The Volokh Conspiracy
Mostly law professors | Sometimes contrarian | Often libertarian | Always independent
In this recent USA Today op ed, I explain how and why Attorney General Merrick Garland should reverse a ridiculous and deeply unjust 2018 Board of Immigration Appeals ruling holding that people who were held as slave laborers by terrorist groups must be denied asylum in the United States, under a federal law barring applicants who provided "material support for terrorism." Unfortunately, the op ed is behind USA Today's recently created and unusually strict paywall. I am partly at fault myself, for not noticing that USA Today shifted to this policy, before I submitted this piece to them. However, I can excerpt some parts here:
In June, Attorney General Merrick Garland reversed three Trump Administration rulings that severely limited asylum rights for refugees fleeing domestic abuse and gang violence. Garland was right to take this step….
But the Biden administration should also reverse another Trump-era asylum ruling that is even more egregious: a decision absurdly holding that civilians used as slave laborers by terrorist groups are ineligible for asylum because their forced labor qualifies as "material support for terrorism" under federal law restricting asylum claims. America's asylum system should provide refuge to victims of slavery imposed by terrorists. Instead, it now perversely holds their oppression against them.
In Matter of A-C-M (2018), the Justice Department's Board of Immigration Appeals rejected a Salvadoran woman's application for asylum on precisely that basis. This terrible menace to national security "was kidnapped by guerrillas 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."Board member Linda Wentland criticized the majority's ridiculously broad definition of "material support…"
But there is an even more basic flaw in the ruling….
A slave laborer forced to work for terrorists is not a threat to American security, nor can she said to be a true supporter of the terrorist organization. Read in context, the word "support" should be interpreted as something akin to "willingly aid…."
If nothing else, equating slave labor with material support for terrorism is precluded by the longstanding canon against absurdity in legal interpretation, a rule that even most strictly textualist judges, such as the late Justice Antonin Scalia, adhere to.
Matter of A-C-M has implications that go far beyond the specific case of one Salvadoran woman…. Numerous insurgents and terrorist organizations around the world use forced labor. The most notorious recent example was ISIS, which enslaved captured civilians—particularly women and children—on a massive scale. Under A-C-M, Yazidi women used as sex slaves by ISIS must be denied asylum because… their forced labor had a "reasonably foreseeable tendency to promote, sustain, or maintain the [ISIS] organization" by improving the morale of ISIS fighters…..
Here's how Garland can easily fix this problem:
Attorney General Garland can reverse Matter of A-C-M, with a mere stroke of his pen. All he need do is use his "certification" power, which empowers the Attorney General to review and reverse BIA decisions.
This authority was used extensively under prior administrations, including under Trump, when Attorney General Jeff Sessions repeatedly used it to reverse BIA rulings favoring immigrants.
The certification system has its flaws. It may well be preferable for all immigration law rulings to be made by fully independent courts…. Ideally, Congress should make clear that escaped slave laborers are eligible for asylum, not leave the matter up to executive discretion. But unless and until Congress changes the system, the certification power exists, and there is plenty of precedent for using it.