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Unintended Consequences: Refugee Victims of the War on Terror Georgetown University Law Center, Human Rights Institute

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Unintended Consequences: Refugee Victims of the War on Terror Georgetown University Law Center, Human Rights Institute Georgetown University Law Center Scholarship @ GEORGETOWN LAW 2006 Unintended Consequences: Refugee Victims of the War on Terror Georgetown University Law Center, Human Rights Institute This paper can be downloaded free of charge from: http://scholarship.law.georgetown.edu/hri_papers/1 This open-access article is brought to you by the Georgetown Law Library. Posted with permission of the author. Follow this and additional works at: http://scholarship.law.georgetown.edu/hri_papers Part of the Human Rights Law Commons UNINTENDED CONSEQUENCES Refugee Victims of the War on Terror Georgetown University Law Center Human Rights Institute Refugee Fact-Finding Investigation May 2006 EDITORS Mark Fleming Emi MacLean Amanda Taub AUTHORS AND RESEARCHERS Shaina Aber Devon Chaffee Mia F. Cohen Edward Dougherty Mark Fleming Emi MacLean Elizabeth Matos Jennie Pasquarella Rebecca Shaeffer Jeffrey Smith Tom Smith Amanda Taub Sarah Yeomans FACULTY ADVISOR Andrew Schoenholtz Deputy Director, Institute for the Study of International Migration Georgetown University SUPPORT PROVIDED BY Georgetown University Law Center Georgetown Human Rights Institute ACKNOWLEDGEMENTS The Georgetown University Law Center Fact-Finding Group acknowledges the support of innumerable people without whom this project would not have been possible. The staff of the United Nations High Commissioner for Refugees in Ecuador (UNHCR), the Hebrew Immigrant Aid Society (HIAS) and the Comité Pro Refugiados (CPR) provided invaluable assistance in facilitating the field research in Ecuador and inspired us with their unwavering commitment to improving the lives of Colombian refugees. The group is particularly indebted to Walter Sanchez of UNHCR, Sabrina Lustgarten of HIAS, and Sister Jannet of CPR. The support of the administration and faculty of Georgetown University Law Center has also been indispensable to this project. The group particularly thanks the Human Rights Institute, Dean Alex Aleinikoff, Professor Carlos Vázquez, Dean Mitchell Bailin, and Dean Carol O’Neil who have remained dedicated to the project’s mission to use law in the service of positive policy change. This project also depended on the financial support of generous Georgetown alumni. Most importantly, the group is grateful to the refugees who entrusted us with their deeply personal stories in the hopes that they contribute to improving the lives of other refugees. The thing was that I couldn’t really do anything against them or tell them no. I did what any human being would do. - José, Colombian taxi driver hijacked by armed guerrillas and forced to drive the guerrillas to undisclosed mountain encampments Table of Contents EXECUTIVE SUMMARY ................................................................................. I I. INTRODUCTION ....................................................................................... 1 A. METHODOLOGY...............................................................................................................3 B. HISTORY OF THE COLOMBIAN CONFLICT .......................................................................5 C. HISTORY OF UNHCR REFUGEE PROTECTION PROGRAM IN ECUADOR.........................6 D. UNITED STATES RESETTLEMENT PROGRAM ..................................................................6 II. THE MATERIAL SUPPORT BAR TO REFUGEE RESETTLEMENT: LEGAL ANALYSIS AND FINDINGS .............................................................. 9 A. LEGAL ANALYSIS OF MATERIAL SUPPORT PROVISIONS....................................................9 1. Definition of Material Support ................................................................................... 10 2. Definition of a Terrorist Organization....................................................................... 11 3. Discretion to Waive the Material Support Bar ........................................................... 13 4. Application to Asylum and Withholding of Removal ................................................ 14 5. Lack of Exceptions Violates International Law......................................................... 14 B. INVESTIGATIVE FINDINGS: MATERIAL SUPPORT IN COLOMBIAN CONTEXT................. 15 1. Categories of Material Support Given ........................................................................ 16 a. Vacuna ............................................................................................................................................16 b. Goods.............................................................................................................................................18 c. Services ...........................................................................................................................................19 d. Affiliation.......................................................................................................................................20 2. Legal Problems Arising Out Of The Material Support Bar....................................... 21 a. Lack of Duress Exception ...........................................................................................................22 1. Material Support Provided Under Physical Force..........................................................................................24 2. Material Support Provided Under Explicit Threat of Violence .....................................................................24 3. Material Support Provided Under Implicit Threat of Violence ......................................................................25 4. Material Support Provided without Coercion .................................................................................................26 b. Lack of De Minimis Exception for Insignificant Support .....................................................26 c. Overbroad Definition of Terrorist Organization.....................................................................28 d. No Time Bar or Exception for “Support” Provided Before Age of Consent ....................29 e. Exclusion of Refugees Who Inadvertently Provided Material Support................................29 III. FIRM RESETTLEMENT: LEGAL ANALYSIS AND FINDINGS...... 30 A. LEGAL ANALYSIS OF FIRM RESETTLEMENT PROVISIONS .............................................. 31 B. UNHCR’S CRITERIA FOR THE RESETTLEMENT OF COLOMBIAN REFUGEES................32 C. FINDINGS: FIRM RESETTLEMENT IN ECUADOR ............................................................34 1. Lack of Legal Protection for Refugees Recognized Under UN Mandate.................35 2. Security Threats Within Ecuador’s Borders...............................................................36 a. Persecution by Colombian Armed Groups...............................................................................36 b. Problems of Police Brutality and Inaction................................................................................37 3. Systematic Discrimination .........................................................................................38 a. Employment Discrimination.......................................................................................................39 b. Housing Discrimination ..............................................................................................................40 c. Education Discrimination............................................................................................................40 d. Health Care Discrimination ........................................................................................................41 4. Particularly Vulnerable Groups .................................................................................. 41 a. Women: Trafficking and Sexual Exploitation...........................................................................42 b. Afro-Colombians..........................................................................................................................43 c. Sexual Orientation.........................................................................................................................44 IV. CONCLUSION ........................................................................................ 45 APPENDICES.................................................................................................. 46 APPENDIX A: MATERIAL SUPPORT BAR – RELEVANT STATUTES..........................................47 8 U.S.C. § 1182 - Inadmissible Aliens ......................................................................................................47 8 U.S.C. § 1158(b) - Conditions for Granting Asylum.........................................................................50 8 U.S.C. § 1231(a)(3) - Withholding of Removal ..................................................................................52 APPENDIX B: SUMMARIES OF CASES CITED..........................................................................53 EXECUTIVE SUMMARY “I was coming to the farm, and I was on the road when they captured me. They took my motorcycle and all my food. They took everything I had.”1 Jorge resisted providing a vacuna (“war tax”) to the FARC guerrillas in Colombia, though the guerrillas asked him repeatedly for it. Once the armed conflict enveloped his village—with regular helicopter barrages and armed fighting encroaching on his farm—he could not endure the violence any longer. He fled with his family to Ecuador. But, the Colombian conflict followed Jorge to Ecuador. After the United Nations High Commissioner for Refugees
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