E7-8751. Exercise of Authority Under Section 212(d)(3)(B)(i) of the Immigration and Nationality Act

AGENCY:

Office of the Secretary, DHS.

ACTION:

Notice of determination.

DATES:

This determination is effective April 27, 2007.

Authority: 8 U.S.C. 1182(d)(3)(B)(i). Following consultations with the Secretary of State and the Attorney General, I hereby conclude, as a matter of discretion in accordance with the authority granted to me by Section 212(d)(3)(B)(i) of the Immigration and Nationality Act (“the Act”), considering the national security and foreign policy interests deemed relevant in these consultations, that subsection 212(a)(3)(B)(iv)(VI) of the Act shall not apply with respect to material support provided under duress to a terrorist organization as described in subsection 212(a)(3)(B)(vi)(I) or subsection 212(a)(3)(B)(vi)(II) if warranted by the totality of the circumstances. This exercise of authority as a matter of discretion shall apply to an alien who satisfies the agency that he: (a) Is seeking a benefit or protection under the Act and has been determined to be otherwise eligible for the benefit or protection; (b) Has undergone and passed relevant background and security checks; (c) Has fully disclosed, in all relevant applications and interviews with U.S. Government representatives and agents, the nature and circumstances of each provision of such material support; and (d) Poses no danger to the safety and security of the United States. Implementation of this determination will be made by U.S. Citizenship and Immigration Services (USCIS), in consultation with U.S. Immigration and Customs Enforcement (ICE). USCIS has discretion to determine whether the criteria are met. When determining whether the material support was provided under duress, the following factors, among others, may be considered: whether the applicant reasonably could have avoided, or took steps to avoid, providing material support, the severity and type of harm inflicted or threatened, to whom the harm was directed, and, in cases of threats alone, the perceived imminence of the harm threatened and the perceived likelihood that the harm would be inflicted. When considering the totality of the circumstances, factors to be considered, in addition to the duress-related factors stated above, may include, among others: the amount, type and frequency of material support provided, the nature of the activities committed by the terrorist organization, the alien's awareness of those activities, the length of time since material support was provided, the alien's conduct since that time, and any other relevant factor. I may revoke this exercise of authority as a matter of discretion and without notice at any time with respect to any and all persons subject to it. Any determination made under this exercise of authority as set out above shall apply to any subsequent benefit or protection application, unless it has been revoked. This exercise of authority shall not be construed to prejudice, in any way, the ability of the U.S. Government to commence subsequent criminal or civil proceedings in accordance with U.S. law involving any beneficiary of this exercise of authority (or any other person). This exercise of authority is not intended to create any substantive or procedural right or benefit that is legally enforceable by any party against the United States or its agencies or officers or any other person. This exercise of authority does not affect the continued applicability of any other security-related ground of inadmissibility in section 212 of the Act, including subsections 212(a)(3)(B)(iv)(I) through (V), which continue to render inadmissible those who have engaged in terrorist activity as enumerated by those subsections. In accordance with Section 212(d)(3)(B)(ii) of the Act, a report on the aliens to whom this exercise of authority is applied, on the basis of case-by-case decisions by the U.S. Department of Homeland Security shall be provided to the specified congressional committees not later than 90 days after the end of the fiscal year. This determination is based on an assessment related to the national security and foreign policy interests of the United States as they apply to the particular aliens described herein and shall not have any application with respect to other persons or to other provisions of U.S. law.

Dated: April 27, 2007.

Michael Chertoff,

Secretary of Homeland Security.