INA § 212(a)(3)(B) - "Material Support" Bar For Providing Aid to an FTO

A licensed pharmacist in the Philippines held to have provided "material support" to a foreign terrorist organization ("FTO") for selling medicines during the regular course of business because the drugs went to the families and friends of a leftist, communist rebel group, the New People's Army.

The USCIS  Director held that by selling drugs, with a valid prescription, from a licensed pharmacist, this act alone constituted "material support" under INA § 212(a)(3)(B)(iv) as,  "to commit an act that  the actor knows, or reasonably should know, affords material support, including a safe house, transportation, communications, funds, transfer of funds or  other  material benefit, false documentation or identification, weapons (including chemical biological, or radiological weapons), or explosives, or training - - - (a) for the commission of a terrorist activity." 

We made several arguments against this decision, a statutory challenge, "as written," the "as applied." We also challenged the decision on a factual basis, arguing  that our client was operating within her sworn duty and  within the ethics of her profession. But our best  argument was a Constitutional challenge wherein we contended that merely providing medical care is a protected activity under the Geneva Conventions of 1949, as Congress did not explicitly include medicines in their list of prohibited activities and there is no clear Congressional intent  to establish that Congress wanted to override  the Geneva Convention protections. 

The Protocol Additional to the Geneva Conventions of 12 August 1949, and relating to the Protection of Victims of Non-International Armed Conflicts (Protocol II), states in Article 10, “under no circumstances shall any person be punished for having carried out medical activities compatible with medical ethics, regardless of the person benefiting therefrom.”

In 1870, the U.S. Supreme Court has held that under the Supremacy Clause of the Constitution, “[t]he effect of treaties and acts of Congress, when in conflict, is not settled by the Constitution. But the question is not involved in any doubt as to its proper solution. A treaty may supersede a prior act of Congress, and an act of Congress may supersede a prior treaty.” Cherokee Tobacco, 78 U.S. 616, 621 (1870).

Therefore, to determine which law is supreme, the Court has held, “[t]here is, first, a firm and obviously sound canon of construction against finding implicit repeal of a treaty in ambiguous congressional action. "A treaty will not be deemed to have been abrogated or modified by a later statute unless such purpose on the part of Congress has been clearly expressed." Cook v. United States, 288 U.S. 102, 120 (1933). See also Washington v. Washington Commercial Passenger Fishing Vessel Assn., 443 U.S. 658, 690 (1979); Menominee Tribe of Indians v. United States, 391 U.S. 404, 412-413 (1968); Pigeon River Improvement, Slide & Boom Co. v. Charles W. Cox, Ltd., 291 U.S. 138, 160 (1934). Legislative silence is not sufficient to abrogate a treaty. Weinberger v. Rossi, 456 U.S. 25, 32 (1982).” Trans World Airlines, Inc. v. Franklin Mint Corp., 466 U.S. 243, 252 (1984), (italics added).

The threshold canon of statutory interpretation holds that “[using] the language employed by Congress, . . . we assume that the legislative purpose is expressed by the ordinary meaning of the words used.” Singh-Kaur v. Ashcroft, 385 F.3d 293 (3rd Cir. 2004).

Stay tuned for the  decision from DHS.