Hard Questions About Asylum and Afghanistan
2021-08-23 · Guest: Ilya Somin (Professor of Law at George Mason University) · 50:13
Immigration and asylum policy in the Afghanistan crisis
Bob Zadek interviews law professor Ilya Somin about the legal and philosophical underpinnings of immigration and asylum policy in the wake of the Afghanistan crisis. They discuss the lack of explicit constitutional authority for federal immigration control, the “first principles” of freedom of movement, and the specific legal hurdles facing asylum seekers, including the controversial “material support for terrorism” bar applied to victims of forced labor.
Topics: Immigration, Asylum, Afghanistan, Constitution, Freedom of Movement, Material Support for Terrorism, Board of Immigration Appeals (BIA), Attorney General, Ilya Somin
Speakers: Bob Zadek, Ilya Somin
Introduction and Guest Welcome [00:00]
Bob Zadek: Good morning, everyone, and welcome to the Bob Zadek Show, the longest-running live libertarian talk radio show in all of radio. Thank you so much for listening this Sunday morning. We are this morning, and always, the show of ideas, never once the show of attitude. I’m happy to welcome back to our show this morning Ilya Somin. Ilya is a professor of law at George Mason University. He focuses on and has been a frequent guest on my show on the areas of constitutional law, property law, democratic theory, federalism, and migration rights. You will recall that Ilya joined us a while ago upon the publication of his most recent book, Free to Move: Foot Voting, Migration, and Political Freedom. And it is interesting that Ilya, in one book, brought together so many important and very related concepts. Ilya studies the rights of those who wish to travel, the rights to travel freely both within the country and as between countries. Ilya’s views and writings are particularly important, as I said, in light of the chaos at the Afghan airport and in Afghanistan more broadly. Ilya, welcome to the show this morning and thanks for giving us the time for you to share your wisdom with us.
Ilya Somin: Thank you very much for having me.
Bob Zadek: Ilya, welcome to the show this morning to help us understand the issues involving immigration in general and more particularly the issues that are brought to light in light of the chaos, both the physical chaos at the Afghan airport and the chaos under the law as to how we deal with Afghans in general seeking to enter the United States under various amnesty rules. We want to discuss and bring to the attention of our audience all of the important issues involved in our chaotic policy.
The Constitution and Immigration Power [02:52]
Bob Zadek: Now, let’s—when we talk about immigration, Ilya, let’s start, if you will, at the legal top. We’ll start with the guidance, if any, we get from the Constitution. What does the Constitution tell us about who controls immigration and what should be the rule, if any, governing immigration policy? We’ll start with the Constitution and work down.
Ilya Somin: The text of the Constitution actually tells us very little about immigration. The Constitution enumerates a large number of powers that the federal government has, but interestingly, restricting immigration is not one of them. There is the power to naturalize new citizens—that is, to make somebody who isn’t already a citizen and give them citizenship rights—but interestingly, the Constitution does not specifically enumerate any federal government power over immigration. I think the implication therefore, at least at the time, was that most authority over immigration was actually in the hands of the states, which is the way that it worked for most of the first hundred years of American history.
But early on, even in the 1790s, there was debate about the scope of federal power over immigration. The Congress under the Federalists and John Adams enacted the Alien and Sedition Acts, which gave the power to the president to expel any non-citizens that he thought were dangerous in some way. But many people, including James Madison and Thomas Jefferson, argued that the Alien Act was unconstitutional because the federal government did not have any general power to restrict immigration. And they eventually prevailed, and when Thomas Jefferson became president, he allowed the Alien Act to expire; it was never actually used.
