9 FAM 302.6
(U) Ineligibilities Based On Terrorism-Related Grounds -
INA 212(a)(3)(B), INA 212(a)(3)(F) and 8 U.S.C. 1735
(CT:VISA-888; 07-09-2019)
(Office of Origin: CA/VO/L/R)
9 FAM 302.6-1 (U) Statutory and
regulatory authority
9 FAM 302.6-1(A) (U)
Immigration and Nationality Act
(CT:VISA-1; 11-18-2015)
(U) INA 101(b)(1) (8 U.S.C.
1101(b)(1)); INA 212(a)(3)(B)(8 U.S.C. 1182(a)(3)(B)); INA 212(a)(3)(F) (8
U.S.C. 1182(a)(3)(f)); INA 212(d)(3)(A) (8 U.S.C. 1182(d)(3)(A)); INA
212(d)(3)(B) (8 U.S.C. 1182(d)(3)(B)); INA 219 (8 U.S.C. 1189).
9 FAM 302.6-1(B) (U) United
States Code
(CT:VISA-55; 02-23-2016)
(U) 18 U.S.C. 2339D(c)(1); 22 U.S.C. 2723.
9 FAM 302.6-1(C) (U) Public Laws
(CT:VISA-1; 11-18-2015)
(U) Foreign Relations
Authorization Act, Fiscal Years 1992 and 1993, Public Law 102-138, section 128;
Homeland Security Act of 2002, Public Law 107-296; Consolidated Appropriations
Act, 2008, Public Law 110-161, at section 691 of Title VI of Division J (the
Department of State, Foreign Operations, and Related Programs Appropriations
Act, 2008); An Act to Remove the African National Congress from Treatment as a
Terrorist Organization for Certain Acts or Events, Provide Relief for Certain
Members of the African National Congress Regarding Admissibility, and for Other
Purposes, Public Law 110-257.
9 FAM 302.6-2 (U) Terrorist
activities - INA 212(a)(3)(B)
9 FAM 302.6-2(A) (U) Grounds
(CT:VISA-799; 05-16-2019)
(U) INA 212(a)(3)(B)(i) renders
ineligible any alien who:
(1) (U) has engaged in a
terrorist activity;
(2) (U) you know, or have a
reasonable ground to believe, is engaged in or is likely to engage after entry
in any terrorist activity;
(3) (U) has, under circumstances
indicating an intention to cause death or serious bodily harm, incited
terrorist activity;
(4) (U) is a representative
of:
(a) (U) a terrorist
organization; or
(b) (U) a political, social, or
other group that endorses or espouses terrorist activity;
(5) (U) is a member of a designated
terrorist organization;
(6) (U) is a member of an
undesignated terrorist organization, unless the alien 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;
(7) (U) endorses or espouses
terrorist activity or persuades others to endorse or espouse terrorist activity
or support a terrorist organization;
(8) (U) has received
military-type training from or on behalf of any organization that, at the time
the training was received, was a terrorist organization; or
(9) (U) is the spouse or child
of an alien who is inadmissible, if the activity causing the alien to be found
inadmissible occurred within the last 5 years.
9 FAM 302.6-2(B) (U)
Application
9 FAM 302.6-2(B)(1) (U)
Summary
(CT:VISA-664; 08-22-2018)
a. (U) INA 212(a)(3)(B)
describes visa ineligibilities related to terrorism. The ineligibilities hinge
on terrorism-related definitions that were significantly expanded by post-9/11
legislation, most significantly, the USA PATRIOT Act (2001) and the REAL ID Act
(2005). As a result of these expansions, the scope of activities covered by
the phrase engage in terrorist activity is broad. As defined in INA
212(a)(3)(B)(vi), the term terrorist organization encompasses both
organizations that have been designated previously by the Department of State
as terrorist organizations and organizations that have never been so designated
by the Department of State or any other U.S. Government agency, but that have
engaged in any of the activities listed in INA 212(a)(3)(B)(iv)(I)-(IV).
Because terms in INA 212(a)(3)(B) are defined broadly, you must take particular
care in eliciting as much pertinent information from visa applicants as
possible, including the names of all groups potentially covered by these
provisions with which the applicant may be linked, for example, by current
membership or past financial contributions or other support. You must also inquire
into the nature and activities of those organizations, bearing in mind the
definition of terrorist organization in INA 212(a)(3)(B)(vi), described in 9 FAM
302.6-2(B)(3) paragraph i and other FAM provisions referenced therein.
b. Unavailable
9 FAM 302.6-2(B)(2) (U)
Background
(CT:VISA-218; 10-20-2016)
a. (U) The Immigration Act of
1990 (Public Law 101-649) generally amended INA 212(a) by replacing the
previous 43 classes of excludable aliens with nine broad classes, each with
subclasses. New INA 212(a)(3)(B), Terrorist Activities, incorporated aspects
of former 212(a)(27) and 212(a)(29).
b. (U) The Antiterrorism and
Effective Death Penalty Act of 1996 (Public Law 104-132) expanded the scope of
INA 212(a)(3)(B) to make inadmissible representatives and members of
organizations designated by the Secretary under INA 219 as Foreign Terrorist
Organizations (FTOs).
c. (U) The Illegal Immigration
Reform and Immigrant Responsibility Act of 1996 (Public Law 104-208) amended
INA 212(a)(3)(B)(i) again to make inadmissible any alien who, under
circumstances indicating an intention to cause death or serious bodily harm,
incited terrorist activity. The new provision applied retroactively to all
such incitement activities, regardless of when they occurred.
d. (U) The Uniting and
Strengthening America by Providing Appropriate Tools Required to Intercept and
Obstruct Terrorism Act of 2001 (USA PATRIOT Act) (Public Law 107-56), enacted
after the terrorist attacks on September 11, 2001, expanded the scope of INA
212(a)(3) in several important respects:
(1) (U) It gave the Secretary
of State new authority to designate organizations as terrorist organizations
for purposes of INA 212(a)(3)(B) if certain criteria are met. Organizations so
designated are listed on the Terrorist Exclusion List or TEL;
(2) (U) It defined terrorist
organization for the first time, creating three categories. The first
category is FTOs designated under INA 219 (see INA 212(a)(3)(B)(vi)(I)) (Tier
I); the second is entities designated under the Terrorism Exclusion List (TEL)
authority included in the USA PATRIOT Act (Tier II) (see INA
212(a)(3)(B)(vi)(II)). The third category, referred to as undesignated
terrorist organizations, includes entities that engage in specified terrorist
activities listed in the INA, but that have not been designated under FTO or
TEL authorities (Tier III) (see INA 212(a)(3)(B)(vi)(III)); and
(3) (U) It created INA
212(a)(3)(F), Association with Terrorist Organizations, which made aliens who
have been associated with a terrorist organization, and who are engaged or
likely to engage in certain activities that endanger the United States,
inadmissible under certain circumstances.
