When the Persecutor is also the Victim

Board of Immigration Appeals (BIA) to decide whether a Duress Exception exists for refugees coerced into participating in persecution

 August 22, 2017 — National Justice For Our Neighbors, along with the American Immigration Lawyers Association Weigh In on Standards the BIA should apply when Analyzing the Persecutor Bar and its needed Duress Defense.

 National Justice For Our Neighbors (JFON), in partnership with the American Immigration Lawyers Association (AILA), filed an Amicus Curiae (i.e. friend of the court) brief before the Board of Immigration Appeals (BIA) in Matter of Negusie, urging it to issue a decision adopting a duress exception to the persecutor bar and to clarify the necessary procedural safeguards for applying the bar.

The definition of a refugee—which also applies in asylum cases—includes individuals who have fled their country and who have been persecuted or have a well-founded fear of persecution on an account of their race, religion, nationality, membership in a social group, or political opinion.  However, that definition excludes those who have assisted or participated in persecution, even if they otherwise qualify as a refugee.  This bar to relief is described as the “persecutor bar.”

For more than two decades, the Board had ruled out any duress defense to the persecutor bar.  Thus, would-be refugees who participated in persecution even under threat of death—such as child soldiers forced to harm their own family members—could still barred from protection.  That line of cases was stopped, however, by the U.S. Supreme Court in Negusie v. Holder, 555 U.S. 511 (2009).

Daniel Negusie (“Negusie”), a national of Eritrea, sought protection in the United States, but was denied relief because he had been forced to work against his will in a prison camp where some of the prisoners were persecuted. He argued that the persecutor bar should not apply because his assistance was the product of duress. The BIA denied his claim, affirming its prior case holdings that intent is irrelevant to the persecutor bar analysis. Ultimately, the U.S. Supreme Court overturned the BIA’s decision for having been based upon a legal error.  While the Supreme Court stopped short of holding that there is a duress exception to the persecutor bar, it sent the case back to the BIA in 2009 to answer that question unencumbered by the Board’s previous legal error.

To date, the BIA has not issued a decision in the remanded Negusie proceeding.  However, the BIA signaled its intent to address this question through the issuance of an amicus curiae invitation last year to solicit views on the questions presented in the case.

As a part of a coordinated amicus effort—involving Harvard Law School, the Center for Gender and Refugee Studies, and the National Immigrant Justice Center—JFON and AILA advocated for a protective framework that includes procedural safeguards designed to ensure that only bona fide human rights violators are subject to the persecutor bar.  “Because the persecutor bar permanently disqualifies one from asylum and similar relief, and thereby authorizes the deportation of even individuals facing certain persecution in their home country, it is imperative that the Board narrowly construe the scope of the bar, and leave room to protect individuals forced into in persecution,” explained JFON-NE legal director and lead author of the brief, Shane Ellison.

The BIA hears oral argument next week on September 8, 2017, and a decision will be issued thereafter.  We will provide an update when this occurs.