The Volokh Conspiracy
Mostly law professors | Sometimes contrarian | Often libertarian | Always independent
In its recent decision in Matter of A-C-M, the Justice Department's Board of Immigration Appeals rejected a Salvadoran woman's application for asylum because she provided "material support" to a terrorist organization. What did this heinous material support consist of? This terrible menace to national security "was kidnapped by guerillas in El Salvador in 1990 and was coerced into undergoing weapons training and performing forced labor in the form of cooking, cleaning, and washing their clothes." Previously, the left-wing guerrillas "forced [her] to witness her husband, a sergeant in the Salvadoran Army, dig his own grave before being killed."
The majority opinion of the Board concluded that "an alien provides 'material support' to a terrorist organization, regardless of whether it was intended to aid the organization, if the act has a logical and reasonably foreseeable tendency to promote, sustain, or maintain the organization, even if only to a de minimis degree." Technically, the decision only remands the case to the Immigration Judge, for further proceedings consistent with the Board's opinion, as opposed to rejecting the asylum application outright. But is hard to see how she can possibly prevail under the rule adopted by the majority.
In a dissenting opinion, Board member Linda Wentland took issue with the majority's ridiculously broad definition of "material support":
I do not believe, as the majority apparently does, that Congress intended that any support—no matter how small… would bar an asylum applicant from relief. The majority's apparent interpretation of "material," as referencing anything and everything that "another person would have needed to do" if the respondent had not done it, is without effective limits and would lead to absurd results….
For example, under the majority's strained interpretation, providing a glass of water to a thirsty individual who happened to belong to a terrorist organization would constitute material support of that organization, because the individual otherwise would have needed to obtain water from another source. Providing medical care to a flu-stricken member of a terrorist organization would also qualify as material support, since the individual otherwise would have needed to seek help from another doctor. Myriad other everyday activities that involve the crossing of paths with individuals who happen to be members of terrorist organizations would also be covered, such as selling such a member groceries on the same terms as are applied to the public generally, or cooking breakfast or doing laundry for one's spouse who is a member. All of these examples, like the majority's application of the bar to the minimal and menial activities in which the respondent has engaged, essentially read the word "material" out of the statute and render it superfluous, an outcome with which I cannot agree.
I believe Wentland is right. But there is an even more basic flaw in the majority's approach. In this context, providing "material support" to terrorists should be an at least somewhat voluntary activity. Cooking and cleaning as a slave laborer certainly does not qualify. A person who was coerced into performing slave labor for terrorists surely is not thereby a menace to American security, nor can she said to be considered a genuine supporter of their organization in any meaningful way. Read in context, the word "support" should be interpreted as something akin to "willingly aid," not accidentally (as in some of the examples given by Wentland) and surely not by performing slave labor under coercion.
The majority notes that the relevant statute has a waiver provision that allows the Department of Homeland Security to provide waivers in some cases, including, potentially, those involving duress. But, as it also notes (in a footnote), in 2014 DHS interpreted the waiver provision to cover cases where the applicant was under "substantial pressure that does not rise to the level of duress" (emphasis added). Presumably, this means that aid provided under pressure that does "rise to the level duress" should not be considered "material support" at all, as it would be absurd to give waivers in cases that don't involve duress, but deny it in those that do.
The majority opinion also cites an earlier 2016 BIA decision holding that the "material support" statute does not include an exception for "duress." That ruling, too, is egregiously wrong (though less so, since it involved a far less extreme degree of coercion), and should have been overruled. The BIA has the power to overrule its own earlier decisions. Moreover, slavery backed by the threat of death goes well beyond mere ordinary "duress." If nothing else, equating slave labor with material support for terrorism is precluded by the longstanding canon against absurdity in statutory interpretation, a rule that even most strictly textualist judges, such as the late Justice Antonin Scalia, adhere to.
Sadly, this decision has applications far beyond the specific case of asylum seekers coerced by Salvadoran guerrillas. Other terrorist organizations also make use of forced labor. The most notorious recent example is, of course, ISIS, which enslaved captured civilians—particularly women and children—on a massive scale. Under the majority's approach, Yazidi women used as sex slaves by ISIS must be denied asylum because, as the majority might put it, their forced labor had a "reasonably foreseeable tendency to promote, sustain, or maintain the [ISIS] organization" by improving the morale of ISIS fighters who were allowed to sexually abuse them.
You don't have be a legal theorist—or an open borders advocate like me—to conclude that this ruling is both ridiculous and cruel. Hopefully, future decisions will reverse this egregious holding. If not, Congress should step in.