which would not.However, there is currently no uniform framework for analyzingquestions of statehood in the context of the terrorism bar.Drawing from international law and domestic law, this Articleproposes a standard that immigration adjudicators can use to assessquestions of statehood to avoid the creation of “paper terrorists”—noncitizens who have participated in independence movements andare mistakenly labeled as terrorists under the Immigration andNationality Act. This proposal stems from, and is consistent with, thestatutory language of the Immigration and Nationality Act, andtherefore does not require any legislative action. The proposedstandard encourages immigration adjudicators to give full effect to thestatutory language to promote more accurate applications of theterrorism bar.