Now, of course, beginning in the late 19th century, in the Chinese Exclusion Case, a ruling heavily influenced by racism against Chinese, the Supreme Court has said that there doesn’t need to be a specifically enumerated power over immigration; we should just assume that the federal government has the power over it because all governments supposedly are supposed to have that power. And ever since then, it has been taken for granted that the federal government does have the power to exclude immigrants if it wishes, and that’s certainly the state of affairs under current jurisprudence. But in terms of what the Constitution says, it says almost nothing directly, and it does imply that the power over immigration is largely in the hands of the states rather than the federal government, though of course, this is one of a number of areas where we’ve greatly departed from the text and original meaning over time.
Bob Zadek: So what’s quite interesting is all of this started, as you have pointed out, this is in the broadest sense of the word, powers that the federal government has that were—I’ll use the word “created,” it’s not quite right because the Supreme Court cannot imbue the federal government with powers, it merely says the powers are there, you just have to look closely to find them. But in fact, that distinction may be seen—may seem almost to an average citizen somewhat silly; either the powers are there or they are not there. But we can start with the premise that the Supreme Court created enormous powers that the founders perhaps never intended. The Supreme Court at the time felt otherwise in reviewing the Chinese Exclusion Act, but there we have it. So we start with a premise that the federal government has power to limit immigration that perhaps the founders never intended us to have, and the Supreme Court did not make that decision based upon any lofty principle; they simply decided the power was there. Unlike what we would like to think is true of the Constitution, which is the Constitution builds the government around certain principles, principles such as those written about by Ilya in his many books, including, as I said, Free to Move.
First Principles: Freedom of Movement [08:03]
Bob Zadek: Now, Ilya, you and I firmly believe that the issue of immigration is not simply drafting another statute, but there are, we would like to think, first principles that govern immigration specifically and the right to travel even between states in general. So, just so our audience can follow the conversation this morning, what would you say, and what does your book present as first principles which ought to govern all legislation regarding immigration? And immigration suggests from country to country, but I can say, as your book does, the right to travel freely, the right to move from one place to another because your life will be better in the place you move to than the place you move from. What are the first principles?
Ilya Somin: So, in my view, there should be a presumption of freedom of movement across international boundaries, much like we already have a presumption of freedom of movement between states within the United States. That way, people would be free to move to a location which has better government policies, where they can be more free, where they can seek out opportunities for themselves and their families, and so on. And at the very least, even if there should be limitations on that right—and I don’t claim that any right can be completely absolute—but even if there should be limitations, they should not be based simply on where you were born or who your parents are, which is the main limiting factor in most current immigration law.
Domestically, and in almost any other context, we take it for granted that people’s liberty should not be limited based on who their parents are or where they were born. That’s one of the reasons why we reject Jim Crow racial segregation or South African apartheid or other similar policies. And a policy which says if you were born south of the Rio Grande River, let’s say, as opposed to north of it, that means that your liberty should be severely constricted because you were born in that particular location—much like your race or your ethnicity, where you were born is not something that you can control, and it doesn’t say anything about whether you’re a good person or not or how much freedom you should be entitled to. So again, I don’t claim that the right of freedom of movement, either international or domestic, must be 100% absolute. I doubt that any right can be completely absolute. But there should be at least a strong presumption in favor of free migration that could only be overcome by some kind of very strong evidence that if you don’t restrict it, some great harm will occur, and also that the only way to prevent the harm is to keep you from being able to move.
Bob Zadek: And in support of that, it’s easy to demonstrate that it is a founding principle of our country, a founding principle, a first principle, the phrase I used earlier. It is a founding principle of this country that your parent, who your parents are, should have no effect upon the rights that you enjoy. After all, one of the reasons why the colonies broke with England, and one of the principles of English society that the founding generation of our country found abhorrent, is peerage—the right that or the status that if your parents were—had peer status, they were dukes or earls or whatever the titles were, that somehow by that fact alone, you were entitled to something. Indeed, even in our country, there is within society, there is, I dare say, a bit of resentment about the fact that if you are wealthy because you have inherited wealth, somehow, somehow that fact is a minus in your character and you should be measured only on how you succeeded based upon starting from zero, not based upon advantage. So I dare say most Americans would agree that peerage and the principles for which we—one of the principles we fought the Revolution—are principles today. Well, if that’s the case, then what is, in my view, the fact that you can’t enjoy the benefits of life in our country unless your parents lived here when you were born? That is clearly peerage. You, the newly born human, have an advantage simply because of the accident of your birth. So any—those who promote strict immigration rules are promoting, in my view, the principle of peerage, which has never been one that was part of our American DNA.
