“A time to keep silent and a time to speak.”
Ancient Jewish Proverb
US IMMIGRATION LAW FOR VISITORS
A large part of the national security risk assessment focuses on terrorism-related concerns. This area of analysis is referred to as “Terrorism Related Inadmissibility Grounds” or “TRIG”. The grounds of inadmissibility related to terrorism encompass three general areas; i) actual terrorists seeking to enter the US to commit terrorist acts, ii) terrorist sympathizers who seek to assist terrorist organizations through funding or other kinds of support, and iii) persons who endorse or espouse terrorism and/or encourage others to do the same.
The DS-160 form includes a national security-related question:
“Have you ever or do you intend to provide financial assistance or other support to terrorists or terrorist organizations?”
The applicable ground of inadmissibility that relates to this is found at 9 FAM 302.6-2(B)(2)(u)(9), which states, “an applicant is ineligible under 212 (a)(3)(B)(i)(V) if the applicant endorses or espouses terrorist activity or persuades others to endorse or support terrorist activity or a terrorist organization.”
In essence, a visitor to the US who demonstrates, through their conduct, that they “endorse or espouse” such activity, could potentially be found inadmissible and have a future visa application denied. If this conduct were detected after the visa was issued (and presumably the applicant is in the US), the approved visa could be revoked, or a visa renewal application denied if detected at a later date.
There are millions of visitors in the US at any given time, including F-1 students, workers, researchers and professors, investors, and the like. Recent events in Israel and Gaza (October 7 2023) have led to widespread demonstrations in the United States including many on university campuses. Many foreign students have joined these protests including to voice support for the Palestinian cause and in some cases for the Hamas attack on Israel on October 7. Many have used their social media accounts to record their participation. In some cases, the posted social media documents that the visitor is “endorsing” or “espousing” what equates to terrorist activity by a terrorist organization (Hamas was designated a terrorist organization by the United States government on October 8, 1997).
The documented conduct is potentially a violation of the visitors visa status.
FREE SPEECH
This is not a freedom of speech issue. It is a US immigration law admissibility issue which includes assessing the conduct of certain non-immigrant visitors (students, visiting professors) to assess if the conduct (posting on social media for example) could lead to a finding of inadmissibility and visa denial. In some cases, the visa holder already in the United States would be subject to visa revocation and removal from the United States.
FAM
Foreign Affairs Manual
9 FAM 302.6
(U) INELIGIBILITIES BASED ON TERRORISM-RELATED GROUNDS - INA 212(A)(3)(B), INA 212(A)(3)(F) AND 8 U.S.C. 1735
(CT:VISA-1798; 07-12-2023)
(Office of Origin: CA/VO)
9 FAM 302.6-1 (U) STATUTORY AND REGULATORY AUTHORITY
9 FAM 302.6-1(A) (U) Immigration and Nationality Act
(CT:VISA-1; 11-18-2015)
(U) INA 101(b)(1) (8 U.S.C. 1101(b)(1)); INA 212(a)(3)(B)(8 U.S.C. 1182(a)(3)(B)); INA 212(a)(3)(F) (8 U.S.C. 1182(a)(3)(f)); INA 212(d)(3)(A) (8 U.S.C. 1182(d)(3)(A)); INA 212(d)(3)(B) (8 U.S.C. 1182(d)(3)(B)); INA 219 (8 U.S.C. 1189).
9 FAM 302.6-1(B) (U) United States Code
(CT:VISA-55; 02-23-2016)
(U) 18 U.S.C. 2339D(c)(1); 22 U.S.C. 2723.
9 FAM 302.6-1(C) (U) Public Laws
(CT:VISA-1; 11-18-2015)
(U) Foreign Relations Authorization Act, Fiscal Years 1992 and 1993, Public Law 102-138, section 128; Homeland Security Act of 2002, Public Law 107-296; Consolidated Appropriations Act, 2008, Public Law 110-161, at section 691 of Title VI of Division J (the Department of State, Foreign Operations, and Related Programs Appropriations Act, 2008); An Act to Remove the African National Congress from Treatment as a Terrorist Organization for Certain Acts or Events, Provide Relief for Certain Members of the African National Congress Regarding Admissibility, and for Other Purposes, Public Law 110-257.
