Ilya Somin - Slave Labor (8/22)

Ilya Somin - Slave Labor (8/22)

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Legal ruling under Jeff Sessions argued that slave labor offers "material support" for terrorism, and thus prevents them from gaining asylum.
The power to regulate this ought to ultimately lie with independent courts, but until Congress acts, the executive branch and Attorney General have to overturn the rulings.


Ilya Somin is Professor of Law at George Mason University. His research focuses on constitutional law, property law, democratic theory, federalism, and migration rights. He is the author of Free to Move: Foot Voting, Migration, and Political Freedom (Oxford University Press, 2020), Democracy and Political Ignorance: Why Smaller Government is Smarter (Stanford University Press, revised and expanded second edition, 2016), and The Grasping Hand: Kelo v. City of New London and the Limits of Eminent Domain (University of Chicago Press, 2015, rev. paperback ed., 2016), coauthor of A Conspiracy Against Obamacare: The Volokh Conspiracy and the Health Care Case (Palgrave Macmillan, 2013), and co-editor of Eminent Domain: A Comparative Perspective (Cambridge University Press, 2017). Democracy and Political Ignorance has been translated into Italian and Japanese.


The sudden but not entirely unpredictable collapse of the American-trained government in Afghanistan has woken much of the country up to the futility of our "forever wars" in the Middle East. Beyond the waste of a trillion dollars and countless lives over twenty years (for what?), we are now left with yet another humanitarian refugee crisis. European countries have had their fill of refugees, and the Biden administration has yet to follow through on its promises to expedite asylum for the most desperate Afghanis – now facing brutal persecution at the hands of the Taliban.

Most people agree that those who assisted the US effort, and thus find a target on their heads, should be given priority. But what about those are seeking asylum from forced labor under terrorist groups like the Taliban, or ISIS? In a recent USA Today article, GMU legal scholar Ilya Somin directs us to a bizarrely cruel ruling by Jeff Sessions in 2018 classifies such slave laborers as ineligible for asylum because their forced labor qualifies as "material support" for terrorism.

Somin joins me this Sunday (8/22, 8-9 am Pacific) to explain how such legal gymnastics were ever justified in the first place, and what the current Attorney General can do about it. We will also consider the arguments for and against letting in larger numbers of refugees from Afghanistan and other countries.

Links & Summary

Main article:

August 9, 202

Summary - see full text in attached word document below:

Slave Labor Asylum Article - USA Today - August 2021 - Final Published Version (1).docx20.3KB

Garland reversed Trump rulings that limited rights for refugees fleeing abuse and gang violence, but left another ruling intact that limits slave labor refugees.

civilians used as slave laborers by terrorist groups are ineligible for asylum because their forced labor qualifies as “material support for terrorism” under federal law restricting asylum claims

The Trump ruling from 2018 denied an El Salvadoran woman asylum who "was coerced into undergoing weapons training and performing forced labor in the form of cooking, cleaning, and washing their clothes.”

Somin argues:

A slave laborer forced to work for terrorists is not a threat to American security, nor can she said to be a true supporter of the terrorist organization. Read in context, the word “support” should be interpreted as something akin to “willingly aid,” not accidentally and surely not by performing forced labor.
If nothing else, equating slave labor with material support for terrorism is precluded by the longstanding canon against absurdity in legal interpretation, a rule that even most strictly textualist judges, such as the late Justice Antonin Scalia, adhere to.

This law affects thousands of other potential asylum seekers:

Numerous insurgents and terrorist organizations around the world use forced labor. The most notorious recent example was ISIS, which enslaved captured civilians—particularly women and children—on a massive scale. Under A-C-M, Yazidi women used as sex slaves by ISIS must be denied asylum because, as the BIA might put it, their forced labor had a “reasonably foreseeable tendency to promote, sustain, or maintain the [ISIS] organization” by improving the morale of ISIS fighters who raped them.
Matter of A-C-M is the most egregious modern case I have seen in all that time.

Garland's authority to reverse this is same as the authority used by Sessions to reverse the Board of Immigration Appeal's decisions in favor of immigrants.

The power ought to ultimately lie with independent courts, but until Congress acts, the executive branch has to step in and guide outcomes:

It may well be preferable for all immigration law rulings to be made by fully independent courts, free of control by the executive branch. Ideally, Congress should make clear that escaped slave laborers are eligible for asylum, not leave the matter up to executive discretion. But unless and until Congress changes the system, the certification power exists, and there is plenty of precedent for using it.
Ilya Somin, 6/12/2018
The key legal question in the case is whether Salvadoran victims of domestic violence qualify as people with "a well-founded fear of persecution" based on their "membership in a particular social group." The phrase "particular social group" is far from precise. But, as Sessions recognizes, courts have generally defined it as a group "(1) composed of members who share a common immutable characteristic, (2) defined with particularity, and (3) socially distinct within the society in question." It should be obvious that women qualify as a group that shares "a common immutable characteristic," and that they are also a group that is "socially distinct" and "can be defined with particularity.…And you don't have to be a radical feminist to recognize that, in highly sexist societies like El Salvador and Guatemala, which have a "culture of machismo and family violence" (as one of the BIA decisions overruled by Sessions puts it), domestic violence against women flourishes in large part because of gender bias.

