Immigration Attorney Raymond Lahoud presents on the Terrorism-Related Inadmissibility Grounds (TRIG) Bars and the application of the TRIG Bar in Immigration Proceedings.

1. This handout provides information in the area of labor & employment law.
The information contained in this handout should not be construed as legal advice,
and readers should not act upon it without professional counsel.
Copyright © 2017 Norris McLaughlin & Marcus, P.A.
TERRORIN ASYLUM
PROCEEDINGS
The Terrorism Bar to Asylum
Raymond G. Lahoud, Esquire

2. TRIG
• Terrorism Related Inadmissibility Ground
• Asylum May Not Be Granted if Asylum Seeker:
– Was or Is a Member or Representative of a
“Foreign Terror Organization”
– Was Engaged, Is Engaging, or Wants to Engage in
“Terrorist Activities”
– Endorses or Espouses “Terrorist Activity”
– Other: Received military-type training or spouse/child

3. Member or Representative of a “Foreign
Terror Organization”
• Member
– Was, Is, or Wants to Be a Member
– Membership is Expansive in Scope
• Representative
– Officer, official, or spokesman
– Anyone who directs, counsels, commands, or induces
members to engage in terror activities

4. Member or Representative of a “Foreign
Terror Organization” (cont.)
• Foreign Terror Organization (FTO)
– What is a Foreign Terror Organization?
• Must be a Foreign Organization
• Organization Must Engage, Be Capable of, and Intends
to Engage in Terror Activities
• Terror Activities Must Threaten the Security of the
United States

5. • Foreign Terror Organizations (codified at INA 212(a)
(3)(B)(vi)(I-III))
– Tier I
• Mainstream Terror Groups
• Hamas, Hezbollah, al-Qa’ida, Al-Shabaab, Real Irish
Republican Army, Hezbollah
• No Defense
Member or Representative of a “Foreign
Terror Organization” (cont.)

6. – Tier II
• State Department Terrorist Exclusion List (TEL)
• Groups: Afghan Support Committee, The
Pentagon Gang, Al Rashid Trust
• No Defense
Member or Representative of a “Foreign
Terror Organization” (cont.)

7. – Tier III
• No Specific Designation
• Catch-All Requiring a Case-by-Case Determination
• Third Circuit Case
• Rebuttable Presumption
• Factually dependent
• Look beyond the “military”element, as non-profits and
similar groups can fall within the Tier
Member or Representative of a “Foreign
Terror Organization” (cont.)

8. Tier I and Tier II Foreign Terror Organizations

9. Member or Representative of a “Foreign
Terror Organization” (cont.)
• Tier III
– Open-Ended
– No Official Register: Case-by-Case Analysis
– Groups “of two or more individuals, whether
organized or not, which engage [] in, or [have] a
subgroup which engages in,” terrorist activity.

10. Member or Representative of a “Foreign
Terror Organization” (cont.)
• Tier III
– Burdens: (1) DHS must introduce evidence
“indicating” that a group qualifies as a Tier III terrorist
organization; (2) Burden shifts to Applicant to prove
“by a preponderance of the evidence” that the bar
does not apply.
– If deemed a Tier III organization member, TRIG bar
can be overcome with clear and convincing evidence
that the applicant “did not know, and should not
reasonably have known. . .that the organization was a
terrorist organization.”

11. Member or Representative of a “Foreign
Terror Organization” (cont.)
– Uddin v AG
• “[L]ittle guidance from Courts of Appeals as to how to
determine whether an organization is a Tier III terrorist
group.” The BIA is all over the place…
• “Uncoordinated activities by individual members” are
insufficient to establish Tier III status.
• An “organization receives Tier III status only if a group
itself engages in terrorist activity. A rule that there must
be evidence of authorization from party leaders is most
faithful to that statutory text.”
• Actual authorization by leadership

