The Victim of Terrorism Facing Deportation for Helping Terrorists
When Ana first met Ruby, a sergeant in the Salvadoran Army, in the late nineteen-eighties, she liked him so much that she didn’t want to consider what his job would mean for her own safety. At twenty, Ana was small and soft-spoken. She had two young daughters whose fathers were so absent that their names weren’t even on the girls’ birth certificates, and she longed for a stable romance. Ruby visited Ana’s village, in rural El Salvador, while he was on military leave, and on his first day there he walked up to her in the crowded town square and asked for her name. They began dating, and he treated her daughters as if they were his own. The couple soon moved into a house near Ana’s mother; Ana wanted to be close to her family so that she wouldn’t feel lonely when Ruby was away on duty.
El Salvador was in the midst of a brutal civil war between the government, which was backed by the United States, and leftist guerrillas. Ruby was deployed for a month at a time. While he was gone, Ana tried to distract herself with chores and her children, but it wasn’t always possible to ignore the war. A group of guerrillas was camped out in the surrounding mountains, and, one day, they drove into town, took the mayor out of his office, and shot him in the street; soon after, they killed his son. During such raids, Ana hid with her mother and her children until the rebels left. When Ruby returned from duty, he approached their house, shouting, “My doll! My treasure!” and waited for Ana to come outside to greet him. Many people in town were as frightened of the Army as they were of the guerrillas—tens of thousands of people had been killed in the fighting, most by the military—but Ruby told Ana that he was trying to end the war. “He was a good man,” she said. “And a patriot.” After two years together, the couple had a baby boy, born on Christmas Eve.
A few months later, the guerrillas came for Ruby. Local men on guard duty flashed their truck lights as the fighters approached, warning townspeople to hide, but Ruby was arriving on a military bus. Ana watched from her window as the rebels surrounded the bus and took him away. A few days later, the rebels came back for her. They brought her to their mountain camp—a collection of large tents that housed weapons, stockpiles of canned food, and what looked to be hundreds of fighters. The rebels let Ana visit Ruby in his tent; he was bruised but looked strong, and she was, briefly, relieved. A few days later, they took her to see him again. This time, he was standing in a clearing, battered, surrounded by guerrillas with guns, and digging a large hole. “You are going to see him die,” a rebel told her. Then he offered her his gun and said, “If you shoot him, you can go home to your children.”
Ana refused. “I couldn’t speak,” she told me. “I shook my head.” The rebels shot Ruby, and his body fell sideways into the hole. Then they turned to her. She was sure that they were going to kill her, too, and tried to picture her children’s faces before she died. Instead, they told her that they were hungry. “Do you know how to make tortillas?” one asked.
That evening, she prepared food for the rebels with a group of other women. She was afraid that if she refused, they would murder her. At one point, they wanted to train her to shoot a gun, but she became so scared that she got sick and refused to touch the weapon, and they gave up. Several days later, a guerrilla fighter came across her as she was preparing to wash laundry in a river and noticed that her breasts were leaking milk. “Do you have a baby at home?” he asked, and, when she nodded, he took pity on her. He walked her to the river and told her to run north toward the nearest village; he would chop wood to cover the sound of her footsteps. “You have thirty minutes,” he told her. “Then we will have to come looking for you.”
She arrived at the village that night, and, for the next month, she trekked through El Salvador, Guatemala, and Mexico. “I ran when it was dark and hid when it was light,” she told me. The guerrillas searched for her, broadcasting her name on the radio and threatening anyone who helped her escape. It was too dangerous for her to go back for her children, and she prayed that her mother would keep them safe. In the spring of 1991, she reached the southern border of the United States. She moved to Long Island, where she worked legally at a plastics-manufacturing plant and earned extra money cleaning houses while applying for asylum. Since then, she has told her story dozens of times, to judges, officers with the Department of Homeland Security, and other Salvadoran immigrants at her church. Sometimes her lawyers help to summarize the tale so that she doesn’t have to relive it; other times, she has to think back on her captivity to recall additional details, which still make her cry. Although the asylum-application process is long and arduous, it seemed straightforward to Ana: if she went back to El Salvador, the guerrillas, or whatever they had since become, would kill her.