Somin considers some of the common justifications for restricting refugee immigration and finds them lacking.

Sept. 24, 2017

A horrific account of a Yazidi refugee in Germany, reminding that slaves (especially sex slaves) of terrorist groups are some of the most deserving of refugee status.

Aug. 15, 2021

Slavery returning to Afghanistan as Taliban reclaim territory, and issue orders for lists of eligible women to marry to Taliban fighters.

Matter of A-C-M

Josh Gerstein, June 16, 2021
Garland’s actions mean that in the meantime immigration judges will be free to again grant asylum to individuals based on threats of domestic abuse or violence from drug gangs that control large swaths of Central America. Some whose claims were already denied could benefit from a Justice Department review of the cases of individuals who went to federal court after being turned down based on the Sessions orders. Garland’s formal decisions repudiating the Trump-era rulings suggested that the earlier decisions were not well reasoned. “The opinion begins with a broad statement that ‘victims of private criminal activity’ will not qualify for asylum except perhaps in ‘exceptional circumstances,’” Garland wrote about Sessions’ 2018 decision limiting asylum in gang-related cases. “That broad language could be read to create a strong presumption against asylum claims based on private conduct. As a result, [the ruling] threatens to create confusion and discourage careful case-by-case adjudication of asylum claims.”

What's happening to refugees?

Many EU member states are nervous that developments in Afghanistan could trigger a replay of Europe's 2015/16 migration crisis when the chaotic arrival of more than a million people from the Middle East stretched security and welfare systems and fuelled support for far-right groups.

Who is in most danger?

There are at least three categories of Afghans most in need of protection from the Taliban. First, as Ali Noorani points out, are those individuals who worked with the U.S. military. Dan Lamothe of Washington Post reported on August 15, 2021, “The U.S. government have likely rescued less than 2,000 Afghan interpreters and their family members at this point.” Krish O’Mara Vignarajah, president and CEO of Lutheran Immigration and Refugee Service, estimated there are “88,000 allies and family members in the Special Immigrant Visa application process.” A second group includes men and women who worked with U.S. and Western governmental or nongovernmental organizations in capacities that put them at significant risk. Third, are Afghans whose actions or political opinions make it impossible for them to live safely under Taliban rule.
It's highly unlikely that the U.S. could change that reality if only American troops had stayed a bit longer. … Afghans can no longer find hope within their country's borders, and the U.S. shouldn't attempt to install that hope there. But America can still give many Afghans what they need the most: an escape route.
Reuters reported last week that officials were "scour[ing] for countries willing to house Afghan refugees" while their U.S. visa applications are processed. They've pestered Kazakhstan, Tajikistan, and Uzbekistan to take in at-risk Afghans who worked for the U.S. government, but they have not reached an agreement with any of those countries. Albania, Kosovo, and North Macedonia have graciously offered to house some political refugees, but only "temporarily."
There are now reports that the Department of Defense is preparing to bring thousands of Afghan refugees to American military bases, including Wisconsin's Fort McCoy and Texas' Fort Bliss. So far, around 2,000 Afghans who assisted the U.S. military and applied for special immigrant visas (SIVs) have been airlifted to the U.S. with their families. But it's a drop in the bucket, since up to 50,000 SIV applicants and their family members are estimated to be waiting on answers and evacuation flights. When factoring in civilians in other vulnerable groups, there's no telling how many Afghans would migrate if given the chance.

A few notes on Afghanistan Withdrawal

By Jon Miltimore

Ron Paul is trending. See link for video.

The rapid collapse of the American-backed regime immediately after its US military props were withdrawn shows how little was accomplished in spite of all the American blood and treasure expended on the double-decade “nation building” project in Afghanistan.

Paul in a 2011 speech said:

The question we are facing today is, should we leave Afghanistan? I think the answer is very clear, and it's not complicated. Of course we should, as soon as we can. This suggests that we can leave by the end of the year. If we don't, we'll be there for another decade, would be my prediction.
It is possible to champion our troop removal while criticizing the way it was done. The two are not mutually exclusive.
The situation is undoubtedly more complex than meets the eye. But it stops far short of explaining why, for example, 18,000 special immigrant visa (SIV) applications were languishing in a web of red tape far before the withdrawal began. That program was created by Congress to give an immigration pathway to Afghans—those who translated for U.S. soldiers and filled other critical roles in service to the Americans—knowing that they did so at risk of Taliban reprisal. The result has been nauseating. Videos show a besieged airport in Kabul, Afghanistan's capital, where people have been falling from the sky after trying to hold on to planes as they took flight. Afghans who helped the U.S. are now under threat of near-certain death at the hands of the Taliban. Some say the militant group is going door to door looking for traitors to the regime, and reports are already surfacing of public executions.

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