Senators sound alarm on terror-related exemptions to US entry for Afghans, warn of 'open-ended' authority

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Afghan citizen awaiting State Department communication following SIV approval

'AQ', who worked with the U.S. Army for years in southern Afghanistan, joined 'Fox & Friends First' to discuss the delay in the process to flee to safety one year after the Taliban takeover.

FIRST ON FOX: A coalition of senators is seeking clarification from the Biden administration about what they fear is an "open-ended" authority to allow foreign nationals, who have provided "insignificant material support" to certain terrorist organizations, to enter the United States. 

Ten senators, led by Sen. Bill Hagerty, R-Tenn., have written to the Departments of Homeland Security and State about the administration’s moves in June to allow Afghan evacuees who have worked as civil servants during Taliban rule, or individuals who have provided "individuals who provided insignificant or certain limited material support to a designated terrorist organization," to be exempted from terror-related U.S.entry restrictions.

"We write because the American people deserve an explanation regarding the broad, open-ended nature of this authority for exempting individuals who would otherwise be barred from immigration to the United States for supporting a terrorist organization," they write.

The U.S. has brought in tens of thousands of evacuees from Afghanistan in the wake of the U.S. withdrawal and Taliban takeover last year. As part of that, the administration moved in June to exempt certain Afghans who may be caught up in terrorism-related inadmissibility grounds (TRIG).

DHS ANNOUNCES TERROR BAR EXEMPTIONS FOR AFGHAN EVACUAEES WHO WORKED FOR TALIBAN-ERA CIVIL SERVICE

Afghan passengers are pictured in-front of a Qatar Airways airplane at Kabul International Airport, in Kabul, Afghanistan September 19, 2021.  (Qatar's Ministry of Foreign Affairs/Handout)

TRIG places limits on individuals who are members of a terrorist organization or who have engaged in terrorism, making them inadmissible to the U.S. and ineligible for immigration benefits. The USCIS website says that the definition of terrorism-related activity "is relatively broad and may apply to individuals and activities not commonly thought to be associated with terrorism." 

Both the lawmakers and the Biden administration have noted prior usage of TRIG exemptions including in 2019 to apply for those involved in the Lebanese civil war between 1975 and 1990. 

The June exemptions allowed for three situations in which Afghans could be exempt. The first would be for those employed as civil servants in Afghanistan at any time from Sept. 27, 1996 to Dec. 22, 2001 — after the U.S. invasion of Afghanistan in the wake of the 9/11 attacks — and after August 15, 2021. DHS said that could apply to many occupations including teachers, doctors and engineers — and those who used their position to mitigate Taliban repression.

Also potentially exempt are Afghans who "supported U.S. military interests" by fighting in resistance movements against the Taliban, as well as Afghans who took part in the conflict against the Soviet occupation of Afghanistan. It does not apply to those who targeted civilians or U.S. interests, or who committed terror acts or human rights abuses.

Finally, it exempts "individuals who provided insignificant or certain limited material support to a designated terrorist organization." DHS gave the examples of paying tolls to pass through checkpoints or paying for utilities or to obtain a passport -- given the ubiquitous presence of the Taliban in Afghan life.

However, while the civil servant exemption specifically applies to Afghan civil servants within certain time periods, the senators argue that the June 8 determination on support for terrorist organizations "makes no mention of Afghanistan or Afghan refugees and is not limited to the categories of Afghan individuals described in your press release or persons connected with the war in Afghanistan."

BIDEN ADMIN PLANS TO EXEMPT SOME TALIBAN-ERA AFGHAN CIVIL SERVANTS FROM US TERROR-RELATED ENTRY RESTRICTIONS

"Indeed, it is not limited to certain conflicts, terrorist organizations, geographic regions, or time periods at all," they say.

They argue that, as written, the exemption could permit "the admission of foreign individuals who provided material support to terrorist organizations that the Biden administration deems insignificant or limited."

"This could include, for example, current or former members of Iran’s Islamic Revolutionary Guard Corps (IRGC) and IRGC-linked entities, which are responsible for the deaths of hundreds of U.S. service members in Iraq and Afghanistan," they say. "It could include individuals seeking asylum at the southern border."

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Co-signers of the letter include Sens. Rick Scott, R-Fla., Kevin Cramer, R-N.D., Ted Cruz, R-Texas, Marco Rubio, R-Fla., Joni Ernst, R-Iowa, Roger Marshall, R-Kansas, Tommy Tuberville, R-Ala., John Hoeven, R-N.D., and Steve Daines, R-Mont. 

The lawmakers also ask why the decision, issued in June, was not made months earlier and did not limit itself to those solely from Afghanistan. They argue the decision affects the security of the U.S. and would also make those who provided support, albeit limited, to terrorist organizations eligible for U.S. entry and related benefits.

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"This sort of substantial, inadequately explained change to U.S. immigration policy implicating obvious U.S. national security interests merits further explanation and congressional scrutiny," they write.

The senators ask the departments for detailed descriptions of the nationals who the exemptions have been applied to and examples of the support they offered, and also ask whether the determination will or has been applied to IRGC-linked individuals.

They also ask if it has been applied to those seeking entry to the U.S. from Mexico, as well as how the departments define and apply the concept of "insignificant material support" in practice.

The administration has defended the use of the exemptions, arguing that it is vital to allow for humanitarian protection for at-risk Afghans.

DHS Secretary Alejandro Mayorkas said in June that doctors, teachers, and other Afghans who helped U.S. forces on the ground in Afghanistan "should  not be denied humanitarian protection and other immigration benefits due to their inescapable proximity to war or their work as civil servants." (AP Photo/Jose Luis Magana)

"Doctors, teachers, engineers, and other Afghans, including those who bravely and loyally supported U.S. forces on the ground in Afghanistan at great risk to their safety, should not be denied humanitarian protection and other immigration benefits due to their inescapable proximity to war or their work as civil servants," Secretary of Homeland Security Alejandro Mayorkas said in a statement in June. "These exemptions will allow eligible individuals who pose no national security or public safety risk to receive asylum, refugee status, or other legal immigration status, demonstrating the United States’ continued commitment to our Afghan allies and their family members."  

The administration has repeatedly stressed that all Afghans undergo multi-layered and "rigorous" vetting across multiple databases —  and that only those who clear checks can be eligible for an exemption. But Republicans have been raising concern for months about the extent and reliability of such vetting.

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FBI Director Christopher Wray told lawmakers this month that the agency is "actively" investigating individuals deemed to be national security threats and suspected terrorists who entered the U.S. as part of the evacuation -- after a whistleblower told Republicans that 324 individuals with derogatory information had entered the U.S.

 "I know there are a number of individuals through our joint-terrorism task forces that we are actively trying to investigate as a result," he said.

So far more than 76,000 Afghans have been brought to the U.S. after the withdrawal from Afghanistan in August,