[Senate Hearing 110-753]
[From the U.S. Government Publishing Office]



                                                        S. Hrg. 110-753

    THE ``MATERIAL SUPPORT'' BAR: DENYING REFUGE TO THE PERSECUTED?

=======================================================================

                                HEARING

                               before the

                SUBCOMMITTEE ON HUMAN RIGHTS AND THE LAW

                                 of the

                       COMMITTEE ON THE JUDICIARY
                          UNITED STATES SENATE

                       ONE HUNDRED TENTH CONGRESS

                             FIRST SESSION

                               __________

                           SEPTEMBER 19, 2007

                               __________

                          Serial No. J-110-56

                               __________

         Printed for the use of the Committee on the Judiciary

                       COMMITTEE ON THE JUDICIARY

                  PATRICK J. LEAHY, Vermont, Chairman
EDWARD M. KENNEDY, Massachusetts     ARLEN SPECTER, Pennsylvania
JOSEPH R. BIDEN, Jr., Delaware       ORRIN G. HATCH, Utah
HERB KOHL, Wisconsin                 CHARLES E. GRASSLEY, Iowa
DIANNE FEINSTEIN, California         JON KYL, Arizona
RUSSELL D. FEINGOLD, Wisconsin       JEFF SESSIONS, Alabama
CHARLES E. SCHUMER, New York         LINDSEY GRAHAM, South Carolina
RICHARD J. DURBIN, Illinois          JOHN CORNYN, Texas
BENJAMIN L. CARDIN, Maryland         SAM BROWNBACK, Kansas
SHELDON WHITEHOUSE, Rhode Island     TOM COBURN, Oklahoma
            Bruce A. Cohen, Chief Counsel and Staff Director
      Michael O'Neill, Republican Chief Counsel and Staff Director
                                 ------                                

                    Subcommittee on Crime and Drugs

                 RICHARD J. DURBIN, Illinois, Chairman
EDWARD M. KENNEDY, Massachusetts     TOM COBURN, Oklahoma
JOSEPH R. BIDEN, Jr., Delaware       JON KYL, Arizona
RUSSELL D. FEINGOLD, Wisconsin       LINDSEY GRAHAM, South Carolina
BENJAMIN L. CARDIN, Maryland         JOHN CORNYN, Texas
SHELDON WHITEHOUSE, Rhode Island     SAM BROWNBACK, Kansas
                      Joseph Zogby, Chief Counsel
                 Mary Chesser, Republican Chief Counsel
                            C O N T E N T S

                              ----------                              

                    STATEMENTS OF COMMITTEE MEMBERS

                                                                   Page

Coburn, Hon. Tom, a U.S. Senator from the State of Oklahoma......     3
    prepared statement...........................................    81
Durbin, Hon. Richard J., a U.S. Senator from the State of 
  Illinois.......................................................     1
    prepared statement...........................................    95
Feingold, Hon. Russell D., a U.S. Senator from the State of 
  Wisconsin, prepared statement..................................    98
Kennedy, Edward M., a U.S. Senator from the State of 
  Massachusetts..................................................     4
    prepared statement...........................................   110
Leahy, Hon. Patrick J., a U.S. Senator from the State of Vermont.     5
    prepared statement...........................................   119

                               WITNESSES

Hughes, Anwen, Senior Counsel, Refugee Protection Program, Human 
  Rights First, New York, New York...............................    18
Mariana, Colombian Refugee.......................................    23
Rosenzweig, Paul, Deputy Assistant Secretary for Policy, U.S. 
  Department of Homeland Security, Washington, D.C...............     6
Wenski, Bishop Thomas G., Diocese of Orlando, and Chairman, 
  International Policy Committee, U.S. Conference of Catholic 
  Bishops, Orlando, Florida......................................    22

                         QUESTIONS AND ANSWERS

Responses of Anwen Hughes to questions submitted by Senators 
  Coburn, Kennedy and Feingold...................................    29
Responses of Paul Rosenzweig to questions submitted by Senators 
  Coburn, Feingold and Kennedy...................................    35
Responses of Bishop Thomas G. Wenski to questions submitted by 
  Senator Feingold...............................................    60

                       SUBMISSIONS FOR THE RECORD

American Civil Liberties Union (ACLU), New York, New York, 
  statement......................................................    61
Aronoff, Gideon, President and Chief Executive Officer, Hebrew 
  Immigrant Aid Society, New York, New York, statement...........    64
The Becket Fund for Religious Liberty, Angela C. Wu, Esq., Acting 
  Executive Director and International Law Director, Washington, 
  D.C., letter...................................................    67
Brand, Rachel L., Department of Justice, Washington, D.C.:
    May 10, 2006, statement......................................    68
    May 10, 2006, answers........................................    72
    September 27, 2006, statement................................    76
Chicago, Illinois, Executive Council, resolution.................    78
Church World Service, Washington, D.C., letter...................    80
Daskal, Jennifer, Senior Counterterrorism Counsel, Human Rights 
  Watch, New York, New York, statement...........................    83
Dewey, Arthur E., Assistant Secretary of State for Population, 
  Refugees and Migration, U.S. State Department, Washington, 
  D.C., statement................................................    88
Hughes, Anwen, Senior Counsel, Refugee Protection Program, Human 
  Rights First, New York, New York, prepared statement...........    99
Hutchins, Thomas, Esq., and James Feroli, Esq., Immigrant and 
  Refugee Appellate Center, Alexandria, Virginia, letter.........   109
Land, Richard, President, Ethics & Religious Liberty Commission, 
  Southern Baptist Convention, statement.........................   116
Lutheran Immigration and Refugee Service, Legislative Affairs 
  Office, Washington, D.C., statement............................   121
Mariana, Colombian Refugee, statement............................   125
National Association of Evangelicals (NAE), Washington, D.C., 
  statement......................................................   127
National Immigrant Justice Center, Chicago, Illinois, statement..   130
Parkins, C. Richard, Director, Episcopal Migration Ministries, 
  New York, New York, statement..................................   136
Physicians for Human Rights, Cambridge, Massachusetts, statement.   138
Rosenzweig, Paul, Deputy Assistant Secretary for Policy, U.S. 
  Department of Homeland Security, Washington, D.C., statement...   143
Scharfen, Jonathan R., Deputy Director, Citizenship and 
  Immigration Services, Department of Homeland Security, 
  Washington, D.C., statement....................................   148
Scheffer, David, Mayer Brown and Robert A. Helman answers to 
  questions submitted by Senator Durbin on the November 14, 2007, 
  No Safe Haven..................................................   153
Steinberg, Naomi, Depuity Director, Southeast Asia Resource 
  Action Center (SEARAC), Washington, D.C., statement............   159
Wah, Paw, Refugee, statement.....................................   161
Washington Post, March 5, 2007, article..........................   162
UNHCR, The UN Refugee Agency, Geneva, Switzerland, statement.....   164
Wenski, Bishop Thomas G., Diocese of Orlando, and Chairman, 
  International Policy Committee, U.S. Conference of Catholic 
  Bishops, Orlando, Florida, statement...........................   172
World Relief, Baltimore, Maryland, statement.....................   178

 
    THE ``MATERIAL SUPPORT'' BAR: DENYING REFUGE TO THE PERSECUTED?

                              ----------                              


                     WEDNESDAY, SEPTEMBER 19, 2007

                              United States Senate,
                  Subcommittee on Human Rights and the Law,
                                Committee on the Judiciary,
                                                    Washington, DC.
    The Subcommittee met, pursuant to notice, at 2:30 p.m., in 
room SD-226, Dirksen Senate Office Building, Hon. Richard J. 
Durbin, Chairman of the Subcommittee, presiding.
    Present: Senators Durbin, Kennedy, Feingold, Leahy, and 
Coburn.

