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47–451 PDF 2009

S. HRG. 110–753 

THE ‘‘MATERIAL SUPPORT’’ BAR: DENYING 

REFUGE TO THE PERSECUTED? 

HEARING 

BEFORE THE

SUBCOMMITTEE ON HUMAN RIGHTS AND THE LAW 

OF THE

COMMITTEE ON THE JUDICIARY 

UNITED STATES SENATE 

ONE HUNDRED TENTH CONGRESS 

FIRST SESSION 

SEPTEMBER 19, 2007 

Serial No. J–110–56 

Printed for the use of the Committee on the Judiciary 

( 

(II) 

COMMITTEE ON THE JUDICIARY 

PATRICK J. LEAHY, Vermont, Chairman 

EDWARD M. KENNEDY, Massachusetts 

JOSEPH R. BIDEN, JR., Delaware 

HERB KOHL, Wisconsin 

DIANNE FEINSTEIN, California 

RUSSELL D. FEINGOLD, Wisconsin 

CHARLES E. SCHUMER, New York 

RICHARD J. DURBIN, Illinois 

BENJAMIN L. CARDIN, Maryland 

SHELDON WHITEHOUSE, Rhode Island 

ARLEN SPECTER, Pennsylvania 

ORRIN G. HATCH, Utah 

CHARLES E. GRASSLEY, Iowa 

JON KYL, Arizona 

JEFF SESSIONS, Alabama 

LINDSEY GRAHAM, South Carolina 

JOHN CORNYN, Texas 

SAM BROWNBACK, Kansas 

TOM COBURN, Oklahoma 

BRUCE A. COHEN, Chief Counsel and Staff Director 

MICHAEL O’NEILL, Republican Chief Counsel and Staff Director 

SUBCOMMITTEE ON CRIME AND DRUGS

RICHARD J. DURBIN, Illinois, Chairman 

EDWARD M. KENNEDY, Massachusetts 

JOSEPH R. BIDEN, JR., Delaware 

RUSSELL D. FEINGOLD, Wisconsin 

BENJAMIN L. CARDIN, Maryland 

SHELDON WHITEHOUSE, Rhode Island 

TOM COBURN, Oklahoma 

JON KYL, Arizona 

LINDSEY GRAHAM, South Carolina 

JOHN CORNYN, Texas 

SAM BROWNBACK, Kansas 

JOSEPH ZOGBY, Chief Counsel 

MARY CHESSER, Republican Chief Counsel 

(III) 

C O N T E N T S 

STATEMENTS OF COMMITTEE MEMBERS 

Page 

Coburn, Hon. Tom, a U.S. Senator from the State of Oklahoma ........................ 3 

prepared statement .......................................................................................... 81 

Durbin, Hon. Richard J., a U.S. Senator from the State of Illinois .................... 1 

prepared statement .......................................................................................... 95 

Feingold, Hon. Russell D., a U.S. Senator from the State of Wisconsin, prepared statement ................................................................................................... 98 

Kennedy, Edward M., a U.S. Senator from the State of Massachusetts ............ 4 

prepared statement .......................................................................................... 110 

Leahy, Hon. Patrick J., a U.S. Senator from the State of Vermont .................... 5 

prepared statement .......................................................................................... 119 

WITNESSES 

Hughes, Anwen, Senior Counsel, Refugee Protection Program, Human Rights 

First, New York, New York ................................................................................. 18 

Mariana, Colombian Refugee .................................................................................. 23 

Rosenzweig, Paul, Deputy Assistant Secretary for Policy, U.S. Department 

of Homeland Security, Washington, D.C. ........................................................... 6 

Wenski, Bishop Thomas G., Diocese of Orlando, and Chairman, International 

Policy Committee, U.S. Conference of Catholic Bishops, Orlando, Florida ..... 22 

QUESTIONS AND ANSWERS 

Responses of Anwen Hughes to questions submitted by Senators Coburn, 

Kennedy and Feingold ......................................................................................... 29 

Responses of Paul Rosenzweig to questions submitted by Senators Coburn, 

Feingold and Kennedy ......................................................................................... 35 

Responses of Bishop Thomas G. Wenski to questions submitted by Senator 

Feingold ................................................................................................................ 60 

SUBMISSIONS FOR THE RECORD 

American Civil Liberties Union (ACLU), New York, New York, statement ....... 61 

Aronoff, Gideon, President and Chief Executive Officer, Hebrew Immigrant 

Aid Society, New York, New York, statement ................................................... 64 

The Becket Fund for Religious Liberty, Angela C. Wu, Esq., Acting Executive 

Director and International Law Director, Washington, D.C., letter ................ 67 

Brand, Rachel L., Department of Justice, Washington, D.C.: 

May 10, 2006, statement .................................................................................. 68 

May 10, 2006, answers ..................................................................................... 72 

September 27, 2006, statement ....................................................................... 76 

Chicago, Illinois, Executive Council, resolution .................................................... 78 

Church World Service, Washington, D.C., letter .................................................. 80 

Daskal, Jennifer, Senior Counterterrorism Counsel, Human Rights Watch, 

New York, New York, statement ........................................................................ 83 

Dewey, Arthur E., Assistant Secretary of State for Population, Refugees and 

Migration, U.S. State Department, Washington, D.C., statement ................... 88 

Hughes, Anwen, Senior Counsel, Refugee Protection Program, Human Rights 

First, New York, New York, prepared statement .............................................. 99 

Hutchins, Thomas, Esq., and James Feroli, Esq., Immigrant and Refugee 

Appellate Center, Alexandria, Virginia, letter .................................................. 109 

Page

IV 

Land, Richard, President, Ethics & Religious Liberty Commission, Southern 

Baptist Convention, statement ........................................................................... 116 

Lutheran Immigration and Refugee Service, Legislative Affairs Office, Washington, D.C., statement ........................................................................................ 121 

Mariana, Colombian Refugee, statement ............................................................... 125 

National Association of Evangelicals (NAE), Washington, D.C., statement ....... 127 

National Immigrant Justice Center, Chicago, Illinois, statement ....................... 130 

Parkins, C. Richard, Director, Episcopal Migration Ministries, New York, 

New York, statement ........................................................................................... 136 

Physicians for Human Rights, Cambridge, Massachusetts, statement ............... 138 

Rosenzweig, Paul, Deputy Assistant Secretary for Policy, U.S. Department 

of Homeland Security, Washington, D.C., statement ........................................ 143 

Scharfen, Jonathan R., Deputy Director, Citizenship and Immigration Services, Department of Homeland Security, Washington, D.C., statement .......... 148 

Scheffer, David, Mayer Brown and Robert A. Helman answers to questions 

submitted by Senator Durbin on the November 14, 2007, No Safe Haven ..... 153 

Steinberg, Naomi, Depuity Director, Southeast Asia Resource Action Center 

(SEARAC), Washington, D.C., statement .......................................................... 159 

Wah, Paw, Refugee, statement ............................................................................... 161 

Washington Post, March 5, 2007, article ............................................................... 162 

UNHCR, The UN Refugee Agency, Geneva, Switzerland, statement ................. 164 

Wenski, Bishop Thomas G., Diocese of Orlando, and Chairman, International 

Policy Committee, U.S. Conference of Catholic Bishops, Orlando, Florida, 

statement .............................................................................................................. 172 

World Relief, Baltimore, Maryland, statement ..................................................... 178 

(1) 

THE ‘‘MATERIAL SUPPORT’’ BAR: DENYING 

REFUGE TO THE PERSECUTED? 

WEDNESDAY, SEPTEMBER 19, 2007 

UNITED STATES SENATE, SUBCOMMITTEE ON HUMAN RIGHTS AND THE LAW, COMMITTEE ON THE JUDICIARY, Washington, DC. 

The Subcommittee met, pursuant to notice, at 2:30 p.m., in room 

SD–226, Dirksen Senate Office Building, Hon. Richard J. Durbin, 

Chairman of the Subcommittee, presiding. 

Present: Senators Durbin, Kennedy, Feingold, Leahy, and 

Coburn. 

OPENING STATEMENT OF HON. RICHARD J. DURBIN, A U.S. 

SENATOR FROM THE STATE OF ILLINOIS 

Chairman DURBIN. This hearing of the Subcommittee on Human 

Rights and the Law will come to order. Good afternoon and welcome. 

The hearing is entitled ‘‘The ‘Material Support’ Bar: Denying Refuge to the Persecuted? ’’ After opening remarks, I will recognize my 

colleague and Ranking Member, Senator Coburn, for an opening 

statement, then turn to witnesses. 

First, a word about the origin of this hearing. Earlier this year, 

the Subcommittee held a hearing on child soldiers. At the hearing, 

Senator Coburn and I were surprised to learn that under our immigration laws, the Department of Homeland Security has branded 

some former child soldiers as terrorists and prevented them from 

obtaining asylum in the United States. Senator Coburn immediately suggested that we hold a hearing to explore this issue. I 

want to thank him for requesting this hearing and commend him 

for recognizing the importance of this issue. 

At the outset, let me also commend Judiciary Committee Chairman Pat Leahy for his leadership on this issue. Senator Leahy recognized this problem long before the rest of us, and he continues 

to fight to fix the problem with the material support bar. 

As is our practice in the Human Rights and the Law Subcommittee, I would like to begin this hearing with a very brief 

video providing some background on this issue. This video tells the 

story of one refugee who has been affected by the ‘‘material support’’. I want to thank UNHCR for providing this video footage and 

for allowing us to use it at the hearing. And now please run the 

video. 

[Videotape played, material appears as a submission for the 

record.] 

2 

Chairman DURBIN. I want to thank UNHCR for providing that 

video. 

At the base of the Statute of Liberty, Emma Lazarus’ famous 

verse says, ‘‘I lift my lamp beside the golden door.’’ For decades, the 

golden door to the United States has been open to refugees seeking 

safe haven from ethnic, religious, and political persecution. Our 

Nation receives more refugees than any other nation. The American people’s generosity has made the United States a symbol of 

freedom and liberty around the world and has given hundreds of 

thousands of refugees the chance for a new life. 

