Fourth Circuit Rules Performing Forced Labor as a Cook for a Terrorist Organization Does Not Count as "Material Support" for Terrorism that Precludes a Migrant From Getting Asylum
The 2-1 ruling got the right result, but not entirely for the right reason.
It has been understandably obscured by other news. But, on September 2, in Ozurumba v. Bondi, the US Court of Appeals for the Fourth Circuit ruled that performing forced labor for a terrorist organization does not qualify as "material support"for terrorism barring a migrant from applying for asylum in the United States.
The 2-1 decision broke with a 2018 ruling by the Justice Department Board of Immigration Appeals, in Matter of A-C-M, which held that even "de minimis" forced labor for a terrorist organization qualifies as material support (regular federal courts are not bound by BIA precedents). A-C-M may be the worst modern judicial decision I have seen issued in over twenty years as a legal scholar. So I am glad the Fourth Circuit ruled a different way. But I fear the majority opinion by Judge Andrew Wynn didn't pick up on the best rationale for that result.
As the Fourth Circuit recounts in detail, Izuchukwu Ozurumba, a Nigerian migrant seeking asylum, had - some years earlier - taken a job as a seemingly innocuous cook. When he discovered that the job actually involved preparing meals for leaders of a Nigerian terrorist insurgent group - the Unknown Gunmen - he tried to quit. But members of the terrorist group forced him to stay, on pain of death. He worked without pay for several more months until he was able to escape.
Judge Wynn's majority opinion argues at length that Ozurumba's cooking wasn't significant enough or closely enough connected to acts of terrorism to qualify as "material support." In dissent, Judge Julius Richardson argues that cooking is indeed material support, because the terrorists need to be fed in order to carry out their heinous acts; he quotes the famous adage that "an army marches on its stomach." I think Judge Wynn, overall, has the better of this debate, and he is certainly right to reject the de minimis standard adopted by the BIA in A-C-W. But both sides in this exchange have some reasonable points.
What both mostly neglect is that there is a much easier and more compelling basis for resolving this case: forced labor cannot qualify as "material support," no matter how valuable it was to the terrorists, because "material support" must be a voluntary act. As I explained in a 2021 article about the A-C-W case:
In the asylum context, providing "material support" to terrorists should be an at least somewhat voluntary activity. Slave labor surely does not qualify.
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," not accidentally and surely not by performing forced labor.
The majority cited 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 (as the Board had the power to do). 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 legal interpretation, a rule that even most strictly textualist judges, such as the late Justice Antonin Scalia, adhere to.
The point of the "material support" rule is to keep out potentially dangerous terrorists. Slave laborers are not such terrorists; they are their victims. If anything, they are less likely to sympathize with the terrorists than people who have never had any contact with terrorist groups at all.
As noted in my 2021 article, this is an important issue affecting a substantial number of people. Tragically, a good many terrorist groups use forced labor. ISIS was a particularly notorious example. Categorically excluding all of these victims of terrorism from eligibility for asylum is perverse.
The Fourth Circuit majority avoided the duress issue, because it is not clear whether an earlier 2012 Fourth Circuit decision holding there is no "duress" exception to the relevant statute is still binding after the end of Chevron deference to executive branch agency interpretations of law (the previous ruling was based on such deference). Judge Richardson in his dissent indicates he agrees with the view that there is no duress exception at all.
The 2012 ruling involved a less severe form of duress than actual slave labor; the migrant in that case was allowed to leave, if he wanted to, though he would have had to give up his home to the terrorists if he refused to help them. Thus, the current panel should have distinguished it. In any event, the idea that there is no duress exception at all to this law is so egregiously ridiculous that the agency view did not deserve any deference even under Chevron (which required such deference only if the agency's view was "reasonable").
Some legal issues are genuinely difficult. This one just simply isn't. The idea that performing slave labor for a terrorist organization on pain of death qualifies as "material support" for terrorism is simultaneously cruel and absurd. It's distressing that some jurists keep getting it wrong.
UPDATE: It's worth nothing that, if people performing forced labor for terrorist organizations qualify as providing "support" for terrorism, then by the same logic, many Holocaust survivors must be considered as providing "support" for the Nazis. After all, many of them were forced to work as slave laborers!