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Medical Neutrality Exemption a Victory for Asylum-Seeking Health Professionals

by Jillian Tuck, JD & Mike Corradini, JD on November 22, 2011

A Sudanese doctor treats severely wounded members of a rebel group from Darfur while working for a humanitarian NGO. As a result of the assistance he provides, the doctor is then targeted by the Sudanese government- captured, interrogated and tortured for aiding Darfuri rebels. Fearing arrest and potentially execution, he flees to the United States in search of safety and requests asylum.

Up until earlier this month, the doctor’s asylum claim would have been denied, even if he legitimately feared persecution and immigration authorities found him to be credible. Providing medical assistance to injured Darfuri rebels was considered “material support” to a terrorist organization and therefore barred him from receiving asylum in the US. In response to advocacy from groups like Physicians for Human Rights, however, Secretary of Homeland Security Janet Napolitano fixed this flaw by creating an exemption to the material support bar for health professionals who have provided medical assistance to wounded combatants as part of their ethical and moral responsibilities.

The “material support bar,” created by the USA PATRIOT Act in 2001 and codified in the Immigration and Nationality Act (INA), provides that a noncitizen who commits an act that he or she  “knows, or reasonably should know, affords material support” to a terrorist organization may not be admitted to the US. Because an applicant for asylum must be “admissible” before he can win asylum, the material support bar excludes many bona fide victims of torture and persecution from gaining protection in the US for doing something as benign as giving water to a family member who happens to be a member of a group designated as a “terrorist organization” by the US government. Before the recent change, the provision squarely conflicted with internationally-accepted principles of medical ethics and humanitarian law and contradicted  a health care provider’s ethical duty to treat anyone in need, regardless of the patient’s affiliation. Denial of asylum to these health professionals also clashes with US policies which support medical neutrality and the protection of health care workers in war.

While this exemption is laudable, the material support bar remains overbroad. It still makes no exemption for situations in which an asylum seeker assists a terrorist organization under duress or coercion. This means that asylum seekers who are victimized by groups that the US has officially designated as terrorist organizations are treated as terrorists themselves, even if they had no choice but to do what they were told under threat of death. And the government has yet to define what exactly it means by “material support,” leaving it open to uneven and sweeping interpretation by those who are charged with enforcing the immigration laws.

A 2009 Human Rights First Report estimated that over 18,000 refugees and asylum seekers have been directly affected by expansive terrorist-related provisions in immigration law. Rather than trying to address the negative impact of these provisions through piecemeal statutory changes and waivers to individual classes of refugees, Congress should enact legislation to ensure that all victims of persecution and torture who are neither guilty of criminal wrongdoing nor pose a threat to US security have a chance to win asylum. Anything less will continue to undermine our obligation to protect refugees while doing nothing to protect the US against terrorism.


Places: United States

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