9 FAM 302.6-2 (U) TERRORIST ACTIVITIES - INA 212(A)(3)(B)
9 FAM 302.6-2(A) (U) Grounds
(CT:VISA-1586; 07-26-2022)
(U) INA 212(a)(3)(B)(i) renders ineligible any applicant who:
(1) (U) has engaged in a terrorist activity;
(2) (U) you know, or have a reasonable ground to believe, is engaged in or is likely to engage after entry in any terrorist activity;
(3) (U) has, under circumstances indicating an intention to cause death or serious bodily harm, incited terrorist activity;
(4) (U) is a representative of:
(a) (U) a terrorist organization; or
(b) (U) a political, social, or other group that endorses or espouses terrorist activity;
(5) (U) is a member of a designated terrorist organization;
(6) (U) is a member of an undesignated terrorist organization, unless the applicant can demonstrate by clear and convincing evidence that the applicant did not know, and should not reasonably have known, that the organization was a terrorist organization;
(7) (U) endorses or espouses terrorist activity or persuades others to endorse or espouse terrorist activity or support a terrorist organization;
(8) (U) has received military-type training from or on behalf of any organization that, at the time the training was received, was a terrorist organization; or
(9) (U) is the spouse or child of an applicant who is ineligible, if the activity causing the applicant to be found ineligible occurred within the last 5 years.
9 FAM 302.6-2(B) (U) Application
9 FAM 302.6-2(B)(1) (U) Summary
(CT:VISA-1586; 07-26-2022)
a. (U) INA 212(a)(3)(B) describes visa ineligibilities related to terrorism. The ineligibilities hinge on terrorism-related definitions that were significantly expanded by post-9/11 legislation, most significantly, the USA PATRIOT Act (2001) and the REAL ID Act (2005). Due to these expansions, the scope of activities covered by the phrase “engage in terrorist activity” is broad. As defined in INA 212(a)(3)(B)(vi), the term “terrorist organization” encompasses both organizations that have been designated previously by the Department of State as terrorist organizations and organizations that have never been so designated by the Department of State or any other U.S. Government agency, but that have engaged in any of the activities listed in INA 212(a)(3)(B)(iv)(I)-(IV). Because terms in INA 212(a)(3)(B) are defined broadly, you must take care in eliciting as much pertinent information from visa applicants as possible, including the names of all groups potentially covered by these provisions with which the applicant may be linked, for example, by current membership or past financial contributions or other support. You must also inquire into the nature and activities of those organizations, bearing in mind the definition of “terrorist organization” in INA 212(a)(3)(B)(vi), described in 9 FAM 302.6-2(B)(3) paragraph i below and other FAM provisions referenced therein.
b. Unavailable
9 FAM 302.6-2(B)(2) (U) Background
(CT:VISA-1586; 07-26-2022)
a. (U) The Immigration Act of 1990 (Public Law 101-649) generally amended INA 212(a) by replacing the previous 43 classes of excludable applicants with nine broad classes, each with subclasses. New INA 212(a)(3)(B), “Terrorist Activities,” incorporated aspects of former 212(a)(27) and 212(a)(29).
b. (U) The Antiterrorism and Effective Death Penalty Act of 1996 (Public Law 104-132) expanded the scope of INA 212(a)(3)(B) to make ineligible representatives and members of organizations designated by the Secretary under INA 219 as Foreign Terrorist Organizations (FTOs).
c. (U) The Illegal Immigration Reform and Immigrant Responsibility Act of 1996 (Public Law 104-208) amended INA 212(a)(3)(B)(i) again to make ineligible any applicant who, “under circumstances indicating an intention to cause death or serious bodily harm,” incited terrorist activity. The new provision applied retroactively to all such incitement activities, regardless of when they occurred.
