June 24, 2010

Source: SAALT

In February 2009, a U.S. immigration judge determined that Baskaran Balasundaram suffered persecution in his native Sri Lanka during its brutal 26-year civil war and granted him refuge to enter and remain in the United States.  Under normal circumstances, within a year or two of that decision he could have adapted a bit to life in his new home country, applied for a green card and become an American citizen.
23 months later Mr. Balasundaram remains in a Suffolk County (MA) jail cell.
Mr. Balasundaram, now 27 years old, was at his family farm in May 2007 when four Tamil Eelam fighters forced him at gunpoint to one of their training camps.  He was held against his will, forced to watch war videos and cook for his captors in sub-human conditions until he managed to escape five months later.  He was then captured and tortured by his original captor’s enemy, the Sri Lankan military, because of his ethnicity and because they sought information on the Tamil Eelam’s activities.  He fled Sri Lanka and escaped to seek asylum in Boston in June 2008.
The U.S. Dept. of Homeland Security fought Mr. Balasundaram’s asylum application before U.S. Dept. of Justice Immigration Judge Eliza C. Klein because it argued he received military-type training from and provided material support to the Tamil Eelam (designated by the U.S. as a terrorist organization).  Judge Klein found insufficient basis for DHS’ argument, and determined that he “was forced to watch propaganda training videos’’ and that his “limited exposure was neither willing nor participatory.”  DHS disagreed and appealed the decision to the Board of Immigration Appeals.
Last month, the ACLU of Massachusetts filed a petition with the U.S. District Court for Mr. Balasundaram’s immediate release or at least a fair hearing on his continued detention.  His appeal, the ACLU states, is taking twice as long as it normally does and could take another year.
So, 36 months since he was held against his will by one group, 31 months since he was held by its enemy, 23 months after successfully fleeing persecution half way around the world, 15 months after being granted refuge, Mr. Balasundaram is just where he started, being held against his will – but this time not in the middle of a civil war.
Mr. Balasundaram’s case is a terribly problematic consequence of current immigration law.  Through the Immigration and Nationality Act, Congress and the Board of Immigration Appeals deem anyone who unintentionally provides “material support” toward the furtherance of a terrorist goal inadmissible – a definition of “material support” so broad to include someone who cooked for a designated terrorist group only under the threat of death.
On June 21, 2010, the U.S. Supreme Court dealt a potential blow to Mr. Balasundaram in an unrelated case that also involved the Tamil Eelam.  In Holder, et al., v. Humanitarian Law Project, et al., a group of non-governmental organizations argued that a vague, similar law criminalizing ‘material support’ to a terrorist organization unconstitutionally stymied their humanitarian work.  The plaintiffs specifically described the law as criminalizing their efforts to train designated terrorist groups to use international law to peacefully resolve conflicts, to teach them to petition international bodies such as the United Nations for relief, and to engage in peaceful political advocacy on the behalf of individuals who might have links to terrorist organizations.  Writing for the majority, Justice John Roberts gave deference to Congress’s and the Executive Branch’s knowledge and efforts to protect America in a post-9/11 world, and endorsed a broad view criminalizing “material support” to include peaceful counterterrorism efforts.
As Baskaran Balasundaram’s predicament and Justice Roberts’ decision illustrate, the overly-broad definition of ‘material support’ to a terrorist organization must be addressed.  SAALT calls on Congress and President Obama to enact legislation, including Comprehensive Immigration Reform, which narrows the definition ‘material support’ and makes its application more just, reasonable and practical.
To learn more about SAALT’s work on immigration and the South Asian community, click here.