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Justice Department Rejects Salvadoran Woman's Application for Asylum Because She Provided "Material Support" to Terrorists - by Working as a Slave Laborer for Them

Guerrillas forced the applicant to cook and clean for them, after killing her husband.

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.

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  • John Hawkinson||

    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.

    Just to be clear, "future decisions" doesn't have to mean future decisions of the BIA, which is an executive branch agency, and over which I always wonder how much influence political appointees (like the Attorney General) have. It can mean superior courts who might review this.

    Indeed, this is why BIA decisions are reviewable by Article III courts. Do we have any information about whether A-C-M-'s attorney intends to appeal this to, I presume, the Second Circuit Court of Appeals? I guess since it only came out on Wednesday it's probably too soon to tell? They have 30 days from June 6?

    Or am I wrong and is this not a final decision such that it is appealable, esp. given the remand? (Actually, it looks like the statutory basis for BIA appeals is 8 USC §1252 (INA §242), but that's really about final orders of removal, except it seems to be widely applied outside that context, which makes it much more confusing to me and I don't know how to read it.)

  • Martinned||

    Well, "reviewable" is a flexible term. Being able to challenge a decision via teleconferencing from the country where you've been deported to isn't much of a solution, particularly if your asylum claim actually had merit.

  • nonzenze||

    US Courts have certainly ordered the Marshals to personally retrieve a person and bring him back into the country. I believe one such order was posted here on the VC.

  • dwshelf||

    Reading the quoted dissent, I don't see where her support was involuntary. Rather, the dissent seems to focus on the minor nature of the support.

    I think we're reading only one side of the story from Somin, and it seems a distorted side at that.

  • gormadoc||

    noting the horrific harm she experienced from the guerrillas in El Salvador because, in addition to being kidnapped and required to perform cooking and cleaning for the guerrillas under threat of death, the respondent was forced to witness her husband, a sergeant in the Salvadoran Army, dig his own grave before being killed

    The above is part of "Facts and Procedural History", the emphasis is mine. Somin is criticizing the fact that the dissent did not also include this matter in her dissent.

  • Careless||

    Rather, the dissent seems to focus on the minor nature of the support.

    And that was Somin's complaint about it

  • a tandem||

    Nope:
    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

  • mad_kalak||

    There must be more to the story. While I appreciate the tragedy and that she had her husband murdered and thus complied lest she get murdered herself, there is likely two other things going on, the first is either Stockholm Syndrome or War Bride Syndrome (or both), which would serve to weaken her asylum claim.

  • bernard11||

    There is no more basis for this than there is for my unwarranted conclusion that the judges were Trumpists.

  • mad_kalak||

    Read gormadoc's comments just a bit below mine.

  • a tandem||

    Bernard, Except Somin cherry picks what happened, you should know to look for more facts. As commenter "pox" points out below:
    She was kidnapped 28 years ago (1990). 27 years ago (1991) she came to the U.S. The Salvadoran civil war ended 26 years ago (1992). She left the U.S., then returned in 2004, 14 years ago.
    /Now/ she wants asylum status But the conditions under which she originally left have not existed for decades. What does she need asylum /from/?

    She is attempting a technical based asylum far outside of what US code and refugee policy envisage. If she is attempting her case to get refugee status on a very thin technicality, the board has a right and a responsibility to see if there are any technicalities that bar her bogus tactic and claim.

  • Brett Bellmore||

    That does appear to be a rather important omission.

  • ||

    We shouldn't be taking any refugees or asylum seekers unless they will be a material benefit to America.

  • Jon S||

    That's great that you believe that. But it is not the law today. Judges should be applying the law today, and to read forced slave labor as being "material support" for the organization that enslaved you is ridiculous. Under this interpretation, no one who was held in a Nazi concentration camp or death camp was "materially supporting" the Nazis. Traditional legal interpretation does not treat acts under duress as voluntary acts and any statute or regulation that intended to do must make that clear.

  • Jon S||

    I should have said "... everyone who was held in a Nazi concentration camp or death camp ..."

  • a tandem||

    John, , Except Somin cherry picks what happened, you should know to look for more facts. As commenter "pox" points out below:
    She was kidnapped 28 years ago (1990). 27 years ago (1991) she came to the U.S. The Salvadoran civil war ended 26 years ago (1992). She left the U.S., then returned in 2004, 14 years ago.
    /Now/ she wants asylum status But the conditions under which she originally left have not existed for decades. What does she need asylum /from/?