d. (U) The Uniting and Strengthening America by Providing Appropriate Tools Required to Intercept and Obstruct Terrorism Act of 2001 (“USA PATRIOT Act”) (Public Law 107-56), enacted after the terrorist attacks on September 11, 2001, expanded the scope of INA 212(a)(3) in several important respects:
(1) (U) It gave the Secretary of State new authority to designate organizations as terrorist organizations for purposes of INA 212(a)(3)(B) if certain criteria are met. Organizations so designated are listed on the “Terrorist Exclusion List” or “TEL”;
(2) (U) It defined “terrorist organization” for the first time, creating three categories. The first category is FTOs designated under INA 219 (see INA 212(a)(3)(B)(vi)(I)) (Tier I); the second is entities designated under the Terrorism Exclusion List (TEL) authority included in the USA PATRIOT Act (Tier II) (see INA 212(a)(3)(B)(vi)(II)). The third category, referred to as “undesignated terrorist organizations,” includes entities that engage in specified “terrorist activities” listed in the INA, but that have not been designated under FTO or TEL authorities (Tier III) (see INA 212(a)(3)(B)(vi)(III)); and
(3) (U) It created INA 212(a)(3)(F), “Association with Terrorist Organizations,” which made applicants who have been associated with a terrorist organization, and who are engaged or likely to engage in certain activities that endanger the United States, ineligible under certain circumstances.
e. (U) The Emergency Supplemental Appropriations Act for Defense, the Global War on Terror, and Tsunami Relief of 2005 (“REAL ID Act”) (Public Law 109-13) at sections 103 and 104 of Division B further expanded the scope of INA 212(a)(3)(B) by:
(1) (U) Broadening “terrorist organization” to capture undesignated groups with subgroups that “engage in terrorist activity”;
(2) (U) Making it harder for an applicant suspected of “engaging in terrorist activities” to escape ineligibility based on an alleged lack of knowledge concerning an undesignated terrorist organization or how any contribution of material support might be used by a terrorist organization (see (5), (6), and (8) below);
(3) (U) Making ineligible “representatives” of all three types of terrorist organizations, regardless of applicant’s knowledge or intent. Previously, only representatives of groups designated under INA 219 (Tier I) were specified;
(4) (U) Making ineligible all representatives of “a political, social, or other group that endorses or espouses terrorist activity.” Previously the Secretary of State had to find that the group’s public endorsement of acts of terrorist activity undermines U.S. efforts to reduce or eliminate terrorist activities;
(5) (U) Eliminating the knowledge defense to ineligibility for members of entities designated for the TEL (Tier II) and raising the standard to “clear and convincing evidence” for an applicant to avoid ineligibility for being a member of an undesignated terrorist organization on the grounds that they did not know, and should not reasonably have known, that the organization was a terrorist organization;
(6) (U) Raising the standard to “clear and convincing evidence” for an applicant to avoid ineligibility for soliciting funds or members for an undesignated terrorist organization on the grounds that they did not know, and should not reasonably have known, that the organization was a terrorist organization;
(7) (U) Expanding the “material support” bar to admissibility for knowingly providing support to any terrorist organization or its members, except, with respect to undesignated terrorist organizations, where an applicant presents “clear and convincing evidence” that the applicant lacked knowledge of any terrorist activity. The amendment eliminated the requirement that the applicant intended to support terrorist activity;
(8) (U) Making ineligible any applicant who commits an act the applicant knows or reasonably should know provides material support to an undesignated terrorist organization or a member of an undesignated terrorist organization, unless the applicant can demonstrate “by clear and convincing evidence” that they did not know, and should not reasonably have known, that the organization was a terrorist organization. Before amendment, the provision did not include material support afforded to a member of an undesignated terrorist organization. The REAL ID Act added the “clear and convincing evidence” standard for an applicant attempting to prove lack of knowledge of an undesignated group’s terrorist activity;
(9) (U) Making ineligible any applicant who “endorses or espouses terrorist activity or persuades others to endorse or espouse terrorist activity or support a terrorist organization.” Before amendment, the provision covered only persons who used their position of prominence to endorse or espouse terrorist activity or to persuade others to support terrorist activity or a terrorist organization in a way the Secretary of State determined undermines U.S. efforts to reduce or eliminate terrorist activities;
(10) (U) Making ineligible any applicant who has “received military-type training” from or on behalf of a terrorist organization; and
(11) (U) Applying the terrorism provisions of the REAL ID Act amendments to actions taken by an applicant before, on, or after the date of enactment, May 11, 2005.