Asylum Law and the “Material Support” Bar [13:41]
Bob Zadek: Okay, so I couldn’t agree more, obviously, Ilya, with that principle. Now, here we have immigration, we have a highly complex set of rules. Observers have commented that nothing is more complex than our rules governing immigration than the Internal Revenue Code. So let’s start with that—you can’t make that comparison, but it sure sounds right to me. So let’s drill down a bit to the principle we have, a principle in immigration law of—and warning, trigger warning, this is going to seem absurdly irrational when we drill down to the law, so that’s a trigger warning for those of you who like principles to make sense. But so now let’s go down, Ilya, to the sub-issue of asylum. So first, we have a country which by statute, not by the principles of the Constitution, says we are going to limit who can enjoy the benefits of civilian life in America. We’re going to limit that by a whole bunch of rules. And one subset of rules relevant to this morning’s discussion is issues of asylum. So in the context of immigration, Ilya, what does asylum mean? And tell us, if you will, some of the bullet point headlines about the principles of asylum when applied to immigration law.
Ilya Somin: Yes. So the normal default under current federal law is if you enter the United States and you don’t have some kind of special visa that the U.S. government granted to you and you’re not a U.S. citizen, then most likely you get barred from entering or you could get deported. However, asylum is a major exception to that, in that if you’ve been persecuted in certain kinds of ways, then you can claim asylum, and if the government agrees that you have been persecuted or threatened with persecution along these grounds, then you can stay in the U.S. even if you don’t otherwise have any kind of immigration visa or right. And the grounds for asylum are usually that you’ve been persecuted on the basis of your race, ethnicity, religion, gender, political views, and I think possibly one or two other things as well.
However, while this asylum system is an exception to the usual general rule that people are excluded unless they have some specific visa or some specific permission to come, there are in turn exceptions which say that even if you’re otherwise eligible for asylum, you still can’t get it if you fall into certain categories. And one that we’re going to talk about today, I think, is one which says that even if you’re otherwise eligible for asylum, you cannot claim it if you’ve given, quote-unquote, “material support for terrorism.” And I think when that statute was drafted, most likely Congress intended that the idea is that if you’ve engaged in acts of terrorism or you’ve supported terrorist groups, then even if you otherwise were persecuted, say, based on your political views, then you know, you’re not the kind of person that’s worthy of asylum.
However, the Justice Department’s Board of Immigration Appeals, which is an executive branch agency which makes legal decisions about, among other things, asylum issues, back in 2018, they ruled that the material support for terrorism principle applies even in a situation where the person in question was a slave laborer for a terrorist group. So in this case, it was a woman from El Salvador. She and her husband were kidnapped by left-wing guerrillas in El Salvador back in the 1990s, and the guerrillas proceeded to kill her husband before her eyes after forcing him to dig his own grave. And then they forced her to work as a slave laborer for them, cooking and cleaning, washing clothes, and the like. And absurdly, the Board of Immigration Appeals ruled that her serving as a slave laborer for these guerrillas, that qualified as material support for terrorism, and therefore she was not eligible to apply for asylum. And of course, this has much broader applicability than just this one person’s case. It also applies to many terrorist groups, including the Islamic State or ISIS, whatever you want to call them, or the Taliban, which often make use of forced labor of various kinds. So for instance, in the extreme case under this ridiculous reasoning, if you were one of the many Yazidi women that ISIS used as sexual slave laborers, then you, on this theory, provided material support for terrorism, and therefore you’re not eligible to apply for asylum in the U.S., even though, of course, if there’s anybody who’s a victim of oppression of the kind that asylum is supposed to protect against, it’s somebody that was literally turned into a slave based on their religion or their ethnicity, as happened with many people captured by ISIS and to some extent the Taliban and other terrorist groups as well.