In the aftermath of the 9/11 terrorist attacks, security is an imperative. We must carefully scrutinize everyone seeking to enter 

our country, including refugees, to make sure that a wolf in sheep’s 

clothing does not slip through. But at the same time, we must ensure that the golden door remains open to those who are fleeing oppression. 

Unfortunately, the so-called material support bar has prevented 

many victims of human rights violations and terrorism from obtaining refugee and asylum status. Under current law, the Government denies asylum and refugee claims to anyone who has provided what the law terms ‘‘material support’’ to ‘‘terrorist organizations.’’ These terms are defined very broadly, and the Department 

of Homeland Security has applied them in a manner that sweeps 

in conduct that no reasonable person would consider material support or terrorism. As a result, the golden door has been slammed 

shut for thousands. 

Po Wah, whose story we heard in the video, is a good example. 

Her application for resettlement in the United States was denied. 

In 2006, the Secretary of State granted a waiver for the residents 

of Tham Hin Camp. Po Wah has now lived in the camp for 13 

years. She now has a 5-month-old baby. She is being permitted to 

reapply for resettlement in the United States, but her parents will 

not be able to join her. Her father is ineligible for a waiver because 

he fought against the Burmese dictatorship. 

Others have not been so fortunate. Here are some examples. The 

material support bar blocks refugees who have provided support to 

terrorist organizations or armed rebel groups under duress, including R.K., a captured Sri Lankan fisherman, forced to pay ransom 

to his terrorist kidnappers. Helene, a Sierra Leonean woman who 

was gang raped and burned by Revolutionary United Front members and forced to wash clothes and cook meals for them. Jennifer, 

a 13-year-old Ugandan girl who was abducted by the Lord’s Resistance Army and forced to serve as the wife of an LRA leader. And 

Mariana, a nurse from Colombia, who will testify at today’s hearing. Mariana’s asylum claim was denied because she was kidnapped by the Revolutionary Armed Forces of Colombia, also 

known as FARC, and forced at gunpoint to provide nursing care to 

FARC guerrillas. In addition, Laotian Hmong, Vietnamese 

Montagnard, and Afghan members of the Northern Alliance, who 

fought alongside U.S. soldiers and against their own governments, 

have been affected by the material support bar because of the assistance they gave U.S. forces and their own armies. 

It is not the role of this Subcommittee to assign blame. The fates 

of thousands of innocent refugees are too important. Instead of 

3 

pointing fingers, it is my hope we can join hands to assure that 

fundamental human rights are protected. There is no question that 

efforts are underway to address the problem created by this material support bar. The administration has taken some positive steps, 

exercising its waiver authority in some cases. Congress has also 

taken some steps. Language negotiated by Senators Kyl and Leahy 

that would exclude some from the material support bar was included in the foreign operations appropriations bill the Senate recently passed. We will have an opportunity to discuss those measures today. 

But there is also no question that many legitimate refugees are 

still unjustly labeled ‘‘terrorist supporters’’ by the material support 

bar. As I have said before, this Subcommittee focuses on legislation, not lamentation, and today we will discuss what more the administration and Congress can do to ensure victims of persecution 

and terrorism are not denied safe haven in our country. 

Now I would like to recognize Senator Coburn of Oklahoma, the 

Ranking Member of this Subcommittee. 

STATEMENT OF HON. TOM COBURN, A U.S. SENATOR FROM 

THE STATE OF OKLAHOMA 

Senator COBURN. Well, thank you, Senator Durbin, for having 

this hearing. It is a complicated, but nevertheless, very important 

issue. 

Concern over the way U.S. anti-terror laws affect certain refugees and asylees who may otherwise be welcome in our country 

was first raised before this Subcommittee during our last hearing. 

At that hearing, we heard heart breaking stories about how children forced into servitude by rebel armies had been barred from 

refugee status in the United States by laws that were intended to 

exclude terrorists. Such stories prompted the Chairman and myself 

to seek further information on the subject, and I look forward to 

learning more about the subject today. 

The United States has a rich and proud tradition of opening its 

doors to those who are persecuted around the world. In fact, the 

United States leads the world in refugee resettlement, accepting 

more than 60 percent of those referred by the UN High Commissioner for Refugees, and serving as that organization’s single largest donor. Moreover, this country admits more refugees each year 

than the rest of the world combined. Since 1975, the United States 

has resettled more than 2.6 million refugees. Our compassion has 

saved millions of lives, and as a result, our country has been greatly enriched and strengthened by the diversity that we have received. 

It is true, however, that the number of refugees admitted annually by the United States fell precipitously after September 11th. 

That tragic event presented security challenges never before seen 

in this country, and the vulnerabilities in our immigration system 

that were exploited and exposed on that day demand a response. 

Unfortunately, the unintended result of that response has meant 

delayed and sometimes denied access for innocent victims of persecution around the world. Hence, we are faced with dual, though not 

inconsistent, interests and the obligation to maintain an aggressive 

anti-terrorism policy that protects the lives of U.S. citizens and a 

4 

desire to honor the commitment we have made to refugees around 

the world. 

I am encouraged that the number of refugees admitted annually 

has risen since the initial post-9/11 decline. I understand that the 

material support bar, which is the focus of today’s hearing, continues to act as an unintended barrier to admission for some individuals. But I am also encouraged that the administration has 

issued a number of waivers to provide for relief for many. 

I am especially encouraged by the duress waivers issued this 

year, which should provide relief to many who were forced to give 

material support to terrorist organizations against their will. These 

acts, though slow in issuance and implementation, demonstrate 

progress in our attempt to resolve these problems. I remain concerned, however, that the progress we may have made has been insufficient. Former allies, such as the Laotian Hmong and the Vietnamese Montagnards, who fought alongside U.S. soldiers in past 

conflicts, remain excluded from entering the United States as refugees by the material support bar. 

Additionally, it seems that the relief has been slow to reach bona 

fide refugees who should be covered by waivers that have not already been issued. I would like to hear more about whether and 

how these waivers have provided relief to deserving refugees who 

have been affected by the material support bar. I am also interested in learning more about how we can expedite the waiver process and alleviate some of these issues more efficiently. 

I look forward to our witnesses’ testimony, and again, I thank 

you and the other members of this Subcommittee for being in attendance at this hearing. 

Chairman DURBIN. Thank you very much, Senator Coburn. 

Senator Kennedy, do you have an opening statement? 

STATEMENT OF HON. EDWARD M. KENNEDY, A U.S. SENATOR 

FROM THE STATE OF MASSACHUSETTS 

Senator KENNEDY. Mr. Chairman, I want to thank you and 

thank Senator Coburn for having this enormously important hearing. Yesterday, Senator Cornyn and I met with the Secretary of 

State in compliance with the statute to talk about refugees and 

about the progress or the challenges, which are out there on refugees and also about the Department’s attitude toward material 

support. And we also talked about the issue of unaccompanied children. 

I just want to thank you for having this hearing, and thank you 

for both your attitude and Senator Coburn’s attitude. There is an 

expectation that there will be a ruling by the Department on the 

Hmongs and the Montagnards very, very soon, but it is long overdue. 

And thank you for your reaction about the slowness in terms of 

the consideration of these individuals who, according to the best estimate by refugee organizations, number about 12,000. And as we 

are looking at those individuals, particularly the Iraqis—4 million 

now are homeless—many of the Iraqi interpreters, who served next 

to American servicemen and -women, risking their lives and did so 

bravely and courageously, and now, if found, are going to be shot 

and killed, deserve to have more expedited consideration of their 

5 

application. I think when you have, as we had yesterday, an American serviceman, a sergeant who had been in the military, in the 

Army, and who explains that his particular interpreter saved his 

life on countless occasions, now is hidden in Syria, unable to go 

outside because of fear of assassination and killing. There needs to 

be an expedited process. 

There is a desperate situation out there with regard to material 

support and with regard to refugees in particular. We are very conscious that there has to be a process in clearing security-wise, but 

I find it very, very difficult, the delay of the administration, when 

you have interpreters who have, effectively, crosshairs on their 

back if they are found in Iraq, their names published and printed 

on the doors of the mosques, their brothers and sisters who have 

been interpreters killed and unable to get any kind of sanctuary in 

the United States. We are not talking about tens of thousands. We 

are talking about several thousand. We, I think, have a strong 

moral responsibility to deal with those issues. 

I appreciate the fact that the Chair and Senator Coburn mentioned unaccompanied children. There was legislation passed in 

2004 dealing with this issue, and there has been virtually no movement. There is a conference that is going to take place next wintertime, an interagency conference about this. But when you find out 

about the exploitation of children and women in these refugee 

camps, it is horrific. And I know the Chair has been interested in 

child soldiers and others, but we have not led the world in terms 

of trying to recognize this particular group as being a particularly 

vulnerable group. And I think we have some important responsibilities in those areas. 

I thank the Chair. 

Chairman DURBIN. Thank you, Senator Kennedy. 

Like Senator Kennedy, Senator Leahy has been in the forefront, 

a leader on so many human rights issues, including this issue of 

material support, and I want to publicly thank him, as I have in 

previous Subcommittee hearings, for allowing us to form this Subcommittee, the first Human Rights Subcommittee in the history of 

the Senate. It has been a Subcommittee that we have tried to use 

effectively for important issues, and we would not have had that 

opportunity without his leadership. Senator Leahy. 

STATEMENT OF HON. PATRICK J. LEAHY, A U.S. SENATOR 

FROM THE STATE OF VERMONT 

Chairman LEAHY. Well, thank you, Mr. Chairman. I, of course, 

wanted to form the Human Rights Subcommittee after you had 

agreed that you would chair it if we did. I think in our Nation, if 

we actually believe in our moral core as a Nation, then we have 

to stand up for these things. 

I will put my full statement in the record, but I have said in that 

regard that we need to bring our laws back into alignment with our 

values. The revisions to the material support provisions that were 

included in the PATRIOT Act and the REAL ID Act undermine our 

Nation’s commitment to human rights. They are a reactionary, 

blunt-instrument approach to a complex issue, and fear overcame 

common sense and our collective conscience. 

