In this recent USA Today op ed, I explain how and why Attorney General Merrick Garland should reverse a ridiculous and deeply unfair ruling by the 2018 Board of Immigration Appeals that holds that people who were held as slaves by terrorist groups should be denied asylum in the United States, according to a federal law that prohibits applicants who provided “material support to terrorism.” Unfortunately, the op-ed is overdue USA Today’s Newly created and unusually strict paywall. I myself am partly to blame, for not realizing that USA Today changed to this policy, prior to sending you this article. However, I can extract some parts here:
In June, Attorney General Merrick Garland reversed three failures of the Trump administration that severely limits 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’s even more egregious – a decision that absurdly holds that civilians used as slave laborers by terrorist groups are not eligible 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 for victims of terrorist-imposed slavery. Instead, he now wickedly maintains his oppression against them.
In ACM Affair (2018), the Board of Immigration Appeals of the Department of Justice rejected the asylum application of a Salvadoran woman on precisely that basis. This terrible threat to national security “was kidnapped by guerrillas in El Salvador in 1990 and forced to undergo weapons training and perform forced labor in the form of cooking, cleaning and laundry.” Previously, leftist guerrillas “forced [her] witness her husband, a sergeant in the Salvadoran Army, dig his own grave before being assassinated. “
The majority opinion of the board concluded that “a foreigner provides ‘material support’ to a terrorist organization, regardless of whether he intended to assist the organization, if the act has a” logical and reasonably foreseeable tendency to promote, sustain or maintain the organization, 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 sentence….
A slave worker forced to work for terrorists is not a threat to American security, nor can he be said to be a true supporter of the terrorist organization. Read in context, the word “support” should be interpreted as something like “willingly helping …”
At the very least, the equating of slave labor with material support for terrorism is precluded by the old canon against the absurd in legal interpretation, a rule that even the most strictly textual judges, such as the late Judge Antonin Scalia, adhere to.
ACM Affair it has implications that go far beyond the specific case of a Salvadoran woman…. Many insurgents and terrorist organizations around the world use forced labor. The most notorious recent example was ISIS, which Captured enslaved civilians, particularly women and children“On a massive scale.” Under ACM, Yazidi women used as sex slaves by ISIS they should be denied asylum because … their forced labor had a “reasonably foreseeable tendency to promote, sustain or maintain [ISIS] organization “improving the morale of ISIS fighters … ..
Here’s how Garland can easily fix this problem:
Attorney General Garland can reverse ACM Affair, with a simple stroke of your pen. All you need to do is use your “certification” power, which empowers the Attorney General to review and reverse the BIA’s decisions.
This authority what was widely used in previous administrationseven under Trump, when Attorney General Jeff Sessions repeatedly used it to reverse the BIA’s rulings that favored immigrants.
The certification system has its flaws. It may well be preferable that all rulings of immigration law are rendered by totally independent courts…. Ideally, Congress should make it clear that runaway slave workers are eligible for asylum, not leave the matter to the discretion of the executive. But unless and until Congress changes the system, the power of certification exists and there are many precedents for using it.