Bob Zadek: It’s so interesting. In that last very full presentation, Ilya, you obviously raised a whole lot of additional issues that you’re exactly right, I do want to cover and do want to give some attention on the show. But let me unpack it just a bit. When you were describing all of the types of oppression which qualify you, you being the would-be immigrant, to asylum, it sounded to me, Ilya, very similar to hate crime legislation, which says if you’re murdered or if a crime is committed against you, a violent crime, well, the punishment for that violent crime will be X years of prison if the perpetrator is convicted. However, if the reason you were killed or harmed was because of hatred, because somebody hated you, then the sentence is enhanced. In other words, certain types of motivations are punished more severely. The crime is the same, the effect upon the victim—the victim is still dead or harmed, it doesn’t matter to the victim—but the victim gets the additional irrational protection if legislation, the political process, as irrational a process as there can possibly be, if the political process in its unprincipled way has decided that something about that crime is special because you are hated for one reason or another. And if you’re hated in general, that doesn’t provide for enhancement; you have to be hated for the right reason, and then the perpetrator gets punished.
So how absurd is that? And here we have the same types of political judgments being made, which as to the would-be immigrant, that would-be immigrant’s life is horrendous, but they have to be horrendous—or it has to be horrendous for the right reason to get into the good list of “your life is oppressed for the correct reason according to us, and therefore you get to the top of the line.” Is that pretty much what’s involved? Isn’t the effect on the person who is the oppressed—the effect is exactly the same, but we have decided not all types of oppression is the same for immigration purposes. In other words, haven’t we decided as a country that we don’t care if you are oppressed, but you have to be oppressed for the right reason before we will let you in? Is that accurate? Am I being unfair?
Ilya Somin: Pretty much. At least under the asylum rules, the idea is that if you’re oppressed based on this list of characteristics—race, religion, nationality, membership in a particular social group, or political opinion—then you’re eligible for asylum. If, on the other hand, say, you live in a totalitarian state where everybody or almost everybody is oppressed, or if you were oppressed for some other reason not covered on this particular list, then you’re out of luck. I think the analogy to hate crimes makes some sense, but it actually underestimates the scope of the problem. Because at least in the hate crimes context, we’re not saying if you murder somebody just because you don’t like them, then you know, that’s not a crime at all, whereas if you murder somebody based on their race or religion, then it is. We’re just saying that you’ll be punished a little bit extra if you do it based on race or religion. On the other hand, here we have a list of characteristics for which if you qualify, you’re eligible to stay in the U.S. If you don’t qualify, it’s not just that you know, you get some kind of less valuable status that still enables you to stay in the U.S., it’s that you’re excluded completely. So the difference is much more stark than it is in a—in most hate crimes context, in that at least we don’t have in the criminal code, as far as I know, any crimes which say that this is only a crime if done for racial reasons or for reasons of religion or whatnot, but if you do it to somebody for some other reason, like beat them up or steal from them or kill them, then it’s not a crime at all.