  OPENING STATEMENT OF HON. RICHARD J. DURBIN, A U.S. SENATOR 
                   FROM THE STATE OF ILLINOIS

    Chairman Durbin. This hearing of the Subcommittee on Human 
Rights and the Law will come to order. Good afternoon and 
welcome.
    The hearing is entitled ``The `Material Support' Bar: 
Denying Refuge to the Persecuted? '' After opening remarks, I 
will recognize my colleague and Ranking Member, Senator Coburn, 
for an opening statement, then turn to witnesses.
    First, a word about the origin of this hearing. Earlier 
this year, the Subcommittee held a hearing on child soldiers. 
At the hearing, Senator Coburn and I were surprised to learn 
that under our immigration laws, the Department of Homeland 
Security has branded some former child soldiers as terrorists 
and prevented them from obtaining asylum in the United States. 
Senator Coburn immediately suggested that we hold a hearing to 
explore this issue. I want to thank him for requesting this 
hearing and commend him for recognizing the importance of this 
issue.
    At the outset, let me also commend Judiciary Committee 
Chairman Pat Leahy for his leadership on this issue. Senator 
Leahy recognized this problem long before the rest of us, and 
he continues to fight to fix the problem with the material 
support bar.
    As is our practice in the Human Rights and the Law 
Subcommittee, I would like to begin this hearing with a very 
brief video providing some background on this issue. This video 
tells the story of one refugee who has been affected by the 
``material support''. I want to thank UNHCR for providing this 
video footage and for allowing us to use it at the hearing. And 
now please run the video.
    [Videotape played, material appears as a submission for the 
record.]
    Chairman Durbin. I want to thank UNHCR for providing that 
video.
    At the base of the Statute of Liberty, Emma Lazarus' famous 
verse says, ``I lift my lamp beside the golden door.'' For 
decades, the golden door to the United States has been open to 
refugees seeking safe haven from ethnic, religious, and 
political persecution. Our Nation receives more refugees than 
any other nation. The American people's generosity has made the 
United States a symbol of freedom and liberty around the world 
and has given hundreds of thousands of refugees the chance for 
a new life.
    In the aftermath of the 9/11 terrorist attacks, security is 
an imperative. We must carefully scrutinize everyone seeking to 
enter our country, including refugees, to make sure that a wolf 
in sheep's clothing does not slip through. But at the same 
time, we must ensure that the golden door remains open to those 
who are fleeing oppression.
    Unfortunately, the so-called material support bar has 
prevented many victims of human rights violations and terrorism 
from obtaining refugee and asylum status. Under current law, 
the Government denies asylum and refugee claims to anyone who 
has provided what the law terms ``material support'' to 
``terrorist organizations.'' These terms are defined very 
broadly, and the Department of Homeland Security has applied 
them in a manner that sweeps in conduct that no reasonable 
person would consider material support or terrorism. As a 
result, the golden door has been slammed shut for thousands.
    Po Wah, whose story we heard in the video, is a good 
example. Her application for resettlement in the United States 
was denied. In 2006, the Secretary of State granted a waiver 
for the residents of Tham Hin Camp. Po Wah has now lived in the 
camp for 13 years. She now has a 5-month-old baby. She is being 
permitted to reapply for resettlement in the United States, but 
her parents will not be able to join her. Her father is 
ineligible for a waiver because he fought against the Burmese 
dictatorship.
    Others have not been so fortunate. Here are some examples. 
The material support bar blocks refugees who have provided 
support to terrorist organizations or armed rebel groups under 
duress, including R.K., a captured Sri Lankan fisherman, forced 
to pay ransom to his terrorist kidnappers. Helene, a Sierra 
Leonean woman who was gang raped and burned by Revolutionary 
United Front members and forced to wash clothes and cook meals 
for them. Jennifer, a 13-year-old Ugandan girl who was abducted 
by the Lord's Resistance Army and forced to serve as the wife 
of an LRA leader. And Mariana, a nurse from Colombia, who will 
testify at today's hearing. Mariana's asylum claim was denied 
because she was kidnapped by the Revolutionary Armed Forces of 
Colombia, also known as FARC, and forced at gunpoint to provide 
nursing care to FARC guerrillas. In addition, Laotian Hmong, 
Vietnamese Montagnard, and Afghan members of the Northern 
Alliance, who fought alongside U.S. soldiers and against their 
own governments, have been affected by the material support bar 
because of the assistance they gave U.S. forces and their own 
armies.
    It is not the role of this Subcommittee to assign blame. 
The fates of thousands of innocent refugees are too important. 
Instead of pointing fingers, it is my hope we can join hands to 
assure that fundamental human rights are protected. There is no 
question that efforts are underway to address the problem 
created by this material support bar. The administration has 
taken some positive steps, exercising its waiver authority in 
some cases. Congress has also taken some steps. Language 
negotiated by Senators Kyl and Leahy that would exclude some 
from the material support bar was included in the foreign 
operations appropriations bill the Senate recently passed. We 
will have an opportunity to discuss those measures today.
    But there is also no question that many legitimate refugees 
are still unjustly labeled ``terrorist supporters'' by the 
material support bar. As I have said before, this Subcommittee 
focuses on legislation, not lamentation, and today we will 
discuss what more the administration and Congress can do to 
ensure victims of persecution and terrorism are not denied safe 
haven in our country.
    Now I would like to recognize Senator Coburn of Oklahoma, 
the Ranking Member of this Subcommittee.

STATEMENT OF HON. TOM COBURN, A U.S. SENATOR FROM THE STATE OF 
                            OKLAHOMA

    Senator Coburn. Well, thank you, Senator Durbin, for having 
this hearing. It is a complicated, but nevertheless, very 
important issue.
    Concern over the way U.S. anti-terror laws affect certain 
refugees and asylees who may otherwise be welcome in our 
country was first raised before this Subcommittee during our 
last hearing. At that hearing, we heard heart breaking stories 
about how children forced into servitude by rebel armies had 
been barred from refugee status in the United States by laws 
that were intended to exclude terrorists. Such stories prompted 
the Chairman and myself to seek further information on the 
subject, and I look forward to learning more about the subject 
today.
    The United States has a rich and proud tradition of opening 
its doors to those who are persecuted around the world. In 
fact, the United States leads the world in refugee 
resettlement, accepting more than 60 percent of those referred 
by the UN High Commissioner for Refugees, and serving as that 
organization's single largest donor. Moreover, this country 
admits more refugees each year than the rest of the world 
combined. Since 1975, the United States has resettled more than 
2.6 million refugees. Our compassion has saved millions of 
lives, and as a result, our country has been greatly enriched 
and strengthened by the diversity that we have received.
    It is true, however, that the number of refugees admitted 
annually by the United States fell precipitously after 
September 11th. That tragic event presented security challenges 
never before seen in this country, and the vulnerabilities in 
our immigration system that were exploited and exposed on that 
day demand a response.
    Unfortunately, the unintended result of that response has 
meant delayed and sometimes denied access for innocent victims 
of persecution around the world. Hence, we are faced with dual, 
though not inconsistent, interests and the obligation to 
maintain an aggressive anti-terrorism policy that protects the 
lives of U.S. citizens and a desire to honor the commitment we 
have made to refugees around the world.
    I am encouraged that the number of refugees admitted 
annually has risen since the initial post-9/11 decline. I 
understand that the material support bar, which is the focus of 
today's hearing, continues to act as an unintended barrier to 
admission for some individuals. But I am also encouraged that 
the administration has issued a number of waivers to provide 
for relief for many.
    I am especially encouraged by the duress waivers issued 
this year, which should provide relief to many who were forced 
to give material support to terrorist organizations against 
their will. These acts, though slow in issuance and 
implementation, demonstrate progress in our attempt to resolve 
these problems. I remain concerned, however, that the progress 
we may have made has been insufficient. Former allies, such as 
the Laotian Hmong and the Vietnamese Montagnards, who fought 
alongside U.S. soldiers in past conflicts, remain excluded from 
entering the United States as refugees by the material support 
bar.
    Additionally, it seems that the relief has been slow to 
reach bona fide refugees who should be covered by waivers that 
have not already been issued. I would like to hear more about 
whether and how these waivers have provided relief to deserving 
refugees who have been affected by the material support bar. I 
am also interested in learning more about how we can expedite 
the waiver process and alleviate some of these issues more 
efficiently.
    I look forward to our witnesses' testimony, and again, I 
thank you and the other members of this Subcommittee for being 
in attendance at this hearing.
    Chairman Durbin. Thank you very much, Senator Coburn.
    Senator Kennedy, do you have an opening statement?

 STATEMENT OF HON. EDWARD M. KENNEDY, A U.S. SENATOR FROM THE 
                     STATE OF MASSACHUSETTS

    Senator Kennedy. Mr. Chairman, I want to thank you and 
thank Senator Coburn for having this enormously important 
hearing. Yesterday, Senator Cornyn and I met with the Secretary 
of State in compliance with the statute to talk about refugees 
and about the progress or the challenges, which are out there 
on refugees and also about the Department's attitude toward 
material support. And we also talked about the issue of 
unaccompanied children.
    I just want to thank you for having this hearing, and thank 
you for both your attitude and Senator Coburn's attitude. There 
is an expectation that there will be a ruling by the Department 
on the Hmongs and the Montagnards very, very soon, but it is 
long overdue.
    And thank you for your reaction about the slowness in terms 
of the consideration of these individuals who, according to the 
best estimate by refugee organizations, number about 12,000. 
And as we are looking at those individuals, particularly the 
Iraqis--4 million now are homeless--many of the Iraqi 
interpreters, who served next to American servicemen and -
women, risking their lives and did so bravely and courageously, 
and now, if found, are going to be shot and killed, deserve to 
have more expedited consideration of their application. I think 
when you have, as we had yesterday, an American serviceman, a 
sergeant who had been in the military, in the Army, and who 
explains that his particular interpreter saved his life on 
countless occasions, now is hidden in Syria, unable to go 
outside because of fear of assassination and killing. There 
needs to be an expedited process.
    There is a desperate situation out there with regard to 
material support and with regard to refugees in particular. We 
are very conscious that there has to be a process in clearing 
security-wise, but I find it very, very difficult, the delay of 
the administration, when you have interpreters who have, 
effectively, crosshairs on their back if they are found in 
Iraq, their names published and printed on the doors of the 
mosques, their brothers and sisters who have been interpreters 
killed and unable to get any kind of sanctuary in the United 
States. We are not talking about tens of thousands. We are 
talking about several thousand. We, I think, have a strong 
moral responsibility to deal with those issues.
    I appreciate the fact that the Chair and Senator Coburn 
mentioned unaccompanied children. There was legislation passed 
in 2004 dealing with this issue, and there has been virtually 
no movement. There is a conference that is going to take place 
next wintertime, an interagency conference about this. But when 
you find out about the exploitation of children and women in 
these refugee camps, it is horrific. And I know the Chair has 
been interested in child soldiers and others, but we have not 
led the world in terms of trying to recognize this particular 
group as being a particularly vulnerable group. And I think we 
have some important responsibilities in those areas.
    I thank the Chair.
    Chairman Durbin. Thank you, Senator Kennedy.
    Like Senator Kennedy, Senator Leahy has been in the 
forefront, a leader on so many human rights issues, including 
this issue of material support, and I want to publicly thank 
him, as I have in previous Subcommittee hearings, for allowing 
us to form this Subcommittee, the first Human Rights 
Subcommittee in the history of the Senate. It has been a 
Subcommittee that we have tried to use effectively for 
important issues, and we would not have had that opportunity 
without his leadership. Senator Leahy.