But in June, 2018, the Board of Immigration Appeals, which reviews rulings made in immigration court, issued a two-to-one decision denying Ana’s most recent request to stay in the U.S. The judges, considering Ana’s captivity, decided that, because she had worked for the guerrillas, even under duress, she was not their victim but functionally a member of their group. “While the respondent’s assistance may have been relatively minimal, if she had not provided the cooking and cleaning services she was forced to perform, another person would have needed to do so,” they wrote, in an opinion called Matter of A–C–M–. Ana was ineligible for asylum, under a law called the material-support statute, because she had aided terrorists.
The material-support statute makes it illegal to give assistance to any group that the U.S. government considers a foreign terrorist organization. The statute, which appears in the Patriot Act, from 2001, is purposefully broad: it does not define what “material” means; the person who has given support, citizen or noncitizen, does not need to have contributed to a violent act or, in many cases, to have known that the group she supported was a terrorist organization. Her support can even have come before the group was formally designated as a terrorist organization, and the group can at one time have been an ally of the U.S. military or supported by the U.S. government. (The law does not apply to domestic terrorist groups, such as white-supremacist organizations, despite data showing that these groups pose a greater threat of violence in the U.S.) Defenders of the statute argue that it allows prosecutors to adapt to changing threats and that it has the unique ability to catch would-be terrorists before they stage an attack.
Most of the current version of the statute first appeared in the Immigration and Nationality Act, in 1990. At the time, David Cole, who is now the legal director of the American Civil Liberties Union, was defending eight young immigrants who were arrested by the F.B.I. for distributing literature in support of the Popular Front for the Liberation of Palestine, a Marxist-Leninist branch of the Palestine Liberation Organization. Prosecutors leaned on nineteen-fifties-era legislation that allowed for the deportation of immigrants who “advocated the doctrines of world Communism.” Cole and his team argued that the law violated the immigrants’ First Amendment rights, and won. Congress repealed the anti-Communist law and, in its place, passed the material-support statute. “The government wanted to hold our clients responsible not for their own conduct but for the conduct of this group,” Cole, who wrote about the case in his book “Enemy Aliens,” told me. “That’s what we did in the Communist era. And, essentially, the material-support statute was a way of updating the outdated legislation.”
The law was rarely invoked until shortly after 9/11, when Congress adopted it as part of the Patriot Act. In the eight years that followed, it was used in almost three-quarters of the nearly six hundred terrorism indictments in the U.S. “It’s the net that most terrorism suspects are brought in on,” Karen J. Greenberg, the director of the Center on National Security at Fordham’s law school, told me. The statute has been used to prosecute high-profile defendants: John Walker Lindh, an American who was accused, in 2002, of fighting for the Taliban; Iyman Faris, a truck driver from Ohio who attempted to bring down the Brooklyn Bridge, in 2003; Sulaiman Abu Ghaith, one of Osama bin Laden’s sons-in-law; Colleen LaRose, a woman from Pennsylvania who was convicted, in 2014, of planning to murder a Swedish cartoonist who had depicted the Prophet Muhammad. Last year it was used to convict Akayed Ullah, a Bangladeshi immigrant who detonated a pipe bomb in a New York City subway station, in 2017. Nearly all of the American citizens who have been indicted for joining ISIS were charged under the statute. From the beginning, critics worried about the law’s potential for overreach, but both Democratic and Republican Administrations found it useful. “It’s become a critical tool in the terrorist prosecutor’s tool kit,” Joshua Geltzer, who served on Obama’s National Security Council as the senior director for counterterrorism, told me. “It allows criminal charges to be brought against a range of activity that supports and facilitates terrorism but that may not be actually killing someone or blowing up a building.”
