Jeffrey S. Chase, June 9, 2018 - "On June 6, the BIA published its precedent decision in Matter of A-C-M-. As the Board seems to no longer issue precedent decisions en banc, the decision is that of a divided three-judge panel. The two-judge majority found the respondent to be barred from asylum eligibility because in 1990, she had been kidnaped by guerrillas in her native El Salvador, who after forcing her to undergo weapons training, made her do the group’s cooking, cleaning, and laundry while remaining its captive.
In 2011, an immigration judge granted the respondent’s application for cancellation of removal. The DHS appealed the decision to the BIA, which reversed the IJ’s grant, finding that the respondent was ineligible for cancellation under section 212(a)(3)(B)(i)(VIII), which makes inadmissible to the U.S. anyone who has received military-type training from a terrorist organization. The BIA stated in its 2014 decision that it found the guerrillas to be a terrorist organization at the time of the respondent’s abduction in 1990.
The case was remanded back to the immigration judge, where the respondent then applied for asylum, a relief from which she was not barred by the military training. However, the IJ ruled that she was ineligible for asylum under another subsection of the law, which bars anyone who commits “an act that the actor knows, or reasonably should know, affords material support, including a safe house, transportation, communications, funds, transfer of funds or other material financial benefit, false documentation or identification, weapons (including chemical, biological, or radiological weapons), explosives, or training” for either the commission of a terrorist activity, someone who has committed or is planning to commit a terrorist act, or to a terrorist organization or member of such organization.
The respondent in A-C-M- clearly wasn’t providing her labor by choice; she was forcibly abducted by the guerrillas and was then held against her will. However, the BIA decided in a 2016 decision, Matter of M-H-Z-, that there is no duress exception to the material support bar. Therefore, in the Board’s view, the involuntary nature of the labor was irrelevant.
In her well-reasoned dissent, Board Member Linda Wendtland acknowledged a critical question: “whether the respondent reasonably should have known that the guerrillas in 1990 in El Salvador were a terrorist organization.” Note that the statutory language quoted above requires that the actor “knows or reasonably should know” that the support will aid a terrorist activity or organization.
The decision doesn’t name the guerrilla organization (presumably the FMLN). It also fails to mention when the Board itself concluded that the group had been a terrorist organization in 1990. The Board’s view of the guerrillas was not always so, as witnessed in its 1988 precedent decision in Matter of Maldonado-Cruz. The case involved an asylum-seeker from El Salvador who had been kidnaped by guerrillas in that country, given brief military training, and then forced to serve in the group’s military operations. He managed to escape, and legitimately feared that if returned to El Salvador, he would be killed by death squads the guerrillas dispatch to punish deserters.
The BIA denied asylum. In doing so, it expressed the following rationale: “It is entirely proper to apply a presumption that a guerrilla organization, as a military or para-military organization, has the need to control its members, to exercise discipline.” The Board noted that the guerrillas needed non-volunteer troops to fill out the military units required to fight against the government. It continued: “To keep them as cohesive fighting units they must impose discipline; and an important form of discipline...is the punishment of deserters.”
The Board’s language in Maldonado-Cruz really does not sound as if it is describing a terrorist organization. Frankly, it's tone wouldn’t sound out of place in describing the penalties imposed by the Park Slope Food Coop towards members who miss their shifts. If the Board didn’t contemporaneously view the guerrillas as terrorists, why would they expect the respondent to have done so?
Judge Wendtland did not need to answer that question, because she convincingly argued that the respondent’s cooking and cleaning did not constitute “material support” under the statute. She is correct. Notice the examples of support contained in the statutory language: safe houses, funds, transportation, weapons, explosives, and training. All of these are of a quite different nature from cooking, cleaning, and doing laundry.
The respondent in A-C-M- was not someone whom Congress intended to exclude under the anti-terrorism provisions. She did not provide money or weapons to ISIS to carry out terrorist acts. To the contrary, she performed labor completely unrelated to any violent objective. She was forced to perform such labor - in the words of Judge Wendtland, “as a slave” - for a group whose terrorist nature was far from clear.
In adopting the two-member majority’s view, the Board has chosen an interpretation of the statute that turns Congressional intent on its head by punishing the victims of terrorism, and adds insult to injury by labeling these victims as terrorists themselves. Hopefully, the lone dissenting opinion will prevail on appeal.
Copyright 2018 Jeffrey S. Chase. All rights reserved."
Jeffrey S. Chase is an immigration lawyer in New York City. Jeffrey is a former Immigration Judge, senior legal advisor at the Board of Immigration Appeals, and volunteer staff attorney at Human Rights First. He is a past recipient of AILA's annual Pro Bono Award, and previously chaired AILA's Asylum Reform Task Force.