    She is attempting a technical based asylum claim tactic far outside of what US code and refugee policy envisage. If she is attempting her case to get refugee status on a very thin technicality, the board has a right and a responsibility to see if there are also any technicalities that bar her bogus tactic and claim.

  • ||

    I don't really care what the law is. We don't need more of these people.

  • nonzenze||

    So you don't care that a duly elected Congress, in furtherance of their direct grant of authority by the Constitution to make laws concerning the naturalization of aliens, and in compliance with the presentment clause, passed a law stating something about refugees.

    Or are you saying that you would like the populace to elect a Congress that will repeal this law and make your preferred policy into law instead?

    It's never quite clear with you.

  • ||

    Given that immigration is one issue where the "elite" have not listened to their constituents, no, I don't. The average American did not ask for and did not want the demographic change of the past 53 years.

  • Finrod||

    What's next, chiseling off the poem on the base of the Statue of Liberty? Might as well, with your mentality.

  • a tandem||

    What? The poem was some gift of an individual who stuck it inside the statue in 1903. It is hardly is hardly a citation of the Constitution or any law, it is just a poem from the 1880's. The assertion some poem it compels us to accept hundred of millions or billions is not really serious

  • NToJ||

    We should kick ARWP out of the country.

  • bernard11||

    this ruling is both ridiculous and cruel.

    What did you expect? If you want "thoughtful and humane," you need to wait for a new Administration.

    These people are scum.

  • Bob from Ohio||

    On the duress issue, they rely on a 2016 decision and prior judicial opinions.

    "However, in Matter of M-H-Z-, 26 I&N Dec. 757 (BIA 2016), we ruled that the "material support bar" in section 212(a)(3)(B)(iv)(VI) of the Act does not include an implied exception for an alien whose material support to a terrorist organization was provided under duress. The United States Court of Appeals for the Second Circuit, in whose jurisdiction this case arises, has deferred to our interpretation. See Hernandez v. Sessions, 884 F.3d 107, 109 (2d Cir. 2018). "

    Who was president in 2016?

    You do not even know [neither do I] who hired the panel members. And when.

    History [and immigration law] did not start in January, 2017

  • gormadoc||

    Reno appointed two, Ashcroft one, Mukasey four, Holder five, Lynch four, and there are five temporary members added by the DOJ since this January for a total of twenty-one. These temporary members were added to deal with an apparently substantial backlog and increasing number of new cases. I don't know exactly how these members were selected but it wasn't directly by the administration. Most cases are only seen by one member; some are seen by three.

    So in your average case, you have a 9.5% chance of being before a Clinton member, 23.8% chance of being before a Bush member, same for Obama or a temporary appointee, and 19.0% chance for Trump. In other words, if you had to grade them only based on if they were before a Trump appointee they'd score 81%, or a B.

  • Bob from Ohio||

    Thank you for the info.

  • Brett Bellmore||

    I have to give Somin credit for this: Despite his dislike for Trump, he said not one word to suggest that Trump was, in any way, responsible for this.

    And doing so would have been easy, as Bernard demonstrates.

  • TwelveInchPianist||

    Yup. Somin has been consistently against this type of behavior by the government. This contrasts with many news outlets who suddenly began reporting routine government abuse as if it were new under Trump, or for that matter, in 2002 began reporting routine government abuse as if it were new under the Patriot act.

  • Eidde||

    So, the Second Circuit relied on Chevron deference, and cited similar rulings in other circuits.

    If Gorsuch wants to get rid of Chevron deference, the latest slave case is the place to do it. It will alert the public to the implications of the doctrine.

    PS - Isn't this country supposed to have a public policy against slavery?

  • gormadoc||

    Administrations don't affect the Board of Immigration Appeals much besides their appointments; none of the members who saw this matter were appointed by this or the last administration. Cole was appointed by Reno, Pauley by Ashcroft, and Wendtland (the dissenter) by Mukasey.

  • bernard11||

    Thanks for the information, gormadoc.

    I should have checked it myself.

  • mcorliss||

    How is the word "commit" interpreted? This doesn't appear to be addressed in the opinion. The clause in question requires that the asylum seeker "commits an act" that provides material support, and it seems that a defense of duress could undermine that requirement. Merriam-Webster Online has as the first definition, "to carry into action deliberately"; could they argue on remand that due to duress the woman's actions are not sufficiently deliberate to establish that she herself committed the act (as opposed to her captors committing acts through her)? I assume this has been addressed in other areas of criminal law.

  • Bored Lawyer||

    There are two different issues being conflated here.