e. (U) The Emergency
Supplemental Appropriations Act for Defense, the Global War on Terror, and
Tsunami Relief of 2005 (REAL ID Act) (Public Law 109-13) at sections 103 and
104 of Division B further expanded the scope of INA 212(a)(3)(B) by:
(1) (U) Broadening terrorist
organization to capture undesignated groups with subgroups that engage in
terrorist activity;
(2) (U) Making it harder for
an alien suspected of engaging in terrorist activities to escape
inadmissibility based on an alleged lack of knowledge concerning an
undesignated terrorist organization or how any contribution of material support
might be used by a terrorist organization (see (5), (6), and (8) below);
(3) (U) Making inadmissible
representatives of all three types of terrorist organizations, regardless of
aliens knowledge or intent. Previously, only representatives of groups
designated under INA 219 (Tier I) were specified;
(4) (U) Making inadmissible
all representatives of a political, social, or other group that endorses or
espouses terrorist activity. Previously the Secretary of State had to find
that the groups public endorsement of acts of terrorist activity undermines
U.S. efforts to reduce or eliminate terrorist activities;
(5) (U) Eliminating the
knowledge defense to inadmissibility for members of entities designated for the
TEL (Tier II) and raising the standard to clear and convincing evidence for
an alien to avoid inadmissibility for being a member of an undesignated
terrorist organization on the grounds that he did not know, and should not
reasonably have known, that the organization was a terrorist organization;
(6) (U) Raising the standard
to clear and convincing evidence for an alien to avoid inadmissibility for
soliciting funds or members for an undesignated terrorist organization on the
grounds that he did not know, and should not reasonably have known, that the
organization was a terrorist organization;
(7) (U) Expanding the
material support bar to admissibility for knowingly providing support to any
terrorist organization or its members, except, with respect to undesignated
terrorist organizations, where an alien presents clear and convincing
evidence that the alien lacked knowledge of any terrorist activity. The
amendment eliminated the requirement that the alien intended to support
terrorist activity;
(8) (U) Making inadmissible
any alien who commits an act the alien knows or reasonably should know provides
material support to an undesignated terrorist organization or a member of an
undesignated terrorist organization, unless the alien can demonstrate by clear
and convincing evidence that he did not know, and should not reasonably have
known, that the organization was a terrorist organization. Prior to amendment,
the provision did not include material support afforded to a member of an
undesignated terrorist organization. The REAL ID Act added the clear and
convincing evidence standard for an alien attempting to prove lack of
knowledge of an undesignated groups terrorist activity;
(9) (U) Making inadmissible
any alien who endorses or espouses terrorist activity or persuades others to
endorse or espouse terrorist activity or support a terrorist organization.
Before amendment, the provision covered only persons who used their position of
prominence to endorse or espouse terrorist activity or to persuade others to
support terrorist activity or a terrorist organization in a way the Secretary
of State determined undermines U.S. efforts to reduce or eliminate terrorist
activities;
(10) (U) Making inadmissible
any alien who has received military-type training from or on behalf of a
terrorist organization; and
(11) (U) Applying the terrorism
provisions of the REAL ID Act amendments to actions taken by an alien before,
on, or after the date of enactment, May 11, 2005.
f. (U) The Consolidated
Appropriations Act, 2008, Public Law 110-161, 121 Stat. 1844, at section 691 of
Title VI of Division J (the Department of State, Foreign Operations, and
Related Programs Appropriations Act, 2008) amended the discretionary authority
of the Secretary of Homeland Security and the Secretary of State, under INA
212(d)(3)(B)(i), to exempt an alien from most of the terrorism-related bars to
admissibility under INA 212(a)(3)(B) and to exempt a group from treatment as an
undesignated terrorist organization under INA 212(a)(3)(B)(vi)(III). The
amendment also provided that certain groups should not be considered terrorist
organizations on the basis of any act or event occurring before the amendments
enactment on December 26, 2007, and that the Taliban must be considered to be a
designated foreign terrorist organization, under INA 212(a)(3)(B)(vi)(I), for
immigration purposes. (See 9 FAM
302.6-2(B)(3) paragraph i.) The amendments were effective upon enactment
and apply to acts before or after enactment.
9 FAM 302.6-2(B)(3) (U)
Definitions
(CT:VISA-799; 05-16-2019)
a. (U) This section explains
terms used in INA 212(a)(3)(B) in alphabetical order. Where listed terms are
specifically defined in the statute, the statutory reference follows
immediately after the term.
b. (U) CLEAR
AND CONVINCING EVIDENCE:
(1) (U) The phrase clear and
convincing evidence appears several times in INA 212(a)(3)(B) with reference
to undesignated terrorist organizations. The INA places the burden of proof on
the applicant to establish that he or she did not know, or should not have
reasonably known, that the undesignated terrorist organization was, in fact, a
terrorist organization. (Applicants are deemed to know that designated
terrorist organizations are terrorist organizations, regardless of their actual
knowledge or belief).
(2) (U) You must consider the
following in determining whether a visa applicant can demonstrate by clear and
convincing evidence that he or she did not know, and should not reasonably
have known, that an undesignated organization was a terrorist organization:
(a) (U) Facts particular to the
individual, such as residence, profession, education, and people with whom and
groups with which the applicant has associated;
(b) (U) The public availability
of information about the organization and more specifically, about the
activities that make it a terrorist organization under the INAs broad
definition; and
(c) (U) The extent to which the
organization is actively and overtly engaged in the activities that make it a
terrorist organization under the INA.
(3) Unavailable
c. (U) ENDORSING
OR ESPOUSING TERRORISM:
(1) (U) An alien is
inadmissible under INA 212(a)(3)(B)(i)(VII) if the alien endorses or espouses
terrorist activity or persuades others to endorse or support terrorist activity
or a terrorist organization.
(2) Unavailable
d. Unavailable
(1) (U) A safe house;
(2) (U) Transportation;
(3) (U) Communications;
(4) (U) Funds;
(5) (U) Transfer of funds or
other material financial benefit;
(6) (U) False documentation or
identification;
(7) (U) Weapons including
chemical, biological, or radiological weapons;
(8) (U) Explosives; or
(9) (U) Training.
e. (U) MEMBER
OF A TERRORIST ORGANIZATION:
(1) (U) Aliens who are members
of designated FTOs or entities on the Terrorism Exclusion List are
inadmissible. The INA does not require the alien to know that the organization
has been designated. Members of undesignated terrorist organizations are inadmissible,
but there is a narrow exception based on lack of knowledge (see 9 FAM
302.6-2(B)(3) paragraph i).
(2) (U) Evidence of membership
in a terrorist organization might include the individuals taking of an oath or
performance of some act that is a prerequisite of membership. A formal
induction is not necessary for a finding of membership.
(3) (U) Membership must be
determined in light of all relevant facts, including, but not limited to, the
following:
(a) (U) Acknowledgment of
membership;
(b) (U) Frequent association
with other members;
(c) (U) Participation in the
organizations activities, even if lawful;
(d) (U) Actively working to
further the organizations aims and methods in a way suggesting close
affiliation constituting membership;
(e) (U) Occupying a position of
trust in the organization, past or present;
(f) (U) Receiving financial
support from the organization, e.g., scholarships, pensions, salary;
(g) (U) Contributing money to
the organization;
(h) (U) Determination of
membership by a competent court;
(i) (U) Voluntarily displaying
symbols of the organization; or
(j) (U) Receiving honors and
awards given by the organization.
(4) (U) No single factor
necessarily determines that an alien was a member of an organization.
(5) Unavailable
(6) Unavailable
(7) (U) Note that former
members will still be inadmissible if they have previously provided material
support (such as membership fees), raised money, or solicited members for the
organization.
f. (U) INCITEMENT
OF TERRORISM:
(1) (U) Incitement with
intent to cause death or serious bodily harm renders an alien inadmissible
under INA 212(a)(3)(B)(i)(III) if he or she has incited terrorist activity
under circumstances indicating an intention to cause death or serious bodily
harm.