f. (U) The Consolidated Appropriations Act, 2008, Public Law 110-161, 121 Stat. 1844, at section 691 of Title VI of Division J (the Department of State, Foreign Operations, and Related Programs Appropriations Act, 2008) amended the discretionary authority of the Secretary of Homeland Security and the Secretary of State, under INA 212(d)(3)(B)(i), to exempt an applicant from most of the terrorism-related bars to admissibility under INA 212(a)(3)(B) and to exempt a group from treatment as an undesignated terrorist organization under INA 212(a)(3)(B)(vi)(III). The amendment also provided that certain groups should not be considered terrorist organizations based on any act or event occurring before the amendment’s enactment on December 26, 2007, and that the Taliban must be considered to be a designated foreign terrorist organization, under INA 212(a)(3)(B)(vi)(I), for immigration purposes. See 9 FAM 302.6-2(B)(3) paragraph i below. The amendments were effective upon enactment and apply to acts before or after enactment.
9 FAM 302.6-2(B)(3) (U) Definitions
(CT:VISA-1798; 07-12-2023)
a. (U) This section explains terms used in INA 212(a)(3)(B) in alphabetical order. Where listed terms are specifically defined in the statute, the statutory reference follows immediately after the term.
b. (U) CLEAR AND CONVINCING EVIDENCE:
(1) (U) The phrase “clear and convincing evidence” appears several times in INA 212(a)(3)(B) with reference to undesignated terrorist organizations. The INA places the burden of proof on the applicant to establish that they did not know, or should not have reasonably known, that the undesignated terrorist organization was, in fact, a terrorist organization. (Applicants are deemed to know that designated terrorist organizations are terrorist organizations, regardless of their actual knowledge or belief).
(2) (U) You must consider the following in determining whether a visa applicant can demonstrate by “clear and convincing evidence” that they did not know, and should not reasonably have known, that an undesignated organization was a terrorist organization:
(a) (U) Facts specific to the individual, such as residence, profession, education, and people with whom and groups with which the applicant has associated;
(b) (U) The public availability of information about the organization and more specifically, about the activities that make it a terrorist organization under the INA’s broad definition; and
(c) (U) The extent to which the organization is actively and overtly engaged in the activities that make it a terrorist organization under the INA.
(3) Unavailable
c. (U) ENDORSING OR ESPOUSING TERRORISM:
(1) (U) An applicant is ineligible under INA 212(a)(3)(B)(i)(VII) if the applicant endorses or espouses terrorist activity or persuades others to endorse or support terrorist activity or a terrorist organization.
(2) Unavailable
d. Unavailable
(1) (U) A safe house;
(2) (U) Transportation;
(3) (U) Communications;
(4) (U) Funds;
(5) (U) Transfer of funds or other material financial benefit;
(6) (U) False documentation or identification;
(7) (U) Weapons including chemical, biological, or radiological weapons;
(8) (U) Explosives; or
(9) (U) Training.
e. (U) MEMBER OF A TERRORIST ORGANIZATION:
(1) (U) Applicants who are members of designated FTOs or entities on the Terrorism Exclusion List are ineligible. The INA does not require the applicant to know that the organization has been designated. Members of undesignated terrorist organizations are ineligible, but there is a narrow exception based on lack of knowledge (see 9 FAM 302.6-2(B)(3) paragraph i below).
(2) (U) Evidence of membership in a terrorist organization might include the individual’s taking of an oath or performance of some act that is a prerequisite of membership. A formal induction is not necessary for a finding of membership.
(3) (U) Membership must be determined by considering all relevant facts, including, but not limited to, the following:
(a) (U) Acknowledgment of membership;
(b) (U) Frequent association with other members;
(c) (U) Participation in the organization’s activities, even if lawful;
(d) (U) Actively working to further the organization’s aims and methods in a way suggesting close affiliation constituting membership;
(e) (U) Occupying a position of trust in the organization, past or present;
(f) (U) Receiving financial support from the organization, e.g., scholarships, pensions, salary;
(g) (U) Contributing money to the organization;
(h) (U) Determination of membership by a competent court;
(i) (U) Voluntarily displaying symbols of the organization; or
(j) (U) Receiving honors and awards given by the organization.
(4) (U) No single factor necessarily determines that an applicant was a member of an organization.
(5) Unavailable
(6) Unavailable
(7) (U) Former members will still be ineligible if they have previously provided material support (such as membership fees), raised money, or solicited members for the organization.
f. (U) INCITEMENT OF TERRORISM:
(1) (U) “Incitement with intent to cause death or serious bodily harm” renders an applicant ineligible under INA 212(a)(3)(B)(i)(III) if they have incited terrorist activity under circumstances indicating an intention to cause death or serious bodily harm.
