Twenty six years after that departure, on March 22nd 2011, now 51-year-old Barahona was shuttled from a Virginia immigration detention center to an immigration court where he listened in astonishment as a lawyer for the Department of Homeland Security argued that when he opened the door all those years ago for the armed Farabundo Martí National Liberation Front guerillas, he’d acted in support of terrorism. He “provid[ed] material support for a group engaged in terrorist activities,” the Department of Homeland Security attorney said. And then Barahona listened as the judge ordered his deportation to El Salvador.
Barahona, who will appear in a federal appeals court on Tuesday to challenge the immigration court’s ruling, has found himself the target of the government’s reaching application of counter-terrorism laws to compel the deportation or exclusion of immigrants and asylum seekers. Using laws meant to stop people who would do the country harm from entering or staying in the United States, Barahona and an unknown number of others who pose no threat to the country are treated as terrorists on the grounds that they’d provided “material support” to terrorist organizations. The laws often flip reality on its head, casting the terrorism appellation far beyond a reasonable scope and treating victims as victimizers, the terrorized as terrorists.
A Widely Cast Net
For most of the last 27 years, Barahona lived in the United States as a documented immigrant. He was granted permission to stay in the county in the late 1980’s when he applied for Temporary Protected Status, a kind of immigration relief available to people from designated countries to which a return would pose a safety risk. For years he worked in the construction business, as a carpenter, and in restaurants, supporting his children, who are now in their 20s. In 2010, things turned for the worse for Barahona when he lost his authorization to stay in the country after he was convicted of a misdemeanor. Without permission to work, he fell on hard times, was cited for domestic violence, separated from his wife and after he was ticketed for trespassing by Prince William County, Virginia cops he found himself detained in an federal immigration jail facing deportation proceedings.
Barahona applied for relief from deportation under the NACARA law, which created a pathway to legal residency for asylum seekers from eligible countries including El Salvador. His case should have been a strong one. He’d lived in the US for two and half decades and the judge agreed that Barahona showed “good moral character” and that his deportation would cause him and his family significant hardship.
But the government’s attorney was not having it. She arrived in court committed to Barahona’s expulsion from the United States and she pulled no punches. To Barahona’s astonishment, the attorney argued that his interactions half a lifetime ago with the FMLN guerillas “rises to the level of material support” for terrorism and that he was therefore ineligible to remain in the country.
A decade after September 11, 2001, the government is continuing to wield it’s broad counterterrorism powers against people who pose no threat. Material support laws have led to the prosecution of people alleged to have the most negligible connections to groups designated as terrorist organizations, the criminalization of human rights groups that have engaged with designated terrorist groups and to the intentional circumvention of the justice system when no crime has occurred but the government nonetheless seeks punishment.
In the context of immigration and asylum, material support laws have had major implications for non-citizens applying to enter or for the right to stay in the United States.
In the 1990’s, Congress added specific provisions to immigration law that barred anyone who provided “material support” to a terrorist group from gaining lawful immigration status. Material support was defined broadly— providing a “safe house, transportation, communications, funds, transfer of funds or other material financial benefit, false documentation or identification, weapons.” The laws were meant to be applied to people who posed a real threat to the United States. But after September 11, 2001 the legal landscape changed when Congress vastly expanded the kinds of groups and activities treated as material support.