In an unprecedented move, the Trump Administration designated a number of cartels as Foreign Terrorist Organizations (FTOs), including Tren de Aragua (TdA), MS-13, Cártel de Sinaloa, Cártel de Jalisco Nueva Generación (CJNG), Cártel del Noreste (CDN), La Nueva Familia Michoacana (LNFM), Cártel del Golfo (CDG), and Cárteles Unidos (CU). At first glance, the designation simply appears to be “an effective means of curtailing support for terrorist activities and pressuring groups to get out of the terrorism business,” facilitating and focusing the fight against dangerous cartels. However, within the context of the Trump Administration’s immigration policies, it becomes clear that the designation of cartels as FTOs is part of a larger agenda to deport and deny entry to immigrants seeking asylum in the United States.

The material support bar, defined in section 212(a)(3)(B)(iv)(VI) of the Immigration and Nationality Act (INA), automatically and necessarily disqualifies an asylum-seeker from being granted asylum if the immigration judge finds that the respondent has committed “an act that the actor knows, or reasonably should know, affords material support, including a safe house, transportation, communications, funds, transfer of funds or other material financial benefit, false documentation or identification, weapons (including chemical, biological, or radiological weapons), explosives, or training—(aa) for the commission of a terrorist activity; (bb) to any individual who the actor knows, or reasonably should know, has committed or plans to commit a terrorist activity; (cc) to a terrorist organization described in clause (vi)(III), or to any member of such an organization.” The only exception is if “the actor can demonstrate by clear and convincing evidence that the actors did not know, and should not reasonably have known, that the organization was a terrorist organization.” As such, any and all asylum-seekers who have provided material support to the cartels now designated FTOs will no longer be considered eligible for asylum and could very well be ordered removed from the US, as material support is grounds for removal, unless the aforementioned reasonable unawareness exception is satisfied.

More concerning is the fact that the material support bar is highly restrictive, with exceptions being difficult, if not almost entirely impossible, to obtain. Even if material support was provided under duress, the bar holds. For instance, a respondent who was forced to pay cartel members at gunpoint would still be declared inadmissible on the grounds of the material support bar. Case law previously established in immigration court reflects this clearly. In Matter of M-H-Z- (26 I&N Dec. 757 (BIA 2016)), a case that involved a businesswoman from Colombia who had “began to provide merchandise from her store” to the Revolutionary Armed Forces of Colombia (Fuerzas Armadas Revolucionarias de Colombia (FARC)) after being threatened by the organization multiple times, the Board of Immigration Appeals (BIA) held that “The ‘material support bar’… does not include an implied exception for an alien who has provided material support to a terrorist organization under duress.” Similarly, in Musa Sesay v. Attorney General of the United States of America (787 F.3d 215 (2015)), the Court of Appeals for the Third Circuit held that, in regard to the “duress exception,” “long-standing canons of statutory construction and the opinions of our sister Circuits on this issue convince us that there is no such exception.” Sesay even states that not only is there no duress exception, but “that the material support bar does not distinguish between voluntary and involuntary support” as well, an idea that is also echoed by the Fourth Circuit Court of Appeals, which ruled in  Jose H. Barahona v. Eric H. Holder, Jr. (691 F.3d 349 (2012)) that “The Material Support Bar contains no express exception for material support provided to a terrorist organization either involuntarily or under duress [emphasis added].”

Referring back to the text of 212(a)(3)(B)(iv)(VI) of the INA itself, it does appear to be true that there is no duress exception, either explicit or implicit, with the only exception described being that if “the actor can demonstrate by clear and convincing evidence that the actor did not know, and should not reasonably have known, that the organization was a terrorist organization,” the material support bar may not apply. If so, are the cartels now designated as FTOs by the US government constitute organizations that respondents may not be aware (and reasonably so) are terrorist organizations? In other words, is it possible to apply this reasonable “unawareness” exception to cases in which an asylum-seeker has provided material support to a cartel?

Before addressing this question, whether or not cartels actually satisfy the requirements for an organization to be designated an FTO should be examined. According to the Department of State, the organization “must be a foreign organization,” “engage in terrorist activity, as defined in section 212(a)(3)(B) of the INA (8 U.S.C. § 1182(a)(3)(B)), or terrorism, as defined in section 140(d)(2) of the Foreign Relations Authorization Act, Fiscal Years 1988 and 1989 (22 U.S.C. § 2656f(d)(2)), or retain the capability and intent to engage in terrorist activity or terrorism,” and “must threaten the security of U.S. nationals or national security (national defense, foreign relations, or the economic interests) of the United States.” The cartels in question clearly do meet the first and third requirements as they are both foreign and threaten the safety of U.S. nationals and national security interests by engaging in extortion, violence, human trafficking, drug trafficking, etc.

Section 212(a)(3)(B) of the INA as mentioned in the second requirement defines “terrorist activity” as “any activity which is unlawful under the laws of the place where it is committed (or which, if it had been committed in the United States, would be unlawful under the laws of the United States or any State).” On the other hand, section 140(d)(2) of the Foreign Relations Authorization Act defines terrorism as “premeditated, politically motivated violence perpetrated against noncombatant targets by subnational groups or clandestine agents.” Under the INA’s definition of “terrorist activity,” it does appear to be the case that cartels indeed commit “terrorist activity” by virtue of breaking the law. However, cartels do not necessarily meet the Foreign Relations Authorization Act’s definition of “terrorism” since they are often economically but not politically motivated. Even so, to be designated an FTO, the organization need only engage in “terrorist activity” as defined by the INA or terrorism as defined by the Foreign Relations Authorization Act, not both. Thus, under current definitions and regulations, the designation of the cartels in question as FTOs by the Trump Administration remains grounded and justifiable in the strictest of senses.Returning to the matter of the “unawareness” exception, the language used in the INA is vague. Does the phrasing “did not know, and should not reasonably have known, that the organization was a terrorist organization” mean that the exception applies only in cases in which the respondent did not reasonably know that the organization to which material support was provided was officially designated an FTO by the US government? Or does it mean something far more restrictive, with the unawareness exception being applicable only when the asylum-seeker was not aware that the organization was involved in terrorism or terrorist activity as defined above? If the former interpretation is “correct,” then the unawareness exception can be used by respondents who had provided material support to a cartel designated as an FTO to remain eligible for asylum, so long as they are able to convince the Court that they were not aware that the US government had designated the cartel as an FTO. However, if the latter interpretation is “correct,” then the respondent would have to prove that he or she was completely unaware of the fact that the organization to which material support was provided was involved in either “terrorist activity” as defined by the INA or “terrorism” as defined by Foreign Relations Authorization Act. In cases involving cartels, widely known criminal organizations, sufficiently demonstrating such awareness would be exceedingly difficult especially if material support was provided under duress, as the act of exercising duress on the respondent for the purposes of extortion would itself constitute a crime that the respondent would, more likely than not, recognize as a crime. Regardless of whichever interpretation is adopted by the courts, the designation of cartels as FTOs will have a profound impact on many immigrants seeking asylum in the US, especially among those fleeing from persecution perpetrated by cartels.