  STATEMENT OF HON. PATRICK J. LEAHY, A U.S. SENATOR FROM THE 
                        STATE OF VERMONT

    Chairman Leahy. Well, thank you, Mr. Chairman. I, of 
course, wanted to form the Human Rights Subcommittee after you 
had agreed that you would chair it if we did. I think in our 
Nation, if we actually believe in our moral core as a Nation, 
then we have to stand up for these things.
    I will put my full statement in the record, but I have said 
in that regard that we need to bring our laws back into 
alignment with our values. The revisions to the material 
support provisions that were included in the PATRIOT Act and 
the REAL ID Act undermine our Nation's commitment to human 
rights. They are a reactionary, blunt-instrument approach to a 
complex issue, and fear overcame common sense and our 
collective conscience.
    Surely, a young Colombian refugee forced to dig graves for 
the victims of Colombian paramilitary soldiers and told he 
would be killed if he did not do it cannot rationally be said 
to have provided material support to his persecutors. But he 
was denied asylum by our Government. To think how we would 
point the finger of moral outrage at other countries doing 
this, and yet we do it.
    How about the Liberian woman who was raped and abducted by 
rebels before being forced to cook and do laundry for them? Is 
that providing material support? Mr. Rosenzweig, your 
administration thinks it does. She was denied asylum.
    We can give all kinds of other stories: Senators Coburn, 
Durbin, Brownback, Kennedy, and Feingold have talked about 
child soldiers. They are an obvious example. It is time to 
bring our laws back in line with our moral values.
    Thank you. I will put my whole statement in the record.
    Chairman Durbin. Without objection, and thank you for being 
here, Chairman Leahy.
    [The prepared statement of Chairman Leahy appears as a 
submission for the record.]
    Chairman Durbin. Our first witness is Paul Rosenzweig. He 
is Deputy Assistant Secretary for Policy at the Department of 
Homeland Security, and he has previously served as Acting 
Assistant Secretary for Policy Development, Acting Assistant 
Secretary for International Affairs, and Counselor to the 
Assistant Secretary for Policy. Mr. Rosenzweig is also an 
adjunct professor of law at George Mason University School of 
Law. Among other positions, he was previously senior legal 
research fellow at the Center for Legal and Judicial Studies of 
the Heritage Foundation. Mr. Rosenzweig has a J.D. from the 
prestigious University of Chicago Law School, has an M.S. in 
chemical oceanography from the University of California at San 
Diego, and a B.A. from Haverford College.
    Thank you for joining us today, and if you would please 
stand and raise your right hand. Do you swear or affirm that 
the testimony you are about to give is the truth, the whole 
truth, and nothing but the truth, so help you God?
    Mr. Rosenzweig. I do.
    Chairman Durbin. Let the record indicate that the witness 
has answered in the affirmative. Please make your opening 
statement. Your written statement will be made part of the 
official record.

 STATEMENT OF PAUL ROSENZWEIG, DEPUTY ASSISTANT SECRETARY FOR 
 POLICY, U.S. DEPARTMENT OF HOMELAND SECURITY, WASHINGTON, D.C.