(2) (U) Incited in the
context of INA 212(a)(3)(B) is speech that induces or otherwise moves another
person to undertake terrorist activity. Normally speech will not rise to the
level of inciting unless there is a clear link between the speech and an actual
effort to undertake the terrorist activity. It connotes speech that is not
merely an expression of views but that directs or induces action, typically in
a volatile situation.
(3) (U) The applicant may have
incited terrorist activity even if a terrorist attack does not actually occur
(e.g., because an attempt to commit such activity was thwarted).
(4) (U) An applicant who has
incited terrorist activity must also have acted in circumstances indicating
an intention to cause death or serious bodily harm to be inadmissible under INA
212(a)(3)(B). In other words, the aliens speech must not only have induced
others to undertake terrorist activity, but it must also have been made with
the specific intent that such activity would result in death or serious bodily
injury.
(5) (U) Incitement and the
requisite intent to cause bodily harm could be inferred in the following
situations:
(a) (U) Widespread opposition to
Country A's policies and actions lead to a series of protests, some violent,
outside Country As embassy in Country B. The applicant goes to the embassy,
stands on a box, and shouts to the crowd to join him in standing up to Country
A and humiliating it. Shortly afterwards, when he sees an embassy vehicle
approaching, he yells: Dont let them in! Make them pay for what they have
done! The crowd blocks the car and removes occupants (including a diplomat
working at Country As embassy), from the car, beating them severely and taking
them hostage.
(b) (U) Analysis:
Diplomatic hostage-taking and violent attacks on diplomats are terrorist
activities. Given the aliens urging the crowd to stop the embassy vehicle and
make them pay, you would have reasonable ground to believe that the
applicants speech incited terrorist activity. The aliens make them pay
statement, when viewed against the backdrop of previous violent protests and
his general comments about standing up to Country A and humiliating it, would
provide you with reasonable ground to believe that the applicant intended to
cause death or serious bodily harm.
(c) (U) The applicant is an
ardent nationalist whose opinions voiced to a particular audience regularly
blame foreigners for his countrys problems and who argues that the only
solution to these problems is that foreigners should be driven out of the
country. Press reports say that some of those in the targeted audience have
been purchasing weapons and seeking to obtain and manufacture explosives.
Police notify the applicant or those associated with the applicant that they are
investigating several of those in the targeted audience for weapons-related
offenses. At the end of a week of particularly strong anti-foreign sentiment,
the applicant gives a special speech entitled A Call to Action. With the
knowledge that those under investigation are in the audience, the applicant
begins his speech with: The time has come for action! He then reiterates
throughout his speech that The only solution to the countrys problems is to
purge our great land of these foreigners once and for all through whatever
means necessary. Shortly thereafter, some of those in the target audience
detonate a truck bomb outside a restaurant frequented by foreign nationals,
killing several foreign nationals and injuring many restaurant employees.
(d) (U) Analysis: The use of any
explosive with intent to endanger, directly or indirectly, the safety of one or
more individuals or to cause substantial damage to property is a terrorist
activity. In the example, the applicant helps foster anti-foreign sentiments
and then, during a particularly tense period, urges students to act to drive
foreigners from the country through whatever means necessary. Under these
circumstances, you would have reasonable ground to believe that the applicants
speech incited terrorist activity. The fact that the applicant knew that
several students likely had access to weapons and/or explosives and that those
students were in attendance at his special lecture would provide you with
reasonable ground to believe that the applicant intended to cause death or
serious bodily harm.
(e) (U) The USA PATRIOT Act
amended INA 212(a)(3)(B)s definition of engaging in terrorist activity also
to include incitement (see INA 212(a)(3)(B)(iv)(I)). As a result, a person who
is inadmissible under INA 212(a)(3)(B)(i)(III) for inciting terrorist activity
will also now be inadmissible under INA 212(a)(3)(B)(i)(I) for engaging in a
terrorist activity.
g. (U) REPRESENTATIVE:
A representative is defined in INA 212(a)(3)(B)(v) as an officer, official,
or spokesman of an organization, and any person who directs, counsels,
commands, or induces an organization or its members to engage in terrorist
activity.
h. (U) SUBGROUP:
A group (Group X), even if not organized, can be a subgroup of another organization
(Group Y) if there are reasonable grounds to believe that either (1) Group X as
a whole or (2) the members of Group X are affiliated with Group Y. If a
subgroup engages in terrorist activities, then both groups are terrorist
organizations. (See 9 FAM
302.6-2(B)(3) paragraph i(1)(c).) A subgroup relationship may be found
where there are reasonable grounds to believe that Group X is subordinate to,
or affiliated with, Group Y and Group X is dependent on, or otherwise relies
upon, Group Y in whole or in part to support or maintain its operations. As an
example, Group X would be a subgroup of Group Y if the latter establishes rules
or guidelines that Group X generally follows and Group X relies on Group Y as a
source of funds for Group X operations.
i. (U) TERRORIST
ORGANIZATION:
(1) (U) Terrorist
organization, as defined in INA 212(a)(3)(B)(vi), includes both designated
terrorist organizations (paragraphs (a) and (b), below) and undesignated
terrorist organizations (paragraph (c), below):
(a) (U) An organization
designated by the Secretary of State as a foreign terrorist organization
(FTO) under INA 219. This designation has implications beyond the INA,
including penalties under U.S. criminal law. Aliens who engage in certain
activities in connection with these organizations can be rendered inadmissible
under the INA. Organizations currently designated as FTOs and information about
the designation process can be found on the J/CT website.
(b) (U) An organization
designated by the Secretary of State for inclusion in the Terrorist Exclusion
List (TEL), pursuant to INA 212(a)(3)(B)(vi)(II). The TEL designation is for
immigration purposes only. Information about the designation process can be
found on the J/CT website.
(c) (U) An organization that has
not been designated but is a group of two or more individuals, whether
organized or not, which engages in, or has a subgroup (see 9 FAM
302.6-2(B)(3) paragraph h) which engages in, terrorist activities described
in the INA 212(a)(3)(B)(iv)(I) (VI). With respect to undesignated terrorist
organizations:
(i) Unavailable
(ii) Unavailable
(iii) (U) Where a finding of
inadmissibility would involve an undesignated terrorist organization, the alien
may overcome the finding by demonstrating, by clear and convincing evidence
(see 9
FAM 302.6-2(B)(3) paragraph b), that the alien did not know, and should not
reasonably have known, that the organization was a terrorist organization
(except with respect to representatives of undesignated terrorist
organizations, those who persuade others to support an undesignated terrorist
organization, and those who receive military-type training on behalf of an
undesignated terrorist organization, for whom there is no such defense); and,
(2) (U) Pursuant to section
691(b) of the Consolidated Appropriations Act, 2008, the following groups are
not considered terrorist organizations under INA 212(a)(3)(B)(vi) for acts or
events that occurred prior to December 26, 2007:
(U) Karen National Union/Karen Liberation
Army (KNU/KNLA)
(U) Chin National Front/Chin National
Army (CNF/CNA)
(U) Chin National League for Democracy
(CNLD)
(U) Kayan New Land Party (KNLP)
(U) Arakan Liberation Party (ALP)
(U) Tibetan Mustangs
(U) Cuban Alzados
(U) Karenni National Progressive Party
(U) "Appropriate groups affiliated
with the Hmong
(U) Appropriate groups affiliated with
the Montagnards
As a result of this
legislation, an alien who did any of the following prior to December 26, 2007,
is no longer inadmissible on account of the following terrorism-related grounds
of inadmissibility:
(U) Solicited funds or other things of
value on behalf of one of these named groups (INA 212(a)(3)(B)(iv)(IV)(cc))
(U) Solicited an individual for
membership in one of these named groups (INA 212(a)(3)(B)(iv)(V)(cc))
(U) Committed an act that provided
material support, including transfer of funds, false documentation, weapons or
training to one of these named terrorist groups (INA 212(a)(3)(B)(iv)(VI)(dd))
(U) Is a representative of one of these
named groups (INA 212(a)(3)(B)(i)(IV)(aa))
(U) Is a member of one of these named
terrorist groups (INA 212(a)(3)(B)(i)(VI))
(U) Persuaded others to endorse or
support one of these named terrorist groups (INA 212(a)(3)(B)(i)(VII))
(U) Received military-type training from
one these named terrorist groups (INA 212(a)(3)(B)(i)(VIII))
Unavailable
(3) (U) Pursuant to 691(d) of
Division J of the Consolidated Appropriations Act, 2008 as of December 26,
2007, the Taliban must be treated as a designated terrorist organization
described in INA 212(a)(3)(B)(vi)(I) for purposes of immigration law.