6 

Surely, a young Colombian refugee forced to dig graves for the 

victims of Colombian paramilitary soldiers and told he would be 

killed if he did not do it cannot rationally be said to have provided 

material support to his persecutors. But he was denied asylum by 

our Government. To think how we would point the finger of moral 

outrage at other countries doing this, and yet we do it. 

How about the Liberian woman who was raped and abducted by 

rebels before being forced to cook and do laundry for them? Is that 

providing material support? Mr. Rosenzweig, your administration 

thinks it does. She was denied asylum. 

We can give all kinds of other stories: Senators Coburn, Durbin, 

Brownback, Kennedy, and Feingold have talked about child soldiers. They are an obvious example. It is time to bring our laws 

back in line with our moral values. 

Thank you. I will put my whole statement in the record. 

Chairman DURBIN. Without objection, and thank you for being 

here, Chairman Leahy. 

[The prepared statement of Chairman Leahy appears as a submission for the record.] 

Chairman DURBIN. Our first witness is Paul Rosenzweig. He is 

Deputy Assistant Secretary for Policy at the Department of Homeland Security, and he has previously served as Acting Assistant 

Secretary for Policy Development, Acting Assistant Secretary for 

International Affairs, and Counselor to the Assistant Secretary for 

Policy. Mr. Rosenzweig is also an adjunct professor of law at 

George Mason University School of Law. Among other positions, he 

was previously senior legal research fellow at the Center for Legal 

and Judicial Studies of the Heritage Foundation. Mr. Rosenzweig 

has a J.D. from the prestigious University of Chicago Law School, 

has an M.S. in chemical oceanography from the University of California at San Diego, and a B.A. from Haverford College. 

Thank you for joining us today, and if you would please stand 

and raise your right hand. Do you swear or affirm that the testimony you are about to give is the truth, the whole truth, and nothing but the truth, so help you God? 

Mr. Rosenzweig. I do. 

Chairman DURBIN. Let the record indicate that the witness has 

answered in the affirmative. Please make your opening statement. 

Your written statement will be made part of the official record. 

STATEMENT OF PAUL ROSENZWEIG, DEPUTY ASSISTANT SECRETARY FOR POLICY, U.S. DEPARTMENT OF HOMELAND SECURITY, WASHINGTON, D.C. 

Mr. ROSENZWEIG. Thank you very much, Senator, and thank you 

very much for holding this hearing on such an important issue. I 

want to begin by assuring you that the Department of Homeland 

Security is committed to providing protection to refugees while also 

safeguarding our national security. 

Let me begin, if I may, by reiterating precisely why the material 

support provisions are so vital to our national security. One can define terrorism in two ways: either by listing an organization as a 

terrorist organization, or by defining the conduct that makes an organization a terrorist one. 

7 

With respect to listing, we must recall that this Congress as well 

as the courts have said that such organizations are foreign organizations that engage in terrorist activity and are so tainted by their 

criminal conduct that any contribution to the organization is itself 

tainted. 

With regard to a definition of terrorism by conduct, you must 

also remember that the listing process is cumbersome and slow, not 

nearly fast enough to keep up with the mutating terrorist 

groupings. Thus, while al Qaeda is a listed terrorist organization, 

its many subsidiary groups such as al Qaeda in the Magreb are 

not. And, thus, support for those organizations is only captured 

within the prohibition about broader conduct definitions. 

Thus, while I know this Committee is focused on the barriers 

that the material support law presents to deserving refugees, it is, 

in our judgment, equally important to begin with the acknowledgment that this law provides absolutely vital protections to American national security. It has allowed the Department, for example, 

to remove a Saudi national who had paid for and helped run the 

webside for an al Qaeda front group, the so-called Committee for 

the Defense of Legitimate Rights, an unlisted Tier III terrorist organization. And it allowed us to deport a supporter and fundraiser 

for the Benevolence International Foundation, whose associates in 

the United States conspired to support the Taliban, which, interestingly enough, remains today an unlisted organization. 

Now, all that having been said, we are well aware at the Department that the material support bar has the potential to sweep too 

broadly and to prevent us from providing immigration benefits to 

those who are deserving of them and to whom the United States 

is and ought to be willing to provide refuge. 

Since my last testimony before the House in May of 2006, the administration has made substantial progress in assessing the material support problem and providing exemptions where appropriate. 

Since then, Secretary Rice has issued 11 separate determinations 

for 8 different organizations regarding refugee settlement applications. And as you noted, Mr. Chairman, the Tham Hin camp, because of its atrocious conditions, was the very first venue to which 

one of our exemptions applied. Thus, the woman whose story is so 

affecting will indeed be able to reapply now that the exemptions 

are in place. 

In addition to Secretary Rice’s actions, Secretary Chertoff has 

issued parallel exemptions for the same eight groups with regard 

to applications for immigration benefits or for asylum. 

Just this past week, as Senator Kennedy noted, the administration determined to issue two further material support exemptions 

for Hmong and Montagnards who were valuable allies in Vietnam. 

That exemption is now in preparation for the Secretary’s signature 

and should be issued in a matter of days. 

Earlier this year, Secretary Chertoff also issued an exemption for 

cases of duress support provided to so-called Tier III groups, that 

is, groups that are unlisted. He later also issued another duress 

support exemption for Tier I and Tier II terrorist groups on the 

listing. 

Armed with these exemptions, we have turned our attention to 

implementation. Here, too, the record is one of success, albeit slowVerDate Nov 24 2008 14:11 Mar 12, 2009 Jkt 045451 PO 00000 Frm 00011 Fmt 6633 Sfmt 6633 S:\GPO\HEARINGS\47451.TXT SJUD1 PsN: CMORC
8 

ly. DHS has issued more than 3,000 exemptions since the first of 

the exemption authorities was signed. This has enabled us not only 

to admit those who are exempt, but to process tens of thousands 

in the camps in Burma, for example, not all of whom needed exemptions to be allowed to resettle. The exemptions have also allowed us to issue 200 exemptions to the Alzado Cubans who are 

refugees. 

Additionally, 124 duress-based exemptions have been issued. 

That is up from the number cited in my testimony because each 

day that goes by sees more additional grants. Those exemptions 

have been issued to nationals of Iraq, Liberia, Somalia, and the 

Democratic Republic of Congo. 

And in the last days following an extensive national security review, DHS has authorized the beginning of the process for the first 

set of Tier I duress cases involving the FARC. 

But despite our success, one piece of work remains. We cannot 

under current legislative authority exempt from the application of 

the bar aliens who were actual combatants under arms, and this 

accounts for our failure to provide relief to many of the Hmong and 

Montagnards who fought beside our troops in Vietnam, as well as 

to some of the child soldiers who are the subject of your earlier 

hearing, as well as to the refugee’s father whom we saw in the 

video today. We lack that authority. 

The administration sent forward a legislative proposal to fix this 

gap in January, and I invite and welcome your support for that 

proposal. That limitation aside, however, the story of the material 

support bar’s application is one of steady improvement. We are now 

poised with all the tools we need to achieve our dual goals of both 

protecting refugees and protecting the homeland. With your support, we can continue our efforts to achieve those goals. 

Thank you for your attention to this timely and important issue, 

and I look forward to what I anticipate will be many questions. 

Chairman DURBIN. Thank you, Mr. Rosenzweig, and before your 

testimony, you came up and we had a brief conversation about 

child soldiers. I believe Senator Feingold is on the Foreign Relations Committee, and I think this matter may have been sent to 

a staff attorney there, and I would like to see if you could help us 

find out what progress has been made on that legislative suggestion, which I think is valuable. 

It seems like when you look at the specific cases here, you find 

elements that obviously would be taken into consideration by any 

judge who is trying to be dispassionate and objective: age, duress, 

circumstances, in some cases narcotics, other substances are being 

used. All of these things would seem to me to be reasonable things 

to bring into the material support conversation. 

Are you allowed to take those things into consideration? 

Mr. ROSENZWEIG. Absolutely, sir. And, indeed, that is part of 

what we do. Let me give you an example. This is from the guidance 

that we have issued to the field for adjudication of duress exemptions as opposed to some of the other factors, but each one is different. 

We ask our adjudicators, when we provide them a non-exhaustive list, their direction is to assess each case under the totality of 

the circumstances. But we ask them to first assess whether there 

9 

is a reasonably perceived threat of a serious harm. And then we 

tell them this means things like whether the applicant reasonably 

could have avoided or taken steps to avoid providing the material 

support; the severity and type of harm inflicted or threatened; to 

whom the harm or threat of harm was directed; the imminence of 

the harm threatened; the likelihood that the threatened harm 

would be inflicted as opposed to just being an un-imminent threat. 

In addition, we asked them to then also inquire on the other side 

within the totality of the circumstances: the amount and type of 

material support provided; the frequency of the material support 

provided; the nature of the terrorist activities committed by the terrorist organization engaged; the applicant’s awareness of those terrorist activities, since lack of awareness would clearly be relevant; 

the length of time that has passed since the applicant provided the 

material support; the applicant’s conduct since that time. All of 

those are a congery that go into a totality-of-the-circumstances 

analysis that actually gives us a great deal of flexibility to ask 

these questions on a fact-specific basis and address each case on a 

case-by-case instance. 

Chairman DURBIN. I am glad to hear that. The problem we have, 

of course, is that we are given a capsule summary of the circumstances, and when we read of a 13-year-old Ugandan girl who 

was abducted, sexually assaulted at the age of 13 by the Lord’s Resistance Army, and forced to serve as the so-called wife of one of 

their leaders at the age of 13, it would seem that on its face this 

is a case that would not argue that she was providing ‘‘material 

support’’ to a terrorist organization but was, in fact, enslaved by 

this organization. She was denied refugee status. 

Do you know anything more about that case? 

Mr. ROSENZWEIG. I don’t know about that particular case, but 

what I do know is that the Lord’s Resistance Army is a Tier II listed organization as opposed to one of the unlisted Tier III organizations. And that is because of the many horrific things that the have 

done, including, it would seem, this. 

