Liberian Amnesty Stuffed into NDAA 2020

It's overbroad, sets a bad precedent, and has nothing to do with defense

By Andrew R. Arthur on December 20, 2019

I am trying to mix my analyses of the good and the bad amendments in S. 1790, the National Defense Authorization Act for Fiscal Year 2020 (NDAA 2020). I recently wrote about the bad (codification of the heretofore administrative practice of "parole in place") and the good (the removal of dangerous reporting requirements for our troops sent to the border). But the bad just seems to overwhelm the good, as section 7611 of NDAA, granting a generous amnesty to Liberian nationals, reveals. Sen. Jack Reed (D-R.I.), has stated that this provision will "impact [read: benefit] about 4,000 Liberians who have been legally living in the United States," but it will likely "impact" at a minimum thousands more.

Subsections (b) and (c) in section 7611 direct the secretary of Homeland Security to grant lawful permanent resident (LPR) status (that is, a green card), to Liberian nationals who have been continuously present in the United States since November 20, 2014 (as well as the spouses, children, and unmarried sons and daughters of such nationals), who make an application for that status within one year after enactment of NDAA, and who are admissible (with exceptions for inadmissibility).

Normally, pursuant to section 245(a)(2) of the Immigration and Nationality Act (INA), an alien must be admissible to the United States to be granted adjustment of status, meaning that the alien must prove that he or she is not inadmissible under any of the grounds in section 212 of the INA. The grounds of inadmissibility that do not apply to Liberians seeking LPR status pursuant to section 7611(b)(2) of NDAA 2020 are sections 212(a)(4) (public charge), (5) (labor certification requirement), (6)(A) (alien present without admission or parole), and (7) (documentary requirement to enter the United States) of the INA.

That means that to be eligible for this Liberian amnesty, an alien must not be inadmissible under the criminal grounds of inadmissibility under section 212(a)(2) of the INA. Well, sort of.

Section 212(h) of the INA provides a waiver of the grounds of inadmissibility in sections 212(a)(2)(A)(i)(I) (conviction for a crime involving moral turpitude or "CIMT") and (II) (violation of a law relating to a controlled substance) of the INA, as well as sections 212(a)(2)(B) (multiple criminal convictions), (D) (prostitution and commercialized vice), and (E) (aliens who have asserted immunity for serious criminal activity).

That waiver would be available to applicants for the Liberian amnesty if they are the spouses, parents, sons, or daughters of a U.S. citizen or LPR and can show that the denial of their admission would result in "extreme hardship" to the qualifying relative. But as my colleague Dan Cadman noted back in October 2016, "extreme hardship" for purposes of section 212(h) of the INA "need not be so extreme" under U.S. Citizenship and Immigration Services (USCIS) guidance.

In addition, while the waiver available for the controlled substance ground of inadmissibility only applies to convictions for simple possession of 30 grams or less of marijuana, I could imagine that more than a few amenable state-court judges (and prosecutors) would be willing to knock down a more serious criminal conviction in order to avoid the "hardships" of removal for criminal activity.

So, if the primary applicant for the amnesty in section 7611 of NDAA 2020 gets a green card, that alien's spouse, child, or unmarried son or daughter could seek a 212(h) waiver for those criminal grounds of inadmissibility based on hardship to the primary applicant. And, of course, many of the primary applicants for amnesty will have qualifying relatives in the United States already for whom they could allege hardship.

Now, there is a bar in section 7611(b)(3) of NDAA 2020 for aliens who have been convicted of any aggravated felony or two or more CIMTs, as well as for persecutors. I will get back to that latter bar in a bit.

Section 7611 of NDAA 2020 gets worse. Liberian nationals who are eligible and applying for that amnesty and who are under final orders of removal are eligible to seek a stay of removal under section 7611(d)(1), and under section 7611(d)(2), the secretary of Homeland Security may not order an alien who has filed for amnesty under section 7611(b) removed from the United States if the alien is in exclusion, deportation, or removal proceedings while that application is pending.