During the Bush and Obama Administrations, the government pursued criminal cases that expanded the use of the statute, often penalizing people for their intentions rather than their actions. In 2004, Tarek Mehanna, a twenty-two-year-old Egyptian-American with a Ph.D. in pharmacology, spent two weeks in Yemen. American prosecutors believed that he had tried to enlist in a terrorist training camp while he was there, with the hope of eventually staging attacks against American troops in Iraq, but they lacked evidence tying him to a violent crime. Mehanna claimed that he had gone to Yemen to study classical Arabic, but when he returned to the U.S. he began translating and posting Al Qaeda literature on social media. In 2009, prosecutors charged him for these writings, arguing that they were a form of material support. Mehanna was convicted and sentenced to seventeen and a half years in prison. The prosecutors were lauded for finding a way to lock up a potential terrorist before he caused harm, but critics argued that Mehanna was being punished for publishing unpopular ideas, in violation of his First Amendment rights. “The statute has allowed prosecutors to put people behind bars for long periods of time without having to prove that they sought to further any actual act of violence,” Cole said.
The government also makes use of the statute in immigration court, where decisions are typically not made public and therefore face less scrutiny. In 2004, an Indian asylum seeker named Charangeet Singh-Kaur was put into immigration proceedings because, on a few occasions, he provided a tent and food for meetings attended by members of a Sikh separatist group. Singh-Kaur claimed that the meetings were for religious purposes, but the court determined that this was irrelevant and ordered him deported. Four years later, Saman Kareem Ahmad, who was among the first wave of Iraqis to be granted special visas for their work as translators for the U.S. military, was denied a green card because he was a member of the Kurdish Democratic Party, a political party in Iraqi Kurdistan. The Party had recently been categorized as an “undesignated terrorist group”—a distinction created by the Patriot Act that allows officials to blackball organizations, even if they’re not on the official list of F.T.O.s. Thomas Ragland, one of Ahmad’s lawyers, called the decision “absolutely untethered to common sense.” At the time, Ragland regularly attended discussions of the statute with officials from U.S. Citizenship and Immigration Services, which he felt followed logical threads to startling conclusions. “One of the officials said, ‘Let’s say your father is a terrorist and he asked you to mow the grass. That’s an hour that you have freed up for your father the terrorist to engage in activities he otherwise wouldn’t have, so you mowing the grass is material support,’ ” Ragland said. “We were dumbfounded that this was the line they were taking, but now it’s not surprising anymore.”
The controversial immigration cases piled up: a Sri Lankan fisherman who bought his release from his Liberation Tigers of Tamil Eelam kidnappers; a Pakistani shop owner whose fruit was stolen by the Taliban; a Colombian woman who was forced under threat of violence to provide food to rebels with the FARC. Last year, a court in Virginia ordered the deportation of the Syrian academic and activist Radwan Ziadeh. The first seven pages of the government’s Notice of Intent to Deny read like a recommendation letter for Ziadeh. After he escaped Syria, ten years earlier, he had studied at Georgetown, lectured on the Syrian conflict at Harvard, published a handful of books, testified before Congress on the state of human rights in Syria, and consulted for the State Department. But just after the start of the Syrian Civil War, Ziadeh had paid some travel expenses for the leaders of two Syrian opposition groups, the Free Syrian Army and the Syrian Muslim Brotherhood, to meet in Turkey and discuss resolving their conflict. “Although you have established that you are a refugee, you are subject to a mandatory bar to a grant of asylum as someone who has engaged in terrorist activity,” the notice read. Being labelled a terrorist cost Ziadeh teaching opportunities at universities, although he remained optimistic. “Everyone knows the U.S. used to be a beacon of human rights and democracy,” he said. “Maybe what’s happening today will teach us, teach every American, that these issues cannot be taken for granted.”
I first met Ana in June, 2018, at the office of her lawyer Dawn Guidone, on Long Island. Ana wore bluejeans and a bright top, and clutched a jewelled purse in her lap so that she would hear when her children called, which they often did. Ruby’s birthday had just passed, and she teared up as she talked about him. She told me that, when she first arrived on Long Island, in 1991, she settled in a cramped apartment in a seedy neighborhood that made her miss home. She thought often of her kidnapping and Ruby’s murder, but she soon made friends with some Salvadoran women at her church who urged her to stop dwelling on her past and focus instead on helping her children get out of El Salvador, where the war was still raging. She arranged for her middle daughter to join her on Long Island—her other two children came a decade later—and the family moved into their current house, in a nicer part of town, with a backyard and friendly neighbors. “Everyone knows each other,” Ana said. “They take care of each other.”