We have proceeded cautiously in using our authority to exempt 

material support provided under duress to Tier I and Tier II organizations precisely because we do not want to create unintended 

consequences that prevent us from continuing to use the same provisions to exclude people of the sort that I alluded to in my statement. The Lord’s Resistance Army is one of the groups that is 

scheduled for an intensive national security analysis within the 

interagency and within the administration, with the expectation 

that if that analysis proves to warrant it, we will begin processing 

such cases as well. 

Chairman DURBIN. Let me just close by asking this question: 

Aside from the substance of the law and its application, I would 

like to ask you about the timing of the reviews. 

Two years ago, under the REAL ID Act, we created waiver authority at your agency. You said that the Department of Homeland 

Security has issued over 3,000 exemptions to individuals who provided material support, and most of these were for refugees outside 

the country. You did not mention those who were already in the 

U.S. and seeking asylum. 

10 

It is my understanding that at this point the Government has 

granted waivers to only nine asylum seekers; over 440 are pending. 

Is that correct? And if so, what is the justification for delay in processing the waivers for these asylum seekers? 

Mr. ROSENZWEIG. I believe your numbers are correct. There have 

only been nine grants within the asylum division, and there are approximately 440 that are on hold. There are a couple of reasons 

that lie behind that time frame and sequencing. First, of course, is 

that we started the process in which we were exploring how to exercise this waiver authority outside the United States rather than 

inside. We did that for the reasons that are so radically demonstrated by the video that you showed us. The conditions there 

are so horrific that we wanted to address those first, and we wanted to address those in a context where we could assess whether or 

not we had the capability to adequately and accurately make determinations and adjudications about people. Having grown comfortable with that, we extended that authority back into the United 

States. 

Then there comes a second order of delay, which is the first extension within the United States applied to asylum seekers and immigration benefit seekers other than those who sought support 

under duress. That, too, is a complicated issue that posed a series 

of intricate legal problems. We particularly did not want to move 

domestically on duress cases in a way that would affect pending 

Department of Justice prosecutions, issues that they are more capable of addressing for you than I am. 

It turns out that almost all of the asylum cases that are pending 

on hold pose duress questions. Thus, since the issuance of the duress exemption for Tier III, we have processed eight Tier II duress 

cases in the asylum, and there are approximately 70 more left. 

There now are about 120 FARC duress exemption cases that have 

been on hold that are in train to be processed expeditiously now 

that the administration has determined to move forward with processing of those cases following the national security analysis I alluded to. We will then in train add the Lord’s Resistance Army, the 

other opposition groups in Colombia, the AUC and the ELN. 

Chairman DURBIN. What is the timeline on that? 

Mr. ROSENZWEIG. Well, those determinations are out for review 

within the national security community. I do not know the time 

frame for them coming back. My experience in the group determinations that we began in Thailand is that the very first one of 

them took a great deal of time because that was asking the national security and intelligence communities to do analysis that 

they had never done before. They are very used to asking questions 

like how many Russian tanks there are and things like that, but 

not these sorts of questions. The first one for the FARC took a commensurately long time, but I am confident that the newer ones will 

go more quickly, and you will see additional extensions of Tier I 

duress waivers I would say for sure this calendar year. 

Chairman DURBIN. Senator Coburn. 

Senator COBURN. Thank you. 

So, really, we have two problems. One is there are statutory 

changes that need to be made, that you all feel need to be made, 

and I would like for you to outline specifically what those are. And 

11 

then the second problem is actually working through the process, 

and I guess our question is: How do you speed up that process? So 

two questions. One, what are the exact statutory changes that need 

to be made, specifically? And number two, how do we help you 

speed up the process or how do we hold your feet to the fire to get 

the process speeded up? 

Mr. ROSENZWEIG. Well, on the first of those, Senator, the administration has submitted a legislative proposal, the details of which 

get into the intricacies of sub-sections and sub-sub-sections of the 

INA. But, broadly speaking, today the exemption authority that the 

Secretary of State and the Secretary of Homeland Security have is 

limited to just a few subsets of terrorist-based exemptions. 

We may exempt, for example, material support provisions. We 

may also exempt from that people who are representatives of other 

groups who espouse—who engage in political speech. We lack the 

authority to waive the application with respect to INA 

212(a)(3)(B)—I think that is right—which is the provision that prohibits us from admitting anybody who has carried arms. 

The structure of the administration’s proposal is essentially to 

take off all those limitations and to say, as broad as is the exclusion authority for people who engage in support or otherwise are 

related to terrorist activity, make our exemption authority identically commensurate. If you do that, we will be able to exercise that 

authority with respect to the people who have yet to have the relief 

that they have sought. 

With respect to how to speed up the process and hold our feet 

to the fire, well, this hearing certainly helps. But beyond that, I 

think that what has happened is that we were faced with a new 

and challenging set of issues, one that involve a very intricate 

interplay between provision of criminal and immigration law that 

is literally of the vital centerpiece of much of the counterterrorism 

activity that my colleagues in the Department of Justice undertake. 

And we had to proceed cautiously to ensure that we were not creating precedents that could be adversely used by criminal defendants, for example, in material support cases or things like that. 

That is why we did proceed on a very step-by-step basis, first in 

a single camp, then with respect to a single community, then with 

respect to camps only overseas, then domestically, then to the duress. 

We are now actually at a position where there are, in my judgment, only two pieces that are left to be done administratively. The 

first is the continuing expansion and processing of Tier I and Tier 

II duress exemptions, and the second is, with your assistance, the 

extension to combatants so that we can take care of that piece. The 

first of those I have undertaken and will undertake to continue to 

move along as quickly as possible. The second of those I cannot do 

without your help. 

Senator COBURN. When will that happen, the first one? 

Mr. ROSENZWEIG. The first one? Well, as I said to Senator Durbin, we have put in train each of the groups. We are trying to 

prioritize them based upon the size of the affected communities. 

And this is one of the situations where, frankly, we can use the assistance both of the members of this Committee, your staff, and 

people in the NGO community for helping us to identify additional 

12 

groups that require this sort of scrutiny. We were very successful 

in that cooperative relationship, in my judgment—you will have to 

ask them—with the NGOs in the Tier III. 

Senator COBURN. I think the thing this Committee would like to 

get a feeling, kind of like what Senator Kennedy said, is these are 

lives that are at risk, and I think what we want to make sure is 

that when lives are at risk, we go full speed forward and we do not 

use the idea of doing what is safe when we can do what is right. 

And, you know, what we would like to see is to make sure that this 

is prioritized, that it is a priority, that there is a fire running all 

the time, because time is the enemy of a lot of these people. And 

our inability to be responsive and timely could cost them their 

lives. 

We are going to work, Senator Durbin and I have committed to 

work to get the legislative changes that you need. But I think we 

need to hear from you a commitment that this is a priority, we are 

going to do it, because every life that is hanging out there that we 

do not make a positive impact on is a life that is going to be lost 

or wasted. 

Mr. ROSENZWEIG. You have my unreserved commitment. If I had 

to say, in my position I have responsibility for literally every policy 

matter that comes across the Department’s plate, ranging from immigration and refugees to border screening to preparedness. And I 

personally have spent more time on this issue than on any other 

by far in volume, and that will continue to be the case, I think, 

until this issue is finally resolved. 

Senator COBURN. Thank you for your assurance. 

Chairman DURBIN. Senator Leahy. 

Chairman LEAHY. Well, I am not going to ask questions. I will 

leave that to Senator Kennedy. But I agree with both you, Mr. 

Chairman, and I agree with Senator Coburn that this should be 

more of a priority. I think of the tens of thousands of Iraqis that 

we promised assistance to and a tiny handful receive help. And, 

frankly, Mr. Rosenzweig, I am sure you work very hard, and I am 

sure you are very dedicated. But I have heard nothing but the 

same kind of bureaucratic boilerplate I have heard from your Department when in the Appropriations Committee we asked them 

how are you doing in the cleanup after Katrina. And I heard all 

these things about policy meetings and this panel and that group 

and this policy and so on. But, of course, we have hundreds of millions of dollars squandered, and trailers never used. It is like the 

comments we heard that everything was okay in the Superdome, 

and yet people were dying. 

I would like to hear a lot less boilerplate and see a lot more action. 

Chairman DURBIN. Senator Kennedy. 

Senator KENNEDY. Thank you. Thanks very much for being here. 

Let me go through these numbers of waivers. We know that there 

has been some legislative change, and we thank Chairman Leahy 

and Senator Durbin and Senator Coburn and Senator Kyl. But we 

have not seen a lot of transparency in this process. And I would 

like to just sort of run through this quickly with you. 

The ongoing process between the Department of State, Homeland 

Security, and Department of Justice in identifying the groups that 

13 

merit a waiver and how we decide whether these waivers are 

granted, could you describe that for us? 

Mr. ROSENZWEIG. Yes, Senator. 

Senator KENNEDY. Maybe you could tell us how they have shifted 

and how they have changed, because I think Senator Coburn raises 

a very legitimate question about the timeliness of this. Tell us 

about your—you can start with maybe your Department and the 

Department of State since you have indicated that you deal with 

all of these issues—immigration, refugees, border security. 

Mr. ROSENZWEIG. I am not sure I understand the question precisely. Let me— 

Senator KENNEDY. The question, let me get—describe the ongoing process in the Department of Homeland Security, State Department, and Department of Justice in identifying groups that merit 

the waiver and deciding whether the waiver should be granted. 

Mr. ROSENZWEIG. Thank you. That clarifies it. 

There is an interagency group chaired by the NSC that comprises Justice, State, and the Department of Homeland Security. 

Typically, I am the representative of the Department of Homeland 

Security at that interagency group. My counterparts are the head 

of the Office of Legal Policy in the Department of Justice, the Assistant Attorney General—formerly Rachel Brand; her successor is 

a man named Brett Gerry—and Assistant Secretary for Population, 

Refugees, and Migration Ellen Sauerbrey. We meet regularly and 

routinely to discuss the development of policy with respect to these 

groups. 

With respect to nominations of particular groups, initially much 

of the impetus for those came from our colleagues in the Refugee 

Affairs Division of the USCIS and the Department of State’s PRM 

Bureau, who were familiar with the conditions in the Tham Hin 

camp, for example. More foundationally, they are often motivated 

by the information they receive from nongovernmental organizations and the UN High Commissioner on Refugees. 