    Mr. Rosenzweig. Thank you very much, Senator, and thank you 
very much for holding this hearing on such an important issue. 
I want to begin by assuring you that the Department of Homeland 
Security is committed to providing protection to refugees while 
also safeguarding our national security.
    Let me begin, if I may, by reiterating precisely why the 
material support provisions are so vital to our national 
security. One can define terrorism in two ways: either by 
listing an organization as a terrorist organization, or by 
defining the conduct that makes an organization a terrorist 
one.
    With respect to listing, we must recall that this Congress 
as well as the courts have said that such organizations are 
foreign organizations that engage in terrorist activity and are 
so tainted by their criminal conduct that any contribution to 
the organization is itself tainted.
    With regard to a definition of terrorism by conduct, you 
must also remember that the listing process is cumbersome and 
slow, not nearly fast enough to keep up with the mutating 
terrorist groupings. Thus, while al Qaeda is a listed terrorist 
organization, its many subsidiary groups such as al Qaeda in 
the Magreb are not. And, thus, support for those organizations 
is only captured within the prohibition about broader conduct 
definitions.
    Thus, while I know this Committee is focused on the 
barriers that the material support law presents to deserving 
refugees, it is, in our judgment, equally important to begin 
with the acknowledgment that this law provides absolutely vital 
protections to American national security. It has allowed the 
Department, for example, to remove a Saudi national who had 
paid for and helped run the webside for an al Qaeda front 
group, the so-called Committee for the Defense of Legitimate 
Rights, an unlisted Tier III terrorist organization. And it 
allowed us to deport a supporter and fundraiser for the 
Benevolence International Foundation, whose associates in the 
United States conspired to support the Taliban, which, 
interestingly enough, remains today an unlisted organization.
    Now, all that having been said, we are well aware at the 
Department that the material support bar has the potential to 
sweep too broadly and to prevent us from providing immigration 
benefits to those who are deserving of them and to whom the 
United States is and ought to be willing to provide refuge.
    Since my last testimony before the House in May of 2006, 
the administration has made substantial progress in assessing 
the material support problem and providing exemptions where 
appropriate. Since then, Secretary Rice has issued 11 separate 
determinations for 8 different organizations regarding refugee 
settlement applications. And as you noted, Mr. Chairman, the 
Tham Hin camp, because of its atrocious conditions, was the 
very first venue to which one of our exemptions applied. Thus, 
the woman whose story is so affecting will indeed be able to 
reapply now that the exemptions are in place.
    In addition to Secretary Rice's actions, Secretary Chertoff 
has issued parallel exemptions for the same eight groups with 
regard to applications for immigration benefits or for asylum.
    Just this past week, as Senator Kennedy noted, the 
administration determined to issue two further material support 
exemptions for Hmong and Montagnards who were valuable allies 
in Vietnam. That exemption is now in preparation for the 
Secretary's signature and should be issued in a matter of days.
    Earlier this year, Secretary Chertoff also issued an 
exemption for cases of duress support provided to so-called 
Tier III groups, that is, groups that are unlisted. He later 
also issued another duress support exemption for Tier I and 
Tier II terrorist groups on the listing.
    Armed with these exemptions, we have turned our attention 
to implementation. Here, too, the record is one of success, 
albeit slowly. DHS has issued more than 3,000 exemptions since 
the first of the exemption authorities was signed. This has 
enabled us not only to admit those who are exempt, but to 
process tens of thousands in the camps in Burma, for example, 
not all of whom needed exemptions to be allowed to resettle. 
The exemptions have also allowed us to issue 200 exemptions to 
the Alzado Cubans who are refugees.
    Additionally, 124 duress-based exemptions have been issued. 
That is up from the number cited in my testimony because each 
day that goes by sees more additional grants. Those exemptions 
have been issued to nationals of Iraq, Liberia, Somalia, and 
the Democratic Republic of Congo.
    And in the last days following an extensive national 
security review, DHS has authorized the beginning of the 
process for the first set of Tier I duress cases involving the 
FARC.
    But despite our success, one piece of work remains. We 
cannot under current legislative authority exempt from the 
application of the bar aliens who were actual combatants under 
arms, and this accounts for our failure to provide relief to 
many of the Hmong and Montagnards who fought beside our troops 
in Vietnam, as well as to some of the child soldiers who are 
the subject of your earlier hearing, as well as to the 
refugee's father whom we saw in the video today. We lack that 
authority.
    The administration sent forward a legislative proposal to 
fix this gap in January, and I invite and welcome your support 
for that proposal. That limitation aside, however, the story of 
the material support bar's application is one of steady 
improvement. We are now poised with all the tools we need to 
achieve our dual goals of both protecting refugees and 
protecting the homeland. With your support, we can continue our 
efforts to achieve those goals.
    Thank you for your attention to this timely and important 
issue, and I look forward to what I anticipate will be many 
questions.
    Chairman Durbin. Thank you, Mr. Rosenzweig, and before your 
testimony, you came up and we had a brief conversation about 
child soldiers. I believe Senator Feingold is on the Foreign 
Relations Committee, and I think this matter may have been sent 
to a staff attorney there, and I would like to see if you could 
help us find out what progress has been made on that 
legislative suggestion, which I think is valuable.
    It seems like when you look at the specific cases here, you 
find elements that obviously would be taken into consideration 
by any judge who is trying to be dispassionate and objective: 
age, duress, circumstances, in some cases narcotics, other 
substances are being used. All of these things would seem to me 
to be reasonable things to bring into the material support 
conversation.
    Are you allowed to take those things into consideration?
    Mr. Rosenzweig. Absolutely, sir. And, indeed, that is part 
of what we do. Let me give you an example. This is from the 
guidance that we have issued to the field for adjudication of 
duress exemptions as opposed to some of the other factors, but 
each one is different.
    We ask our adjudicators, when we provide them a non-
exhaustive list, their direction is to assess each case under 
the totality of the circumstances. But we ask them to first 
assess whether there is a reasonably perceived threat of a 
serious harm. And then we tell them this means things like 
whether the applicant reasonably could have avoided or taken 
steps to avoid providing the material support; the severity and 
type of harm inflicted or threatened; to whom the harm or 
threat of harm was directed; the imminence of the harm 
threatened; the likelihood that the threatened harm would be 
inflicted as opposed to just being an un-imminent threat.
    In addition, we asked them to then also inquire on the 
other side within the totality of the circumstances: the amount 
and type of material support provided; the frequency of the 
material support provided; the nature of the terrorist 
activities committed by the terrorist organization engaged; the 
applicant's awareness of those terrorist activities, since lack 
of awareness would clearly be relevant; the length of time that 
has passed since the applicant provided the material support; 
the applicant's conduct since that time. All of those are a 
congery that go into a totality-of-the-circumstances analysis 
that actually gives us a great deal of flexibility to ask these 
questions on a fact-specific basis and address each case on a 
case-by-case instance.
    Chairman Durbin. I am glad to hear that. The problem we 
have, of course, is that we are given a capsule summary of the 
circumstances, and when we read of a 13-year-old Ugandan girl 
who was abducted, sexually assaulted at the age of 13 by the 
Lord's Resistance Army, and forced to serve as the so-called 
wife of one of their leaders at the age of 13, it would seem 
that on its face this is a case that would not argue that she 
was providing ``material support'' to a terrorist organization 
but was, in fact, enslaved by this organization. She was denied 
refugee status.
    Do you know anything more about that case?
    Mr. Rosenzweig. I don't know about that particular case, 
but what I do know is that the Lord's Resistance Army is a Tier 
II listed organization as opposed to one of the unlisted Tier 
III organizations. And that is because of the many horrific 
things that the have done, including, it would seem, this.
    We have proceeded cautiously in using our authority to 
exempt material support provided under duress to Tier I and 
Tier II organizations precisely because we do not want to 
create unintended consequences that prevent us from continuing 
to use the same provisions to exclude people of the sort that I 
alluded to in my statement. The Lord's Resistance Army is one 
of the groups that is scheduled for an intensive national 
security analysis within the interagency and within the 
administration, with the expectation that if that analysis 
proves to warrant it, we will begin processing such cases as 
well.
    Chairman Durbin. Let me just close by asking this question: 
Aside from the substance of the law and its application, I 
would like to ask you about the timing of the reviews.
    Two years ago, under the REAL ID Act, we created waiver 
authority at your agency. You said that the Department of 
Homeland Security has issued over 3,000 exemptions to 
individuals who provided material support, and most of these 
were for refugees outside the country. You did not mention 
those who were already in the U.S. and seeking asylum.
    It is my understanding that at this point the Government 
has granted waivers to only nine asylum seekers; over 440 are 
pending. Is that correct? And if so, what is the justification 
for delay in processing the waivers for these asylum seekers?
    Mr. Rosenzweig. I believe your numbers are correct. There 
have only been nine grants within the asylum division, and 
there are approximately 440 that are on hold. There are a 
couple of reasons that lie behind that time frame and 
sequencing. First, of course, is that we started the process in 
which we were exploring how to exercise this waiver authority 
outside the United States rather than inside. We did that for 
the reasons that are so radically demonstrated by the video 
that you showed us. The conditions there are so horrific that 
we wanted to address those first, and we wanted to address 
those in a context where we could assess whether or not we had 
the capability to adequately and accurately make determinations 
and adjudications about people. Having grown comfortable with 
that, we extended that authority back into the United States.
    Then there comes a second order of delay, which is the 
first extension within the United States applied to asylum 
seekers and immigration benefit seekers other than those who 
sought support under duress. That, too, is a complicated issue 
that posed a series of intricate legal problems. We 
particularly did not want to move domestically on duress cases 
in a way that would affect pending Department of Justice 
prosecutions, issues that they are more capable of addressing 
for you than I am.
    It turns out that almost all of the asylum cases that are 
pending on hold pose duress questions. Thus, since the issuance 
of the duress exemption for Tier III, we have processed eight 
Tier II duress cases in the asylum, and there are approximately 
70 more left. There now are about 120 FARC duress exemption 
cases that have been on hold that are in train to be processed 
expeditiously now that the administration has determined to 
move forward with processing of those cases following the 
national security analysis I alluded to. We will then in train 
add the Lord's Resistance Army, the other opposition groups in 
Colombia, the AUC and the ELN.
    Chairman Durbin. What is the timeline on that?
    Mr. Rosenzweig. Well, those determinations are out for 
review within the national security community. I do not know 
the time frame for them coming back. My experience in the group 
determinations that we began in Thailand is that the very first 
one of them took a great deal of time because that was asking 
the national security and intelligence communities to do 
analysis that they had never done before. They are very used to 
asking questions like how many Russian tanks there are and 
things like that, but not these sorts of questions. The first 
one for the FARC took a commensurately long time, but I am 
confident that the newer ones will go more quickly, and you 
will see additional extensions of Tier I duress waivers I would 
say for sure this calendar year.
    Chairman Durbin. Senator Coburn.
    Senator Coburn. Thank you.
    So, really, we have two problems. One is there are 
statutory changes that need to be made, that you all feel need 
to be made, and I would like for you to outline specifically 
what those are. And then the second problem is actually working 
through the process, and I guess our question is: How do you 
speed up that process? So two questions. One, what are the 
exact statutory changes that need to be made, specifically? And 
number two, how do we help you speed up the process or how do 
we hold your feet to the fire to get the process speeded up?
    Mr. Rosenzweig. Well, on the first of those, Senator, the 
administration has submitted a legislative proposal, the 
details of which get into the intricacies of sub-sections and 
sub-sub-sections of the INA. But, broadly speaking, today the 
exemption authority that the Secretary of State and the 
Secretary of Homeland Security have is limited to just a few 
subsets of terrorist-based exemptions.
    We may exempt, for example, material support provisions. We 
may also exempt from that people who are representatives of 
other groups who espouse--who engage in political speech. We 
lack the authority to waive the application with respect to INA 
212(a)(3)(B)--I think that is right--which is the provision 
that prohibits us from admitting anybody who has carried arms.
    The structure of the administration's proposal is 
essentially to take off all those limitations and to say, as 
broad as is the exclusion authority for people who engage in 
support or otherwise are related to terrorist activity, make 
our exemption authority identically commensurate. If you do 
that, we will be able to exercise that authority with respect 
to the people who have yet to have the relief that they have 
sought.
    With respect to how to speed up the process and hold our 
feet to the fire, well, this hearing certainly helps. But 
beyond that, I think that what has happened is that we were 
faced with a new and challenging set of issues, one that 
involve a very intricate interplay between provision of 
criminal and immigration law that is literally of the vital 
centerpiece of much of the counterterrorism activity that my 
colleagues in the Department of Justice undertake. And we had 
to proceed cautiously to ensure that we were not creating 
precedents that could be adversely used by criminal defendants, 
for example, in material support cases or things like that. 
That is why we did proceed on a very step-by-step basis, first 
in a single camp, then with respect to a single community, then 
with respect to camps only overseas, then domestically, then to 
the duress.
    We are now actually at a position where there are, in my 
judgment, only two pieces that are left to be done 
administratively. The first is the continuing expansion and 
processing of Tier I and Tier II duress exemptions, and the 
second is, with your assistance, the extension to combatants so 
that we can take care of that piece. The first of those I have 
undertaken and will undertake to continue to move along as 
quickly as possible. The second of those I cannot do without 
your help.
    Senator Coburn. When will that happen, the first one?
    Mr. Rosenzweig. The first one? Well, as I said to Senator 
Durbin, we have put in train each of the groups. We are trying 
to prioritize them based upon the size of the affected 
communities. And this is one of the situations where, frankly, 
we can use the assistance both of the members of this 
Committee, your staff, and people in the NGO community for 
helping us to identify additional groups that require this sort 
of scrutiny. We were very successful in that cooperative 
relationship, in my judgment--you will have to ask them--with 
the NGOs in the Tier III.
    Senator Coburn. I think the thing this Committee would like 
to get a feeling, kind of like what Senator Kennedy said, is 
these are lives that are at risk, and I think what we want to 
make sure is that when lives are at risk, we go full speed 
forward and we do not use the idea of doing what is safe when 
we can do what is right. And, you know, what we would like to 
see is to make sure that this is prioritized, that it is a 
priority, that there is a fire running all the time, because 
time is the enemy of a lot of these people. And our inability 
to be responsive and timely could cost them their lives.
    We are going to work, Senator Durbin and I have committed 
to work to get the legislative changes that you need. But I 
think we need to hear from you a commitment that this is a 
priority, we are going to do it, because every life that is 
hanging out there that we do not make a positive impact on is a 
life that is going to be lost or wasted.
    Mr. Rosenzweig. You have my unreserved commitment. If I had 
to say, in my position I have responsibility for literally 
every policy matter that comes across the Department's plate, 
ranging from immigration and refugees to border screening to 
preparedness. And I personally have spent more time on this 
issue than on any other by far in volume, and that will 
continue to be the case, I think, until this issue is finally 
resolved.
    Senator Coburn. Thank you for your assurance.
    Chairman Durbin. Senator Leahy.