But Ana’s asylum case didn’t proceed as planned. In 1993, she met with D.H.S. officers and read aloud from a summary of her story that her lawyer had written in Spanish. She was unable to adequately answer their follow-up questions in English—a language that Ana still does not feel comfortable speaking—and her application was denied. Ana doesn’t blame her lawyer, who was working under an immense caseload; as with every misstep, she blames herself—for not articulating her story clearly enough, and for going to the meeting alone. Eventually, along with many Salvadorans fleeing the war, she was given a Cancellation of Removal, which temporarily halted her deportation.
In 1995, Ana started dating a Salvadoran man who “said everything a woman would want to hear.” She got pregnant, and the couple moved in together and had a baby boy. “I was lonely,” she said. “I wanted to be with somebody.” But her partner became abusive; at one point, he sliced her hand open with a knife so deeply that she had to get twenty-five stitches. At the hospital, he stayed nearby so that Ana would have no opportunity to turn him in. “I told the doctor I hurt myself cutting onions,” she said. To demonstrate his control, her partner forced her to shoplift things that they could afford, like diapers. One day, seeing no other way out of the relationship, Ana approached a security guard at a Marshalls department store and opened a bag in her shopping cart to show him a pair of men’s shoes that her partner had demanded she steal. They were both arrested. Her partner was convicted of the theft and, soon after, an unrelated assault; he was then deported. Ana pleaded guilty to two charges of attempted petty larceny (one relating to a previous incident) for which she received a year of probation and a fine. Her convictions felt like a small price to pay for freedom from her partner. “I knew that if I stayed with him, he would kill me,” she said.
For the next decade, Ana tried to create a loving home for her youngest son. Her immigration case wasn’t settled, but she hoped that she would soon be granted asylum and eventually allowed to apply for citizenship. In 2004, Ana’s mother died, and she decided to return to El Salvador for the funeral. When she went to a D.H.S. office to apply for permission to travel, the officer told her that if she left, there was no guarantee that she would be allowed to return. She went anyway—“It was a risk I had to take,” she said—and, on the flight back to New York, she prayed. But at the airport, D.H.S. officers told her that, because of her shoplifting convictions, she had been put into deportation proceedings; they let her go on the condition that she attend her court dates. “Fight for your green card,” an officer told her.
When she got back to Long Island, her Salvadoran friends told her that she should move to a new address to elude authorities. Instead, she retained Guidone, and, years later, another lawyer, named Nicholas Mundy. I met with them in July, at Mundy’s office in Brooklyn, and they struck me as the kind of dogged lawyers more common in movies than in real life. They often work on cases involving people fleeing conflict in Central America who have experienced horrors. “We’re always worried when somebody brings in an envelope of photographs,” Guidone told me. “On more than one occasion, I’ve opened an envelope and nearly passed out.” When Ana first came to Guidone’s office and told her about her past, she recalled, Ana was detached when discussing her kidnapping but emotional when describing Ruby’s death and the beatings that she endured from her partner in the U.S. “It took her a while to tell the story of her abuse,” Guidone said. “She had experienced years of trauma on so many levels.”
Ana’s case will have broad implications for immigrants seeking asylum in the U.S., but it may also have dire consequences for those abroad who depend on American aid. One of the material-support statute’s central aims is cutting off financing for terrorism—of preventing, for example, ISIS from fund-raising online or making money from oil fields. But it has also been wielded against organizations and individuals whose terrorist connections are more tenuous. In December, 2001, soon after the statute became part of the Patriot Act, the Treasury Department seized the assets of several major U.S.-based Islamic philanthropies on the grounds that some of their money, which was intended for aid in the Middle East, had ended up in the hands of terrorist organizations. Members of the Holy Land Foundation, a nonprofit based in Texas, eventually received up to sixty-five years in prison, based on accusations that some of the group’s funds, which they said were intended to build schools and hospitals in Palestinian territories, had instead been used by Hamas—a prosecution that the Department of Justice, in a report from 2014, called “one of the great success stories” of the statute. Members of Muslim communities, however, were left wondering whether practicing zakat—charitable donation, which is one of the five pillars of Islam—might land them in jail.