(4) (U) Public Law No.
110-257, codified at 8 U.S.C. 1182 note, added the African National Congress to
the list of groups in subparagraph b, above, that are not considered terrorist
organizations.
(5) (U) In determining whether
an organization may be an undesignated terrorist organization; i.e., that it
engaged in terrorist activities as described in INA 212(a)(3)(B)(iv)(I)
(VI). Post must evaluate information obtained in the visa interview, take
advantage of available local resources, as appropriate, and check relevant
databases, including:
(a) (U) The United Nations 1267
Committees list of individuals and entities belonging or related to the
Taliban, Osama Bin Laden and the Al-Qaida organization.
(b) (U) Terrorists and groups
identified under E.O. 13224.
(c) Unavailable
9 FAM 302.6-2(B)(4) (U)
Inadmissibility Under INA 212(a)(3)(B)
(CT:VISA-799; 05-16-2019)
a. (U) OVERVIEW:
(1) (U) INA 212(a)(3)(B)
generally identifies as grounds for inadmissibility engaging in terrorist
activities and having certain links to terrorist organizations. The
standards apply even if the relevant acts or associations preceded enactment of
the law and regardless of any link to an actual terrorist attack. The section
defines terrorist activities to include a broad range of violent acts (see
INA 212(a)(3)(B)(iii)), while also making inadmissible representatives and
members of groups engaging in listed activities; those endorsing, espousing, or
promoting terrorism; those who have received military-type training from
terrorist organizations; and immediate family members of any covered persons
with certain exceptions.
(2) (U) It also explicitly
makes PLO officers, officials, representatives, and spokesmen inadmissible.
INA 212(a)(3)(B) next defines engaging in terrorist activities, which covers
a broad range of activities that support or promote the commission of terrorist
activities or groups that engage in them (see INA 212(a)(3)(B)(iv)). See 9 FAM
302.6-2(B)(4) paragraph b for more
detail.
b. Unavailable
(1) Unavailable
(2) Unavailable
(3) Unavailable
(4) Unavailable
(5) Unavailable
(6) Unavailable
c. (U) ENGAGED
IN TERRORIST ACTIVITY:
(1) (U) After defining the
violent acts that constitute terrorist activity (see INA 212(a)(3)(B)(iii)),
the INA identifies the acts that render aliens inadmissible because of their
connections to those violent acts or to those who commit them. (See definition
of "engage in terrorist activity" INA 212(a)(3)(B)(iv)).
(2) (U) An alien is
inadmissible on any of the grounds identified below if either the alien has
engaged in terrorist activity in the past or you or the Secretary of Homeland
Security or the Attorney General knows or has reason to believe that the alien
currently is engaged in, or likely after entry to engage in, a terrorist
activity. (See INA 212(a)(3)(B)(i)(I)-(II)).
(3) (U) An alien is
inadmissible for "engaging in terrorist activity" if the alien acts,
as an individual or as a member of a group, to:
(a) (U) Commit or incite to
commit a terrorist activity, under circumstances that indicate an intention to
cause death or serious bodily injury;
(b) (U) Prepare or plan a
terrorist activity;
(c) (U) Gather information on
potential targets for terrorist activity;
(d) (U) Solicit funds or other
things of value for a terrorist activity or terrorist organization. If the
terrorist organization is undesignated at the time the solicitation for membership
occurred, see 9 FAM
302.6-2(B)(3) paragraph i(3);
(e) (U) Solicit any individual to
engage in terrorist activity, or for membership in a terrorist organization.
If the terrorist organization is undesignated at the time the solicitation for
membership occurred, see 9 FAM
302.6-2(B)(3) paragraph i(3);
(f) (U) Commit an act that the
actor knows, or reasonably should know, affords material support for the
commission of a terrorist activity;
(g) (U) Commit an act that the
actor knows, or reasonably should know, affords material support to any
individual who the actor knows, or reasonably should know, has committed or
plans to commit a terrorist activity; or
(h) (U) Commit an act that the
actor knows, or reasonably should know, affords material support to an entity
that was a terrorist organization (i.e., engaged in terrorist activity) at the
time the material support was provided or to a member of a terrorist
organization, without regard to how the contribution was to be used. If the
terrorist organization was undesignated at the time material support was
provided, (see 9 FAM
302.6-2(B)(3) paragraph i(3)).
(4) Unavailable
(5) (U) Current
representatives of the following are inadmissible:
(a) (U) A terrorist organization
(designated or undesignated; there is no defense based on lack of knowledge
concerning the organizations activities); or
(b) (U) A political, social, or
other similar group that endorses or espouses terrorist activity, regardless of
whether the groups endorsement or espousing undermines U.S. efforts.
(6) (U) Current members of a
terrorist organization are inadmissible. (See 9 FAM
302.6-2(B)(3) paragraph e) If the terrorist organization is undesignated,
the alien is not admissible if the applicant can demonstrate by clear and
convincing evidence that he or she did not know, and should not reasonably
have known, that the organization was a terrorist organization (See 9 FAM
302.6-2(B)(3) paragraph b).
(7) (U) Endorsing or espousing
terrorist activity or persuading others to endorse or espouse terrorist
activity or support a terrorist organization, whether designated or
undesignated renders an alien is inadmissible. (See 9 FAM
302.6-2(B)(3) paragraph c)
(8) (U) Military-type
training, received from or on behalf of any organization that, at the time the
training was received, was a terrorist organization, makes an alien
inadmissible. Military-type training, as defined in 18 U.S.C. 2339D(c)(1),
includes training in means or methods that can cause death or serious bodily
injury, destroy or damage property, or disrupt services to critical
infrastructure, or training on the use, storage, production, or assembly of any
explosive, firearm or other weapon, including any weapon of mass destruction.
d. (U) PALESTINE
LIBERATION ORGANIZATION (PLO) AND OTHER PALESTINIAN ENTITIES:
(1) (U) Any alien who is an
officer, official, representative, or spokesperson of the PLO is considered to
be engaged in terrorist activity and therefore inadmissible. See INA
212(a)(3)(B)(i). This provision applies only to those individuals who are
currently PLO officers, officials, representatives, or spokespersons. Although
not covered by the PLO-specific provisions, past officers, officials, representatives,
or spokespersons likely would be inadmissible under the other provisions of INA
212(a)(3)(B). PLO Officials would be individuals with substantive or
policy-making responsibility in the PLO. Members of the PLO Executive
Committee, PLO Representatives at Missions around the world, and PLO
Representatives to the United Nations and other International Organizations
clearly would be inadmissible under this provision.
