Asylum is a statutory exception to the general rule of U.S. immigration law that a non-citizen who enters the United States without a visa or other permission is barred or deported. In the account Ilya Somin gives on The Bob Zadek Show, a person who has been persecuted, or threatened with persecution, on grounds such as race, ethnicity, religion, gender or political views may claim asylum, and if the government agrees, may stay even without any immigration visa or right Hard Questions About Asylum and Afghanistan (2021). Bob Zadek frames the structure as nested exceptions: asylum is itself an exception to “you can’t get in,” and the material-support bar is in turn an exception to asylum.
The statutory structure
Somin describes the normal default under current federal law: entering the United States without a special visa granted by the government, and without citizenship, most likely results in being barred from entry or deported. Asylum operates as a major exception. The grounds he lists are persecution on the basis of race, ethnicity, religion, gender and political views, with possibly one or two other criteria as well. In a later segment he gives the list as race, religion, nationality, membership in a particular social group, or political opinion Hard Questions About Asylum and Afghanistan (2021).
Zadek characterizes the asylum rules as a product of statute rather than of constitutional principle, and asks Somin what asylum means in the immigration context. Somin’s answer treats the system as one of exceptions layered on exceptions: even a person otherwise eligible for asylum cannot obtain it if he falls into certain excluded categories.
The “material support for terrorism” bar
One such exception, in Somin’s account, provides that even an otherwise eligible applicant cannot claim asylum if he has given what the statute calls “material support for terrorism.” Somin says that when the statute was drafted, Congress most likely intended that people who engaged in acts of terrorism, or supported terrorist groups, would not be deemed worthy of asylum even if they had otherwise been persecuted — for example, on the basis of political views Hard Questions About Asylum and Afghanistan (2021).
The Justice Department’s Board of Immigration Appeals, which Somin describes as an executive-branch agency that makes legal decisions about asylum issues among other things, ruled in 2018 that the material-support principle applies even where the person in question was a slave laborer for a terrorist group. The case Somin recounts involved a woman from El Salvador who, with her husband, was kidnapped by left-wing guerrillas in El Salvador in the 1990s; the guerrillas killed her husband in front of her after forcing him to dig his own grave, then forced her to work as a slave laborer, cooking, cleaning and washing clothes. The Board ruled that her service as a slave laborer qualified as material support for terrorism, and that she was therefore not eligible to apply for asylum.
Somin says the ruling has broader applicability than that one case, because many terrorist groups — including the Islamic State, or ISIS, and the Taliban — make use of forced labor. On the Board’s reasoning, he says, a Yazidi woman whom ISIS used as a sexual slave laborer would be treated as having provided material support for terrorism and would be ineligible for asylum, even though she was, in his words, literally turned into a slave based on her religion or ethnicity.
Zadek compares the asylum grounds to hate-crime legislation, under which a violent crime draws an enhanced sentence when motivated by hatred, and asks whether the country has decided that an applicant must be oppressed “for the right reason” before being admitted. Somin agrees “pretty much,” and adds that the analogy understates the problem: in the hate-crime context the underlying act remains a crime regardless of motive, whereas under the asylum rules a person who does not fall within the protected list is excluded completely rather than given a lesser status Hard Questions About Asylum and Afghanistan (2021).
Executive adjudication and the certification power
Zadek asks how the Board’s line of reasoning can be overcome, and whether it requires legislation, executive action, or something else. Somin explains that the Board’s decision binds lower-level executive-branch officials, including the case officers who consider asylum requests in the first instance. Under the statute establishing the Board’s powers, however, the Attorney General can reverse its decisions at a stroke of his pen, using what Somin calls the certification power: he can issue a memo certifying the decision and reversing it, and his ruling then binds the Board and the lower-level officials who must obey Board rulings Hard Questions About Asylum and Afghanistan (2021).
Somin notes that the power was used a number of times in the Trump administration by Attorney General Jeff Sessions to reverse Board rulings favorable to immigrants and asylum seekers, and that Attorney General Merrick Garland had used it in some other cases himself. Somin says Garland could easily reverse the slave-labor ruling if he chose to. He adds that if the arrangement is a bad system, the problem lies in the statute authorizing it, and that he would be happy if Congress passed a law making clear that being a slave laborer is not material support for terrorism; until then, the Attorney General holds the power. Zadek proposes, as a non-immigration specialist, that adding the word “voluntary” to the exclusion would eliminate the line of cases, since without such a word anyone paying taxes to an autocratic terrorist government could be said to provide material support involuntarily and indirectly.
Zadek also presses the separation-of-powers point, describing judicial-type decisions made by the executive branch as violating constitutional principles of separation of powers, and asks Somin to address how the arrangement departs from first principles. Somin’s answer is that the Board is one of a number of administrative organizations in the executive branch making what are arguably legal, judicial-like decisions, not part of the judiciary; their decisions can sometimes be appealed to or reviewed by the courts, but in the first instance the Board makes them.
Asylum and the border in the prohibition debate
A separate episode, on the fentanyl crisis and border policy, has Bob Zadek speaking with Dr. Jeffrey Singer and David Bier of the Cato Institute. The episode summary states that the guests debunk the narrative that asylum seekers are responsible for fentanyl trafficking, explaining instead how the “Iron Law of Prohibition” and pandemic-era border restrictions incentivized a shift toward more potent, easily smuggled synthetic opioids The Iron Law of Prohibition (2022). The excerpt provided for that episode consists of front matter and speaker labels only, with no segment text, so it supplies no further detail on asylum.
Across episodes: the legislative failure and the asylum statute
Two episodes touch the asylum statute directly. In the 2019 episode, Jeffrey Bergner says Trump is constrained by an asylum law Congress passed “a while back,” which suggests that more or less if a person can get to the country’s border and into it, that person is guaranteed a review of the case under asylum conditions rather than simply being turned around and deported; Bergner attributes this to Congress and says it is something Trump cannot do by executive order Redefining the “Deep State” (2019). Bob Zadek frames immigration as the textbook case of legislative failure, describing members of Congress who visit border detention centers for photo ops and complain about conditions they themselves created, and saying that Trump, in his “somewhat inarticulate way,” is telling Congress to fix the law or he will have to carry it out.
The 2021 episode returns to the same statute from the other direction: Somin describes the material-support exception and the Board’s 2018 reading of it, and identifies the Attorney General’s certification power as the mechanism by which the executive branch could undo that reading without Congress. Between the two treatments, the emphasis shifts from Congress’s failure to act on immigration at all to the executive branch’s own adjudicative power over who qualifies for asylum. The 2022 episode touches the topic only in its framing of asylum seekers and fentanyl trafficking, with no segment text in the excerpt.
What the sources do not cover
The excerpts do not state the name or citation of the asylum statute, the name of the Board of Immigration Appeals decision, or the name of the Salvadoran woman whose case Somin recounts. They do not say which constitutional provision, if any, the immigration power rests on, nor do they give the outcome of any court review of the Board’s ruling. The 2022 episode’s excerpt contains no segment text, so nothing in it can be attributed beyond the framing supplied in its front matter.