Dred Scott redux: Trump’s Immigration Court Rules that Being a Slave is a Crime

After today America‘s official government position is that slaves are criminally culpable if they choose to cook and clean for their slave-masters under the threat of death.

*Call to action: Please share this story with the hashtag #dreddscottlives

After today America‘s official government position is that slaves are criminally culpable if they choose to cook and clean for their slave-masters under the threat of death. This principle, enunciated by human minds but rooted in the moral and ethical grounding’s of a philosophy originating from the pits of Hell, is now enshrined in our case law as Matter of A-C-M 27 I&N Dec. 303 (BIA 2018):

(1) 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 only to a de minimis degree.

(2) The respondent afforded material support to the guerillas in El Salvador in 1990 because the forced labor she provided in the form of cooking, cleaning, and washing their clothes aided them in continuing their mission of armed and violent opposition to the Salvadoran Government.

In Immigration Law there can be no doubt now that we have reached our Dred Scott moment.

Is it really that bad? What exactly does the ruling say?

In Matter of A-C-M, handed down today by the Board of Immigration Appeals (the Board), which is the appeals court for America’s immigration court system where I practice, a board panel of judges ruled 2–1 that a woman who was enslaved by El Salvadorian guerrillas in the 1990s materially aided a terrorist organization, because…

“the forced labor she provided in the form of cooking, cleaning, and washing their clothes aided them in continuing their mission of armed and violent opposition to the Salvadoran Government.”

Therefore, as a result of being a slave forced to do slave work, she was not eligible for immigration benefits in the United States, because, ultimately…

“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.”

What’s the issue in this case?

This case is about whether a slave is eligible for immigration benefits if he or she provides material support to a terrorist organization while enslaved. Providing material support to a terrorist organization is a bar to any relief under our immigration laws. (See here if you’re interested in the relevant regulations)

This issue then is one that should properly be answered with a statutory interpretation analysis, and to do this one needs to read the intent of Congress in creating the law.

How did the judges decide that a slave is to be blamed for her enslavement and that laws written by Americans can rationally be read to agree with the punishment of her enslavement?

A relevant question one might pose when making an analysis in this case is to start with the intent of Congress, which wrote the statute at hand. A reasonably starting question in this analysis could be, “Did congress intend to bar slaves from relief when they are forced to provide services for terrorist organizations under threat of death?”

If this question — or a thousand other relevant ones along these lines — is posed, the answer can nuanced, but no one in their right mind can say that the matter of the woman’s enslavement is irrelevant, or so unimportant that it need not be considered. The Dissent, written by Immigration Judge Wendtland, understands this, saying, with barely disguised horror:

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.

But what the two judges in the majority here do, (again, to the Dissent’s barely masked horror) is ignore this question completely, which is perhaps the most abhorrent way to “solve” the inconvenient questions posed by enslavement. Immigration Judges and shameful human beings, Pauley and Cole, dispense with the need to consider that the woman was enslaved, grouping enslavement under the same category as “duress” and stating that duress not being an exception to providing material support to terrorists was a matter of settled law:

“[I]n Matter of M-H-Z-, 26 I&N Dec. 757 (BIA 2016), we ruled that the “material support bar” in section 212(a)(3)(B)(iv)(VI) of the Act does not include an implied exception for an alien whose material support to a terrorist organization was provided under duress. The United States Court of Appeals for the Second Circuit, in whose jurisdiction this case arises, has deferred to our interpretation. See Hernandez v. Sessions, 884 F.3d 107, 109 (2d Cir. 2018). Consequently, we will not address that issue further”.”

From there, having dealt so tidily and valiantly with the issue of the woman’s enslavement (remember, enslavement is merely “duress” of a different kind), sweeping it under the rug with their valiant judge swords made of hardened, dried, bureaucratic bullshit, they focus on whether her support was material. They conclude a meandering, strained analysis focusing on the semantics of the word “material” with the following phrase justifying the enslaved woman relief:

“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”

Read the above sentence several times and let it sink in. It ought to enter history as one of the more shameless paragraphs ever written.

The three justices are so feckless that in their concluding remarks, that the woman’s slavery, openly acknowledged earlier in the decision, suddenly transforms into just another period of time in her life, where she performed “cooking and cleaning services” to pass the time. Written in spineless legalese, the holding in Matter of A-C-M sounds almost palatable as written.

Dred Scott’s simple lesson

But imagine if the three judges were forced to put away the double-speak. The holding would then have to be written like this:

“While the respondent’s assistance may have been relatively minimal, if she had not been enslaved, another person would have needed to be enslaved instead and we therefore deny her any relief in the United States under our immigration laws.”

Dred Scott is taught in every first year Constitutional Law course in the United States. It can teach many lessons. But the most basic lesson is that our laws should never be constructed or read to condone slavery or to punish the human beings who are forced to become slaves on account of their enslavement. We have since renounced and made infamous the judges who passed that decision. Today, Dred Scott lives again, and Judges Pauley and Cole, who wrote the majority opinion, should be ashamed and shunned for the rest of their lives on account of this historically monstrous decision.

The rest of us need to make sure that like Dred Scott, this case is overturned forthwith. Learn about this case and share articles like these with everyone you can. Please, because our country supports slavery again.