(2) (U) Applicants who no
longer occupy official positions with the PLO and persons who may be viewed as
current or former members or employees, but are not officers, officials,
representatives, or spokespersons, are not inadmissible under the PLO-specific
provision. You should be alert to the possibility that applicants with present
or past associations with the PLO may be inadmissible under INA 212(a)(3)(B)
for other reasons.
(3) Unavailable
(4) (U) Composition of the Palestine
Liberation Organization (PLO):
(a) Unavailable
(b) Unavailable
(i) Unavailable
(ii) Unavailable
(iii) Unavailable
(iv) Unavailable
(v) Unavailable
(vi) Unavailable
(vii) Unavailable
(viii) Unavailable
(ix) Unavailable
(x) Unavailable
(xi) Unavailable
(xii) Unavailable
(5) (U) Implications for Other
Palestinian Entities:
(a) Unavailable
(b) Unavailable
(c) Unavailable
e. (U) SPOUSE
AND CHILDREN OF AN INADMISSIBLE ALIEN:
(1) (U) Spouses and children
of aliens found inadmissible under INA 212(a)(3)(B) are also inadmissible if
the activity causing the alien to be inadmissible occurred within the last five
years. However, there are exceptions to this inadmissibility. See statutory
exceptions for spouses and children at INA 212(a)(3)(B)(ii) and paragraph (6)
below.
(2) Unavailable
(3) (U) This ground only
applies to spouses who are currently married to aliens found inadmissible under
INA 212(a)(3)(B). It does not include those whose marriage has ended due to
divorce or the death of the inadmissible alien.
(4) (U) As it concerns
children, this only applies to an applicant who is a child at the time of visa
issuance. INA 101(b)(1) defines child as an unmarried person under twenty-one
years of age. A child remains the child of an alien found inadmissible under
INA 212(a)(3)(B) even after the death of the inadmissible alien parent,
assuming he or she continues to meet the definition of a child.
(5) Unavailable
(6) (U) This ground of
inadmissibility does not apply to a spouse or child who did not know or should
not reasonably have known of the aliens activity that caused the alien to be
found inadmissible. It also does not apply if you or the Secretary of Homeland
Security finds that there are reasonable grounds to believe the spouse or child
has renounced the activity causing the alien to be found inadmissible. The
statutory exception to spouse and child inadmissibility applicable in cases
where the spouse or child didnt know of the terrorist activity or renounced
the activity is found in INA 212(a)(3)(B)(ii).
(7) Unavailable
9 FAM 302.6-2(B)(5) (U)
Exemptions
(CT:VISA-888; 07-09-2019)
a. (U) EXEMPTION
VERSUS WAIVER: Both of these discretionary authorities allow an alien to
receive an immigration benefit, even though the alien would not otherwise
qualify for the benefit. One significant difference is that when using a
waiver authority, the Department first determines that the alien is not
qualified to receive a benefit (e.g., a visa) and then follows the applicable
procedures for obtaining a waiver of the disqualification from DHS. The waiver
authority, found in INA 212(d)(3)(A), is available only for non-immigrant visas.
In contrast, when exemption authority is exercised, the Secretary, following
interagency consultations, determines that the disqualification (which must
arise under the INAs terrorism-related grounds for inadmissibility) shall not
apply in the particular case. Exemptions are available for both NIV and IV
cases, as well as other immigration-related benefits. These authorities are
further discussed below.
b. (U) EXEMPTION
AUTHORITY FOR INDIVIDUALS UNDER INA 212(d)(3)(B)(i):
(1) (U) Under INA 212(d)(3)(B)(i),
the Secretaries of Homeland Security and State, in consultation with each other
and the Attorney General, each are authorized to conclude, in their sole and
unreviewable discretion, that almost any of the terrorism-related provisions
under INA 212(a)(3)(B) should not apply to an alien. If the alien is in the
United States, however, and removal proceedings have commenced, only the
Secretary of Homeland Security has the authority to apply the exemption.
(2) (U) INA 212(d)(3)(B)(i)
exemptions cannot be granted to:
(a) (U) Aliens for whom there
are reasonable grounds to believe are engaged in (present activities) or likely
to engage after entry in (future activities) terrorist activity (INA
212(a)(3)(B)(i)(II));
(b) (U) Members of Tier I and
Tier II terrorist organizations (designated by the State Department) (INA
212(a)(3)(B)(i)(V));
(c) (U) Representatives of Tier
I and Tier II terrorist organizations (designated by the State Department) (INA
212(a)(3)(B)(i)(IV)(aa));
(d) (U) Aliens who voluntarily
and knowingly engaged in terrorist activity on behalf of a Tier I or Tier II
group (INA 212(a)(3)(B)(i)(I), as defined by INA 212(a)(3)(B)(iv));
(e) (U) Aliens who voluntarily
and knowingly endorsed or espoused terrorist activity or persuaded others to do
so on behalf of a Tier I or Tier II group (INA 212(a)(3)(B)(i)(VII));
(f) (U) Aliens who voluntarily
and knowingly received military-type training from a Tier I or II terrorist
organization (INA 212(a)(3)(B)(i)(VIII)).
(3) (U) It is important to note
that with respect to past activities, the limitations on the exemption
authority relate only to aliens with ties to designated (Tier I and Tier II)
terrorist organizations. The exemption potentially may overcome
inadmissibility for any past terrorist activity associated with an undesignated
(Tier III) terrorist organization.
(4) (U) By including
voluntarily or knowingly in the statute, Congress made clear that exemptions
may be used to overcome inadmissibility for past terrorist activity associated
with a designated (Tier I or II) terrorist organization, if the alien acted
under duress or without the relevant knowledge.
(5) (U) Although exercises of
the exemption authority require action by the Secretary following interagency
consultations and, therefore, will not be commonplace, you may recommend that
the Department pursue an exemption from provisions of INA 212(a)(3)(B) for a
nonimmigrant visa applicant, if politically justified, or an immigrant visa
applicant. Such requests must be submitted to the Department with a detailed
assessment explaining why an exemption is appropriate and any balancing
considerations.
(6) Unavailable
c. (U) EXEMPTION
AUTHORITY FOR INDIVIDUALS ASSOCIATED WITH THE AFRICAN NATIONAL CONGRESS:
(1) (U) In
General:
(a) (U) Under Public Law No.
110-257, codified at 8 U.S.C. 1182 note, the Secretaries of State and Homeland
Security, in consultation with each other and the Attorney General, each are
authorized to determine, in their sole and unreviewable discretion, that
(2)(A)(i)(I), (2)(B), and (3)(B) (other than clause (i)(II)) of INA 212(a),
must not apply to an alien with respect to activities undertaken in association
with the African National Congress in opposition to apartheid rule in South
Africa. This authority operates the same as the general individual exemption
authority described in 9 FAM
302.6-2(B)(5) paragraph b, above but
for activities that may fall within the scope of this law, only this exemption
should be considered. An exemption under the Public Law may cover both
terrorism-related and some of the criminal-related grounds of inadmissibility.
The same law also establishes that the ANC must not be treated as a terrorist
organization, for purposes of section 212(a)(3)(B) of the INA, based on past
actions. See 9 FAM 302.6-2(B)(3) paragraph i above.