Economic vs. Political Refugees [24:18]
Bob Zadek: Ilya, you and I do our very best, as do most people, to not just establish personal rules of behavior and rules by which we think our government ought to operate, but we’d like to think there are principles governing those rules, and we stand behind our principles. Now, so I’m going to ask you a balancing of principles question, just so to help me explain to our listeners why we feel the way we do. So here is my examination into principles. And I’m going to pose this question, Ilya, because it gets raised all the time in a discussion of migration from one country to another, immigration. The question is this: Assume that letting all of the would-be immigrants into our country who want to be here because they—and I’ll say for the “mere,” but I’m using the word “mere” in air quotes, because it is the most important reason—they want to have a better life for themselves and for their children and family members. Now, that’s not a “mere”; that’s the best reason in the world as far as I’m concerned, and I guess I speak for you, but you could—you can withdraw that permission to me. So we have a lot of people who would want to be here simply because life would be better. And let’s assume it would be better. Let us also assume that by one measure or another, the collective quality of life of existing American citizens would be somewhat diminished. Let’s say their wages might go down, let’s say their quality of life, of social life, would be impaired, let’s say housing would become more expensive. None of those are true, but just to test the principle, Ilya, let us assume that. Would that be on a principled—with a principled answer, would that be grounds to limit the number of immigrants who can enter our borders? And all they want—and I’m not minimizing it, it’s the most important—is to enjoy a better life. Or is the principle that yes, they want to have a better life, yes, everybody is free to travel, or to use the title of your book, Free to Move—if they are entitled to free to move, should they be allowed to move even if there is some statistically supportable detriment to collective life in America?
Ilya Somin: So, in my book, I go over two types of reasons why people argue that government should be able to exclude potential immigrants. One reason is that governments just have a general right to exclude people for any reason they want, even if the immigrants are not causing any kind of particular harm. We talked about that a little bit earlier, we might perhaps talk about it again later. But there is another category of reasons which your question touches on, which is that maybe immigration, or at least immigration of certain people, causes particular types of harms, like it might reduce the wages of native-born workers, it might overburden the welfare state, it might increase crime, and so on. And in my book, I outlined what I think is a useful three-part way of thinking about those problems.
First, we want to ask, is the problem actually real? And in many cases, the answer is either no or at the very least that it’s greatly overblown. For example, far from increasing crime in the U.S., immigration actually reduces the crime rate because immigrants, including even undocumented immigrants, have lower crime rates than native-born Americans. But let’s say there is a genuine problem. The evidence shows that you know, there’s some kind of negative side effect of migration. Then the second question we want to ask is, can we address this problem by some means less draconian and harmful than excluding immigrants entirely? So for example, let’s say you worry that immigrants will overburden the welfare state. There’s an obvious alternative solution for that, and that is to simply limit eligibility for welfare benefits, which by the way, we already do under the Welfare Reform Act of 1996 and various other types of legislation. So that’s a problem which has what scholars call a “keyhole solution”—a solution that addresses the issue but without keeping people out.
Finally, let’s say there’s a real problem and there isn’t a keyhole solution which is likely to work. Still, before we say that immigration restrictions are justified, we have to remember that immigration creates vast new wealth. That when people move from poor and oppressive societies to more free ones like the U.S. or Europe or Canada, they become vastly more productive than they were before. Obviously, that enables them to get more wealth, but it also creates more wealth for the host society as well. And if necessary, we can tap some of that wealth to alleviate negative side effects of immigration that we think deserve to be addressed. So for instance, let’s say you worry that there’s some category of native-born workers that will be disadvantaged and you know, their wages might fall if there’s immigration of a particular type. An obvious solution to that is to tax some of the new wealth created by migration and create wage subsidies for that group of workers. I’m not necessarily arguing that this is a good policy; all I’m suggesting is that it’s better than excluding people entirely.
And in the book, I apply this three-part test to a wide range of problems that people claim are caused by immigration, such as immigrants might be bad voters, immigrants might lead to job competition or reduction of wages, it might increase crime, and a large number of other issues as well. And for virtually all the standard issues that are raised, either it’s just not much of a problem in the first place, or there’s a keyhole solution, or there’s some kind of way that we can tap the vast wealth created by immigration to address the issue. And in many cases, actually, all three are true—that it’s not much of a problem and there’s also a keyhole solution, for example, if it were to become a problem. Now, I don’t claim that this applies to all conceivable harms caused by immigration in all conceivable situations. One can imagine cases, though they’re very rare in the real world, where there’s some great harm caused by immigration that you know, there’s just no solution for, no way to alleviate other than by exclusion. Even then, however, I think you need proof that the harm really is great and that it’s so great that it justifies consigning what could be large numbers of people to lives of poverty and oppression. And I would apply the same sort of standard to this as I would apply to the restriction of any other important human right. So for example, you know, I strongly believe in broad freedom of speech, even for people with awful political views. But you can imagine circumstances where maybe your only options are either to suppress the freedom of speech of fascists or to let fascists come to power and take over the country. In theory, those could be the only alternatives. In that situation, I would say, okay, fine, restrict the freedom of speech. But I would want to set a high burden of proof for showing that those really are the only two options. If it’s the Weimar Republic in 1933, maybe they really are the only two options, but most situations are not like that.