(2) (U) “Incited” in the context of INA 212(a)(3)(B) is speech that induces or otherwise moves another person to undertake terrorist activity. Normally speech will not rise to the level of “inciting” unless there is a clear link between the speech and an actual effort to undertake the terrorist activity. It connotes speech that is not merely an expression of views but that directs or induces action, typically in a volatile situation.
(3) (U) The applicant may have incited terrorist activity even if a terrorist attack does not actually occur (e.g., because an attempt to commit such activity was thwarted).
(4) (U) An applicant who has “incited” terrorist activity must also have acted in circumstances indicating an intention to cause death or serious bodily harm to be ineligible under INA 212(a)(3)(B). In other words, the applicant’s speech must not only have induced others to undertake terrorist activity, but it must also have been made with the specific intent that such activity would result in death or serious bodily injury.
(5) (U) Incitement and the requisite intent to cause bodily harm could be inferred in the following situations:
(a) (U) Widespread opposition to Country A's policies and actions lead to a series of protests, some violent, outside Country A’s embassy in Country B. The applicant goes to the embassy, stands on a box, and shouts to the crowd to join them in standing up to Country A and humiliating it. Shortly afterwards, when they see an embassy vehicle approaching, they yell: “Don’t let them in! Make them pay for what they have done!” The crowd blocks the car and removes occupants (including a diplomat working at Country A’s embassy), from the car, beating them severely and taking them hostage.
(b) (U) Analysis: Diplomatic hostage-taking and violent attacks on diplomats are terrorist activities. Given the applicant’s urging the crowd to stop the embassy vehicle and “make them pay,” you would have reasonable ground to believe that the applicant’s speech incited terrorist activity. The applicant’s “make them pay” statement, when viewed against the backdrop of previous violent protests and their general comments about standing up to Country A and humiliating it, would provide you with reasonable ground to believe that the applicant intended to cause death or serious bodily harm.
(c) (U) The applicant is an ardent nationalist whose opinions voiced to an audience regularly blame “foreigners” for their country’s problems and who argues that the only solution to these problems is that “foreigners” should be driven out of the country. Press reports say that some of those in the targeted audience have been purchasing weapons and seeking to obtain and manufacture explosives. Police notify the applicant or those associated with the applicant that they are investigating several of those in the targeted audience for weapons-related offenses. At the end of a week of strong anti-foreign sentiment, the applicant gives a special speech entitled “A Call to Action.” With the knowledge that those under investigation are in the audience, the applicant begins their speech with: “The time has come for action!” They then reiterate throughout their speech that “The only solution to the country’s problems is to purge our great land of these foreigners once and for all through whatever means necessary.” Shortly thereafter, some of those in the target audience detonate a truck bomb outside a restaurant frequented by foreign nationals, killing several foreign nationals and injuring many restaurant employees.
(d) (U) Analysis: The use of any explosive with intent to endanger, directly or indirectly, the safety of one or more individuals or to cause substantial damage to property is a terrorist activity. In the example, the applicant helps foster anti-foreign sentiments and then, during an especially tense period, urges students to act to drive “foreigners” from the country “through whatever means necessary.” Under these circumstances, you would have reasonable ground to believe that the applicant’s speech incited terrorist activity. The fact that the applicant knew that several students likely had access to weapons and/or explosives and that those students attended their special lecture would provide you with reasonable ground to believe that the applicant intended to cause death or serious bodily harm.
(e) (U) The USA PATRIOT Act amended INA 212(a)(3)(B)’s definition of “engaging in terrorist activity” also to include incitement (see INA 212(a)(3)(B)(iv)(I)). As a result, a person who is ineligible under INA 212(a)(3)(B)(i)(III) for inciting terrorist activity will also now be ineligible under INA 212(a)(3)(B)(i)(I) for engaging in a terrorist activity.
g. (U) REPRESENTATIVE: A “representative” is defined in INA 212(a)(3)(B)(v) as “an officer, official, or spokesman of an organization, and any person who directs, counsels, commands, or induces an organization or its members to engage in terrorist activity.”
