47:3 Change is Coming: Rethinking the Material Support Bar Following the Supreme Court’s Holding in Negusie v. Holder

Comment

Abstract

The material support bar and the persecutor bar preclude a grant of asylum to anyone who has either afforded material support to a terrorist organization or assisted in the persecution of others. These statutory bars to asylum are construed broadly and do not recognize a duress exception. As a result, hundreds of refugees, including child soldiers and women and children victimized by guerilla warfare, are denied immigration relief. In Negusie v. Holder, the Supreme Court undercut the broad application of the persecutor bar and found that the voluntariness of an individual’s action is relevant to the question of whether the persecutor bar should apply. The Negusie decision has laid the analytical foundation for a statutory duress exemption in the analogous material support bar context. As a result, Congress should amend the Immigration & Nationality Act to include an explicit duress exception to the material support bar.