The UN High Commissioner on Refugees had, for example, been 

advancing the cause of the Karen and the Chin in the camps in 

Thailand for several months in an effort to assure that we took 

them to our attention. 

Senator KENNEDY. Well, let me get to this because of the time— 

and I do not want to—you get recommendations of the High Commissioner. They go through nongovernmental agencies, then 

through the Refugee Affairs. Then they come into the Department. 

I am asking what is the process. What is the process for considering them? How do you work this through? What is the motif? 

Mr. ROSENZWEIG. Well, I mean— 

Senator KENNEDY. We have a motif allegedly about how we legislate around here. Sometimes it is followed and sometimes it is not, 

but at least we have got a motif—most people could describe generally what it is. What is the motif now? How do you proceed? And 

how do each of these agencies proceed? You have to know it. 

Mr. ROSENZWEIG. Yes. 

Senator KENNEDY. Because you are in charge. So I want to know 

how you proceed. You have three major agencies that make the 

judgment that you have just identified, and I would like to know, 

because we have had difficulty in finding out—you have sat 

14 

through those meetings—exactly how that process sort of works its 

way through. 

Mr. ROSENZWEIG. A good example would be how we have processed or are processing the next extension of the Tier I and Tier 

II. Having done the FARC— 

Senator KENNEDY. Let’s take the Montagnards, for example. Who 

started that? What did your Department say about it? What did 

Homeland Security say about it? What did the Justice Department 

say? How did that process—you say it is about to get the Secretary’s signature. She indicated that as well. But let us just take 

those two high profile and tell us exactly how that went through. 

Did you have to have more than one meeting? Has it gone on—did 

the Justice Department say, look, we ought to be able to go ahead 

and then did Homeland Security say, no, it is going to take 

longer—we are going to have to review this? How does it all work? 

Mr. ROSENZWEIG. No, on the contrary, Senator, I mean, the first 

nomination that I know of for the Montagnards and the Hmong 

came in a collaborative process that was a joint interagency agreement among State, Justice, and DHS. And they have been on our 

minds because of their quite high profile and their truly affecting 

circumstances for quite some time. 

It has been severely complicated by a bunch of questions that 

have only recently been resolved. Let me highlight for you two of 

them. 

The first is that, unlike— 

Senator KENNEDY. Just—because my time is up—I am trying to 

get the material support process. How does this role fit into Homeland Security and the Department of Justice? What was the nature 

of the discussion when you came to the Montagnards? You must 

have sat in there. 

Mr. ROSENZWEIG. Yes. 

Senator KENNEDY. Okay. Well, there is a discussion that Justice 

Department, Homeland Security conducts. You have got the 

Montagnards, you have got the Hmong. You must have sat through 

it. Now, how does that go? 

Mr. ROSENZWEIG. Well, I— 

Senator KENNEDY. I can tell you how discussions go in genetic 

discrimination with—well, the Senator has left—Senator Coburn 

over here. I can tell you how those conversations go, and we can 

all talk about it. How does it go when you are trying to make these 

judgments on material support? 

Mr. ROSENZWEIG. Well— 

Senator KENNEDY. You want to try to explain so that the public 

understands the process. We do not believe that it has been transparent. We do not believe that it has been open. You are the person, as you have just admitted, that knows about it, and there 

should not be any reason that you cannot really tell the Committee 

exactly how it works. 

Mr. ROSENZWEIG. Well, as I was saying, Senator, there was no 

dispute on the face of it that the Hmong and Montagnards were a 

group that ought to have relief. So we agreed interagency that they 

were for consideration, and then they were sent out to the national 

security community to ensure that the latest information that we 

had from the intelligence community did not indicate any contrary 

15 

reason why they should not be granted relief. Upon completion of 

that— 

Senator KENNEDY. Could I just—because my time is up. If I 

could just ask one other question. On the Iraqis, the refugees that 

are coming in here, as you know, in 2005 we took 198; in 2006, 

202. I am not going to get into the numbers, but they are illustrative. Iraqis admitted as refugees so far in 2007, 990. We expect 

hopefully you will get to 1,700. 

Let me ask you, what role will material support play in terms 

of these Iraqi refugees? 

Mr. ROSENZWEIG. It is unlikely to present a large issue. We have 

already adjudicated at least one Tier II duress material support 

case for an Iraqi refugee. I anticipate that there will be other cases 

on an individual basis, but it is unlikely that anybody presenting 

themselves as a refugee will also have been somebody who provided material support to al Qaeda in Iraq. In that unlikely circumstance we will obviously have to face the question. But, by and 

large, given the large number of refugees, many of whom are, as 

you said in your opening statement, people who are known to have 

embedded by U.S. Government personnel, the material support bar 

obviously has no— 

Senator KENNEDY. What if they did it to Saddam Hussein’s 

henchmen, if they had a kidnapping, paid money to them? 

Mr. ROSENZWEIG. I think we would have to probably face that 

when we come to it. I am corrected that we have actually issued 

a blanket waiver for any Tier III material support that is in the 

blanket exemption for any Tier III material support that involves 

non-designated groups in Iraq. So that actually helps me out quite 

a bit. 

Chairman DURBIN. Senator Kennedy, thank you for raising that 

last point, and let me follow up on it. 

When I recently visited Iraq, I learned that there were some 4 

million displaced persons—2 million internally and 2 million outside of Iraq, refugees; rough estimates of 600,000 or 700,000 in Jordan, over a million in Syria, some in Egypt, and undoubtedly in 

other countries. And I was also told at the time that the United 

States had accepted some 700 Iraqi refugees. And so you have said 

that material support, as I understand it, is not generally an issue, 

with these Iraqi refugees? 

Mr. ROSENZWEIG. It has not presented itself thus far, no. 

Chairman DURBIN. I am trying to figure out why it is taking so 

long, why they have to leave Iraq to apply for refugee status. This 

displaced population is causing great hardship in Jordan. I did not 

visit Syria so I do not know, but it is causing great hardship in a 

country that is not wealthy. Though we assume most of the Middle 

East is wealthy, Jordan does not have oil or gas. And they are 

struggling to find water and the basics. Just allowing the children 

of these refugees into the Jordanian school system means that 10 

percent of their school population will now be Iraqi. 

So it seems to me, going back to earlier statements by Senator 

Kennedy and others, that we have a certain moral obligation here. 

Many of these people who are asking for refugee status literally 

risked their lives for us, for our soldiers, for our people, and for our 

cause. And I do not know what role you play in these Iraqi refugees 

16 

being processed, but can you give me some kind of assurance that 

this is going to change soon and that we are going to bring more 

into protection here in the United States who deserve it? 

Mr. ROSENZWEIG. Yes, I can. Let me first, though, address the 

timeline question and then the numbers, because though I know it 

seems a long time to you, the processing time for Iraqi refugees is 

now down to between 4 and 6 months, which is shorter than for 

any other refugee population anywhere else in the world. You saw 

the Tham Hin camp where they have been waiting 10 years, and 

that is precisely because the Department of State, the International Organization for Migration, and DHS have been investing 

substantial and significant resources in speeding up the process. 

To that end, the President’s report on refugees will set a target, 

one that I am confident we will meet, of accepting 12,000 refugees 

from Iraq next year, which will be roughly 12/70th of the total goal 

for the entire world. So that is quite a substantial commitment. 

That having been said, you know, if there are 600,000 in Jordan—and there are—the United States cannot possibly accept all 

of those. We have accepted more for referral from UNHCR than the 

rest of the world combined at this juncture, and we are going to 

continue to move forward on that. 

Chairman DURBIN. How many have we accepted? 

Mr. ROSENZWEIG. We have accepted for referral to the USA RAP 

program 11,019 as of Monday. Of those, 10,484 were referred to us 

by the UNHCR, 229 were referred by U.S. embassies, and 306 were 

what we call ‘‘direct access’’ referrals. 

Chairman DURBIN. And how many have been accepted by the 

United States so far? 

Mr. ROSENZWEIG. To date, there are 942, I believe—it may be 

higher because this is Monday’s number—who have actually been 

admitted. We have completed interviews on 4,309 of them, conditionally approved—or fully approved some 2.987. I have asked—I 

have often likened this a bit to like water in a hose. You turn on 

the tap at one end, and it does not come out the other end until 

a bunch of things have happened. 

We turned on this hose in February. It is now essentially at full 

flow, and for the next fiscal year, we are going to be processing essentially 1,000 a month, which is more than any other single individual refugee population. 

I should add that there are two other reasons why things are 

slow. You did not go to Syria. My staff cannot go to Syria either. 

The Syrians have denied us visas for them to come and process refugees. If we do not go, we cannot process. 

Chairman DURBIN. So how many DHS staff or employees are 

currently sent to Jordan, where you can go, to process the 600,000 

or 700,000 Iraqi refugees? 

Mr. ROSENZWEIG. We send teams of four to six whenever there 

are individuals who are ready for an interview. That is a middle 

point in the process. 

Chairman DURBIN. So how many total have been sent to Jordan? 

Mr. ROSENZWEIG. We have been to Amman four times that I 

know of, and we go on essentially a week’s notice when people are 

ready for our portion of it. There is a prefatory phase that is conducted by IOM, and I am pleased and, quite frankly, very proud 

17 

to say that so far we have addressed and interviewed every single 

interview-ready individual within a matter of weeks from their 

being ready for interview. 

Chairman DURBIN. Since I was there a few weeks ago—and I can 

tell you that the problem has overwhelmed Jordan—sending six 

teams of six, I am sure they would react by saying you have to do 

a lot more than that. And I hope we will. I understand that there 

is a security issue here that we have to be sensitive to and mindful 

of. I also understand that currently we have 65,000 Iraqi civilians 

who were supporting our effort in Iraq, risking their lives for our 

cause, and for theirs—a joint cause, I should say. So I hope that 

we will be more sensitive to the impact and the need for quick action. 

If you say that this started last February, that was 4 years into 

this war before we started dealing with this issue. And clearly we 

are long overdue in meeting an obligation here. 