    Chairman Leahy. Well, I am not going to ask questions. I 
will leave that to Senator Kennedy. But I agree with both you, 
Mr. Chairman, and I agree with Senator Coburn that this should 
be more of a priority. I think of the tens of thousands of 
Iraqis that we promised assistance to and a tiny handful 
receive help. And, frankly, Mr. Rosenzweig, I am sure you work 
very hard, and I am sure you are very dedicated. But I have 
heard nothing but the same kind of bureaucratic boilerplate I 
have heard from your Department when in the Appropriations 
Committee we asked them how are you doing in the cleanup after 
Katrina. And I heard all these things about policy meetings and 
this panel and that group and this policy and so on. But, of 
course, we have hundreds of millions of dollars squandered, and 
trailers never used. It is like the comments we heard that 
everything was okay in the Superdome, and yet people were 
dying.
    I would like to hear a lot less boilerplate and see a lot 
more action.
    Chairman Durbin. Senator Kennedy.
    Senator Kennedy. Thank you. Thanks very much for being 
here. Let me go through these numbers of waivers. We know that 
there has been some legislative change, and we thank Chairman 
Leahy and Senator Durbin and Senator Coburn and Senator Kyl. 
But we have not seen a lot of transparency in this process. And 
I would like to just sort of run through this quickly with you.
    The ongoing process between the Department of State, 
Homeland Security, and Department of Justice in identifying the 
groups that merit a waiver and how we decide whether these 
waivers are granted, could you describe that for us?
    Mr. Rosenzweig. Yes, Senator.
    Senator Kennedy. Maybe you could tell us how they have 
shifted and how they have changed, because I think Senator 
Coburn raises a very legitimate question about the timeliness 
of this. Tell us about your--you can start with maybe your 
Department and the Department of State since you have indicated 
that you deal with all of these issues--immigration, refugees, 
border security.
    Mr. Rosenzweig. I am not sure I understand the question 
precisely. Let me--
    Senator Kennedy. The question, let me get--describe the 
ongoing process in the Department of Homeland Security, State 
Department, and Department of Justice in identifying groups 
that merit the waiver and deciding whether the waiver should be 
granted.
    Mr. Rosenzweig. Thank you. That clarifies it.
    There is an interagency group chaired by the NSC that 
comprises Justice, State, and the Department of Homeland 
Security. Typically, I am the representative of the Department 
of Homeland Security at that interagency group. My counterparts 
are the head of the Office of Legal Policy in the Department of 
Justice, the Assistant Attorney General--formerly Rachel Brand; 
her successor is a man named Brett Gerry--and Assistant 
Secretary for Population, Refugees, and Migration Ellen 
Sauerbrey. We meet regularly and routinely to discuss the 
development of policy with respect to these groups.
    With respect to nominations of particular groups, initially 
much of the impetus for those came from our colleagues in the 
Refugee Affairs Division of the USCIS and the Department of 
State's PRM Bureau, who were familiar with the conditions in 
the Tham Hin camp, for example. More foundationally, they are 
often motivated by the information they receive from 
nongovernmental organizations and the UN High Commissioner on 
Refugees.
    The UN High Commissioner on Refugees had, for example, been 
advancing the cause of the Karen and the Chin in the camps in 
Thailand for several months in an effort to assure that we took 
them to our attention.
    Senator Kennedy. Well, let me get to this because of the 
time--and I do not want to--you get recommendations of the High 
Commissioner. They go through nongovernmental agencies, then 
through the Refugee Affairs. Then they come into the 
Department. I am asking what is the process. What is the 
process for considering them? How do you work this through? 
What is the motif?
    Mr. Rosenzweig. Well, I mean--
    Senator Kennedy. We have a motif allegedly about how we 
legislate around here. Sometimes it is followed and sometimes 
it is not, but at least we have got a motif--most people could 
describe generally what it is. What is the motif now? How do 
you proceed? And how do each of these agencies proceed? You 
have to know it.
    Mr. Rosenzweig. Yes.
    Senator Kennedy. Because you are in charge. So I want to 
know how you proceed. You have three major agencies that make 
the judgment that you have just identified, and I would like to 
know, because we have had difficulty in finding out--you have 
sat through those meetings--exactly how that process sort of 
works its way through.
    Mr. Rosenzweig. A good example would be how we have 
processed or are processing the next extension of the Tier I 
and Tier II. Having done the FARC--
    Senator Kennedy. Let's take the Montagnards, for example. 
Who started that? What did your Department say about it? What 
did Homeland Security say about it? What did the Justice 
Department say? How did that process--you say it is about to 
get the Secretary's signature. She indicated that as well. But 
let us just take those two high profile and tell us exactly how 
that went through. Did you have to have more than one meeting? 
Has it gone on--did the Justice Department say, look, we ought 
to be able to go ahead and then did Homeland Security say, no, 
it is going to take longer--we are going to have to review 
this? How does it all work?
    Mr. Rosenzweig. No, on the contrary, Senator, I mean, the 
first nomination that I know of for the Montagnards and the 
Hmong came in a collaborative process that was a joint 
interagency agreement among State, Justice, and DHS. And they 
have been on our minds because of their quite high profile and 
their truly affecting circumstances for quite some time.
    It has been severely complicated by a bunch of questions 
that have only recently been resolved. Let me highlight for you 
two of them.
    The first is that, unlike--
    Senator Kennedy. Just--because my time is up--I am trying 
to get the material support process. How does this role fit 
into Homeland Security and the Department of Justice? What was 
the nature of the discussion when you came to the Montagnards? 
You must have sat in there.
    Mr. Rosenzweig. Yes.
    Senator Kennedy. Okay. Well, there is a discussion that 
Justice Department, Homeland Security conducts. You have got 
the Montagnards, you have got the Hmong. You must have sat 
through it. Now, how does that go?
    Mr. Rosenzweig. Well, I--
    Senator Kennedy. I can tell you how discussions go in 
genetic discrimination with--well, the Senator has left--
Senator Coburn over here. I can tell you how those 
conversations go, and we can all talk about it. How does it go 
when you are trying to make these judgments on material 
support?
    Mr. Rosenzweig. Well--
    Senator Kennedy. You want to try to explain so that the 
public understands the process. We do not believe that it has 
been transparent. We do not believe that it has been open. You 
are the person, as you have just admitted, that knows about it, 
and there should not be any reason that you cannot really tell 
the Committee exactly how it works.
    Mr. Rosenzweig. Well, as I was saying, Senator, there was 
no dispute on the face of it that the Hmong and Montagnards 
were a group that ought to have relief. So we agreed 
interagency that they were for consideration, and then they 
were sent out to the national security community to ensure that 
the latest information that we had from the intelligence 
community did not indicate any contrary reason why they should 
not be granted relief. Upon completion of that--
    Senator Kennedy. Could I just--because my time is up. If I 
could just ask one other question. On the Iraqis, the refugees 
that are coming in here, as you know, in 2005 we took 198; in 
2006, 202. I am not going to get into the numbers, but they are 
illustrative. Iraqis admitted as refugees so far in 2007, 990. 
We expect hopefully you will get to 1,700.
    Let me ask you, what role will material support play in 
terms of these Iraqi refugees?
    Mr. Rosenzweig. It is unlikely to present a large issue. We 
have already adjudicated at least one Tier II duress material 
support case for an Iraqi refugee. I anticipate that there will 
be other cases on an individual basis, but it is unlikely that 
anybody presenting themselves as a refugee will also have been 
somebody who provided material support to al Qaeda in Iraq. In 
that unlikely circumstance we will obviously have to face the 
question. But, by and large, given the large number of 
refugees, many of whom are, as you said in your opening 
statement, people who are known to have embedded by U.S. 
Government personnel, the material support bar obviously has 
no--
    Senator Kennedy. What if they did it to Saddam Hussein's 
henchmen, if they had a kidnapping, paid money to them?
    Mr. Rosenzweig. I think we would have to probably face that 
when we come to it. I am corrected that we have actually issued 
a blanket waiver for any Tier III material support that is in 
the blanket exemption for any Tier III material support that 
involves non-designated groups in Iraq. So that actually helps 
me out quite a bit.
    Chairman Durbin. Senator Kennedy, thank you for raising 
that last point, and let me follow up on it.
    When I recently visited Iraq, I learned that there were 
some 4 million displaced persons--2 million internally and 2 
million outside of Iraq, refugees; rough estimates of 600,000 
or 700,000 in Jordan, over a million in Syria, some in Egypt, 
and undoubtedly in other countries. And I was also told at the 
time that the United States had accepted some 700 Iraqi 
refugees. And so you have said that material support, as I 
understand it, is not generally an issue, with these Iraqi 
refugees?
    Mr. Rosenzweig. It has not presented itself thus far, no.
    Chairman Durbin. I am trying to figure out why it is taking 
so long, why they have to leave Iraq to apply for refugee 
status. This displaced population is causing great hardship in 
Jordan. I did not visit Syria so I do not know, but it is 
causing great hardship in a country that is not wealthy. Though 
we assume most of the Middle East is wealthy, Jordan does not 
have oil or gas. And they are struggling to find water and the 
basics. Just allowing the children of these refugees into the 
Jordanian school system means that 10 percent of their school 
population will now be Iraqi.
    So it seems to me, going back to earlier statements by 
Senator Kennedy and others, that we have a certain moral 
obligation here. Many of these people who are asking for 
refugee status literally risked their lives for us, for our 
soldiers, for our people, and for our cause. And I do not know 
what role you play in these Iraqi refugees being processed, but 
can you give me some kind of assurance that this is going to 
change soon and that we are going to bring more into protection 
here in the United States who deserve it?
    Mr. Rosenzweig. Yes, I can. Let me first, though, address 
the timeline question and then the numbers, because though I 
know it seems a long time to you, the processing time for Iraqi 
refugees is now down to between 4 and 6 months, which is 
shorter than for any other refugee population anywhere else in 
the world. You saw the Tham Hin camp where they have been 
waiting 10 years, and that is precisely because the Department 
of State, the International Organization for Migration, and DHS 
have been investing substantial and significant resources in 
speeding up the process.
    To that end, the President's report on refugees will set a 
target, one that I am confident we will meet, of accepting 
12,000 refugees from Iraq next year, which will be roughly 12/
70th of the total goal for the entire world. So that is quite a 
substantial commitment.
    That having been said, you know, if there are 600,000 in 
Jordan--and there are--the United States cannot possibly accept 
all of those. We have accepted more for referral from UNHCR 
than the rest of the world combined at this juncture, and we 
are going to continue to move forward on that.
    Chairman Durbin. How many have we accepted?
    Mr. Rosenzweig. We have accepted for referral to the USA 
RAP program 11,019 as of Monday. Of those, 10,484 were referred 
to us by the UNHCR, 229 were referred by U.S. embassies, and 
306 were what we call ``direct access'' referrals.
    Chairman Durbin. And how many have been accepted by the 
United States so far?
    Mr. Rosenzweig. To date, there are 942, I believe--it may 
be higher because this is Monday's number--who have actually 
been admitted. We have completed interviews on 4,309 of them, 
conditionally approved--or fully approved some 2.987. I have 
asked--I have often likened this a bit to like water in a hose. 
You turn on the tap at one end, and it does not come out the 
other end until a bunch of things have happened.
    We turned on this hose in February. It is now essentially 
at full flow, and for the next fiscal year, we are going to be 
processing essentially 1,000 a month, which is more than any 
other single individual refugee population.
    I should add that there are two other reasons why things 
are slow. You did not go to Syria. My staff cannot go to Syria 
either. The Syrians have denied us visas for them to come and 
process refugees. If we do not go, we cannot process.
    Chairman Durbin. So how many DHS staff or employees are 
currently sent to Jordan, where you can go, to process the 
600,000 or 700,000 Iraqi refugees?
    Mr. Rosenzweig. We send teams of four to six whenever there 
are individuals who are ready for an interview. That is a 
middle point in the process.
    Chairman Durbin. So how many total have been sent to 
Jordan?
    Mr. Rosenzweig. We have been to Amman four times that I 
know of, and we go on essentially a week's notice when people 
are ready for our portion of it. There is a prefatory phase 
that is conducted by IOM, and I am pleased and, quite frankly, 
very proud to say that so far we have addressed and interviewed 
every single interview-ready individual within a matter of 
weeks from their being ready for interview.
    Chairman Durbin. Since I was there a few weeks ago--and I 
can tell you that the problem has overwhelmed Jordan--sending 
six teams of six, I am sure they would react by saying you have 
to do a lot more than that. And I hope we will. I understand 
that there is a security issue here that we have to be 
sensitive to and mindful of. I also understand that currently 
we have 65,000 Iraqi civilians who were supporting our effort 
in Iraq, risking their lives for our cause, and for theirs--a 
joint cause, I should say. So I hope that we will be more 
sensitive to the impact and the need for quick action.
    If you say that this started last February, that was 4 
years into this war before we started dealing with this issue. 
And clearly we are long overdue in meeting an obligation here.
    Mr. Rosenzweig. Your latter point is well taken, but with 
respect to your former point about not putting sufficient 
resources to it, there are space limitations, people 
limitations, and I have to repeat, we are simply not going to 
be in a position to accept 600,000 Iraqi refugees. We will 
accept and process everybody who is qualified within the 
context of--DHS has thrown resources at this. We have pulled, 
frankly, adjudicators from other populations around the world 
to make sure that we answer the mail every time.
    Chairman Durbin. I am going send it to Senator Coburn with 
one last comment. We cannot accept 600,000 or 700,000, and I 
would not suggest it. We certainly can accept some moral 
responsibility for helping Jordan and those other countries who 
are trying to provide humanitarian assistance to them.
    Mr. Rosenzweig. That I would certainly agree with. That, of 
course, is in my colleague from the Department of State's 
purview for providing humanitarian assistance.
    Chairman Durbin. Senator Coburn.
    Senator Coburn. I just think the record needs--I served as 
a medical missionary in Iraq after the first Gulf War, and a 
lot of these refugees do not want to come here. They want to go 
home. And so we cannot use the number of 600,000 or 700,000 
because their real choice is to go home. And so that is a whole 
other set of issues, but we need to be very clear. Those that 
have helped us, those that want to seek our help, we ought to 
be ready and able and willing to help. And I thank you for your 
testimony and the hard work that you do.
    Chairman Durbin. Thank you, Mr. Rosenzweig, for your 
testimony.
    Mr. Rosenzweig. Thank you.
    [The prepared statement of Mr. Rosenzweig appears as a 
submission for the record.]
    Chairman Durbin. It now is my pleasure to call before the 
Subcommittee the second panel of witnesses. Please note that 
the Subcommittee is taking special security measures to protect 
the anonymity of one of our witnesses. This witness will 
testify under a pseudonym, and she will be surrounded by 
screens to protect her identity. No video or photographs of 
this witness will be permitted. The U.S. Capitol Police are 
present. They will escort from the hearing room anyone who does 
not abide by these rules.
    We are honored to welcome a distinguished panel of 
witnesses to share their views. Each witness will have 5 
minutes for their opening statement, if they would please take 
their seats at the table. Their complete written statements 
will be included in the record.
    I would like to ask all of the witnesses if--do we need a 
minute? Okay. Just a minute here while we set things up.
    [Pause.]
    Chairman Durbin. I would like to ask the witnesses, if they 
would not mind, to stand and be sworn in. Do you swear or 
affirm that the testimony you are about to give is the truth, 
the whole truth, and nothing but the truth, so help you God?
    Ms. Hughes. I do.
    Bishop Wenski. I do.
    Mariana. I do.
    Chairman Durbin. Our first witness is Anwen Hughes, an 
attorney with the Human Rights First organization. She is 
senior counsel of Human Rights First's Refugee Protection 
Program. She helps oversee Human Rights First's pro bono 
representation for indigent asylum. Ms. Hughes received her 
J.D. from Yale Law and B.A. from Yale College. Ms. Hughes has 
been before this Subcommittee before, having testified at our 
child soldiers hearing about the impact of material support bar 
on these child soldiers.
    Thank you for bringing this issue to our attention and for 
being with us today, and please proceed with your testimony. 
And as I mentioned, your written statement will be made a part 
of the record.