    In terms of how important or substantial the support has to be, the answer should be "not much." "Material" is usually a pretty low standard in the law. Someone who performs labor to support a terrorist training camp (cooking, cleaning, laundry) is providing material support.

    The other issue is whether the support was voluntary or coerced. As to that, I agree that coerced support should not disqualify the person. Whether that was the case here, I don't know.

  • BigHands||

    "The other issue is whether the support was voluntary or coerced. ... Whether that was the case here, I don't know."

    We may never truly know the full truth but from a quick read of the transcript the government seems to leave undisputed the claim that support was coerced under threat of death.

    [emphasis added]
    "The DHS argued that she was ineligible for that relief under section 240A(c)(4) of the Act based on her undisputed testimony that she was kidnapped by guerillas [sic] in El Salvador in 1990 and was coerced into undergoing weapons training and performing forced labor in the form of cooking, cleaning, and washing the their clothes."

    Furthermore,

    "The Immigration Judge stated that, but for the material support bar,
    she would have granted the respondent's asylum application ... noting the horrific harm she experienced from the guerrillas in El Salvador because, in addition to being kidnapped and required to perform cooking and cleaning for the guerrillas under threat of death..."

  • Eric VonSalzen||

    As Bob from Ohio mentioned above, the 2d Cir. has already held that the statute has no "duress" exception. Hernandez v. Sessions, 884 F.3d 107, 109 (2d Cir. 2018). That's presumably why this BIA decision focused on materiality of the support furnished to the terrorist organization, not that the support was given under duress. The 2d Cir. decision was based on Chevron deference. This may be one of those cases where "the law is an ass", but nevertheless it's the law until or unless changed.

  • NToJ||

    The 2nd Circuit was wrong. "commit[s] an act..." implies intent, unambiguously, when read in conjunction with the rest of the statute. Shouldn't have gotten to Chevron. The purpose of preventing entry by those who have provided material support is "Security and related grounds". Specifically, the section here is concerned with "Terrorist activities". The examples ("including...") do not include cooking or cleaning, and all involve support that is used to more directly support terrorist ends than a chow line. (Like: "a safe house" or "chemical . . . weapons" or "explosives" or "training".) You can't make (aa) stick because "for the commission of a terrorist activity" does not define a forced laborer cooking for a terrorist. First, cooking a meal isn't a terrorist act. Second, they're not doing it for the commission of terrorist activity; they're doing it to not be killed. Can't make (bb) stick "to any individual" (who is a terrorist) because, again, the duressed person is providing it not for the benefit of another, but to save their own skin. Can't make (cc) stick for the same reason; cooking to stay alive is not cooking food to provide material support "to a terrorist organization". The absurdities you would have to insert into this statute to reach the result (no implied duress exception) dwarf the alleged absurdities in inserting the exception. Basic statutory interpretation canons would militate against this result. It's just fucking dumb.

  • NToJ||

    (dd) for the same reasons as (cc), even without the "duress" exception.

  • ReaderY||

    Nation-states can draft people into their armies. When they do, it doessn't affect their status as enemy combatants for purposes of both the law of war and immigration law. The status of being a member of an enemy army, and the resulting consequences, don't depend on an individual's wishes or will, not on whether the draftee was persecuted or abused by the enemy government.

    Traditionally refugee status required persecution by the government of a nation-state. However, this has been extended to other circumstances including organizations that have some nation-state like properties.

    Since a terrorist organization is being recognized as a quasi-nation state to the extent its activities can be characterized as persecution rather than mere ordinary crime and hence capable of giving rise to a refugee claim in the first place, why shouldn't it be treated like a nation-state in other respects, so that draftees into its army are characterized as enemy combatants, like draftees into other nation-states' armies, rendering them similarly unsuitable for refugee status?

    None of this has anything to do with fairness. The firebombing of Dresden, the atomic bombing of Hiroshima and Nagasaki, killing tens of thousands of small children among others, was a lawful act of war. None of them were guilty of anything except being in the wrong place at the wrong time. Fairness had nothing to do with it.

    Same here. In fact this is relative peanuts in comparison.

  • ragnar_rahl||

    Enemy combatants are shot at WHILE THEY ARE STILL PART OF THE ENEMY ARMY, yes, regardless of whether they were drafted, because they are demonstrably a current danger and so you follow the logic of self-defense and not the logic of criminal-justice.

    Somebody who was once a domestic slave for terrorists, but is now an asylum-seeker in a country where those terrorists are unable to enforce such labor, is not a current threat.