Since the statute was written, aid workers around the world have faced the dual pressure of carrying out their mission while not running afoul of America’s counterterrorism objectives. In 1998, workers at the Humanitarian Law Project, a U.S.-based organization that was providing training in conflict resolution to the Tamil Tigers, in Sri Lanka, and the Kurdistan Workers’ Party (P.K.K.), in Kurdistan, began worrying that they were putting themselves in legal jeopardy. “They came to me and said, ‘We’ve been supporting Kurds in Turkey for years to promote peace and human rights,’ ” Cole told me. “ ‘Now the Secretary of State has designated the P.K.K. a terrorist organization. Can we continue to do what we did before?’ ” They were indicted, and retained Cole, who stalled the prosecution for twelve years by arguing that it violated the First Amendment. But in 2010, in a decision called Holder v. Humanitarian Law Project, the Supreme Court ruled against the organization. The effect was immediate. “There was a chill factor,” Greenberg, of the Center on National Security, told me. “You had attorneys saying, ‘Well, wait, am I providing material support by being a lawyer for terrorism suspects or somebody who’s been indicted for related crimes?’ ”
The next year, the Famine Early Warning Systems Network, a U.S.A.I.D.-funded nonprofit, reported a crisis in Somalia. The U.S. government, the largest donor to the country, had recently cut off aid to parts of Somalia to avoid its donations falling into the hands of Al Shabaab, a jihadi group that controlled large swaths of Somali territory. N.G.O. workers in conflict zones are accustomed to negotiating with armed groups, and sometimes paying tolls at their checkpoints to gain access to civilians. But the consequences of these interactions weighed more heavily, and, as the famine worsened, many groups avoided working in Somalia for fear of prosecution. “Part of the problem for the aid agencies was it was really murky to understand what would and would not constitute material support,” Jeremy Konyndyk, who was then the policy director at Mercy Corps and, later, an official at U.S.A.I.D. under Obama, told me. “One of the many weird things during all of this was the Administration saying, ‘Don’t worry, go in, we’ve never prosecuted someone for something like this.’ We were thinking, O.K., but who comes after Obama?”
Months later, the Administration released the aid. “By then it was far, far, far too late,” Konyndyk said. An estimated two hundred and sixty thousand people were dead, more than half of them young children. Mark Bartolini, the director of U.S.A.I.D.’s Office of U.S. Foreign Disaster Assistance, told me that, during one of his first overseas visits in that role, he sensed a change in attitudes toward America. “I met with a very senior official of a world-renowned humanitarian organization,” he told me. “His first comment to me was, ‘How does it feel to work for a government that’s criminalizing humanitarian aid?’ ”
Cutting off aid can be counterproductive, because aid groups are often the only institutions in terrorist-controlled areas providing a significant alternative to militancy. In 2017, an American pro-Israel activist brought a case in U.S. court against Norwegian People’s Aid, accusing it of using U.S.A.I.D.-funded grants to work on mine removal in Iran, violating U.S. sanctions, and offering job and conflict-resolution training to members of Hamas in Palestine, violating the material-support statute. The fourteen-page complaint included photos from a workshop in Gaza—where Trump has cut off aid in part because of terrorist activity. “It was hinting that we provided material support by giving people water and a nice place to meet,” Per Nergaard, the deputy secretary general of the N.P.A., told me. To Nergaard, the suit seemed unreasonable: How could the group be supporting terrorism when the point of its workshops was to convince people to give up violence? But last year, when the court seemed to be turning against the N.P.A., the group settled the case and paid two million dollars. “At first, we were concerned with maintaining a good relationship with American donors,” he told me. “So much of what we do is funded by the Americans.” The group is now pushing ahead on its projects without U.S.A.I.D. funding, and Nergaard says that other European organizations are following suit. “The whole definition of material support affects our ability to work in conflict zones,” he told me. “It will be a devastating development for humanitarian aid worldwide.”