 STATEMENT OF ANWEN HUGHES, SENIOR COUNSEL, REFUGEE PROTECTION 
        PROGRAM, HUMAN RIGHTS FIRST, NEW YORK, NEW YORK

    Ms. Hughes. Chairman Durbin, Ranking Member Coburn, and 
members of the Subcommittee, thank you for holding this hearing 
and for inviting me here today to offer the views of Human 
Rights First on this important topic.
    For nearly 30 years, Human Rights First has worked to 
protect and promote fundamental human rights and to ensure that 
the rights guaranteed to refugees under the Refugee Convention 
and its Protocol remain available to them under U.S. law. At 
the same time, we have a longstanding commitment to the proper 
application of the ``exclusion'' clauses of the Refugee 
Convention, which allow the denial of international protection 
to refugees who have committed serious violations of the human 
rights of others or other serious crimes, including acts of 
terrorism.
    I am here today to talk about the way the terrorism bars in 
our immigration law enacted to bar terrorists and their 
supporters from the United States are undermining our ability 
to protect refugees and are barring as ``terrorists'' the 
victims of the people and groups these immigration law 
provisions had intended to target, as others have been 
explaining earlier.
    Several asylum seekers are here with us today whose 
experiences illustrate the real human costs of this situation. 
One is a nurse from Colombia, Mariana, who will be testifying 
in a moment. She was kidnapped by FARC guerrillas and forced to 
treat their wounded. She will be testifying in person today.
    Also here today is a Nepalese medical worker, referred to 
in his immigration papers by his initials, B.T., who was 
abducted by Maoist rebels and forced to treat their injured 
members.
    Another refugee with us here is a member of Burma's Chin 
ethnic minority. For similar security reasons, we are referring 
to her publicly by her initials, which are S.K., who was denied 
asylum based on the finding that she had contributed to a Chin 
organization, some of whose members had used force against the 
army of the Burmese military regime.
    A former student activist from Bhutan is also present at 
this hearing. As a refugee in Nepal, he had taught at a school 
that took money from him, probably because the school was being 
subjected to extortion by Maoist rebels. Because of this, this 
man's case has been frozen for over a year, prolonging his 
separation from his wife and his little daughter.
    How do we get to a point where people like this became 
targets of our counterterrorism efforts? The root of this 
problem really lies in our immigration law's definition of 
``terrorist activity,'' which is defined to include the use of 
any weapon or dangerous device, other than for mere personal 
monetary gain, to endanger persons or property. If read 
literally, this definition covers everything from simple 
assaults to ordinary warfare, to what most people actually 
would consider to be terrorist activity. The essential elements 
of this definition have been on the books since 1990, but the 
passage of the USA PATRIOT Act and the REAL ID Act compounded 
their effects.
    These pieces of legislation defined as a terrorist 
organization any group of people that engages in or has a 
subset that engaged in terrorist activity, as I just defined 
it, and there is no centralized government control over a 
decision that a group falls under that definition. They also 
provided that anyone who provides material support to a 
terrorist organization is held to have engaged in terrorist 
activity himself.
    Now, under the Refugee Convention, in order to be excluded 
from protection, a refugee must bear individual responsibility 
for serious wrongdoing, either because the refugee personally 
committed an excludable act, which would include acts of 
terrorism, as that term is commonly understood, or because he 
or she contributed to the commission of such acts in a 
significant way and did so knowingly and voluntarily.
    What we now have under our immigration laws, unfortunately, 
is a situation where a person can be returned to persecution 
for giving support to a group without any showing that any 
member of the group even engaged in any wrongdoing that would 
justify exclusion of that person, much less of the refugee who 
gave to the group as a whole.
    Miss K, the Burmese Chin woman who is here with us, is an 
example of this. She has been denied asylum for giving to the 
CNF, the Chin organization I was referring to, based only on a 
finding that the CNF used arms in self-defense against the army 
of the Burmese military regime, which has targeted the Chin and 
also other Burmese ethnic minorities, like the Karen, who were 
represented in the video that was shown earlier, for ethnic and 
religious persecution.
    But DHS has also amplified the unintended consequences of 
these definitions by interpreting them in the most expansive 
possible way. DHS has effectively read the ``material'' out of 
the term ``material support,'' excluding people from protection 
based on minimal contributions or based on forms of assistance 
that bear no logical connection to terrorist activity. For 
example, DHS has considered emergency medical care to 
constitute material support to terrorism. Mariana, the nurse 
from Colombia who be testifying shortly, was kidnapped by FARC 
guerrillas and is an example of this. But she is not the only 
one.
    The medical worker from Nepal who is with us here also was 
kidnapped and forced to treat injured Maoist guerrillas. He was 
granted asylum by the immigration judge, but DHS has appealed 
that decision to the BIA, and the case has been pending there 
since 2005.
    DHS has also refused to recognize any defenses to this bar, 
including duress, as Senator Durbin and others were referring 
to earlier. It is hard to see how these interpretations advance 
our national security. In the overwhelming majority of these 
cases, the reason the U.S. Government knows that these refugees 
gave anything to an armed group at all is because the refugees 
themselves have come forward and told the Government about this 
of their own free will and under oath. Also, posing a threat to 
the security of the U.S. is an independent bar to asylum. In 
almost all of these cases, we are talking about people DHS does 
not contend pose any threat whatsoever to the United States.
    Now, the statute provides authority for DHS and the 
Secretary of State overseas not to apply certain of these bars, 
and new legislation would expand this authority to cover the 
rest of them, subject to certain exceptions. This waiver 
authority is important, and its expansion is a positive 
development. But as has been noted and confirmed earlier, while 
about 3,000 refugees overseas have been granted waivers, only 
nine asylum seekers have received waivers to date, and there is 
still no process in place to grant waivers to any asylum seeker 
whose case is pending before the immigration court.
    This means that although Chin refugees in exactly the same 
situation as Miss K, for example, are now being resettled in 
the United States, she herself remains in removal proceedings, 
and she was detained for 2 years because of this.
    The other refugees attending this hearing today are in the 
same situation and have also seen their lives placed on hold. 
They are unable to travel or plan for the future, and they 
cannot be reunited with their spouses and children, who often 
remain in very dangerous situations overseas.
    And these are the cases we know about. One of the scary 
things is that DHS and the Justice Department, as far as we are 
aware, do not have mechanisms in place to keep track of the 
cases that are pending before the immigration courts or the 
Federal courts that DHS intends to eventually consider for 
waivers, so that there does not appear to be a reliable system 
in place to keep those people from being deported before that 
can happen.
    I would also note that these are the results that we have 
seen at the end of a 2-year period in which this problem has 
been the intense focus of the Government and also of the NGO 
community. From a practical standpoint, we have had serious 
concerns that this level of reliance on waivers is just not a 
feasible solution in the long term, especially if DHS maintains 
its current interpretations of the core legal definitions that 
are sweeping so many of these cases into this terrorism bar 
framework.
    This scheme also raises very fundamental due process 
concerns. Administrative agencies are not infallible, and many 
of the asylum seekers who come before them are unrepresented by 
counsel and struggle to communicate their stories through 
inadequate translation and across significant cultural and 
linguistic barriers. For the asylum seekers involved, what is 
at issue here can be the difference between life and death, and 
we believe that these cases deserve the same procedural 
protections and the same review that our legal system normally 
accords to interests of this magnitude.
    In conclusion, progress on implementing the waiver 
authority that currently exists is a positive development, and 
it should be pursued and it should also be closely monitored, 
both in asylum and adjustment-of-status cases and also in 
refugee cases overseas. Expanding the waiver authority is also 
an important step to help many refugees currently barred from 
protection. But in order to bring our system of refugee 
protection back into line with our treaty obligations and our 
historical traditions of extending protection to the 
persecuted, Congress ultimately will need to address the 
overbroad definitions that lie at the heart of this problem. 
The people the U.S. Government actually needs to target, 
including the examples that Mr. Rosenzweig was citing earlier, 
would lie well within a more focused set of definitions that we 
should all be able to agree on.
    Thank you, Mr. Chairman, and I look forward to answering 
any questions the Subcommittee may have.
    [The prepared statement of Ms. Hughes appears as a 
submission for the record.]
    Chairman Durbin. Thank you very much, Ms. Hughes.
    Our next witness is Bishop Thomas Wenski. He has had a long 
and distinguished career. He has headed the Roman Catholic 
Diocese of Orlando since November 2004. He was previously 
auxiliary bishop of Miami for 7 years. He is chair of the U.S. 
Conference of Catholic Bishops' International Policy Committee, 
and was previously chair of their Migration Committee. He also 
served as Chairman of the Board of the Catholic Legal 
Immigration Network. Governor Jeb Bush of Florida appointed 
Bishop Wenski to the Governor's Task Force on Haiti. U.S. 
Attorney Paul Perez appointed Bishop Wenski to the Human 
Trafficking Working Group. His biography will tell you that he 
has been involved in extensive humanitarian efforts in Cuba, 
Haiti, the Dominican Republic, Colombia, and many Central 
American countries.
    Bishop Wenski, thank you for joining us today. The floor is 
yours.