The Executive Branch and Judicial Functions [32:56]
Bob Zadek: We’re now going to apply what we have covered so far to your recent article dealing with what you alluded to a second ago, but I want to drill down just a bit to asylum—we’ve discussed that—and to exceptions to asylum. And asylum is itself an exception to “you can’t get in,” but you can get in or you can go to the front of the line if your life is really very bad for the right reasons. So we’ve already discussed that. But now, in your recent article, which really captured my attention—I didn’t know about anything that you wrote about until you wrote about it, which after all is the very best purpose for writing an article, to alert otherwise informed people that stuff is going on that you ought to be aware of. So your article did exactly that when you called attention to this sub-exception dealing with slave labor and to a policy in the Biden administration that you alluded to a second ago, but I want to drill down just a bit to asylum—we’ve discussed that—and to exceptions to asylum. And asylum is itself an exception to “you can’t get in,” but you can get in or you can go to the front of the line if your life is really very bad for the right reasons. So we’ve already discussed that. But now, in your recent article, which really captured my attention, I didn’t know about anything that you wrote about until you wrote about it, which after all is the very best purpose for writing an article to alert otherwise informed people that stuff is going on that you ought to be aware of. So your article did exactly that when you called attention to this sub-exception dealing with slave labor and to a policy in the Biden administration and to what is going on in the policy in the Trump administration carried over to the Biden administration with certain action taken by Attorney General Garland. So you mentioned it a second ago in dealing with the Salvadoran woman who was denied under cruel circumstances, denied a visa. So explain to us—you already have done it a bit—but explain to us exactly who gets asylum as you have, but tell us a bit more about giving aid and comfort to the enemy. Tell us the history of that. It seems common sense; after all, if somebody gives aid and comfort to the enemy, they ought to be excluded from the free right of entry into the U.S. But tell us a bit about the history of that—those rulings, they were in part, they were rulings by the executive branch. And you mentioned earlier that in a court system that is not part of the judiciary—and by the way, Ilya, you might want to mention along the way how that violates first principles in our country, that the judicial system ought to be separate from the executive, without going too much into the administrative state. But when you mentioned the principle we’re going to talk about, it of course—you said something that I want to make sure our audience appreciated, which is the executive branch taking over the judicial function. So tell us a bit about the history of how slave labor got to be now a reason why you cannot enter the U.S.
Ilya Somin: Sure. So as I mentioned before, if you’re subject to certain kinds of persecution in your country of origin, then you’re eligible for asylum upon entry to the United States. For example, if you’re subject to persecution based on race, religion, nationality, or political views, and some other criteria as well. But there are in turn some exceptions to that where even if you were subject to that kind of persecution, you’re still not eligible for asylum if you’ve done certain other kinds of things. And one of them is providing, quote, “material support for terrorism.” And I think when Congress adopted that law, I think their idea was that you know, we want to keep out terrorists or members of terrorist groups or people who have provided them support. And that’s, you know, at least a reasonable—a reasonable policy. You can argue about sort of how much support is enough or something like that, but on its face, it’s reasonable.
