A-C-M
27 I. & N. Dec. 303 (2018)
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Rule of Law:
An alien provides 'material support' to a terrorist organization if the act has a logical and reasonably foreseeable tendency to promote, sustain, or maintain the organization, even if the support is only to a de minimis degree.
Facts:
- The respondent, A-C-M-, is a native and citizen of El Salvador.
- In 1990, guerillas in El Salvador kidnapped A-C-M-.
- The guerillas forced A-C-M- to witness her husband, a sergeant in the Salvadoran Army, dig his own grave before they killed him.
- Under threat of death, the guerillas coerced A-C-M- into undergoing weapons training.
- The guerillas also forced A-C-M- to perform labor for them, which included cooking, cleaning, and washing their clothes.
Procedural Posture:
- The Department of Homeland Security (DHS) initiated removal proceedings against A-C-M- in an Immigration Court.
- A-C-M- applied for cancellation of removal, which the Immigration Judge (IJ) granted on December 15, 2011.
- DHS, as the appellant, appealed the IJ's decision to the Board of Immigration Appeals (BIA).
- On January 14, 2014, the BIA sustained the DHS's appeal, finding A-C-M- ineligible for cancellation of removal due to her coerced weapons training, and remanded the case to the IJ.
- On remand, A-C-M- applied for asylum, withholding of removal, and protection under the Convention Against Torture (CAT).
- On August 8, 2016, the IJ denied asylum and withholding due to the material support bar, but granted deferral of removal under CAT.
- DHS appealed the IJ's grant of CAT relief to the BIA, and A-C-M- filed a cross-appeal challenging the denial of her asylum and withholding applications.
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Issue:
Does providing forced labor, such as cooking, cleaning, and washing clothes, for a terrorist organization under duress constitute 'material support' that statutorily bars an alien from eligibility for asylum and withholding of removal?
Opinions:
Majority - Pauley, Board Member
Yes, providing forced labor constitutes material support. The statutory term 'material support' does not contain a quantitative limitation; any act that has a logical and reasonably foreseeable tendency to promote, sustain, or maintain a terrorist organization qualifies, regardless of how minimal the support is or whether it was provided under duress. The court reasoned that 'material' is a term of art relating to the type of aid (tangible) rather than its quantity, serving to distinguish it from mere expressive support which could raise First Amendment concerns. The existence of a discretionary waiver for 'insignificant material support' or support provided under duress demonstrates Congress’s intent for such acts to fall within the statutory bar's definition. The respondent's labor, while minimal, aided the guerillas by freeing up others to continue their mission; if she had not performed these services, another person would have had to.
Dissenting - Wendtland, Board Member
No, the respondent's forced labor does not constitute material support. The term 'material' must be given independent meaning to avoid being superfluous, implying a threshold of both kind and magnitude. Applying the canon of ejusdem generis, the respondent’s menial tasks of cooking and cleaning are not of the same class as the statute's enumerated examples, such as providing weapons, funds, or safe houses, which directly facilitate terrorist activity. The majority's interpretation is overly broad and could lead to absurd results, such as barring an applicant for providing a glass of water to a member of a terrorist group. Given the lack of a duress exception, it is crucial to interpret 'material' as a meaningful statutory limit to prevent barring deserving asylum-seekers who had no choice but to engage in minor, incidental contact with such groups to survive.
Analysis:
This decision establishes a broad, non-quantitative interpretation of 'material support' under U.S. immigration law, significantly impacting asylum seekers from conflict zones. By holding that even minimal, coerced assistance qualifies as a statutory bar, the decision shifts the remedy for sympathetic cases from a judicial exception to an executive one, namely the discretionary waiver process administered by DHS. This precedent solidifies a major hurdle for individuals who may have been forced into minor associations with terrorist groups for survival, making their eligibility for asylum dependent on a discretionary—and less predictable—waiver rather than a legal determination of the materiality of their actions.