(b) (U) Effective March 30,
2011, the Secretary of State, following consultations with the Secretary of
Homeland Security and the Attorney General, exercised her discretionary
authority under Public Law 110-257 to determine that INA 212(a)(2)(A)(i)(I), INA 212(a)(2)(B),
and INA 212(a)(3)(B) (other than clause (i)(II)) "shall not
apply" to individuals for activities undertaken in association with the
African National Congress (ANC) in opposition to apartheid rule in South Africa
(the "ANC categorical exemption"). The ANC categorical exemption
sets out conditions for eligibility, described below, that must be applied by
consular officers and other relevant U.S. Government officials in accordance
with the procedures below. Please see CAWeb Exemption Authorities for the
complete text.
(2) Unavailable
(a) Unavailable
(b) Unavailable
(c) Unavailable
(d) Unavailable
(3) (U) Requirements for ANC
Exemptions:
(a) Unavailable
(i) Unavailable
(ii) Unavailable
(b) Unavailable
(c) Unavailable
(d) Unavailable
(i) Unavailable
(ii) Unavailable
(4) Unavailable
(a) Unavailable
(b) Unavailable
(c) Unavailable
(d) Unavailable
(i) Unavailable
(ii) Unavailable
(iii) Unavailable
(iv) Unavailable
(e) Unavailable
Unavailable
(f) Unavailable
(i) Unavailable
(ii) Unavailable
(A) Unavailable
(B) Unavailable
(C) Unavailable
(1)
Unavailable
(2)
Unavailable
Unavailable
Unavailable
Unavailable
Unavailable
(3)
Unavailable
(iii) Unavailable
(iv) Unavailable
d. (U) EXEMPTION AUTHORITY FOR
INDIVIDUALS WHO HAVE PROVIDED MATERIAL SUPPORT UNDER DURESS TO A TERRORIST
ORGANIZATION:
(1) (U) In General:
(a) (U) On October 26, 2015, the
Secretary of State exercised his authority under INA section 212(d)(3)(B)(i) to
determine that subsection 212(a)(3)(B)(iv)(VI) shall not apply with respect to
material support provided under duress to a terrorist organization. This
Material Support Under Duress exemption sets out conditions for eligibility,
described below, that may be applied by consular officers in accordance with
the procedures below.
(b) (U) As an example, USCIS guidance indicates that material support under
duress could include providing money or a service (such as transporting
fighters and supplies) to a rebel group when threatened at gunpoint to comply
with such a demand.
(2) Unavailable
(a) Unavailable
(b) Unavailable
(i) Unavailable
(ii) Unavailable
(iii) Unavailable
(iv) Unavailable
(c) Unavailable
(i) Unavailable
(ii) Unavailable
(iii) Unavailable
(iv) Unavailable
(d) Unavailable
(i) Unavailable
(ii) Unavailable
(iii) Unavailable
(iv) Unavailable
(v) Unavailable
(vi) Unavailable
(e) Unavailable
(3) Unavailable
(a) Unavailable
(b) Unavailable
(c) Unavailable
(d) Unavailable
(e) Unavailable
(4) Unavailable
(a) Unavailable
(b) Unavailable
(5) Unavailable
e. (U) EXEMPTION
AUTHORITY FOR KURDISTAN DEMOCRATIC PARTY, IRAQI NATIONAL CONGRESS, AND
PATRIOTIC UNION OF KURDISTAN:
(1) (U) Background:
(a) Unavailable
(b) Unavailable
(c) Unavailable
Unavailable
(d) Unavailable
(e) Unavailable
(2) (U) In
General: In September 2009, the Secretary of Homeland Security and
Secretary of State granted an exemption under INA212(d)(3)(B)(i) covering the
category of individuals who meet certain conditions, as determined by consular
or DHS officials, as appropriate, from certain inadmissibility grounds in INA
212(a)(3)(B) of the INA with respect to any activities or associations related
to the Kurdistan Democratic Party (KDP), the Patriotic Union of Kurdistan (PUK)
or the Iraqi National Congress (INC) (hereinafter the "categorical
exemption"). Please see CAWeb Exemptions for
the full text of the exemption.
(3) (U) Procedures:
(a) Unavailable
(b) Unavailable
(c) Unavailable
(d) Unavailable
(e) Unavailable
(f) Unavailable
(g) Unavailable
(4) Unavailable
(a) Unavailable
(i) Unavailable
(ii) Unavailable
(iii) Unavailable
(iv) Unavailable
(v) Unavailable
(vi) Unavailable
(vii) Unavailable
(viii) Unavailable
(ix) Unavailable
(x) Unavailable
(b) Unavailable
f. (U) APPLICATION
OF EXEMPTION FOR INDIVIDUALS ASSOCIATED WITH KOSOVO LIBERATION ARMY (KLA):
(1) Unavailable
(a) Unavailable
(b) Unavailable
(c) Unavailable
(d) Unavailable
(e) Unavailable
(2) Unavailable
(a) Unavailable
(b) (U) The applicant is seeking
a benefit or protection under the INA, which may include a non-immigrant visa,
and is otherwise eligible for the benefit or protection.
(c) Unavailable
(d) (U) The applicant has fully
disclosed, to the best of his or her knowledge, in all relevant applications
and interviews with U.S. government representatives and agents, the nature and
circumstances of activities or associations falling within the scope of INA
section 212(a)(3)(B).
(e) Unavailable
(f) (U) The applicant has not
participated in, or knowingly provided material support to, terrorist
activities that targeted noncombatant persons or United States interests. For
further information on material support, see 9 FAM
302.6-2(B)(3) above.
(g) (U) The applicant has
established to your satisfaction that he or she poses no danger to the safety
and security of the United States.
(h) (U) The applicant warrants
an exemption from the relevant inadmissibility provisions in the totality of
the circumstances. The exemption gives you broad latitude to consider any
relevant factors and determine that an applicant who might otherwise appear
eligible for the exemption should not benefit based on the totality of
circumstances.
(i) Unavailable
(j) Unavailable
(3) Unavailable
(a) Unavailable
(i) Unavailable
(ii) Unavailable
(iii) Unavailable
(iv) Unavailable
(b) Unavailable
(4) Unavailable
(a) Unavailable
(b) Unavailable
(c) Unavailable
(d) Unavailable
(e) Unavailable
(f) Unavailable
(g) Unavailable
(5) Unavailable
(6) Unavailable
g. Unavailable
(1) (U) In addition to those
listed in paragraphs d through f above, exemptions have been created for
certain individuals associated with or activities related to the following
groups:
(a) (U) The All Burma Student's
Democratic Front (ABSDF);
(b) (U) The All India Sikh
Student's Federation - Bittu (AISSF-Bittu);
(c) (U) the Democratic Movement
for the Liberation of Eritrean Kunam (DMLEK);
(d) (U) The Eritrean Liberation
Front (ELF);
(e) (U) The Ethiopian People's
Revolutionary Party (EPRP);
(f) (U) The Farabundo Marti
para la Liberation National (FMLN) and Nationalist Republican Alliance (ARENA);
(g) (U)The Oromo Liberation
Front (OLF);
(h) (U) The Tigray People's
Liberation Front (TPLF);
(i) (U) Certain Burmese Groups;
and/or
(j) (U) 10 groups named in the
Consolidated Appropriations Act, 2008 (see 9 FAM
302.6-2(B)(3) paragraph (i)(2) above.
