Imagine that there's a statute (which there is) that says that you can't get asylum if you've helped a terrorist organization in your home country. Imagine further that you're an immigrant who one day indeed helped such a group, but who did so at gunpoint -- for example, you dug a ditch for them (or contributed $37), but did so only because they quite credibly threatened to kill you if you didn't do so. This too is no hypothetical. You can amp it up if you'd like; imagine that you refused to dig a ditch for them, but then they put a gun to your wife's head, you still refused, so they shot her dead, and then they put the gun to your daughter's head, so you dug the ditch.
Do you think the statute applies? Are you still ineligible for asylum?
The Ninth Circuit holds that you are.
This seems a plausible reading of the statute. As long as you're largely concerned only about the particular words used -- which admittedly seem phrased in categorical language -- and not the equity or justice of the result. The whole "plain reading versus common law" dispute.
The Ninth Circuit notes that a different statute appears to allow the Attorney General, in his total discretion, to occasionally waive the requirements of the statute. That seems a somewhat hollow saving grace. For one thing, there are utterly no controls. No standards, no review, no due process, nothing. For another things, this alleged discretion appears never have been used to waive the statute for an individual. Sure, sometimes the AG waives it for those people who have provided support to particular terrorist groups that we (relatively) like. But I don't see it ever used in the "safeguard" way the Ninth Circuit suggests it could, in theory, be used.
So let's just hope you're not faced with a situation in which someone puts a gun to your head. Because while the criminal law provides a defense, immigration law apparently does not.
Happy July Fourth.