12. Was Engaged, Is Engaging, or Wants to
Engage in “Terrorist Activities”
• Terrorist Activities (Actual, Threat, Attempt, or
Conspiracy - EVER) - Statutory
– Hijacking or Sabotage of ANY conveyance (airplanes,
ships, to cars)
– Seizing or Detaining AND Threatening to Kill, Injure,
Detain to Compel the Action of a Third Person (Ransom)
– Violent Attack on Internationally Protected Person (IPP) or
that IPP’s liberty
• IPP
– Chief of State or the political equivalent OR head of government OR
Foreign Minister
– Attack is at a time when such person is in a country other than his own
– Assassination
– Use of Biological, Chemical, or Nuclear Agents/Devices

13. Was Engaged, Is Engaging, or Wants to
Engage in “Terrorist Activities” (cont.)
• Engaged, Engaging, or Reason to Believe Will
Engage In - Statutory
– When an alien, either in capacity as an individual or a
member of a FTO:
• Commits or incites with the intent to cause death or
serious bodily harm, a terrorist activity
• Prepares or plans a terrorist activity
• Gathers information on potential terror targets
• Solicits funds for terrorist activities
• Solicits individuals to commit a terrorist activity or for
membership in a FTO

14. Was Engaged, Is Engaging, or Wants to
Engage in “Terrorist Activities” (cont.)

15. Endorses or Espouses Terrorist Activity
• Did You Ever? Do You Now?
• Private or Public Endorsement of a Terror Group, a
Terror Group’s Specific Terror Actions, or Support
for a Terror Group’s mission, statements, beliefs
• Religious Congregations (sermons, prayer sessions
and ICE agents)
• The Social Media TRIG Bar
– Increasing Source of Evidence to Establish TRIG
under “Endorse or Espouse” Category
– To Like or Not to Like?
– To Comment or Not to Comment?

16. Exceptions to the Terror Bar
• Bar is Mandatory in Affirmative and Defensive
Asylum Proceedings
• Only the Secretaries of State and Department of
Homeland Security, in consultation with the
Attorney General can grant a TRIG Exception
– Waivers/Exceptions are RARE. Exceptions
Granted.

17. Exceptions to the Terror Bar (cont).
– Exception Examples:
Material Support Under Duress All Burma Students Democratic Front (ABSDF)
Solicitation Under Duress All India Sikh Students Federation-Bittu Faction
Military-Type Training Under Duress Iraqi National Congress (INC), Kurdish Democratic Party (KDP) and Patriotic Union of Kurdistan (PUK)
Voluntary Medical Care 10 Named Organizations in the Consolidated Appropriations Act of 2008 (CAA)
Certain Applicants with Existing Immigration
Benefits
Certain Association or Activities with the Kosovo Liberation Army (KLA)
Iraqi Uprisings Farabundo Marti para la Liberacion National
Certain Limited Material Support Nationalist Republican Alliance (ARENA)
Insignificant Material Support Ethiopia People's Revolutionary Party (EPRP)
Oromo Liberation Front (OLF)
Tigray Peoples Liberation Front (TPLF)
Democratic Movement for the Liberation of Eritrean Kunama
Eritrean Liberation Front (ELF)
Certain Burmese Groups

18. Dealing with the TRIG Bar
• No Simple Task
– A growing DHS “test” tool
– Lacking Judicial Guidance
– BUT…Judicial Guidance is Developing
– Do not be deterred. Challenge, challenge,
challenge.

19. Challenge, Challenge, Challenge
• Tier I, II, III - Membership, Engaging, Enticing.
• What is “membership?”
• “He Was Not Enticing!”
• “Engaging in What???”
• “How is that ‘Material?’ It was only a sandwich?”
• Tier III
– Challenge DHS’s evidence to “indicate” a group qualifies as a Tier III terror
organization.
– Regardless of how minimal the evidence, introduce evidence to assert and preserve
the finding.

20. Challenge, Challenge, Challenge
• For Everything Else Terror…
– FOIA records from every possible government agency and challenge redactions
– Challenge every piece of government evidence.
– Demand authentication and cross-examination.
– Request Evidentiary Hearings on certain factual issues.
– Know the Applicant’s entire story—ENTIRE story.
– Know extent of any involvement.
– Be prepared to not be surprised.
– Confront the issue
– Preserve the record
– Preserve underlying constitutional issues
– Brief, Brief, Brief