This latter provision is likely an oversight in drafting: With the exception of aliens in expedited removal under section 235(b)(1) of the INA, the secretary of Homeland Security does not order aliens in exclusion, deportation, or removal proceedings removed — the attorney general, through the immigration courts and the Board of Immigration Appeals under section 240 of the INA, does.

I would not expect the Department of Justice to enforce the letter of this law, however, so those aliens in proceedings who apply for this amnesty will likely get a free pass while their applications are pending. And, in any event, once such an alien were to get a final order of removal, section 7611(d)(1) would allow the applicant to seek a stay of removal anyway. It is just the sort of sloppy drafting that one would expect when military appropriators get involved in futzing with the INA.

Of course, under section 7611(d)(3)(A) of NDAA 2020, aliens who apply for the Liberian amnesty may apply for employment authorization while their adjustment applications are pending, and if those applications are pending for more than 180 days, the secretary must grant them employment authorization under section 7611(d)(3)(B).

It gets worse yet. Much, much worse.

Section 7611(e) of NDAA 2020 states:

Record of Permanent Residence.--On the approval of an application for adjustment of status under subsection (b) of an alien, the Secretary shall establish a record of admission for permanent residence for the alien as of the date of the arrival of the alien in the United States. [Emphasis added.]

That's right — aliens who receive green cards under the Liberian amnesty will have the date of their admission retroactively applied to the date that they entered the United States. Given the fact that primary applicants (who had to have been in the United States since November 20, 2014), will have accrued at least five years of LPR status as of the dates that their applications are approved, it appears that under section 316(a) of the INA, they will be immediately eligible to apply for citizenship. That means that our elected representatives could have actually picked their future voters. Neat trick.

It also means that they can petition for their parents, married sons and daughters, and siblings to come to the United States as LPRs, too, as soon as they naturalize. That, in turn, means that many more aliens than just those who are described in section 7611 of the NDAA will benefit from that amnesty.

Why would Liberian nationals get such special treatment? As my former colleague Matt Sussis explained in a March 2019 post: "Liberians have enjoyed 'temporary' protection from deportation ever since a 1991 civil war, and their protections have been extended ever since by five different presidents — George H.W. Bush, Bill Clinton, George W. Bush, Barack Obama, and Donald Trump."

This started in 1991 when the first President Bush "announced that approximately 10,000 Liberians would be granted [Temporary Protected Status (TPS)] after a civil war broke out in Liberia and Bush said it would be unsafe for Liberians to return home."

TPS for Liberia turned into Deferred Enforced Departure (DED) when the civil war abated and TPS expired in 1999. As described by U.S. Citizenship and Immigration Services (USCIS):

Deferred Enforced Departure (DED) is in the President's discretion to authorize as part of his constitutional power to conduct foreign relations. Although DED is not a specific immigration status, individuals covered by DED are not subject to removal from the United States, usually for a designated period of time.

Liberians again became eligible for TPS in 2002, after the civil war resumed. That civil war ended with a peace agreement in August 2003 (discussed further below), and the George W. Bush administration thereafter announced that TPS for Liberia would expire on October 1, 2007, but that Liberians would be eligible for DED until March 31, 2009. On March 23, 2009, the Congressional Research Service explains, "President Obama extended DED for those Liberians until March 31, 2010, and several times thereafter."

TPS was again granted for Liberia (as well as Guinea and Sierra Leone) in 2014 as a result of an outbreak of Ebola in the region that lasted into 2015. According to USCIS, TPS lasted until "May 21, 2017, to allow for an 'orderly transition' of affected persons' immigration status." President Obama then extended DED status "through March 31, 2018, for a specially designated population of Liberians who had been residing in the United States since October 2002."

On March 28, 2019, "President Trump, after consulting relevant executive branch agencies, issued a memorandum extending the wind-down period for [DED] for an additional 12 months, through March 30, 2020," for Liberian nationals who were eligible for DED status because they held TPS on September 30, 2007, and had continuously resided in the United States since October 1, 2002.