  STATEMENT OF BISHOP THOMAS WENSKI, DIOCESE OF ORLANDO, AND 
 CHAIRMAN, INTERNATIONAL POLICY COMMITTEE, U.S. CONFERENCE OF 
               CATHOLIC BISHOPS, ORLANDO, FLORIDA

    Bishop Wenski. Thank you. I would like to thank you, 
Senator Durbin and Senator Coburn, for inviting me to testify 
here today.
    The United States bishops and their Catholic dioceses are 
the largest nonprofit provider of services to refugees in our 
country, and we are gravely concerned with the impact of the 
issue of material support on bona fide refugees, asylum 
seekers, and others who come to our shores fleeing terror and 
persecution.
    Mr. Chairman, let me say up front that the bishops and I 
appreciate the efforts of Congress to protect the American 
public and ensure our national security. Since 9/11, national 
security has been an urgent priority for the American public, 
and rightly so.
    It is the view of the bishops that national security 
interests and important principles undergirding our democracy 
are not incompatible. We need not undermine our honored 
traditions and democratic principles in order to achieve 
security. In fact, we can achieve both with the proper balance.
    With the issue of material support, we are concerned that 
we have failed to strike that proper balance and that people 
who are victims in their own countries, forcing them to flee, 
to become refugees fleeing terror, are now victimized again by 
the unintended consequences of an ineffectual policy.
    Mr. Chairman, in my testimony, my written testimony, I have 
included several examples of refugees who have been denied 
resettlement in the United States because of the material 
support bar. Their stories are horrific, but similar in at 
least one respect: they were forced to provide some sort of 
support to a terrorist organization, as currently defined in 
law, at the risk of their health or lives. In most cases, they 
were providing this support under duress to groups or resisting 
regimes our own country also opposes.
    Tragically, current law does not adequately take into 
account the circumstances whereby an individual provides 
material support to a group, nor does it properly distinguish 
between groups that are actual threats to our Nation and those 
who are not. For example, Colombians fleeing the civil war in 
their country have been particularly vulnerable to the material 
support bar because of the common practice by rebel groups to 
force payments from them at gunpoint. Burmese aiding rebel 
groups against the Burma military junta often were forced to 
support the groups at the risk of death.
    To its credit, the administration has taken some steps to 
mitigate these circumstances by issuing waivers for certain 
groups, including the Burmese, to enter our country. But the 
process is very slow and burdensome and does not adequately 
solve the problem at hand, which is the denial of life-saving 
protection to thousands of refugees. And this is evident in the 
numbers resettled in the U.S. Refugee Program. Last year, 
nearly 12,000 cases were not resettled because of material 
support provisions, and only about 41,000 refugees were 
resettled. We are expected to bring in about the same number 
this year, but that is far below the Presidential determination 
of some 70,000 refugees.
    For asylum seekers, over 440 cases are currently on hold, 
and only 9 cases have been approved. And for eligible persons 
in removal proceedings, no waivers have yet been issued. In our 
view, the best solution to this problem is for Congress to 
reconsider the issue of material support and revise the 
definitions of ``terrorist activities'' and ``terrorist 
organizations,'' and this can be done without allowing 
individuals that support groups that truly threaten us. 
Congress should also statutorily clarify its intent on duress 
and provide an exception for that circumstance.
    Mr. Chairman, the United States has been a beacon of hope 
for millions who have fled to this country for the protection 
that our democracy and our freedom bring. If we abandon our 
tradition of providing safe haven to the persecuted, we 
sacrifice those principles which have made this country great 
and, thus, allow our enemies a victory.
    We ask you to consider our recommendations and act 
accordingly, and I thank you again for your consideration.
    [The prepared statement of Bishop Wenski appears as a 
submission for the record.]
    Chairman Durbin. Bishop, thank you for your testimony.
    We are going to now call our third witness on this panel. 
It will be necessary for us to make a few changes here to 
protect the identity of this witness, who fears for the safety 
of her family if her identity is disclosed.
    [Pause.]
    Chairman Durbin. If the witness would please stand and take 
the oath. Do you swear or affirm that the testimony you are 
about to give is the truth, the whole truth, and nothing but 
the truth, so help you God?
    Mariana. I do.
    Chairman Durbin. Thank you.
    Our final witness today is Mariana, a pseudonym which is 
being used for the protection of her identity. She is a refugee 
from Colombia. Mariana was kidnapped by the FARC and forced at 
gunpoint to provide medical care to guerrillas. Her asylum 
claim was denied because the Department of Homeland Security 
claimed that by providing nursing care for members of the FARC, 
she had provided material support to terrorists.
    Mariana, this Subcommittee is honored to receive your 
testimony, and I want to commend you for the courage to come 
today, understanding that your testimony, and particularly your 
identity, could create some danger for you or your family. We 
look forward to your testimony. Please proceed.