Six years after Ana started working with Guidone, one of her shoplifting charges was vacated, because her previous lawyer hadn’t informed her that pleading guilty could lead to her deportation. Guidone felt that they were making progress: if they got the other charge vacated, it would be easier for Ana to receive asylum. Ana tried to lead a normal life, but the possibility of deportation shadowed her. In 2014, one of her sisters died in El Salvador and another was diagnosed with cancer, but going back was out of the question. “It would be self-deportation,” Mundy told me.
One day, around 6 A.M., immigration officers came to Ana’s home. She had installed a security camera, and she watched them approach her doorstep. “They were wearing blue vests with white letters on the back that said ICE,” she told me. Guidone had advised her not to let agents in if they arrived unannounced, but she was late for work, so she met them on the stoop. “I talked to them outside,” she said. “I told them that they cannot come in.” They asked for her name and the names of everyone who lived in the house. They didn’t sound angry, like Ana had expected; they were patient, even nice. But Ana relaxed only when she realized that they were looking for the house’s previous owner.
Meanwhile, the term “material support” was introduced in Ana’s case for the first time, quietly, and without anyone taking much note. In 2011, D.H.S. rejected a recent request from Ana for a Cancellation of Removal, flagging something from her file: in her first statement to D.H.S., from the nineties, her lawyer had highlighted the work she had been forced to perform for the guerrillas, including their single attempt to train her with a gun. Before the Patriot Act, details establishing this kind of trauma could help secure asylum. Now D.H.S. argued that this constituted support for the group. (D.H.S. did not respond to requests for comment for this piece, and the Executive Office for Immigration Review, which oversees immigration cases for the Department of Justice, declined to comment.) In August, 2016, after some back and forth, Noel Brennan, the judge in the case, issued Ana a deferral of removal under the Convention Against Torture, because Ana had been brutalized while in the guerrillas’ custody. Brennan noted that she wished she could give Ana asylum but felt bound by the recent case law on material support. “But for the material-support bar I would have granted the Respondent’s asylum application,” she later wrote, about her decision.
D.H.S. again challenged Ana’s deferral of removal, sending the case to the B.I.A. Her lawyers didn’t focus on the material-support argument in their preparations; it seemed far-fetched, and there were other, more pressing concerns. But in June, 2018, after months of hearings, the B.I.A. ruled against Ana in the Matter of A–C–M–, on the basis of material support. An assistant from Guidone’s office called Ana to read her the ruling in Spanish. Ana hadn’t heard the term “material support” before, and she was confused. She had always put a lot of faith in the U.S. justice system. It was difficult and time-consuming to navigate, but, compared with what she remembered of the Salvadoran legal system, American judges were fair, she thought. Ana had felt sure that if they truly understood what had happened to her they would make the right decision. So when she heard the ruling her first thought was, Maybe I am a terrorist.
Ana’s case put the excesses of the material-support statute on display. The precedent it set—that even people who are kidnapped and forced to work for terrorist groups should be treated as terrorists—seemed to many both inhumane and unproductive. “Are we really so fearful that we can no longer distinguish between terrorists and their victims?” Paul Rosenzweig, an expert on homeland security, and Jennifer Daskal, a law professor focussing on terrorism, wrote, in an article for Lawfare. “What little moral standing we have left is squandered if we engage in this kind of category collapse—expecting the world to follow us in our fight against terrorism, only to treat the killing of civilians and the enslaved victims of those who kill civilians as one and the same.” To many critics who had tracked the gradual expansion of the statute, a case like Ana’s was inevitable. “For over ten years, people on all sides agree this is affecting people it shouldn’t,” Anwen Hughes, a deputy legal director at Human Rights First, told me. “This decision takes all meaning out of the term ‘material support.’ ”
One of the reasons that critics have struggled to change the law is that its broad premise—that the government should be able to imprison terrorists, deport them, and stop them from getting aid money—is easy to defend. “I think material support can be very useful for investigations,” Greenberg, of the Center on National Security, told me. “And being strict about material support for terrorism, of course we understand this is important, if applied carefully.” Supporters are inclined to see most applications of the law as positive and to dismiss cases like Ana’s as outliers. “The way that it was used in this case, I think, was problematic,” David Inserra, a policy analyst at the Heritage Foundation, told me. But, he added, “I don’t think you can do anything that will perfectly solve this problem and also allow us to prosecute all the people we need to prosecute.”