Mr. ROSENZWEIG. Your latter point is well taken, but with respect to your former point about not putting sufficient resources to 

it, there are space limitations, people limitations, and I have to repeat, we are simply not going to be in a position to accept 600,000 

Iraqi refugees. We will accept and process everybody who is qualified within the context of—DHS has thrown resources at this. We 

have pulled, frankly, adjudicators from other populations around 

the world to make sure that we answer the mail every time. 

Chairman DURBIN. I am going send it to Senator Coburn with 

one last comment. We cannot accept 600,000 or 700,000, and I 

would not suggest it. We certainly can accept some moral responsibility for helping Jordan and those other countries who are trying 

to provide humanitarian assistance to them. 

Mr. ROSENZWEIG. That I would certainly agree with. That, of 

course, is in my colleague from the Department of State’s purview 

for providing humanitarian assistance. 

Chairman DURBIN. Senator Coburn. 

Senator COBURN. I just think the record needs—I served as a 

medical missionary in Iraq after the first Gulf War, and a lot of 

these refugees do not want to come here. They want to go home. 

And so we cannot use the number of 600,000 or 700,000 because 

their real choice is to go home. And so that is a whole other set 

of issues, but we need to be very clear. Those that have helped us, 

those that want to seek our help, we ought to be ready and able 

and willing to help. And I thank you for your testimony and the 

hard work that you do. 

Chairman DURBIN. Thank you, Mr. Rosenzweig, for your testimony. 

Mr. ROSENZWEIG. Thank you. 

[The prepared statement of Mr. Rosenzweig appears as a submission for the record.] 

Chairman DURBIN. It now is my pleasure to call before the Subcommittee the second panel of witnesses. Please note that the Subcommittee is taking special security measures to protect the anonymity of one of our witnesses. This witness will testify under a 

pseudonym, and she will be surrounded by screens to protect her 

identity. No video or photographs of this witness will be permitted. 

18 

The U.S. Capitol Police are present. They will escort from the hearing room anyone who does not abide by these rules. 

We are honored to welcome a distinguished panel of witnesses to 

share their views. Each witness will have 5 minutes for their opening statement, if they would please take their seats at the table. 

Their complete written statements will be included in the record. 

I would like to ask all of the witnesses if—do we need a minute? 

Okay. Just a minute here while we set things up. 

[Pause.] 

Chairman DURBIN. I would like to ask the witnesses, if they 

would not mind, to stand and be sworn in. Do you swear or affirm 

that the testimony you are about to give is the truth, the whole 

truth, and nothing but the truth, so help you God? 

Ms. Hughes. I do. 

Bishop Wenski. I do. 

Mariana. I do. 

Chairman DURBIN. Our first witness is Anwen Hughes, an attorney with the Human Rights First organization. She is senior counsel of Human Rights First’s Refugee Protection Program. She helps 

oversee Human Rights First’s pro bono representation for indigent 

asylum. Ms. Hughes received her J.D. from Yale Law and B.A. 

from Yale College. Ms. Hughes has been before this Subcommittee 

before, having testified at our child soldiers hearing about the impact of material support bar on these child soldiers. 

Thank you for bringing this issue to our attention and for being 

with us today, and please proceed with your testimony. And as I 

mentioned, your written statement will be made a part of the 

record. 

STATEMENT OF ANWEN HUGHES, SENIOR COUNSEL, REFUGEE 

PROTECTION PROGRAM, HUMAN RIGHTS FIRST, NEW YORK, 

NEW YORK 

Ms. HUGHES. Chairman Durbin, Ranking Member Coburn, and 

members of the Subcommittee, thank you for holding this hearing 

and for inviting me here today to offer the views of Human Rights 

First on this important topic. 

For nearly 30 years, Human Rights First has worked to protect 

and promote fundamental human rights and to ensure that the 

rights guaranteed to refugees under the Refugee Convention and 

its Protocol remain available to them under U.S. law. At the same 

time, we have a longstanding commitment to the proper application 

of the ‘‘exclusion’’ clauses of the Refugee Convention, which allow 

the denial of international protection to refugees who have committed serious violations of the human rights of others or other serious crimes, including acts of terrorism. 

I am here today to talk about the way the terrorism bars in our 

immigration law enacted to bar terrorists and their supporters 

from the United States are undermining our ability to protect refugees and are barring as ‘‘terrorists’’ the victims of the people and 

groups these immigration law provisions had intended to target, as 

others have been explaining earlier. 

Several asylum seekers are here with us today whose experiences 

illustrate the real human costs of this situation. One is a nurse 

from Colombia, Mariana, who will be testifying in a moment. She 

19 

was kidnapped by FARC guerrillas and forced to treat their wounded. She will be testifying in person today. 

Also here today is a Nepalese medical worker, referred to in his 

immigration papers by his initials, B.T., who was abducted by 

Maoist rebels and forced to treat their injured members. 

Another refugee with us here is a member of Burma’s Chin ethnic minority. For similar security reasons, we are referring to her 

publicly by her initials, which are S.K., who was denied asylum 

based on the finding that she had contributed to a Chin organization, some of whose members had used force against the army of 

the Burmese military regime. 

A former student activist from Bhutan is also present at this 

hearing. As a refugee in Nepal, he had taught at a school that took 

money from him, probably because the school was being subjected 

to extortion by Maoist rebels. Because of this, this man’s case has 

been frozen for over a year, prolonging his separation from his wife 

and his little daughter. 

How do we get to a point where people like this became targets 

of our counterterrorism efforts? The root of this problem really lies 

in our immigration law’s definition of ‘‘terrorist activity,’’ which is 

defined to include the use of any weapon or dangerous device, other 

than for mere personal monetary gain, to endanger persons or 

property. If read literally, this definition covers everything from 

simple assaults to ordinary warfare, to what most people actually 

would consider to be terrorist activity. The essential elements of 

this definition have been on the books since 1990, but the passage 

of the USA PATRIOT Act and the REAL ID Act compounded their 

effects. 

These pieces of legislation defined as a terrorist organization any 

group of people that engages in or has a subset that engaged in terrorist activity, as I just defined it, and there is no centralized government control over a decision that a group falls under that definition. They also provided that anyone who provides material support to a terrorist organization is held to have engaged in terrorist 

activity himself. 

Now, under the Refugee Convention, in order to be excluded from 

protection, a refugee must bear individual responsibility for serious 

wrongdoing, either because the refugee personally committed an 

excludable act, which would include acts of terrorism, as that term 

is commonly understood, or because he or she contributed to the 

commission of such acts in a significant way and did so knowingly 

and voluntarily. 

What we now have under our immigration laws, unfortunately, 

is a situation where a person can be returned to persecution for 

giving support to a group without any showing that any member 

of the group even engaged in any wrongdoing that would justify exclusion of that person, much less of the refugee who gave to the 

group as a whole. 

Miss K, the Burmese Chin woman who is here with us, is an example of this. She has been denied asylum for giving to the CNF, 

the Chin organization I was referring to, based only on a finding 

that the CNF used arms in self-defense against the army of the 

Burmese military regime, which has targeted the Chin and also 

other Burmese ethnic minorities, like the Karen, who were repVerDate Nov 24 2008 14:11 Mar 12, 2009 Jkt 045451 PO 00000 Frm 00023 Fmt 6633 Sfmt 6633 S:\GPO\HEARINGS\47451.TXT SJUD1 PsN: CMORC
20 

resented in the video that was shown earlier, for ethnic and religious persecution. 

But DHS has also amplified the unintended consequences of 

these definitions by interpreting them in the most expansive possible way. DHS has effectively read the ‘‘material’’ out of the term 

‘‘material support,’’ excluding people from protection based on minimal contributions or based on forms of assistance that bear no logical connection to terrorist activity. For example, DHS has considered emergency medical care to constitute material support to terrorism. Mariana, the nurse from Colombia who be testifying shortly, was kidnapped by FARC guerrillas and is an example of this. 

But she is not the only one. 

The medical worker from Nepal who is with us here also was 

kidnapped and forced to treat injured Maoist guerrillas. He was 

granted asylum by the immigration judge, but DHS has appealed 

that decision to the BIA, and the case has been pending there since 

2005. 

DHS has also refused to recognize any defenses to this bar, including duress, as Senator Durbin and others were referring to earlier. It is hard to see how these interpretations advance our national security. In the overwhelming majority of these cases, the 

reason the U.S. Government knows that these refugees gave anything to an armed group at all is because the refugees themselves 

have come forward and told the Government about this of their 

own free will and under oath. Also, posing a threat to the security 

of the U.S. is an independent bar to asylum. In almost all of these 

cases, we are talking about people DHS does not contend pose any 

threat whatsoever to the United States. 

Now, the statute provides authority for DHS and the Secretary 

of State overseas not to apply certain of these bars, and new legislation would expand this authority to cover the rest of them, subject to certain exceptions. This waiver authority is important, and 

its expansion is a positive development. But as has been noted and 

confirmed earlier, while about 3,000 refugees overseas have been 

granted waivers, only nine asylum seekers have received waivers 

to date, and there is still no process in place to grant waivers to 

any asylum seeker whose case is pending before the immigration 

court. 

This means that although Chin refugees in exactly the same situation as Miss K, for example, are now being resettled in the 

United States, she herself remains in removal proceedings, and she 

was detained for 2 years because of this. 

The other refugees attending this hearing today are in the same 

situation and have also seen their lives placed on hold. They are 

unable to travel or plan for the future, and they cannot be reunited 

with their spouses and children, who often remain in very dangerous situations overseas. 

And these are the cases we know about. One of the scary things 

is that DHS and the Justice Department, as far as we are aware, 

do not have mechanisms in place to keep track of the cases that 

are pending before the immigration courts or the Federal courts 

that DHS intends to eventually consider for waivers, so that there 

does not appear to be a reliable system in place to keep those people from being deported before that can happen. 

21 

I would also note that these are the results that we have seen 

at the end of a 2-year period in which this problem has been the 

intense focus of the Government and also of the NGO community. 

