Board of Immigration Appeals Requests Amicus Briefs on the Material Support Bar

On January 9, 2017, the Board of Immigration Appeals (BIA) issued an Amicus Invitation No. 17-01-09 [PDF version]. This means that the Board is asking for amicus — “friend of the court” — briefs on a specific issue. Amicus Invitation No. 17-01-09 is about the “material support bar.” Briefs are due by February 8, 2017.

The Board is asking for members of the public who wish to appear as amicus curiae before the Board to file briefs on the following issues (quoted from the decision):

1. Does the word “material” in section 212(a)(3)(B)(iv)(VI) of the Immigration and Nationality Act have an independent meaning, or is the phrase a term of art in which “material” has no independent meaning?
2. Assuming there is a de minimis exception to the material support bar, does that exception apply to contributions of money?

The first question addresses the meaning of the word “material” in section 212(a)(3)(B)(iv)(VI). The provision renders inadmissible an alien who commits an act that he or she knows, or reasonably should know, “;affords material support…” to terrorist activities or organizations (the statute lists the types of activities, individuals, and organizations). The question is whether the work “material,” in the section 212(a)(3)(B)(iv)(VI) context, has an “independent meaning,” or whether the term “material support” is a term of art wherein “material” has no independent meaning.

The second question begins by assuming that there is a de minimis exception to the material support bar. Such an exception would mean that is possible for an alien to have provided support to an activity, individual, or organization where the support is so trivial or minor that it would not trigger the material support bar. The question then asks if the de minimis exception to the material support bar could ever apply to contributions of money. In effect, the Board wants briefing on whether an individual could donate money to a proscribed activity, organization, or individual, but the amount of money could be so small that it would not trigger the material support bar.

The material support bar is most significant in the asylum/refugee [see category] and withholding of removal [see article] contexts. However, it may also arise in normal admissibility determinations. Any developments regarding the interpretation of the material support bar are well worth following, as the bar arises in a variety of adjudications. We will be sure to update the site if the Board publishes a precedent decision addressing the issues it requested briefing on in Amicus Invitation No. 17-01-09.