On June 6, 2018, the Board of Immigration Appeals decided the case of A-C-M-, a Salvadoran woman who was kidnapped and enslaved by guerillas in 1990. Although the facts are not spelled out in detail, she apparently was coerced into undergoing weapons training as well as being forced to cook and clean and wash the guerillas’ clothes. She was also forced to watch her husband dig his own grave before being executed.
In immigration court, after one remand from the BIA, the immigration judge denied her application for asylum under the material support bar. However, the judge granted her application for deferral of removal under the Convention Against Torture.
The issue before the Board was whether the material support bar applied to preclude her application for asylum. The Board held that it did apply because the statute in question does not have a “quantitative requirement.” In other words, there is no minimum amount of “support” which is not “material.” In fact, the material support bar only has one exception: individuals are not liable only if they show by clear and convincing evidence that they did not know the organization was a terrorist organization.
The Board begins by explaining that it and the courts of appeals have rejected a duress exception to the material support bar. You are barred even if you provided material support at gunpoint. And if that is the case, why would there be an exception for voluntarily giving only a very small amount of support? The Board admits that the word “material” in the phrase “material support” must mean something, but it does not mean what you think it means. Rather than setting a quantitative floor on what counts as support, the Board proposes that the word “material” excludes political support that might be protected as free speech. Rather, “material support” relates to the type of aid provided that is “of a material and normally tangible nature….” “Thus, we conclude,” the Board states, “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.” The Board also found solace in the fact that the Department of Homeland Security makes a waiver available for the material support bar “where an alien has afforded only ‘insignificant material support’ to an undesignated terrorist organization.”
In dissent, Board Member Linda Wendtland notes that Congress had included a non-exclusive list of activities in the statute which constitute material support including providing “a safe house, transportation, communications, funds, transfer of funds or other material financial benefit, false documentation or identification, or weapons (including chemical, biological, or radiological weapons), explosives, or training.” Based on the principle of euisdem generis, she argued that this list establishes a floor of materiality; in other words, Congress is saying this is the type of conduct which is “material” support, and lesser conduct, such as washing clothes at gunpoint, is therefore “immaterial.” She states, pointedly, “I cannot conclude that the menial and incidental tasks that the respondent performed—as a slave—for Salvadoran guerrillas, including cooking, cleaning, and washing clothes, are of ‘the same class’ as the enumerated forms of assistance set forth in the statute.”
However, the majority dismisses this argument by citing Humanitarian Law Project v. Reno, 561 U.S. 1 (2010), a U.S. Supreme Court opinion which held that it is material support to try to train terrorist organizations to resolve their conflicts peaceably. Yes, do read that sentence again.
Curiously, the dissent does not address the majority’s argument related to a potentially available material support waiver for de minimis amounts, and it is hard to tell whether it would be applicable in this case. The Board states in passing that the waiver is available for providing material support to undesignated terrorist organizations. It is unclear whether the Salvadoran guerillas are designated or undesignated, or were once designated and are now off the list, and whether that would matter. The Board only says "[W]e determined [they] were a terrorist organization in 1990." One thing is clear: if they enslave you and make you wash their clothes at gunpoint, and make you watch your husband dig his own grave, whether their band is on some bureaucrat’s list is probably not the first thing on your mind.
In the end, it’s hard to know whether to blame this decision on the Board (which has substantial case law to back it up—and the fact that there is no duress exception to the material support bar may be the real tragedy) or blame Congress or blame the irrational terrorism fearmongering insanity that caused such statutes to come into being in the first place.