h. (U) SUBGROUP: A group (Group X), even if not organized, can be a “subgroup” of another organization (Group Y) if there are reasonable grounds to believe that either (1) Group X as a whole or (2) the members of Group X are affiliated with Group Y. If a subgroup engages in terrorist activities, then both groups are terrorist organizations. See 9 FAM 302.6-2(B)(3) paragraph i(1)(c) below. A subgroup relationship may be found where there are reasonable grounds to believe that Group X is subordinate to, or affiliated with, Group Y and Group X is dependent on, or otherwise relies upon, Group Y in whole or in part to support or maintain its operations. As an example, Group X would be a subgroup of Group Y if the latter establishes rules or guidelines that Group X generally follows and Group X relies on Group Y as a source of funds for Group X operations.
i. (U) TERRORIST ORGANIZATION:
(1) (U) “Terrorist organization,” as defined in INA 212(a)(3)(B)(vi), includes both designated terrorist organizations (paragraphs (a) and (b), below) and undesignated terrorist organizations (paragraph (c), below):
(a) (U) An organization designated by the Secretary of State as a “foreign terrorist organization” (FTO) under INA 219. This designation has implications beyond the INA, including penalties under U.S. criminal law. Applicants who engage in certain activities in connection with these organizations can be rendered ineligible under the INA. Organizations currently designated as FTOs and information about the designation process can be found on the J/CT website.
(b) (U) An organization designated by the Secretary of State for inclusion in the Terrorist Exclusion List (TEL), pursuant to INA 212(a)(3)(B)(vi)(II). The TEL designation is for immigration purposes only. Information about the designation process can be found on the J/CT website.
(c) (U) An organization that has not been designated but is a group of two or more individuals, whether organized or not, which engages in, or has a subgroup (see 9 FAM 302.6-2(B)(3) paragraph h above) which engages in, terrorist activities described in the INA 212(a)(3)(B)(iv)(I) – (VI). With respect to undesignated terrorist organizations:
(i) Unavailable
(ii) Unavailable
(iii) (U) Where a finding of ineligibility would involve an undesignated terrorist organization, the applicant may overcome the finding by demonstrating, by clear and convincing evidence (see 9 FAM 302.6-2(B)(3) paragraph b above), that the applicant did not know, and should not reasonably have known, that the organization was a terrorist organization (except with respect to representatives of undesignated terrorist organizations, those who persuade others to support an undesignated terrorist organization, and those who receive military-type training on behalf of an undesignated terrorist organization, for whom there is no such defense); and,
(2) (U) Pursuant to section 691(b) of the Consolidated Appropriations Act, 2008, the following groups are not considered terrorist organizations under INA 212(a)(3)(B)(vi) for acts or events that occurred before December 26, 2007:
· (U) Karen National Union/Karen Liberation Army (KNU/KNLA)
· (U) Chin National Front/Chin National Army (CNF/CNA)
· (U) Chin National League for Democracy (CNLD)
· (U) Kayan New Land Party (KNLP)
· (U) Arakan Liberation Party (ALP)
· (U) Tibetan Mustangs
· (U) Cuban Alzados
· (U) Karenni National Progressive Party
· (U) "Appropriate groups affiliated with" the Hmong
· (U) "Appropriate groups affiliated with" the Montagnards
(3) (U) As a result of this legislation, an applicant who did any of the following before December 26, 2007, is no longer ineligible on account of the following terrorism-related grounds of ineligibility:
· (U) Solicited funds or other things of value on behalf of one of these named groups (INA 212(a)(3)(B)(iv)(IV)(cc))
· (U) Solicited an individual for membership in one of these named groups (INA 212(a)(3)(B)(iv)(V)(cc))
· (U) Committed an act that provided material support, including transfer of funds, false documentation, weapons, or training to one of these named terrorist groups (INA 212(a)(3)(B)(iv)(VI)(dd))
· (U) Is a representative of one of these named groups (INA 212(a)(3)(B)(i)(IV)(aa))
· (U) Is a member of one of these named terrorist groups (INA 212(a)(3)(B)(i)(VI))
· (U) Persuaded others to endorse or support one of these named terrorist groups (INA 212(a)(3)(B)(i)(VII))
· (U) Received military-type training from one these named terrorist groups (INA 212(a)(3)(B)(i)(VIII))
· Unavailable