  • bernard11||

    so that draftees into its army are characterized as enemy combatants, like draftees into other nation-states' armies, rendering them similarly unsuitable for refugee status?

    Well, I don't know, but I do know that a draftee is an actual combatant, or at least a potential combatant. Someone who cooks and cleans is not. I doubt the terrorists are too eager to let their slaves have weapons.

    Besides, the whole thing is ridiculous. By this logic the terrorists could deprive anyone of the right to seek refugee status by just making them do some work. Does it make sense to let them do this?

  • a tandem||

    She underwent weapons training by her own admission.

    there are LOTS people who served in the US military in WWI who were discharged for being enemy aliens

  • BigHands||

    Since - as several people have pointed out - there is no "duress" exception to the MSoT exclusion can we also hold the Yazidi, NIgerian, etc. girls/women who were forced into marriage and sex slavery by ISIS/Boko Haram/whatever to be ineligible for asylum?

    To paraphrase, "A rigid and mindless adherence to textualism and precedent, it's what separates us from the animals."

  • Bob from Ohio||

    "can we" and "should we" are different questions.

    In the case being discussed, the asylum request was remanded for full consideration under a different statute, not completely denied.

    Congress can of course reverse this line of decisions and more generously define "duress" or restrict the meaning of "material".

  • BigHands||

    " "can we" and "should we" are different questions."

    I fully agree that they are different questions, but TBS...

    "Congress can of course reverse this line of decisions..."
    They "can" and, IMO, most certainly "should" but the judiciary, again IMO, has a responsibility to intelligently interpret the law and not just follow a narrow, hyper-technical reading of the text. The initial ruling that materiality need not be quantified and no minimum bar need be considered was absurd and following that ruling just compounds the absurdity. Likewise the rulings on duress.

    The "torah* shebichtav" (written law) cannot stand alone, it needs the "torah* sheba'al peh" (oral law) to avoid irrelevancy or, as in this case, outright stupidity.

    *lower case 'torah'

  • Krayt||

    "We deny you asylum from a country you were made a slave in because the people you were enslaved to are terrorists."

    Even though accepting her would deny the terrorists a slave resource.

    Clearly those in government who decided the rerrorists need their slave back support terrorists, and should thusly themselves be ejected.

  • gormadoc||

    You're right. I don't see how the panel is not giving our enemies "Aid and Comfort" by sending her back to where she can presumably be captured again.

  • texexpatriate||

    Following this logic the USA should have just shot many of Hitler's prisoners when our troops discovered them in Europe.

  • Rev. Arthur L. Kirkland||

    Frightened bigots in positions of authority have no time or attention for morality or facts.

    Paul Manafort, on the other hand, would still be welcome at all of the best right-wing cocktail parties.

  • a tandem||

    Try -- for once to use facts instead of your never ending steam of uninformed invective --

    As others (eg commenter pox) have pointed out she has no refugee claim anyway

    She was kidnapped 28 years ago (1990). 27 years ago (1991) she came to the U.S. The Salvadoran civil war ended 26 years ago (1992). She left the U.S., then returned in 2004, 14 years ago.
    /Now/ she wants asylum status But the conditions under which she originally left have not existed for decades. What does she need asylum /from/?

  • bernard11||

    she has no refugee claim anyway

    That's not what the BIA said. They said she had a perfectly good claim except for the "support for terrorism" business.

    You and some other Internet commenters know better?

  • Mark22||

    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.

    Perhaps it should, perhaps not. How about Congress actually say what they mean?

    I think a better question to ask is why A-C-M sought asylum in the US rather than Mexico in the first place.

  • PoxOnBothYourHouses||

    These cases are damned complex. I agree that the woman shouldn't be barred from getting asylum because of acting under extreme duress. But I'm not sure, as a practical (not a legal) matter that she should be granted asylum.

    She was kidnapped 28 years ago (1990). 27 years ago (1991) she came to the U.S. The Salvadoran civil war ended 26 years ago (1992). She left the U.S., then returned in 2004, 14 years ago.

    /Now/ she wants asylum status. But the conditions under which she originally left have not existed for decades. What does she need asylum /from/?

  • Eidde||

    That's a good reason (if applicable) to deny asylum, without saying something stupid like "she was enslaved by terrorists so she's a terrorist!"

  • a tandem||

    Please give us a source for your quote?

  • mad_kalak||

    Good point, and thanks for digging a bit more into the story.

  • OtisAH||

    The New Cruelty begins to find its groove.

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