From a practical standpoint, we have had serious concerns that 

this level of reliance on waivers is just not a feasible solution in 

the long term, especially if DHS maintains its current interpretations of the core legal definitions that are sweeping so many of 

these cases into this terrorism bar framework. 

This scheme also raises very fundamental due process concerns. 

Administrative agencies are not infallible, and many of the asylum 

seekers who come before them are unrepresented by counsel and 

struggle to communicate their stories through inadequate translation and across significant cultural and linguistic barriers. For 

the asylum seekers involved, what is at issue here can be the difference between life and death, and we believe that these cases deserve the same procedural protections and the same review that 

our legal system normally accords to interests of this magnitude. 

In conclusion, progress on implementing the waiver authority 

that currently exists is a positive development, and it should be 

pursued and it should also be closely monitored, both in asylum 

and adjustment-of-status cases and also in refugee cases overseas. 

Expanding the waiver authority is also an important step to help 

many refugees currently barred from protection. But in order to 

bring our system of refugee protection back into line with our treaty obligations and our historical traditions of extending protection 

to the persecuted, Congress ultimately will need to address the 

overbroad definitions that lie at the heart of this problem. The people the U.S. Government actually needs to target, including the examples that Mr. Rosenzweig was citing earlier, would lie well within a more focused set of definitions that we should all be able to 

agree on. 

Thank you, Mr. Chairman, and I look forward to answering any 

questions the Subcommittee may have. 

[The prepared statement of Ms. Hughes appears as a submission 

for the record.] 

Chairman DURBIN. Thank you very much, Ms. Hughes. 

Our next witness is Bishop Thomas Wenski. He has had a long 

and distinguished career. He has headed the Roman Catholic Diocese of Orlando since November 2004. He was previously auxiliary 

bishop of Miami for 7 years. He is chair of the U.S. Conference of 

Catholic Bishops’ International Policy Committee, and was previously chair of their Migration Committee. He also served as 

Chairman of the Board of the Catholic Legal Immigration Network. 

Governor Jeb Bush of Florida appointed Bishop Wenski to the Governor’s Task Force on Haiti. U.S. Attorney Paul Perez appointed 

Bishop Wenski to the Human Trafficking Working Group. His biography will tell you that he has been involved in extensive humanitarian efforts in Cuba, Haiti, the Dominican Republic, Colombia, 

and many Central American countries. 

Bishop Wenski, thank you for joining us today. The floor is 

yours. 

22 

STATEMENT OF BISHOP THOMAS WENSKI, DIOCESE OF ORLANDO, AND CHAIRMAN, INTERNATIONAL POLICY COMMITTEE, U.S. CONFERENCE OF CATHOLIC BISHOPS, ORLANDO, FLORIDA 

Bishop WENSKI. Thank you. I would like to thank you, Senator 

Durbin and Senator Coburn, for inviting me to testify here today. 

The United States bishops and their Catholic dioceses are the 

largest nonprofit provider of services to refugees in our country, 

and we are gravely concerned with the impact of the issue of material support on bona fide refugees, asylum seekers, and others who 

come to our shores fleeing terror and persecution. 

Mr. Chairman, let me say up front that the bishops and I appreciate the efforts of Congress to protect the American public and ensure our national security. Since 9/11, national security has been 

an urgent priority for the American public, and rightly so. 

It is the view of the bishops that national security interests and 

important principles undergirding our democracy are not incompatible. We need not undermine our honored traditions and democratic 

principles in order to achieve security. In fact, we can achieve both 

with the proper balance. 

With the issue of material support, we are concerned that we 

have failed to strike that proper balance and that people who are 

victims in their own countries, forcing them to flee, to become refugees fleeing terror, are now victimized again by the unintended 

consequences of an ineffectual policy. 

Mr. Chairman, in my testimony, my written testimony, I have included several examples of refugees who have been denied resettlement in the United States because of the material support bar. 

Their stories are horrific, but similar in at least one respect: they 

were forced to provide some sort of support to a terrorist organization, as currently defined in law, at the risk of their health or lives. 

In most cases, they were providing this support under duress to 

groups or resisting regimes our own country also opposes. 

Tragically, current law does not adequately take into account the 

circumstances whereby an individual provides material support to 

a group, nor does it properly distinguish between groups that are 

actual threats to our Nation and those who are not. For example, 

Colombians fleeing the civil war in their country have been particularly vulnerable to the material support bar because of the common 

practice by rebel groups to force payments from them at gunpoint. 

Burmese aiding rebel groups against the Burma military junta 

often were forced to support the groups at the risk of death. 

To its credit, the administration has taken some steps to mitigate 

these circumstances by issuing waivers for certain groups, including the Burmese, to enter our country. But the process is very slow 

and burdensome and does not adequately solve the problem at 

hand, which is the denial of life-saving protection to thousands of 

refugees. And this is evident in the numbers resettled in the U.S. 

Refugee Program. Last year, nearly 12,000 cases were not resettled 

because of material support provisions, and only about 41,000 refugees were resettled. We are expected to bring in about the same 

number this year, but that is far below the Presidential determination of some 70,000 refugees. 

23 

For asylum seekers, over 440 cases are currently on hold, and 

only 9 cases have been approved. And for eligible persons in removal proceedings, no waivers have yet been issued. In our view, 

the best solution to this problem is for Congress to reconsider the 

issue of material support and revise the definitions of ‘‘terrorist activities’’ and ‘‘terrorist organizations,’’ and this can be done without 

allowing individuals that support groups that truly threaten us. 

Congress should also statutorily clarify its intent on duress and 

provide an exception for that circumstance. 

Mr. Chairman, the United States has been a beacon of hope for 

millions who have fled to this country for the protection that our 

democracy and our freedom bring. If we abandon our tradition of 

providing safe haven to the persecuted, we sacrifice those principles which have made this country great and, thus, allow our enemies a victory. 

We ask you to consider our recommendations and act accordingly, and I thank you again for your consideration. 

[The prepared statement of Bishop Wenski appears as a submission for the record.] 

Chairman DURBIN. Bishop, thank you for your testimony. 

We are going to now call our third witness on this panel. It will 

be necessary for us to make a few changes here to protect the identity of this witness, who fears for the safety of her family if her 

identity is disclosed. 

[Pause.] 

Chairman DURBIN. If the witness would please stand and take 

the oath. Do you swear or affirm that the testimony you are about 

to give is the truth, the whole truth, and nothing but the truth, so 

help you God? 

Mariana. I do. 

Chairman DURBIN. Thank you. 

Our final witness today is Mariana, a pseudonym which is being 

used for the protection of her identity. She is a refugee from Colombia. Mariana was kidnapped by the FARC and forced at gunpoint 

to provide medical care to guerrillas. Her asylum claim was denied 

because the Department of Homeland Security claimed that by providing nursing care for members of the FARC, she had provided 

material support to terrorists. 

Mariana, this Subcommittee is honored to receive your testimony, and I want to commend you for the courage to come today, 

understanding that your testimony, and particularly your identity, 

could create some danger for you or your family. We look forward 

to your testimony. Please proceed. 

STATEMENT OF MARIANA, COLOMBIAN REFUGEE 

MARIANA. Thank you for allowing me to be here today. I was a 

nurse in Colombia, and my daughter and I are seeking asylum in 

the United States because of my fear of the Revolutionary Armed 

Forces of Colombia (FARC). Both my daughter and I are currently 

in removal proceedings before an immigration judge after our asylum application was not granted because DHS said that I had provided material support to a terrorist organization. I am making 

this statement under the name ‘‘Mariana’’ because I am terrified 

that if the FARC learns of my identity in the United States, and 

24 

that I am seeking asylum, they will harm my family, which still 

resides in Colombia. 

My family members were active supporters of the Colombian 

Government who raised me to value serving the Colombian people, 

and I became a nurse in Colombia because of my desire to help others. After completing my nursing degree, I worked for the Ministry 

of Health, organized conferences on health promotion, and directly 

served Bogota’s poor communities. During my spare time, I volunteered in the communities, giving health lectures and distributing 

donated medicines, medications. 

In 1997, I was giving a presentation with a doctor for a health 

campaign. During the talk, an audience member collapsed, so the 

doctor and I attended to him while the other attendees left. But the 

fallen man suddenly began to laugh, and two other men came over 

and identified themselves as members of FARC. The guerrillas kidnapped and physically assaulted me and took me to a FARC member who had been shot, forcing me at gunpoint to treat him. Before 

returning home, the guerrillas threatened my life and the lives of 

my family if I notified the authorities. In the following months, 

FARC members continued abducting me, forcing me to provide 

treatment and medicine to injured guerrillas. 

Eventually, I became certain that I was going to be killed by 

FARC because I was left with a condolence card at my doorstep, 

something which FARC did routinely before it killed someone. I 

was absolutely terrified for my safety and for my family’s safety. 

I knew that FARC would kill me and my family if I did not cooperate with them. The communications that they made showed me 

that they were watching my every move, and it is well known that 

FARC has infiltrated the Colombian Government and that there is 

no one that can protect you. For instance, shortly after the medical 

clinic where I worked was closed, FARC killed my cousin by beating him to death and then setting his taxi on fire. 

I fled to the United States with my daughter and immediately 

filed a request for asylum. On July 26, 2006, DHS rejected my 

claim for asylum, stating that, ‘‘There are reasonable grounds for 

regarding you as a danger to the security of the United States in 

that you have provided material support to those who engage in 

terrorist activity.’’ DHS then initiated removal proceedings against 

my daughter and me. Our request for asylum is now pending before the U.S. immigration court, and our next hearing is scheduled 

in early 2008. 

I cannot believe that I was denied asylum based on supporting 

a terrorist organization. I never acted voluntarily. I only provided 

medical support because I was threatened at gunpoint and told 

that if I did not help the FARC soldiers both me and my family 

would be killed. I sincerely felt that I had no other option because 

I would have been killed if I had not done what they wanted. The 

asylum application has been pending for almost 7 years, and I am 

still overwhelmed with the fear that I will be sent back home to 

Colombia or that FARC will take action against my family. I have 

no sense of security, and it has been very difficult to raise my 

young daughter here with such uncertainty. Deportation back to 

Colombia would literally be a death sentence for us. 