It is in this context that the Liberian amnesty in section 7611 of NDAA 2020 was adopted.

It is important to note that conditions have improved significantly in Liberia in recent years. The UN World Health Organization declared the Ebola outbreak in that country over on May 9, 2015. And, for the most part, political turmoil in the West African nation abated years ago.

As the Central Intelligence Agency (CIA) World Factbook entry for Liberia notes, the aforementioned August 2003 peace agreement prompted the resignation of former President Charles Taylor and ended the civil war in that country. Taylor has since been "convicted by the UN-backed Special Court for Sierra Leone in The Hague for his involvement in Sierra Leone's civil war."

The country thereafter went through a two-year period of transition to democracy, at the end of which, in late 2005, Ellen Johnson Sirleaf was elected president. She was reelected in 2011, but term-limited from running again, and George Weah was subsequently elected president. The State Department reports that international observers deemed that presidential election, as well as legislative elections held that year, as "free and fair." UN peacekeepers completed a 15-year mission in that country in March 2018.

Given these facts, it appears that the only reason why there is an amnesty for Liberian nationals in section 7611 of NDAA is because some population of Liberian nationals has been eligible for TPS and/or DED for more than two decades. I have previously explained the issues that result from such indefinite grants of "temporary" status.

Importantly, endless redesignations of TPS (and DED) for countries that no longer meet the criteria for that protections can have deleterious effects:

There are certainly exigent circumstances that militate in favor of the granting, for a brief period of time, protected status to the nationals of countries in the wake of significant natural disasters and/or civil disorder. The creation of a quasi-permanent, decades-long benefit for the nationals of a country designated for TPS, however, actually makes it less likely that the United States will extend such protection in the future. Specifically, if the president and the secretary of Homeland Security believe that the designation of a country for TPS will have a "ratchet effect", by which large populations of foreign nationals will remain in the United States indefinitely, they will be wary of extending that protection except in the direst of circumstances. This is particularly true if they were to conclude that there would be a political cost to be paid for the eventual termination of a TPS designation.

Section 7611 of NDAA 2020 is a textbook example. In essence, re-designation of Liberia for TPS and DED for years after the reasons for the original designations of those statuses had been resolved created significant political pressure to grant amnesty to Liberians present in the United States. Although I doubt that any president or secretary of Homeland Security would admit as much, this amnesty will make it much less likely that any given country will be designated for TPS or DED in the future. Simply put, the amnesty in section 7611 sets a bad precedent.

Nor, contrary to Sen. Reed's assertions, will that section simply "allow eligible Liberians in the U.S. currently on the temporary immigration status of [DED] to apply for permanent residency and offer a pathway to citizenship." To be granted DED under the current designation, a Liberian had to have been present in the United States on October 1, 2002, and had TPS on September 30, 2007. Section 7611, however, grants amnesty to all Liberian nationals who have been in the United States since November 20, 2014.

This means that any Liberian national who entered the United States illegally on or before that date, and any Liberian national who entered on a nonimmigrant visa on or before that date and overstayed, will be eligible to take advantage of that amnesty, not just those who had been granted DED or TPS. If nothing else, section 7611 is overbroad, and will encourage future migrants to enter the United States illegally to await their amnesty.

One final point, with respect to persecutors. As noted, pursuant to section 7611(b)(3)(C) of NDAA 2020, no alien who "has ordered, incited, assisted, or otherwise participated in the persecution of any person on account of race, religion, nationality, membership in a particular social group, or political opinion" would be eligible for LPR status thereunder.

The Liberian Civil War was particularly brutal. Close to 250,000 people died. "Women were raped and mutilated; warlords recruited child soldiers to fuel the conflict; tens of thousands of people were displaced and fled the country."

I heard, and argued, tens, if not hundreds of Liberian asylum claims. Those applicants alleged persecution based primarily on political opinion and ethnicity. At least some of those responsible for those offenses have been found in the United States.