Unfortunately, this issue then came up in a decision of the Board of Immigration Appeals, which is part of the Justice Department. It’s an executive branch agency which makes administrative rulings on immigration cases, including in this case asylum cases. And they absurdly said that this principle of excluding people for material support for terrorism applies in a situation where the person in question was a slave laborer for a terrorist organization. I highly doubt that this is what Congress intended when they enacted the law, but nonetheless, that’s what the Board of Immigration Appeals says. And the Board of Immigration Appeals (BIA for short) is one of a number of administrative organizations in the executive branch which make what arguably are legal decisions. They make judicial-like decisions, but they’re not part of the judiciary; they’re part of the executive branch. Their decisions sometimes can be appealed to the courts or reviewed by them in certain cases, but at least in the first instance, they get to make these kinds of legal decisions. In here, back in 2018, the BIA decided that if you’re a slave laborer for a terrorist organization, you provided material support for terrorism, and therefore you’re not eligible for asylum. I don’t think you have to be a lawyer or a legal scholar to see how absurd and ridiculous that is, but nonetheless, that’s what they said.
Bob Zadek: And so that was—and thank you for pointing out the distinction between the judicial-type decisions made by the executive branch, which violate constitutional principles of separation of powers. I just wanted that not to get past the audience without special mention. Now, can this—this decision, which is now precedent, at least within the administrative agency, how easily can that line of reasoning be overcome? Does it require legislation? Does it require executive action? Can the Attorney General, acting alone through the powers of the Attorney General, simply say, no, we are not going to adhere to that administrative ruling? How much is the country bound by that as that now becomes part of our jurisprudence?
Ilya Somin: So this BIA decision is binding on lower-level executive branch officials, including case officers and the like who consider requests for asylum in the first instance. However, under the statute which establishes the powers of the BIA, the Attorney General can actually reverse their decisions pretty much anytime he wants to at a mere stroke of his pen. He can use what is in legal language called his “certification power.” He can simply put out a memo saying, “I certify this decision and I reverse it,” and he can then say, “Well, instead of the rules set up in this decision, this is what I think the correct rule should be,” and then his ruling would be binding on the BIA and also on the lower-level executive branch officials who are supposed to obey BIA rulings. And this power was actually used in the Trump administration a number of times by Attorney General Jeff Sessions to reverse BIA rulings that were favorable to immigrants and asylum seekers. And I think the new Attorney General, Merrick Garland, has used it in some other cases himself already. So he can very easily reverse this if he wanted to.
Now, you might say it’s a bad system where the Attorney General can just on his own say-so change the law, so to speak. But if so, the problem is in the statute authorizing this. So I would be happy if Congress were simply to pass a law making it clear that being a slave laborer is not material support for terrorism. But unless and until they do that, the Attorney General does have the power to certify this decision and any other decision of the BIA that he wants to and potentially reverse it. Maybe Congress should adopt a system where all these issues are decided by an independent judicial body that is outside of the control of the Attorney General. But until they change the law, the Attorney General can do what he or she wants, and I hope in this case that Merrick Garland, if he catches wind of this decision, will see how ridiculous the BIA’s ruling was and therefore certify and reverse it.
Bob Zadek: And of course, all that Garland would have to do, if he’s worried at all about political consequences—not that he should be, but if he is so worried—all he has to do is read one word. This is now my opinion as a non-immigration specialist. Just in the exclusion to the exclusion of providing material—I don’t know if the word “material” is there or not—support for terrorism, if you make it “voluntary,” just add “voluntary,” no one can object to that. That’s politically okay, it’ll pass muster. And then with adding that word, all of this line of cases dealing with what you referred to in your piece in USA Today, the slave labor exception disappears. So you just have to read one word, an obvious word, which was clearly intended anyway. Because if you don’t have “intentionally,” then theoretically paying taxes to an autocratic terrorist government—your tax dollars are providing support to terrorism if the government is terrorist, and therefore anybody who pays taxes in a terrorist regime is therefore providing material support, albeit involuntarily and indirectly. So I think that’s all that would be done. But there I am, Ilya, practicing immigration law and practicing administrative law without the training to do so, just offering a thought.
