Denied Duress Exception, Columbian Loses Bid for Asylum

MANHATTAN (CN) – A businesswoman whose properties were burned down after she cut off aid to a terrorist organization at the heart of Columbia’s decades-long internal conflict lost her appeal Wednesday for U.S. asylum.

Ruling against Marleny Hernandez in a 9-page opinion this morning, the Manhattan-based Second Circuit called it undisputed that Hernandez provided what the Board of Immigration Appeals here considers “material support” to FARC.

A guerrilla group whose name translates in English to the Revolutionary Armed Forces of Columbia, FARC made a series of threats against Hernandez in the mid-1990s that prompted her to begin providing about $100 worth of food to its members every three months for a period of two years.

The threats resumed in 1999 when Hernandez stopped sending these care packages and instead began letting Columbian police officers take shelter in her hotel.

Some time after FARC burned down this hotel and a store that she also owned in March 2000, Hernandez was taken to see a FARC commander who held a gun to her head, threatened her family, and ordered her to stop helping the police and politicians in her town.

Hernandez fled to the United States in 2001 but an immigration judge determined that she could not fight deportation because of the prior material support she provided FARC.

On Wednesday, a three-judge panel said that the government is entitled to deference in its finding that the material-support bar contains no exception for aid given under duress.

“Aliens for whom the waiver system may later become necessary still have a full and fair opportunity to have their claims for asylum or withholding of removal first heard and adjudicated by an immigration judge and the BIA, and it is through that adequate process that aliens may be deemed ineligible for relief if they are found to have provided material support to terrorists,” U.S. Circuit Judge Dennis Jacobs wrote for the court. “The system that Hernandez challenges ‘afford[s] [these aliens] additional process,’ by allowing them to make a showing of involuntariness, which the executive may, in its ‘sole [and] unreviewable discretion,’ deem deserving of a waiver. However, aliens have no constitutionally‐protected ‘liberty or property interest’ in such a discretionary grant of relief for which they are otherwise statutorily ineligible.”

Gregory Silbert, an attorney for Hernandez with the firm Weil Gotschal & Manges, said a concurring opinion by U.S. Circuit Judge Christopher Droney brought a silver lining to the disappointing decision.

Nearly matching the length of the lead opinion, Droney voiced his “serious concerns” that the discretionary waiver to the material-support bar does not appear to comply with America’s obligations under international law.

Citing the 1967 United Nations Protocol Relating to the Status of Refugees, Droney said that “the treaty’s language, as well as the statute and its legislative history, make clear that Congress did not intend to allow the DHS to remove otherwise-eligible asylees who do not present genuine security threats to the United States — a description that seems very likely to apply to Hernandez.”

“Nothing in this case suggests that Hernandez represents a genuine threat to U.S. national security,” Droney added later. “Here, all the administrative record reflects is a Colombian businesswoman who acted under extreme fear and duress to protect her life and her family’s life by providing foodstuffs to a guerrilla organization … [and who] also assisted the Colombian police, the very people FARC often targeted.”

The Second Circuit’s ruling against Hernandez was unanimous, but attorney Silbert said Droney’s concurrence did show dissension.

I just wish he had raised those concerns in a dissenting opinion and that one of his colleagues on the panel had also found differently in the case,” Silbert said.

Silbert said he is considering all options, including a petition for an en banc hearing or for certiorari to the U.S. Supreme Court.

A spokesman for the Justice Department did not return an email seeking comment.

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