For example, Mohammed Jabbateh was "sentenced to 30 years in prison in the US for lying about his role in Liberia's civil war and the atrocities he committed" after living for 20 years in East Lansdowne, Pa.:

While serving as commander of an armed group during the height of Liberia's first civil war, which lasted much of the 1990s, Jabbateh either personally committed or ordered acts such as rapes, ritual cannibalism, mutilation, murder and the use of child soldiers, prosecutors said.

Another is Charles Taylor's son, Roy M. Belfast Jr. Belfast, who was born in the United States, was convicted in 2008 "of five counts of torture, one count of conspiracy to torture, one count of using a firearm during the commission of a violent crime and one count of conspiracy to use a firearm during the commission of a violent crime." According to testimony in that case:

Belfast commanded a paramilitary organization known as the Anti-Terrorist Unit that was directed to provide protection for the Liberian president and additional dignitaries of the Liberian government. Between 1999 and 2002, in his role as commander of the unit, Belfast and his associates committed forms of torture including burning victims with molten plastic, lit cigarettes, scalding water, candle wax and an iron; severely beating victims with firearms; cutting and stabbing victims; and shocking victims with an electric device.

Charles Cooper, who acted as a bodyguard to former President Taylor "and was a member of a paramilitary police unit called the Secret Security Service (SSS)" was deported by U.S. Immigration and Customs Enforcement (ICE) to Liberia in June 2018. According to ICE:

Cooper, while a member of the SSS and the National Patriotic Front of Liberia, was directly involved in the persecution of civilians in Liberia. Cooper was also identified as a member of the National Patriotic Front of Liberia, a rebel group founded by Charles Taylor that committed numerous human rights violations.

He had entered the United States in January 2006 and overstayed his nonimmigrant visa.

Jucontee Thomas Woewiyu, "spokesperson, co-founder, and for several years defense minister of Charles Taylor's infamous National Patriotic Front of Liberia ... was convicted in July 2018 on eleven counts of immigration-related perjury and fraud related to lying about his violent past." He had been an LPR since 1972.

George Boley, identified by ICE as "the former leader of the Liberian Peace Council (LPC) who committed human rights abuses during the Liberian civil war in the 1990s" was deported from the United States to Liberia in 2012. According to the agency:

Various organizations have reported that the LPC engaged in serious human rights abuses against the civilian population. The 1995 U.S. Department of State report on Human Rights Practices in Liberia documented credible reports that Boley authorized the extrajudicial executions of seven of his soldiers in 1995. According to witnesses who testified before Liberia's Truth and Reconciliation Commission (TRC), in 1994 the LPC burned dozens of captives and village inhabitants accused of witchcraft activities in a Liberian village. Other TRC witnesses also testified that in 1995, the LPC massacred 27 inhabitants in an attack on a village — ordering them to lie down before they slit their throats with cutlasses and raping the women before they killed them.

It will be difficult, if not impossible, for USCIS to identify persecutors and those responsible for human rights abuses during the Liberian Civil War who may attempt to gain LPR status through section 7611 of NDAA 2020. Even though the applicants for that amnesty will bear the burden of proving that they are not persecutors, it is unlikely that the agency will have sufficient evidence to identify any of the guilty.

In short, the Liberian amnesty in section 7611 of NDAA 2020 is overbroad and sets a bad precedent that all but guarantees future amnesties, while making it less likely that aliens who need TPS will be able to obtain it in the future. It also provides an avenue by which former persecutors during the Liberian Civil War will be able to obtain green cards, and quick citizenship, in the United States. It will result in the immigration of potentially thousands or tens of thousands of additional foreign nationals, with no guarantee that those foreign nationals will be able to support themselves in the United States. Finally, it has nothing to do with the military or military appropriations, does nothing to ensure the national security of the United States, and is just a sop to special interest groups.

The president should think twice before he signs off on this one.