(2) Unavailable
(a) (U) Solicitation or
Military-Type Training Under Duress (see 9 FAM
302.6-2(B)(5) paragraph (d) above);
(b) (U) Voluntary Medical Care;
(c) (U) Participation in the
Iraqi Uprisings;
(d) (U) Certain Limited or
Insignificant Material Support; and/or
(e) Unavailable
9 FAM 302.6-2(B)(6) (U)
Reports to Congress
(CT:VISA-725; 01-23-2019)
a. (U) Report
on 3B Denials: Section 128 of Public Law 102-138 of October 28, 1991,
added to the law a permanent requirement that the Secretary of State report, on
a timely basis, to the Judiciary Committees of the House and Senate, the House
Foreign Affairs Committee, and the Senate Foreign Relations Committee every
denial of a visa "on grounds of terrorist activity," along with a
brief description of the factual basis for the denial.
b. (U) Report
on 3B Waivers: The Secretary of State also must report on all aliens
inadmissibility under INA 212(a)(3)(B) to whom the Department issued a visa, or
failed to object to the issuance of a visa. This report, required by section
51 of the State Department Basic Authorities Act, as amended by Section 231 of
the Foreign Relations Authorization Act, Fiscal Year 2003, must be submitted to
appropriate committees on a semi-annual basis. The requirement for these
reports may be found at 22 U.S.C. 2723.
c. (U) Report
on Exemptions under INA 212(d)(3)(B): Not later
than 90 days after the end of each fiscal year, the Secretaries of State and
Homeland Security must submit a report to specified congressional committees on
all individuals exempted under INA 212(d)(3)(B)(i). Exemptions for groups must
be reported within one week (INA 212(d)(3)(B)(ii)).
9 FAM 302.6-2(C) Unavailable
9 FAM 302.6-2(C)(1) Unavailable
(CT:VISA-888; 07-09-2019)
a. Unavailable
b. Unavailable
c. Unavailable
d. Unavailable
e. Unavailable
f. Unavailable
g. Unavailable
(1) Unavailable
(2) Unavailable
(3) Unavailable
h. Unavailable
i. Unavailable
j. Unavailable
9 FAM 302.6-2(C)(2) Unavailable
(CT:VISA-888; 07-09-2019)
a. Unavailable
(1) Unavailable
(2) Unavailable
(3) Unavailable
(4) Unavailable
(5) Unavailable
b. Unavailable
(1) Unavailable
(a) Unavailable
(b) Unavailable
(c) Unavailable
(2) Unavailable
(a) Unavailable
(b) Unavailable
(c) Unavailable
(d) Unavailable
(e) Unavailable
(f) Unavailable
9 FAM 302.6-2(C)(3) Unavailable
(CT:VISA-888; 07-09-2019)
a. Unavailable
b. Unavailable
c. Unavailable
d. Unavailable
e. Unavailable
f. Unavailable
g. Unavailable
h. Unavailable
i. Unavailable
9 FAM 302.6-2(C)(4) (U)
Exemption Authority for Individuals or Activities Associated with the Kosovo
Liberation Army (KLA)
(CT:VISA-218; 10-20-2016)
a. (U) On June 4, 2012,
Homeland Security Secretary Napolitano, following consultations with the
Secretary of State and the Attorney General, exercised her authority under INA
212(d)(3)(B)(i), not to apply certain inadmissibility grounds under INA
212(a)(3)(B) for certain activities or associations relating to the Kosovo
Liberation Army (KLA). Prior to applying this exemption to a visa applicant,
there are several issues that must be considered. These are described below
and differ for immigrant and non-immigrant visa applicants.
b. (U) The exemption cannot be
applied to any immigrant or non-immigrant visa applicant you know or have
reasonable grounds to believe is engaged in or is likely to engage after entry
into the United States in any terrorist activity, as defined in INA
212(a)(3)(B)(iv).
9 FAM 302.6-2(D) (U) Waivers
9 FAM 302.6-2(D)(1) (U)
Waivers for Immigrants
(CT:VISA-218; 10-20-2016)
(U) No waiver is available for
immigrant visa applicants found
inadmissible under INA 212(a)(3)(B).
9 FAM 302.6-2(D)(2) (U)
Waivers for Nonimmigrants
(CT:VISA-370; 05-31-2017)
a. (U)
You may request that a finding of INA 212(a)(3)(B) inadmissibility be waived
for a nonimmigrant found inadmissible under INA 212(a)(3)(B) in a particular
case. Such requests must be submitted to the Department with a detailed
assessment explaining why a waiver is appropriate and any balancing
considerations. Where appropriate, the Department will forward the request
with a recommendation to Department of Homeland Security (DHS) Washington to
grant the waiver. You may not request waivers from DHS attachs at post.
b. (U)
The Department may request a waiver from DHS on its own initiative if it
believes a waiver is appropriate under the circumstances in a particular case.
The Department will advise you whenever a waiver has been approved, and you
must annotate the visa in accordance with 9 FAM 403.9-5.
9 FAM 302.6-2(E) Unavailable
9 FAM 302.6-2(E)(1) Unavailable
(CT:VISA-218; 10-20-2016)
Unavailable
9 FAM 302.6-2(E)(2) Unavailable
(CT:VISA-218; 10-20-2016)
Unavailable
9 FAM 302.6-3 (U) Association
with Terrorist organizations - INA 212(a)(3)(F)
9 FAM 302.6-3(A) (U) Grounds
(CT:VISA-218; 10-20-2016)
(U) INA 212(a)(3)(F) renders
inadmissible any alien who the Secretary of State, after consultation with the
Secretary of Homeland Security, determines has been associated with a terrorist
organization and intends while in the United States to engage solely,
principally, or incidentally in activities that could endanger the welfare,
safety, or security of the United States.
9 FAM 302.6-3(B) (U)
Application
9 FAM 302.6-3(B)(1) (U)
Background and Summary
(CT:VISA-664; 08-22-2018)
a. (U) INA 212(a)(3)(F) was
added by Section 411(a)(2) of the Uniting and Strengthening America by
Providing Appropriate Tools Required to Intercept and Obstruct Terrorism (USA
PATRIOT) Act of October 26, 2001 (Public Law 107-56) (USA PATRIOT ACT).
Enacted after the terrorist attacks on September 11, 2011, it was proposed by
the Executive Branch and modeled in part on former INA 212(a)(27) and (28) to
expand the scope and provide a flexible legal basis for denying entry to aliens
who have been associated with terrorist organizations and whose travel to the
United States would be inconsistent with the welfare, safety, or security of
the United States.
b. (U) INA 212(a)(3)(F) applies only if the Secretary of State, after
consultation with the Secretary of Homeland Security, or Secretary of Homeland
Security after consultation with the Secretary of State, determines that the
alien has been associated with a terrorist organization and intends while in
the United States to engage solely, principally, or incidentally in activities
that could endanger the welfare, safety, or security of the United States. The
Secretary of States authority to make such a determination has not been
delegated to consular officers. Therefore, this provision can be used to deny
visas only when such use is approved by the Department after a determination is
made by the Secretary or an official to whom the Secretarys authority has been
delegated.
