With the Trump administration’s implementation of a “zero-tolerance” policy towards immigration, it’s easy to forget that the mistreatment of immigrants seeking the asylum in the United States is nothing new.
Nowhere else is this more true than in a recent decision handed down by the Board of Immigration Appeals (BIA) last week.
In the Matter of A-C-M, the BIA concluded that a woman who was “kidnapped and required to perform cooking and cleaning for [El Salvadoran] guerrillas under threat of death” is ineligible for asylum.
The reason? The BIA classified her forced labor as “material support” to a terrorist organization that “aided them in the continuing their mission of armed and violent opposition to the Salvadoran Government.”
Not only was the woman kidnapped and forced to perform domestic duties against her will, but she also was “forced to witness her husband…dig his own grave before being killed.”
The immigration judge who heard her case admitted that she would have granted the woman asylum on “humanitarian grounds” were it not for the “material support” she had provided her captors.
Unfortunately, this is not a new problem. The law that barred this woman from receiving asylum in the U.S. has been on the books since the George W. Bush administration, maintained under the Obama administration, and continues today.
After September 11, 2001, immigration laws under the PATRIOT Act prohibited terrorists and those who supported them from entering the country or gaining immigration protections such as asylum or deferral of removal. The definition of what it means to provide “material support” has been interpreted in widely varying ways in US courts, and sometimes now includes individuals who may have been forced to act against their will — as was the case in last week’s decision.
The BIA conceded in the court ruling that material support now can be interpreted to cover even trivial actions stating, “While the respondent’s assistance may have been relatively minimal, if she had not provided the cooking and cleaning services she was forced to perform, another person would have needed to do so.”
In 2006, Congress attempted to address the odd discrepancies that may arise from such a broad text by providing the Secretary of Homeland Security and Secretary of State new discretionary exemption authorities, enabling them to waive a range of terrorism-related bars on admission to avoid these outcomes.
Qualifying for such a waiver is a difficult process however, thanks to an Obama-era policy that defers the final decision to the conclusion of the asylum application process. In effect, asylum seekers who find themselves in A-C-M’s position are required to go through an entire court process before they even have the opportunity to seek waiver.
The waiver provision, however, was interpreted in 2014 to cover “insignificant” amounts of support, and cases where the applicant was under “substantial pressure that does not rise to the level of duress” — in other words, if the individual was under substantial pressure or forced to perform a certain act. Another decision, from 2016, ruled that the “material support” statute does not include an exemption for “duress.”
By equating slave labor with material support for terrorist organizations, the Department of Justice has set a dangerous precedent. As Reason notes, other terrorist organizations use forced labor as a form of coercion. Those victims, mainly women and children, would be denied asylum in the U.S. under this “material support” bar.
“Asylum seekers are most affected by the material support ban. This ruling is a sweeping interpretation that seems very far afield of what Congress intended when they first enacted these terrorism bars,” Amalia Wille, an immigration lawyer and member of the American Immigration Lawyer Association’s asylum and refuge committee told ThinkProgress. “I’ve known cases in the past where a woman is forced to cook a single meal for guerrilla soldiers and the material support bar precluded them from receiving asylum.”
The list of reasons why an immigrant can be granted asylum is only getting shorter under the Trump administration. Just last week, the U.S. Attorney General Jeff Sessions ruled that people seeking refuge from intimate partner and gang violence will no longer qualify for official asylum in the U.S.
Asylum claims “pertaining to domestic violence or gang violence perpetrated by non-governmental actors will not qualify for asylum,” Sessions wrote in the decision. “While I do not decide that violence inflicted by non-governmental actors may never serve as the basis for an asylum…in practice such claims are unlikely to satisfy the statutory grounds for proving group persecution that the government is unable or unwilling to address.”
Sessions added that “the mere fact that a country may have problems effectively policing certain crimes — such as domestic violence or gang violence — or that certain populations are more likely to be victims of crime, cannot itself establish an asylum claim.”
Making it even more difficult for victims of domestic and gang violence to claim asylum disproportionately affects women.
“There are many, many Central American women and women from other parts of the world who have been able to obtain protection,” Denise Gilman, director of the immigration clinic at the University of Texas Law School in Austin, told the Los Angeles Times. “Many women sitting right now in detention under these claims might lose their right to obtain protection and be deported to dangerous situations.”
While the government does not track how many asylum claims fall into the category Sessions is targeting, advocates estimate that number is in the tens of thousands. According to the U.S. Citizenship and Immigration Services, a backlog of 311,000 asylum claims existed as of late January. Immigration attorneys believe the majority of those to be domestic and gang violence-related claims.