            STATEMENT OF MARIANA, COLOMBIAN REFUGEE

    Mariana. Thank you for allowing me to be here today. I was 
a nurse in Colombia, and my daughter and I are seeking asylum 
in the United States because of my fear of the Revolutionary 
Armed Forces of Colombia (FARC). Both my daughter and I are 
currently in removal proceedings before an immigration judge 
after our asylum application was not granted because DHS said 
that I had provided material support to a terrorist 
organization. I am making this statement under the name 
``Mariana'' because I am terrified that if the FARC learns of 
my identity in the United States, and that I am seeking asylum, 
they will harm my family, which still resides in Colombia.
    My family members were active supporters of the Colombian 
Government who raised me to value serving the Colombian people, 
and I became a nurse in Colombia because of my desire to help 
others. After completing my nursing degree, I worked for the 
Ministry of Health, organized conferences on health promotion, 
and directly served Bogota's poor communities. During my spare 
time, I volunteered in the communities, giving health lectures 
and distributing donated medicines, medications.
    In 1997, I was giving a presentation with a doctor for a 
health campaign. During the talk, an audience member collapsed, 
so the doctor and I attended to him while the other attendees 
left. But the fallen man suddenly began to laugh, and two other 
men came over and identified themselves as members of FARC. The 
guerrillas kidnapped and physically assaulted me and took me to 
a FARC member who had been shot, forcing me at gunpoint to 
treat him. Before returning home, the guerrillas threatened my 
life and the lives of my family if I notified the authorities. 
In the following months, FARC members continued abducting me, 
forcing me to provide treatment and medicine to injured 
guerrillas.
    Eventually, I became certain that I was going to be killed 
by FARC because I was left with a condolence card at my 
doorstep, something which FARC did routinely before it killed 
someone. I was absolutely terrified for my safety and for my 
family's safety. I knew that FARC would kill me and my family 
if I did not cooperate with them. The communications that they 
made showed me that they were watching my every move, and it is 
well known that FARC has infiltrated the Colombian Government 
and that there is no one that can protect you. For instance, 
shortly after the medical clinic where I worked was closed, 
FARC killed my cousin by beating him to death and then setting 
his taxi on fire.
    I fled to the United States with my daughter and 
immediately filed a request for asylum. On July 26, 2006, DHS 
rejected my claim for asylum, stating that, ``There are 
reasonable grounds for regarding you as a danger to the 
security of the United States in that you have provided 
material support to those who engage in terrorist activity.'' 
DHS then initiated removal proceedings against my daughter and 
me. Our request for asylum is now pending before the U.S. 
immigration court, and our next hearing is scheduled in early 
2008.
    I cannot believe that I was denied asylum based on 
supporting a terrorist organization. I never acted voluntarily. 
I only provided medical support because I was threatened at 
gunpoint and told that if I did not help the FARC soldiers both 
me and my family would be killed. I sincerely felt that I had 
no other option because I would have been killed if I had not 
done what they wanted. The asylum application has been pending 
for almost 7 years, and I am still overwhelmed with the fear 
that I will be sent back home to Colombia or that FARC will 
take action against my family. I have no sense of security, and 
it has been very difficult to raise my young daughter here with 
such uncertainty. Deportation back to Colombia would literally 
be a death sentence for us.
    Thank you very much.
    [The prepared statement of Mariana appears as a submission 
for the record.]
    Chairman Durbin. Thank you for your testimony. I think that 
it was difficult for you to say these words, and it was 
courageous of you to come here today and speak not just for 
yourself but for thousands of others who are caught in this 
material support loophole. You have experienced firsthand what 
it is like to be branded as ``engaged in terrorist activity,'' 
which is the reason for the denial of your request.
    Do you think that your home country will welcome you back 
after you have been designated as involved in terrorist 
activities by the United States Government?
    Mariana. No. No, they will never, and like I said in my 
statement, the FARC has infiltrated all our government, and if 
they know that I came here, seek asylum, and I say what I said 
today here, they will kill me and my family.
    Chairman Durbin. You have a special situation here that 
Senator Coburn can address better than I can, being a medical 
doctor, in that you are a medical professional with a 
humanitarian duty to provide emergency care.
    Mariana. Yes.
    Chairman Durbin. You have explained how you were 
intimidated and kidnapped and forced into this situation. I 
wonder how you feel that when you used your skills as a nurse 
for medical purposes, that that has been branded as ``terrorist 
activity'' by our Government.
    Mariana. I only did that because I was at gunpoint. They 
forced me. They told me, ``If you don't do this, I will kill 
your daughter.'' They said her name, my father's name. ``If you 
don't do this, if you don't tell me what the next activity, 
what the campaign, what political activities you are going to 
do next, we will kill you.'' It is the only way I will do it. I 
will do it--I have--I never did it because I wanted to. Because 
I was forced to.
    Chairman Durbin. And as you testified here, it was your 
cousin who was beaten to death and killed by this same 
organization.
    Mariana. Yes. He was with my father and my family members--
sisters and cousins, we were together working on this. He was 
an accountant, and he was part of the group, and he was with 
us, and--with the group.
    Chairman Durbin. So you are really in a position now 
without a country.
    Mariana. Exactly. I cannot come back because they killed 
him, and we are in the same group, so I say, ``I have to leave. 
I have to.''
    Chairman Durbin. They will not give you refugee status in 
the United States. It is too dangerous for you to go back to 
Colombia.
    Mariana. Yes, it is.
    Chairman Durbin. And you are caught in our court system now 
while they make this final determination.
    Mariana. Exactly. I have been caught for 7 years. I don't 
know what to do at this moment. That is why I am here. I 
decided to come, like you said, to speak for me and speak up 
for the other people that are in the same situation. We were 
forced. You never do that because you wanted, especially in my 
case. My father is still--you serve your country and you are 
going to be the rights, the human rights be protected, and your 
life is going to be taken care of, but they don't care about 
anything. They don't respect any human life. They don't care. 
They just kill some people because they only want power. It 
doesn't matter why or how.
    Chairman Durbin. Thank you.
    Bishop Wenski, you have heard this testimony, which is as 
convincing as anything I have heard about the terror that this 
young woman has faced with her daughter because of this 
abduction and the kind of support that she was forced to give 
to these guerrillas. Have you run into similar cases that you 
have dealt with?
    Bishop Wenski. Yes, Colombians and also other people. I 
lived most of my life in South Florida, and South Florida is a 
gateway for people that come from troubled countries. But a few 
years ago, as part of the Bishops Conference, I went to Ecuador 
and visited the frontier town of Lagos Agrios, where there are 
many Colombian refugees that have been forced because of 
paramilitary action or FARC action to cross the border. And 
many of these Colombians are also seeking a permanent solution 
to their situation in a third country, which could very well be 
the United States, and because of the material support bars, 
they are being also caught in that situation.
    Chairman Durbin. Ms. Hughes, as I hear Mariana's testimony, 
it appears she is going to have an appeals hearing sometime 
perhaps next year. And what happens if that fails? Where does 
she turn next?
    Ms. Hughes. Well, her case is currently before the 
immigration court, and so if it were denied at that level, it 
would go to the Board of Immigration Appeals. One of the 
difficult things for people in her situation, as Mr. Rosenzweig 
was stating earlier, is that DHS has, in fact, agreed in 
principle to consider now duress waivers of the material 
support bar for people who provided support involuntarily to 
the FARC, which is her situation. But there is still no process 
in place. There is the willingness in principle, but there is 
still no process in place to do that, for her or for anyone 
else whose case is in immigration court.
    Chairman Durbin. Senator Coburn.
    Senator Coburn. Ms. Hughes, let me follow up. How does 
somebody know that they are eligible for a waiver right now? 
For example, in principle, our witness over here is eligible 
for a waiver.
    Ms. Hughes. In principle, she certainly is, Senator, 
although there is no way for her to get one right now.
    Senator Coburn. But the point is she is. So let's take the 
people that are eligible for a waiver and can get one. How do 
they notify them? What is the process? How do they communicate 
that?
    Ms. Hughes. They do not communicate that.
    Senator Coburn. That is why I asked the question.
    Ms. Hughes. Right. My understanding of the way that USCIS 
is implementing this process is that they are considering for 
waivers those cases that they know of that are within their 
jurisdiction currently that fall within the waiver exemptions 
that have currently been announced.
    The problem with this, though, is that somebody in 
Mariana's situation has--or let us say somebody in Mariana's 
situation's case is pending before the asylum office, to take 
an example that actually would be implementable currently. That 
person has no way of knowing that that process is happening, 
that their file actually is going through that process. And if 
it is rejected, they also do not know why. If it is granted, as 
far as I know, people are not actually getting a notice: Oh, by 
the way, we reviewed your case for a waiver, and we are making 
an exemption. They would simply get a grant of their case.
    So the system is as opaque as it is sounding.
    Senator Coburn. So that is one of the reasons why you think 
that DHS ought to have a system where they know who is in 
court, in terms of asylum adjudication, who is actually in 
immigration court, who is actually in Federal court. They ought 
to have a network to track those.
    Ms. Hughes. Exactly.
    Senator Coburn. And that was your point. And we do not have 
the DHS here, but I think we need to submit that question to 
DHS: What is your process to know who is out there, who can 
benefit from this, who is undergoing adjudication now, because, 
in fact, they could issue a waiver which would stop all that 
process and solve the problem before we continue on the legal 
side. Correct?
    Ms. Hughes. They could, indeed. They could also do 
something even more efficient, which would be to alter their 
position that the kind of support that this woman and others 
provided constitutes material support in the first place. 
Medical care has historically enjoyed a special role, and this 
case and others like it are legally anomalous in that sense.
    Senator Coburn. I can agree partially with that, but I can 
also see how someone could get into this country under that 
auspices as well. But I think the more important thing is that 
there is no question in this case, this is duress. I mean, it 
is slam-dunk, open-shut.
    Ms. Hughes. I would agree with that.
    Senator Coburn. So if, in fact, it is duress, how do we 
execute that to where we have a resolution of the problem 
rather than continue to keep something in court? It certainly 
is not cheap for her, both in terms of emotional costs, 
financial costs. Even though she may have pro bono work being 
done for her, there is a significant cost to her in terms of 
continuing her life and that of her child.
    I think we will submit that question for the record to DHS 
and find out, and we also will ask in an additional question in 
terms of offering medical support. You know, there is a good 
question. If you are a trained medical professional, and no 
matter what somebody has done or what their belief system is or 
where they are, we have an obligation to help them if they are, 
in fact, in need. And so that ought to be looked at, and we 
will ask that question of DHS as well.
    Ms. Hughes. Thank you.
    Senator Coburn. I thank both of you for your testimony. I 
have another hearing I have to go to.
    Chairman Durbin. Thank you very much, Senator Coburn, for 
inspiring me to have this hearing and for being here today 
during the course of the testimony. It is unusual when you can 
see results before we even adjourn, but we were just sent by 
the miracle of BlackBerry a notice from the Department of 
Homeland Security that, Mariana, they are going to personally 
review your case based on the testimony today, and we are 
hopeful that the outcome will be the best for you and your 
daughter.
    Mariana. Thank you very much.
    Chairman Durbin. So your courage in coming here is going to 
be rewarded by at least an additional day in court, which we 
hope will end well.
    I want to thank you, Ms. Hughes, for joining us again, 
Bishop Wenski, for your personal sacrifice in coming here today 
to join us. The faith community has played a big, big role in 
dealing with refugees, and I am proud that the Catholic 
Conference of Bishops has been part of that faith community 
that has done so much.
    Let me mention just a number of the other organizations 
that have asked to place written statements in the record about 
this issue: the Beckett Fund for Religious Liberty; the Center 
for Victims of Torture; Richard Cizik, Vice President of the 
National Association of Evangelicals; the Episcopal Migration 
Ministries; Hebrew Immigrant Aid Society; Human Rights Watch; 
Immigrant and Refugee Appellate Center; Dr. Richard Land, 
President of the Southern Baptist Convention's Ethics and 
Religious Liberty Commission; the Lutheran Immigration and 
Refugee Service; Heartland Alliance's; National Immigrant 
Justice Center, based in Chicago; Physicians for Human Rights; 
Southeast Asia Resource Action Center; United Nations High 
Commissioner for Refugees; and World Relief USA. And without 
objection, these statements will be placed in the record.
    The hearing record will remain open for a week for 
additional materials. Written questions may be directed to the 
witnesses, which we hope they will respond to in a timely 
fashion.
    I thank my colleagues for participating. I thank the 
witnesses for their testimony. Mariana, thank you again for the 
risk that you took to speak out.
    Mariana. Thank you very much.
    Chairman Durbin. I only hope that your good fortune is 
shared by thousands of others who are waiting with the same 
fear and the same concern that you have for your family.
    This hearing stands adjourned.
    Mariana. Thank you very much. I appreciate it.
    [Whereupon, at 4 p.m., the Subcommittee was adjourned.]
    [Questions and answers and submissions for the record 
follow.]

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