9 FAM 302.6-3(B)(2) (U)
Recommending a Finding
(CT:VISA-799; 05-16-2019)
a. (U) The authority to
determine whether an alien is inadmissible under INA 212(a)(3)(F) rests with
the Secretary of State and the Secretary of Homeland Security, each in
consultation with the other. Accordingly, if you believe that an individual
may be inadmissible under this provision, you must refer the matter back to the
Department for a decision.
b. (U) You should address the
following in any request for a determination of inadmissibility under this
provision:
(1) (U) Terrorist
organization(s) involved: If the organization involved has been
designated as a foreign terrorist organization under INA 219 as a Terrorist
Exclusion List (TEL) organization under INA 212(a)(3)(B)(vi)(II) or under
Executive Order 13224, or has been defined by INA 212(a)(3)(B)(vi)(III) as a
Tier III terrorist organization, you must provide the name of the organization
and note the relevant designation(s). If an organization has not been
designated under any of these authorities, you must explain why the
organization is considered to be a terrorist organization and provide as much
information as possible regarding the nature and structure of the organization
and its activities. Include information on the nature, timing, and relevant
circumstances surrounding the organizations terrorist activities;
(U) NOTE: Terrorist
Organization is defined in INA 212(a)(3)(B)(vi) and references the definition
of engaged in terrorist activity under INA 212(a)(3)(B)(iv);
(2) (U) Nature
of the aliens association: For an alien to be inadmissible under INA
212(a)(3)(F), the association must be meaningful. Therefore, you must provide
information concerning:
(a) (U) The frequency, duration,
and level of the aliens contacts with the organization;
(b) (U) The nature and purpose
of the aliens contacts with the organization; and
(c) (U) The aliens awareness of
association. Because terrorist organizations often operate in secret, you must provide your assessment of:
(i) (U) Whether the alien
knew or should have known that the organization was a terrorist organization
(see 9
FAM 302.6-2(B)(3) paragraph e for relevant factors to consider);
(ii) (U) Whether the alien
knew or should have known that the person(s) with whom the alien had contact
was a member, representative, or affiliate of a terrorist organization; and
(iii) (U) Whether the alien
knew or should have known that the person(s) with whom the alien had contact
was engaged in terrorist activity;
(3) (U) Timeframe: INA
212(a)(3)(F) applies to an alien who has
been associated with a terrorist organization, regardless of when that
association occurred. Therefore, an alien whose association with a terrorist
group took place prior to enactment of INA 212(a)(3)(F) could be found inadmissible. On the other
hand, the inadmissibility can be triggered only if the alien intends while in
the United States to engage in activities that could endanger the welfare,
safety, or security of the United States.
(4) (U) Aliens
activities in the United States: Provide as much information as
possible regarding the aliens proposed activities in the United States and
explain why these activities are cause for concern i.e., why the
determination required under subsection F should be made; and
(5) Unavailable
9 FAM 302.6-3(B)(3) (U)
Findings
(CT:VISA-664; 08-22-2018)
a. (U) In order to find an
alien inadmissible under INA 212(a)(3)(F), the
Secretary of State or Secretary of Homeland Security, each in consultation with
the other (or their delegates), must find:
(1) (U) That the alien has
been associated with a terrorist organization; and
(2) (U) That the alien intends
while in the United States to engage solely, principally, or incidentally in
activities that could endanger the welfare, safety, or security of the United
States.
b. (U) Within the Department,
Consular Affairs will normally take the lead in coordinating the necessary
interagency consultations and ensuring that a determination, if made, is made
by an appropriate Department official with delegated authority. Generally, a
determination will be made only if INA 212(a)(3)(B) is not applicable.
c. (U) As previously noted,
the Department believes that associated with requires a meaningful
association. Generally, to be found inadmissible, an alien must have had
contact over a period of time with individuals who the alien knew or should
have known were members or representatives of a terrorist organization. A
single meeting with a terrorist operative could be sufficient for finding that
an alien has been associated with a terrorist organization, however.
However, the Department would most likely find an alien was associated with a
terrorist organization if the alien had made a commitment at a single meeting
with a known recruiter for a terrorist organization to act on the
organizations behalf.
d. (U) A finding that an alien
intends while in the United States to engage in activities that could endanger
the welfare, safety, or security of the United States can be made in
appropriate cases by inferring the necessary intent from the relevant facts and
circumstances. For example, an alien who has extensive knowledge of explosives
who has been meeting regularly with well-known members of a terrorist
organization and seeks to travel to the United States could be found
inadmissible under INA 212(a)(3)(F). Similarly,
an alien who has received flight training, or has received counter-surveillance
training from a terrorist organization (as defined in INA 212(a)(3)(B)(vi))
could be found to have such an intent based on these and other relevant facts,
and therefore be found inadmissible under INA 212(a)(3)(F).
e. (U) It is not necessary that
the alien intend to engage in activities that would be illegal or otherwise
prohibited under the laws and regulations in the United States for the
Department to find the alien inadmissible under INA 212(a)(3)(F). For example,
an alien who intends to attend flight school in the United States a lawful
activity could be found inadmissible under INA 212(a)(3)(F) if the facts are sufficient to permit the
Secretary or his/her delegate to determine that the alien has been associated
with a terrorist organization and that the aliens attendance at the flight
school could endanger the security of the United States.
9 FAM 302.6-3(B)(4) (U) Not a
Permanent Bar
(CT:VISA-664; 08-22-2018)
Unavailable
9 FAM 302.6-3(C) Unavailable
(CT:VISA-664; 08-22-2018)
Unavailable
9 FAM 302.6-3(D) (U) Waivers
9 FAM 302.6-3(D)(1) (U)
Waivers for Immigrants
(CT:VISA-218; 10-20-2016)
(U) No waiver is available for
immigrant visa applicants found inadmissible under INA 212(a)(3)(F).
9 FAM 302.6-3(D)(2) (U)
Waivers for Nonimmigrants
(CT:VISA-218; 10-20-2016)
(U) An INA 212(d)(3)(A) waiver is
available for nonimmigrant visa applicants found inadmissible under INA
212(a)(3)(F).
9 FAM 302.6-3(E) Unavailable
9 FAM 302.6-3(E)(1) Unavailable
(CT:VISA-664; 08-22-2018)
Unavailable
9 FAM 302.6-3(E)(2) Unavailable
(CT:VISA-218; 10-20-2016)
Unavailable
9 FAM 302.6-4 (U) Section 306 of
the Enhanced Border Security and Visa ENTRY Reform Act of 2002 - 8 U.S.c. 1735
ALIENS FROM A STATE Sponsor of Terrorism
9 FAM 302.6-4(A) (U) Grounds
(CT:VISA-664; 08-22-2018)
(U) Section 306 of the Enhanced
Border Security and Visa Entry Reform Act of 2002 (section 306), 8 U.S.C.
1735, prohibits issuance of visas to nonimmigrant visa applicants from a state
sponsor of terrorism unless the Secretary of State determines the applicant
does not pose a threat to the safety and security of the United States.
9 FAM 302.6-4(B) (U)
Application
(CT:VISA-888; 07-09-2019)
a. Unavailable
b. Unavailable
c. Unavailable
(1) Unavailable
(2) Unavailable
(3) Unavailable
(a) Unavailable
(b)
(4) Unavailable
(a) Unavailable
(b) Unavailable
(c) Unavailable
(d) Unavailable
9 FAM 302.6-4(C) Unavailable
(CT:VISA-664; 08-22-2018)
a. Unavailable
b. Unavailable
(1) Unavailable
(2) Unavailable
c. Unavailable
9 FAM 302.6-4(D) (U) Waivers
9 FAM 302.6-4(D)(1) (U)
Waivers for Immigrants
(CT:VISA-218; 10-20-2016)
(U) Immigrant visa applicants are
not subject to Section 306.
9 FAM 302.6-4(D)(2) (U)
Waivers for Nonimmigrants
(CT:VISA-218; 10-20-2016)
(U) No waiver is available for
nonimmigrant visa applicants ineligible under Section 306.
9 FAM 302.6-4(E) Unavailable
9 FAM 302.6-4(E)(1) Unavailable
(CT:VISA-218; 10-20-2016)
Unavailable
9 FAM 302.6-4(E)(2) Unavailable
(CT:VISA-664; 08-22-2018)
Unavailable