The statute has also been hard to change because of the piecemeal measures that judges, lawmakers, and politicians have put in place over the years to quell its misuse. The State Department and other agencies have exempted certain groups, such as Iraqi Kurdish political parties, and a few high-profile cases have been adjudicated in the media; Saman Ahmad, the Iraqi translator, was granted a green card after the Washington Post reported on his case. Most people who feel that they have been wrongly accused must apply for a waiver (the wording of Judge Brennan’s initial ruling in Ana’s case—“but for the material support bar”—was seen by some as a sly judicial plea for a waiver), but the exemption system pushes the burden of proof onto defendants, and it operates inconsistently, at the discretion of whoever sits in the White House. “Congress wrote the material-support bar to give power to the executive-branch officials,” Cox, the N.Y.U. professor, told me. “For a lot of people, it returned our system of refugee protection to an earlier era, when questions about a particular person were mostly a matter of executive grace.”
After Ana’s case was made public, even longtime supporters of the statute expressed concern. In 2007, Rosenzweig, who was then a deputy assistant secretary for policy in George W. Bush’s D.H.S., defended the statute in front of the Senate Judiciary Committee, arguing that the government could prevent the admission of terrorists while still honoring its commitment to resettle refugees. Recently, he has begun to worry. “Over the course of the last five to seven years, I’ve become increasingly skeptical of the discretion that we give the executive branch,” he told me. “It’s true in material support, true in surveillance, true in law enforcement, true in counterintelligence, and the undergirding assumption behind that is that the executive branch is generally well-meaning, generally rational, sometimes in error, sometimes venal, but rarely, if ever, malicious.”
Trump campaigned on a promise to make broad use of the material-support statute. While terrorism convictions have not increased during his term so far, he has threatened to target support for terrorism abroad more aggressively. “The current Administration has been very vocal about expanding the use of the statute, and has been strongly encouraging partner countries to develop similarly broad statutes to the U.S. in their terrorism cases,” Eric Rosand, the director of the Prevention Project and a former official in Obama’s State Department, said. In April, Trump declared the Islamic Revolutionary Guard Corps in Iran a terrorist organization—the first time the allegation has been made against a government entity. Soon after, Nathan A. Sales, the U.S. Ambassador-at-Large and coördinator for counterterrorism, was asked by reporters about the potential legal consequences for American diplomats in Iran and government officials in Iraq who have regular contact with the I.R.G.C. (The government has suggested that it may give some groups waivers.) “The law provides that it is a federal criminal offense punishable by up to twenty years in prison for any person who provides material support,” he responded, though he refused to specify who would face penalties. “We simply don’t want to get into hypothetical situations.”
Throughout his term, Trump has willfully conflated immigration with terrorism, in an apparent effort to whip up anti-immigrant sentiment. He has asserted, incorrectly, that most terrorists convicted in the U.S. are foreign-born; transferred a judge from Guantánamo Bay to immigration court; and suggested that a so-called “caravan” of migrants walking through Mexico to the U.S. border had been infiltrated by Muslim extremists. “They are deliberately misusing terrorism-related statistics to push anti-immigration policies,” Geltzer, the former Obama aide, said. In 2017, Trump used the material-support statute to justify his travel ban against visitors from majority-Muslim countries and his reduction in the number of refugees who are permitted to enter the country each year. (In the same executive order, he also considered restricting the program that gives waivers for people charged with violating the statute.) Immigration cases are sealed, so it’s impossible to know if the government has used the statute more frequently during deportation proceedings. But experts worry that the Administration could designate certain Central American gangs as terrorist groups, giving it wide latitude to reject asylum seekers. It may already be expanding the use of the statute by withholding waivers that would have been granted under previous Administrations, allowing even absurd cases to proceed. Guidone believes that, under the Obama Administration, Ana would have received an exemption. “I don’t know if the waiver would be available now,” she said.