Thank you very much. 

25 

[The prepared statement of Mariana appears as a submission for 

the record.] 

Chairman DURBIN. Thank you for your testimony. I think that it 

was difficult for you to say these words, and it was courageous of 

you to come here today and speak not just for yourself but for thousands of others who are caught in this material support loophole. 

You have experienced firsthand what it is like to be branded as 

‘‘engaged in terrorist activity,’’ which is the reason for the denial 

of your request. 

Do you think that your home country will welcome you back 

after you have been designated as involved in terrorist activities by 

the United States Government? 

MARIANA. No. No, they will never, and like I said in my statement, the FARC has infiltrated all our government, and if they 

know that I came here, seek asylum, and I say what I said today 

here, they will kill me and my family. 

Chairman DURBIN. You have a special situation here that Senator Coburn can address better than I can, being a medical doctor, 

in that you are a medical professional with a humanitarian duty 

to provide emergency care. 

MARIANA. Yes. 

Chairman DURBIN. You have explained how you were intimidated and kidnapped and forced into this situation. I wonder how 

you feel that when you used your skills as a nurse for medical purposes, that that has been branded as ‘‘terrorist activity’’ by our 

Government. 

MARIANA. I only did that because I was at gunpoint. They forced 

me. They told me, ‘‘If you don’t do this, I will kill your daughter.’’ 

They said her name, my father’s name. ‘‘If you don’t do this, if you 

don’t tell me what the next activity, what the campaign, what political activities you are going to do next, we will kill you.’’ It is the 

only way I will do it. I will do it—I have—I never did it because 

I wanted to. Because I was forced to. 

Chairman DURBIN. And as you testified here, it was your cousin 

who was beaten to death and killed by this same organization. 

MARIANA. Yes. He was with my father and my family members— 

sisters and cousins, we were together working on this. He was an 

accountant, and he was part of the group, and he was with us, 

and—with the group. 

Chairman DURBIN. So you are really in a position now without 

a country. 

MARIANA. Exactly. I cannot come back because they killed him, 

and we are in the same group, so I say, ‘‘I have to leave. I have 

to.’’ 

Chairman DURBIN. They will not give you refugee status in the 

United States. It is too dangerous for you to go back to Colombia. 

MARIANA. Yes, it is. 

Chairman DURBIN. And you are caught in our court system now 

while they make this final determination. 

MARIANA. Exactly. I have been caught for 7 years. I don’t know 

what to do at this moment. That is why I am here. I decided to 

come, like you said, to speak for me and speak up for the other people that are in the same situation. We were forced. You never do 

that because you wanted, especially in my case. My father is still— 

26 

you serve your country and you are going to be the rights, the 

human rights be protected, and your life is going to be taken care 

of, but they don’t care about anything. They don’t respect any 

human life. They don’t care. They just kill some people because 

they only want power. It doesn’t matter why or how. 

Chairman DURBIN. Thank you. 

Bishop Wenski, you have heard this testimony, which is as convincing as anything I have heard about the terror that this young 

woman has faced with her daughter because of this abduction and 

the kind of support that she was forced to give to these guerrillas. 

Have you run into similar cases that you have dealt with? 

Bishop WENSKI. Yes, Colombians and also other people. I lived 

most of my life in South Florida, and South Florida is a gateway 

for people that come from troubled countries. But a few years ago, 

as part of the Bishops Conference, I went to Ecuador and visited 

the frontier town of Lagos Agrios, where there are many Colombian 

refugees that have been forced because of paramilitary action or 

FARC action to cross the border. And many of these Colombians 

are also seeking a permanent solution to their situation in a third 

country, which could very well be the United States, and because 

of the material support bars, they are being also caught in that situation. 

Chairman DURBIN. Ms. Hughes, as I hear Mariana’s testimony, 

it appears she is going to have an appeals hearing sometime perhaps next year. And what happens if that fails? Where does she 

turn next? 

Ms. HUGHES. Well, her case is currently before the immigration 

court, and so if it were denied at that level, it would go to the 

Board of Immigration Appeals. One of the difficult things for people 

in her situation, as Mr. Rosenzweig was stating earlier, is that 

DHS has, in fact, agreed in principle to consider now duress waivers of the material support bar for people who provided support involuntarily to the FARC, which is her situation. But there is still 

no process in place. There is the willingness in principle, but there 

is still no process in place to do that, for her or for anyone else 

whose case is in immigration court. 

Chairman DURBIN. Senator Coburn. 

Senator COBURN. Ms. Hughes, let me follow up. How does somebody know that they are eligible for a waiver right now? For example, in principle, our witness over here is eligible for a waiver. 

Ms. HUGHES. In principle, she certainly is, Senator, although 

there is no way for her to get one right now. 

Senator COBURN. But the point is she is. So let’s take the people 

that are eligible for a waiver and can get one. How do they notify 

them? What is the process? How do they communicate that? 

Ms. HUGHES. They do not communicate that. 

Senator COBURN. That is why I asked the question. 

Ms. HUGHES. Right. My understanding of the way that USCIS is 

implementing this process is that they are considering for waivers 

those cases that they know of that are within their jurisdiction currently that fall within the waiver exemptions that have currently 

been announced. 

The problem with this, though, is that somebody in Mariana’s 

situation has—or let us say somebody in Mariana’s situation’s case 

27 

is pending before the asylum office, to take an example that actually would be implementable currently. That person has no way of 

knowing that that process is happening, that their file actually is 

going through that process. And if it is rejected, they also do not 

know why. If it is granted, as far as I know, people are not actually 

getting a notice: Oh, by the way, we reviewed your case for a waiver, and we are making an exemption. They would simply get a 

grant of their case. 

So the system is as opaque as it is sounding. 

Senator COBURN. So that is one of the reasons why you think 

that DHS ought to have a system where they know who is in court, 

in terms of asylum adjudication, who is actually in immigration 

court, who is actually in Federal court. They ought to have a network to track those. 

Ms. HUGHES. Exactly. 

Senator COBURN. And that was your point. And we do not have 

the DHS here, but I think we need to submit that question to DHS: 

What is your process to know who is out there, who can benefit 

from this, who is undergoing adjudication now, because, in fact, 

they could issue a waiver which would stop all that process and 

solve the problem before we continue on the legal side. Correct? 

Ms. HUGHES. They could, indeed. They could also do something 

even more efficient, which would be to alter their position that the 

kind of support that this woman and others provided constitutes 

material support in the first place. Medical care has historically enjoyed a special role, and this case and others like it are legally 

anomalous in that sense. 

Senator COBURN. I can agree partially with that, but I can also 

see how someone could get into this country under that auspices 

as well. But I think the more important thing is that there is no 

question in this case, this is duress. I mean, it is slam-dunk, openshut. 

Ms. HUGHES. I would agree with that. 

Senator COBURN. So if, in fact, it is duress, how do we execute 

that to where we have a resolution of the problem rather than continue to keep something in court? It certainly is not cheap for her, 

both in terms of emotional costs, financial costs. Even though she 

may have pro bono work being done for her, there is a significant 

cost to her in terms of continuing her life and that of her child. 

I think we will submit that question for the record to DHS and 

find out, and we also will ask in an additional question in terms 

of offering medical support. You know, there is a good question. If 

you are a trained medical professional, and no matter what somebody has done or what their belief system is or where they are, we 

have an obligation to help them if they are, in fact, in need. And 

so that ought to be looked at, and we will ask that question of DHS 

as well. 

Ms. HUGHES. Thank you. 

Senator COBURN. I thank both of you for your testimony. I have 

another hearing I have to go to. 

Chairman DURBIN. Thank you very much, Senator Coburn, for 

inspiring me to have this hearing and for being here today during 

the course of the testimony. It is unusual when you can see results 

before we even adjourn, but we were just sent by the miracle of 

28 

BlackBerry a notice from the Department of Homeland Security 

that, Mariana, they are going to personally review your case based 

on the testimony today, and we are hopeful that the outcome will 

be the best for you and your daughter. 

MARIANA. Thank you very much. 

Chairman DURBIN. So your courage in coming here is going to be 

rewarded by at least an additional day in court, which we hope will 

end well. 

I want to thank you, Ms. Hughes, for joining us again, Bishop 

Wenski, for your personal sacrifice in coming here today to join us. 

The faith community has played a big, big role in dealing with refugees, and I am proud that the Catholic Conference of Bishops has 

been part of that faith community that has done so much. 

Let me mention just a number of the other organizations that 

have asked to place written statements in the record about this 

issue: the Beckett Fund for Religious Liberty; the Center for Victims of Torture; Richard Cizik, Vice President of the National Association of Evangelicals; the Episcopal Migration Ministries; Hebrew 

Immigrant Aid Society; Human Rights Watch; Immigrant and Refugee Appellate Center; Dr. Richard Land, President of the Southern Baptist Convention’s Ethics and Religious Liberty Commission; 

the Lutheran Immigration and Refugee Service; Heartland Alliance’s; National Immigrant Justice Center, based in Chicago; Physicians for Human Rights; Southeast Asia Resource Action Center; 

United Nations High Commissioner for Refugees; and World Relief 

USA. And without objection, these statements will be placed in the 

record. 

The hearing record will remain open for a week for additional 

materials. Written questions may be directed to the witnesses, 

which we hope they will respond to in a timely fashion. 

I thank my colleagues for participating. I thank the witnesses for 

their testimony. Mariana, thank you again for the risk that you 

took to speak out. 

MARIANA. Thank you very much. 

Chairman DURBIN. I only hope that your good fortune is shared 

by thousands of others who are waiting with the same fear and the 

same concern that you have for your family. 

This hearing stands adjourned. 

MARIANA. Thank you very much. I appreciate it. 

[Whereupon, at 4 p.m., the Subcommittee was adjourned.] 

[Questions and answers and submissions for the record follow.] 

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47451.146
175 


47451.147
176 


47451.148
177 


47451.149
178 


47451.150
179 


47451.151
180 


47451.152
181 


47451.153
182 

Æ 


47451.154