A recent decision by a Third Circuit Court has brought into sharp focus a further ground upon which individuals may be denied a U.S visa.

What is a Tier III Terrorist Organization?

The U.S Government maintains two lists of foreign terrorist organizations. Tier I pertains to a registry of Foreign Terrorist Organizations, while Tier II is the Terrorist Exclusion List.

Post 9/11, the Immigration and Nationality Act (hereafter “INA”) was amended to create a third, broader category of terrorist designation (Tier III).

The INA defines a Tier III terrorist organization as “a group of two or more individuals, whether organized or not, which engages in, or has a subgroup which engages in” terrorist activity.

The term “terrorist activity” is defined as activity which involves, “[use of a] weapon or dangerous device (other than for mere personal monetary gain), with intent to endanger, directly or indirectly, the safety of one or more individuals or to cause substantial damage to property”.

The upshot of this is, groups of teenagers engaging in reckless acts of vandalism could potentially be considered “terrorists” for the purposes of applying for a U.S visa and may be liable to denial on that basis, particularly if they characterize themselves as belonging to a particular “gang”.

Similarly, under some circumstances members of political parties may be considered “members of a Tier III terrorist organization”, even if they are a member of the political party in question purely for ideological reasons and condemn any and all acts of violence committed by their fellow members.


How Might Being a Member of a Tier III Terrorist Organization Affect a U.S Visa Application?  

Under Section 212 of the INA, members of Tier III terrorist organizations are deemed inadmissible to the U.S and are therefore ineligible to receive a U.S visa, unless they can demonstrate, “by clear and convincing evidence that the alien did not know, and should not reasonably have known, that the organization was a terrorist organization”.


Who Decides What Constitutes a “Tier III Terrorist Organization” for the purposes of a U.S Visa Application at a Local U.S Embassy or Consulate?

Under the current system, determinations of what constitutes a “Tier III Terrorist Organization” are made by Consular Officers on a case-by-case basis, at the time the U.S visa application is made. If an application for a U.S visa is denied on the basis of a determination that the applicant is a member of a Tier III terrorist organization, there is no right of appeal against the decision.

Previously under guidance issued by the Obama administration, where there was a possibility a visa applicant may be denied a U.S visa on the grounds of membership of a Tier III terrorist organization, a hold would be placed on visa denial pending a decision by a senior executive official as to whether to grant a discretionary exemption, allowing issuance of the U.S visa in question. However, the guidance in question was rescinded by the Trump Administration in October 2017.


What Was the Outcome of The Third Circuit Case, Uddin v. Attorney General?

In Uddin v. Attorney General, the Third Circuit highlighted the inconsistent approaches taken by U.S immigration officials in determining whether a group constitutes a “Tier III terrorist organization”.

In Uddin, an individual was a member of the Bangladesh National Party, which is the main opposition party to the ruling Awarmi League party in Bangladesh. During the hearing, it was determined that both of the main political parties in Bangladesh had resorted to violence. It transpired that, over the course of 2 years, 54 decisions were made regarding whether the Bangladesh National Party was a Tier III terrorist organization. The 54 decisions were entirely inconsistent in their findings. The Third Circuit observed that, “something is amiss where, time and time again, the Board finds the BNP is a terrorist organization one day, and reaches the exact opposite conclusion the next.

Indeed, the Third Circuit noted that violence, “seemed to color the political landscape in Bangladesh”, so much so that both of the main political parties would be considered terrorist organizations. The Third Circuit concluded that, if one was to apply the logic which had previously been applied, “a large swath of Bengali aliens who are members of these parties would be ineligible for most forms of immigration relief”.

The Third Circuit noted that, “If a single member of the Democratic or Republican Party committed a terrorist act, we would not impute terrorist status to the entire group, absent some showing that party leadership authorized the act. So too here, it cannot be that the acts of any single member of the BNP can transform the organization into a terrorist group”.

In order to reduce the incidence of inconsistent approaches being taken, the Third Circuit set out a new rule. Under the new rule, a finding that members of a group had committed acts of terrorism within the meaning of the INA was insufficient to confer Tier III terrorist organization status on the whole group. In order to confer Tier III terrorist organization status upon a group, there must now be a finding that the group’s leaders had authorized the acts of terrorism committed by the group’s members. It was noted that “words, acts or silences” by a group’s leadership may be sufficient to constitute “authorization” of the act of terrorism by the group’s members.

If you are a member of a political party and are concerned you may fall within the scope of the decision of the Third Circuit in Uddin v. Attorney General, please contact us for advice on your position.


Davies Legal Immigration

At Davies Legal Immigration, we represent clients in connection with all aspects of business, employment and family immigration, including cases in which a waiver of inadmissibility is sought, due to a ground of inadmissibility (for example, commission of an offense involving moral turpitude). We offer innovative immigration solutions and undertake to keep you informed. Call now for a complimentary telephone call with a licensed U.S immigration attorney to hear more about our services and obtain a free, no obligation quote.

Published: 7th December 2017