In her dissent on Ana’s case, one of the B.I.A. judges wrote that the decision was “without effective limits” and “would lead to absurd results,” and experts have continued to worry about its consequences. Some think that aid organizations will have more difficulty helping victims of terrorism, such as the Chibok girls who were kidnapped by Boko Haram, in Nigeria, or young Iraqi men who were forced to work for ISIS. “Material-support prohibitions are not weighed against other policy priorities,” Konyndyk said. “Once triggered, they just steamroll everything else.” Greenberg said that the expansion of the material-support statute could lay the groundwork for a more general expansion of law-enforcement authority. “What they need is the attitude that they can use any law in a vague and overly broad sense,” she told me. “That’s what material support was. That’s the whole point of it.” Cole, from the A.C.L.U., cautioned all Americans about the decision. “What we do to immigrants in the name of national security or in terms of undermining their civil liberties is often the first step, and the second step is to extend it to U.S. citizens,” he said. “The argument is made that you don’t have to sacrifice your liberty for greater security, we’ll sacrifice their liberty for your security, so it’s a win-win for citizens. Bush made that argument for antiterrorism legislation after 9/11. The first anti-Communist measures were against foreign nationals, in the nineteen-twenties, and then extended to millions of Americans in the nineteen-fifties. There is a real connection between what is done to immigrants and what is ultimately done to the rest of us.”
In September, I visited Ana at her home on Long Island. Her red-tinted hair was brushed to gleaming, and her long nails were coated in bright polish. She sat at her broad kitchen table, catching up with Guidone and Mundy. Her small living room was full of keepsakes from El Salvador—family photos, a hammock from her home town, a colorful blanket over the couch—and the everyday objects of her American life, now nearly three decades in. A fluorescent-yellow parrot sat in a cage.
“Does he speak?” Mundy asked.
“He says hello,” Ana replied. “And he laughs when you laugh.”
Her two grown daughters wandered past the kitchen. They were aware of the B.I.A. decision but were reluctant to discuss it. “They are confused,” Ana said. “They know my story, they know what actually happened.” Guidone and Mundy were in the process of appealing, which could take years, but they were in good spirits. Other lawyers had reached out to offer help. “I was amazed,” Guidone told me. “Attorneys who have no connection to immigration called me and were, like, ‘What is this? What can we do?’ ” The lawyers working with Saman Ahmad and Radwan Ziadeh had called to discuss sharing resources and the distant possibility of bringing the issue back to the Supreme Court. Brennan, the immigration judge in Ana’s original case, had recently issued a statement in response to the decision, which took the rare step of admonishing the B.I.A. “Undoubtedly, being targeted and then kidnapped on account of her relationship with her husband, forced into slave labor, persistently threatened by the guerrillas, and in constant fear of her life constitutes torture,” she wrote. Her statement didn’t overturn the decision, but the lawyers were heartened by how angry she had seemed.
Two of Ana’s employers, whose houses she cleaned, had fired her after the decision. The word “terrorist,” she felt, carried a stigma not unlike that of the word “illegal.” The factory, though, kept her on, and she supplemented her income by selling mail-order goods, like pillows and blankets, to friends from church. She had discussed the B.I.A.’s decision with an American family that lived in a house next door with a white picket fence, and they were appalled. They told her that if ICE came to deport her, they would hide her in their home. Ana teared up telling me about the conversation. “They said no way would they let them come and take me away,” she said.
When Ana first arrived in America, she had recurring nightmares about immigration agents dragging her out of her house and putting her on a plane back to El Salvador. She imagined that her abusive partner would be waiting for her there, or that, if he didn’t get her, the former guerrillas would track her down. Recently, those nightmares have been supplanted by a more pleasant dream in which she wakes up in the morning and opens her mailbox to find a green card, left there like a present. When Ana told me this, she laughed, and, from the living room, so did the parrot. “Sometimes I also dream about meeting the B.I.A. judges,” she said. She thought that if they saw her in person, they would understand that she was not a terrorist. “I would tell them I had to escape,” she said. “I would have died if I hadn’t done what I did. I would tell them I’m a good person.”