Economic Oppression as a Ground for Asylum [44:09]
Bob Zadek: Now, what’s interesting in your helping us understand how asylum seekers justify their request and how we have said it is insufficient that your life is really horrible, it has to be horrible for the right reasons—how irrational can that be? But what’s striking to me is a premise in your book is immigrants have rights. There is an inherent right to move from place to place, which I think nobody would dispute. But we don’t grant asylum to somebody whose reason for coming here is their life is economically hopeless. No one is oppressing them particularly; their life in Venezuela is economically hopeless and not likely to get better, and they want to live a hopeful rather than hopeless life. That in and of itself does not qualify for asylum. How can we take the most basic reason why people ought to be, to use the title of your book, Free to Move, and say the most basic reason is insufficient? You can’t merely want a better life. That’s—it’s almost painful to talk about, Ilya, it’s so cruel.
Ilya Somin: Yes, I agree with you. The implicit idea behind the current system, not just in the U.S. but in many other countries, is that there’s a difference between political refugees, those fleeing political persecution, and quote-unquote “economic migrants.” But very often the reason why people engage in economic migration is in fact because their government is awful and oppressive, as in the case of Venezuela. In Venezuela, the reason why so many people are poor and starving is primarily because of the policies of the government, because of its socialist ideology which they’re trying to implement. So in a case like that and many other cases, the distinction between the political and the economic is largely artificial. And it’s a little bit strange to say that if the Venezuelan government targets you because of your political views, then you’re eligible for asylum, but if you’re just oppressed in the same way as everybody in Venezuela is, then you’re out of luck, even though that more generalized oppression might be truly horrific in many ways.
Bob Zadek: And what’s so counterproductive is economic oppression means these would-be immigrants want to contribute to our economy. That is per se a profound benefit. Somebody wants to come here and wants to spend eight to twelve hours a day contributing to our economy and providing us with a good or a service that we would like to purchase at the price they are offering it. So the effect upon Americans of being deprived the freedom of hiring these immigrants—I want to hire these immigrants and my government says I don’t get a shot at doing so. So we are being deprived ourselves of, to borrow a phrase from Milton Friedman, the freedom to choose who we get to hire. We don’t even get a shot at hiring these immigrants who want to provide us with goods and services.
Conclusion and Closing Remarks [48:04]
Bob Zadek: Now, Ilya, your book, which has become the Bible for those who want to learn about freedom to move from place to place, has been quoted extensively. You have become quite an expert on the book. I was delighted when the book came out. How could our listeners out there follow your writings and your work at Scalia School of Law?
Ilya Somin: Sure. So the easiest way is you can just Google my name, Ilya Somin, I-L-Y-A, last name S-O-M-I-N, and you can find my website. Many of my writings are available for free there. I also write regularly for the Volokh Conspiracy blog on the Reason magazine website, and all of what I write there is available for free as well. And of course, my book Free to Move, as well as various of my other books, are available on Amazon and other websites as well, though sadly, there if you want to get the book, sadly you have to pay for it.
Bob Zadek: Thank you so much for giving us your time and sharing your thoughts. And let us hope that Merrick Garland has read and takes seriously your suggestion. It’s so easy with a stroke of a pen, the writing of three or four syllables, to make life materially better for those would-be immigrants who truly deserve it. So thank you so much for bringing that to our attention, Ilya, and for giving us this time on your Sunday morning. This is Bob Zadek, hoping my friends out there have enjoyed my hour with Ilya. And if you have, please let us know by indicating on the podcast that you enjoyed the show, that we get lots and lots and lots of stars, and your comments are always welcome. So thank you again, my friends, for listening to us this Sunday morning, and special thanks to Ilya for all of the great work you have done on this important subject. Have a nice Sunday, everyone. Have a nice Sunday, Ilya. Thank you so much for your time, Ilya.
Ilya Somin: Thank you.