By Ramona Kennedy, Esq. (Kennedy Law) , Email: [email protected]
Author's Disclaimer: This article is suggested in response to denial of eligibility for Adjustment of Status by USCIS–under its discretion–for the reason of membership in a terrorist organization; specifically inadmissibility under INA Section 212 (a)(3)(B)(i)(I) as a provider of voluntary material support to MEK, a designated FTO. This article is of general and hypothetical nature and does not; by any means; constitute any legal advise. This article explains the legal views of the author (Ramona Kennedy, Esq) in relations to legal defense of eligible applicants only. Eligible applicants are those without proven membership in US designated terrorist organizations; or those whose informed past involvement are highly questionable. Legal discussions may greatly differ in their applications based on factors including but not limited to previous and present surrounding facts. Furthermore, the author of this article does not by any means has had or maintain any political affiliation with MEK or any other Iranian political groups and strictly denounces any & all activities NOT supported by the laws of the United States of America and Applicable Legitimate International Laws and Laws Supported by the United Nations and International Conventions–in general– specially in regards to Human Rights and Peaceful Activities. To get further information or consult on a case or to suggest a revision or edition contact Ramona Kennedy, Esq. via email: [email protected] The Following Outlines (and descriptions) May be Considered in Response to Denial of Adjustment of Status by USCIS Based on Membership in a US Designated Terrorist Organization, Specifically MEK (Sazmane Mojahedine Khalge Iran): Paying Attention to the Factual Basis of Allegations: In the event that USCIS denies an adjustment of status based on past membership; distinguishing the actual member from a mere political sympathizer is suggested. A government may treat members and sympathizers of a political opposition group as equally guilty adversaries. This equal treatment does not constitute applicant's similar role in the terrorist organization. Note the definition of the Material Support: Case laws–mentioned further–suggests that even an insignificant small activity may be considered as material support. Material support may not be knowingly–Factual Impossibility. The element of Knowingly or “Should have known” in committing an act should be considered. This is the foundation of Legal Justice. In a criminal case , both Actus Rea ( guilty action) and Mens Rea ( guilty intention) must be proven beyond reasonable doubts—burden of proof is on government. In an adjustment of status case, an applicant– by preponderance of evidence– must show (burden of proof on applicant) that he qualifies for Adjustment of Status under USCIS's discretion. It is unfair and unjust to not allow a defense, even under immigration discretionary laws if the person didn't know or wasn't reasonable for him to know that he was helping an organization who had armed conflicts with Iranian regime (MEK). Insignificant Material Support: Even if USCIS believes Material Support was provided; a waiver MAY be granted based for activities that fall under “Insignificant material Support”. Waiver may be proper under USCIS's discretion when few incidents of non-violent activities are insignificant material support and eligible for a waiver. Please Refer to USCIS's website for further information. Moral Character: Evidence of Moral Character and citizenship of other family members have been positively considered and may be grounds for applicable discretionary approval. Note US Public Policy: As a matter of Public Policy, it may be proper to take into consideration that both MEK and “Cherikhaye Fadaiiye Khalgh- Iranian People's Fedai Guerillas” were NOT designated as terrorist groups at the time of applicants acts and furthermore they are NO longer a terrorist group. Consider Factors Supported by Case Laws: For Example Evidence of Applicants peaceful character and/or Evidence of applicants proven records of Good Moral Character. Example: Religious Proof of Moral Character : Sincere faith and diligent long term membership in peaceful religious organizations may suggest character evidence of non-violence and peacefulness. Qualified Acts: Commitment of Non-Violent Actions without Knowledge of Organizational Agenda and/or Activities such as “distribution of flyers which lacks violent messages” MAY not constitute participation in a terrorist act. Flyer Distribution has been used as a democratic way to inform public but not solicit combative support against undemocratic government.; this particularly applies when no other intent or knowledge was involved. Flyer Distribution Does not Always mean Support of a Terrorist Organization; it's a Peaceful protest and exercise of freedom of Speech, when there is none-violent message. Historical Examples: -South Korean Citizens Distribution Against Oppressive Government; -US Air Force Flyer Distribution “Even to this very day, citizens of countries such as South Korea distribute information against oppressive governments. For example, some citizens of South Korea throw pamphlets over the border to North Korea in an attempt to show them a better life. Such an act may be seen as an act of terrorism by the government of North Korea.” https://nypost.com/…/activists-launch-trash-and-leaflets-a…/ The US has also engaged in such tactics during World War II when it dropped pamphlets from US Air Bombers. Some of these pamphlets contained information such as:” America is not fighting the Japanese people but is fighting the military clique, which has enslaved the Japanese people. “The peace, which America will bring, will free the people from the oppression of the Japanese military clique and mean the emergence of a new and better Japan.” https://en.wikipedia.org/wiki/Airborne_leaflet_propaganda In Conclusion: Under totality of Circumstances, its proper to suggest that applicants whose activities in relations to a terrorist organization group were not intentional or knowingly which may qualify for a waiver of “insignificant material support” and in consideration of current US foreign or public policy, MAY not be inadmissible under INA Section 212 (a)(3)(B)(i)(I) as a provider of voluntary material support to MEK, a designated FTO. Relevant Cases: -Mohammad Reza DANESHVAR, Petitioner, V. John ASHCROFT, Attorney General of the United States, Respondent, 355 F.3d 615, Sixth Circuit, 2004. -Gholamreza BOJNOORDI, Petitioner, V. Eric H. HOLDER, Jr., Attorney General Respondent, 584 F.3d 773, 776, 9th Circuit, 2009. -Masoud HOSSEINI, Petitioner, V. Alberto R. GONZALES, Attorney General, Respondent, 464 F.3d 1018 03-73734, 9th Circuit, 1994. Daneshvar V. Ashcroft Sixth Circuit Court of Appeals Filed January 20, 2004 Relevant Highlights of Daneshvar's Case: • Daneshvar admitted before an immigration judge that when was 16, he became attracted to MEK. • Daneshvar asserts that he was never a formal member of MEK. • Daneshvar stated that he distributed flyers in support of an MEK senatorial candidate and sold MEK's newspapers. • After being arrested, Daneshvar served in the Iranian military for two years. • In March of 1994, after obtaining a passport and an exit permit, Daneshvar left the country to live with his sister in Germany for three months. • After obtaining a visitor's visa, Daneshvar came to the US in June 17, 1994 where his mother and two brothers lived. • Petitioner has an approved visa petition based on his relationship to his sister. (Our client has an approved visa petition based on his bona fide marriage to his wife as of 08/17/2010) More Highlights of Daneshvar's case: • Was admitted into the US as a visitor. • Overstayed his visa and was placed in deportation proceedings. • Daneshvar stated that the reason for his affiliation was the religious nature of the organization that corresponded with his personal upbringing. • Daneshvar admitted to knowing 15 MEK members. • Daneshvar Discontinued his association with MEK after MEK began to resort to violence. • Daneshvar was arrested in Ghom and was charged with possession of a gun and a hand grenade during a demonstration. • Daneshvar denied the accusation, stating he was arrested on trumped-up charges designed to punish him for his involvement in MEK. Holding: • The Court reversed the Board's order denying the Petitioner's motion for adjustment of status and remanded it for proceedings. Daneshvar's case in factual similarities with applicant's case support adjustment of status to be allowed for applicant. Court's Opinion–Highlights 1. We agree that today MEK is a designated terrorist organization. However, MEK was not designated as a terrorist organization at the time of Petitioner's involvement. (Page 16, Paragraph 3) 2. Petitioner's solicitation for membership in a clause (vi) (III) terrorist organization, however only renders him ineligible if he cannot “demonstrate that he did not know, and should not have reasonably have known, that the solicitation would have furthered the organization's terrorist activities.” We find that the board committed a legal error when it failed to consider Petitioner's evidence regarding his state of mind. (Page 18, Paragraph 1) 3. Petitioner at the age of 16 supported, one of the numerous organizations that supported an armed revolt against a tyrannical monarch as a terrorist. To impute such political sophistication to a teenager that apparently even the U.S. Congress failed to achieve, in our minds, would amount to a manifest injustice. Furthermore, we are persuaded that Petitioner's voluntary disassociation from MEK merely a year after he joined it, is evidence that he did not originally known in what MEK was involved. Finally, Petitioner testified during the hearing before the IJ that he was unaware of MEKs violent activities until the time he left the group. There is no evidence that Petitioner himself engaged in any violent acts of terrorism. Thus, there is substantial evidence that Petitioner is not statutorily ineligible for immigration relief. The burden then shifts to Respondent to show otherwise. Since Petitioner's affiliation with MEK was very brief, Respondent's burden will be a heavy one. (Page 19, Paragraph 1)
4. We find a number of factors in the record that may cause the Board to find that Petitioner's motion to reopen should be granted. First, the Board inexplicably took 5 (five) years to decide his appeal. Therefore, Petitioner has now been in this country for almost ten years. One should hesitate before uprooting him after such a long delay. Second, Petitioner has a number of his immediate family members in this country, including his mother, a sister, and two brothers, all of whom are either US citizens or permanent residents. Third, the record indicates that the immediate members of Petitioner's family have become productive members of this society and Petitioner himself is currently employed. Fourth, Petitioner was an immature teenager when he was associated with MEK; he lived in a country known for its suppression of all political activity at the time of high political turmoil; he was not in Tehran at the time of the Iranian hostage crisis; and he quit MEK as soon as he found out about its violent activities. Fifth, and last, although we found that Petitioner has not established a valid claim for political asylum, we nevertheless cannot ignore the ramifications of sending a man to what can only best be described as a lawless country.
5. We find that the Board committed reversible legal error and abused its discretion in denying Petitioner's motion to reopen his application for adjustment of status. Accordingly, we reverse the Board's order denying Petitioner's motion for adjustment of status and remand for proceedings consistent with this opinion. Hosseini V. Gonzales Ninth Circuit Court of Appeals Filed September 28, 2006 Hightlights of Hosseini's Case • Came to the US on a student Visa but never attended school. • Stayed after Visa Expired • Filed first asylum under a false name and false alien registration number. He also made other numerous false statements in his application. • He was ordered deported by INS in absentia, since he did not appear for his hearing. • Hosseini filed a second application with a different name and registration number. • A joint Terrorism Task Force opened an investigation alleging Tabatabai was helping members of MEK commit immigration fraud. • An informant identified Hosseini as an MEK supporter. Holding: • Petition for review was denied in part and granted in part; Remanded with instructions. Asylum was not denied. Bojnoordi V Holder Ninth Circuit Court of Appeals Filed June 2, 2014 Relevant Highlights of Bojnoordi's Case • Bojnoordi provided material support to a Tier III terrorist organization (MEK). He did this by passing out flyers, writing articles, and trained MEK members on the use of guns in the mountains outside Tehran. Knowing that this training would further MEK's goals. • Bojnoordi testified that MEK's goal of a regime change could only be accomplished through violence. • Bojnoordi also provided material support by, writing articles, and trained MEK members on the use of guns in the mountains outside Tehran. Knowing that this training would further MEK's goals. Holding: • Petition for review was denied. Court's Opinion-Highlights Evidence supports that Petitioner gave material support to MEK in the 1970s, therefore court held that the terrorism bar applies retroactively to an alien's material support of a “Tier III” terrorist organization.
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