The Persecutor Bar to Asylum

NOTE: On November 5, 2020, the U.S. Attorney General issued the decision of Matter of Neguise, 28 I&N Dec. 20 (A.G. 2020) which materially alters some of the information contained within this article. Refer to the end of this article for the changes.

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In order to qualify for asylum, two threshold requirements must be met: (1) physical presence in the United States and (2) satisfaction of the definition of a “refugee.” An asylum seeker meets the physical presence requirement upon setting foot in the United States. The more difficult requirement to meet is satisfying the definition of a refugee.

The Immigration and Nationality Act (“INA”) defines a refugee as someone cannot return to their home country because of persecution or a well-founded fear of persecution. The persecution must be on account of race, religion, nationality, membership in a particular social group, or political opinion. Collectively, these grounds are known as the “protected grounds.”

The INA also excludes certain individuals from qualifying as a refugee. One exclusion is known as the “persecutor bar.” Under the persecutor bar, an individual who has participated in the persecution of another on account of a protected ground is ineligible for asylum.

In general, the persecutor bar serves to prohibit individuals who have directly ordered or inflicted harm upon another from receiving the protections of asylum in the United States. However, the situation is murkier when the would-be refugee was coerced, or forced, to assist or participate in persecutions. As of 2018, there is a very narrow duress defense for this kind of situation.

This article will explain the parameters of the persecutor bar as well as the newly formed duress defense.

The INA’s Definition of the Persecutor Bar

Three different sections of the INA collectively define the persecutor bar.

First, INA § 101(a)(42) states that the term “refugee” excludes “any person who ordered, incited, assisted, or otherwise participated in the persecution of any person on account of” one of the protected grounds.

Similarly, INA § 208(b)(2)(A)(i) explains that an individual is ineligible for asylum if they “ordered, incited, assisted, or otherwise participated in the persecution of any person on account of” one of the protected grounds.

Lastly, there is a provision in the INA that restricts the United States’ ability to deport a noncitizen to a country where the noncitizen’s life or freedom is threatened. However, as explained in INA § 241(b)(3)(B)(i), this removal restriction does not apply if the noncitizen “ordered, incited, assisted, or otherwise participated in the persecution of an individual” on account of one of the protected grounds.

Conduct Triggering the Persecution Bar

While the INA repeatedly describes the persecutor bar, it never actually defines the term “persecution.” Further, the INA also fails to detail what quantity of conduct constitutes persecution. This lack of direction has led various federal courts to adopt different standards to measure whether conduct rises to the level of persecution.

The persecutor bar applies to both direct acts of persecution (i.e., when someone orders or incites persecution) and indirect acts of persecution (i.e., when someone assists or otherwise participates in persecution). In fact, if there is any evidence of persecution, even if not direct evidence, the burden shifts to the applicant following 8 CFR 1240.8(d) to provide, by a preponderance of the evidence, that the applicant did not assist or participate in persecution. See Matter of Negusie, 27 I&N Dec. at 366-67 (BIA 2018). While it seems clear that direct acts of persecution should trigger the persecution bar, the application of the persecutor bar is less clear when the acts of persecution are indirect and/or coerced.

For example, consider two asylum seekers:

• Asylum Seeker A voluntarily joined a militia that committed acts of persecution upon a group based on the group’s religious beliefs.
• Asylum Seeker B had been forced to become a child solider under the threat of his immediate family being tortured.

These two asylum seekers had different levels on intent to persecute – the first willingly decided to commit persecution and the second was coerced, or forced, under duress to participate in acts of persecution.

For years, immigration advocates unsuccessfully argued that individuals like Asylum Seeker B should be excused for their acts of persecution based on a defense of duress and thus not be subject to the persecutor bar to asylum.

Board of Immigration Appeals’ Refusal to Recognize a Duress Defense

For years, the Board of Immigration Appeals (“BIA”) declined to recognize a duress defense to the persecutor bar. In not recognizing a duress defense, the BIA effectively refused to consider the asylum seeker’s intent when participating in persecution. Thus, even if an asylum seeker was forced to be a child soldier or forced to work in a prison camp under a threat of imminent death, the asylum seeker was automatically ineligible for asylum.

Negusie v. Holder’s Duress Defense

In the case of Negusie v. Holder, the BIA finally recognized a duress defense.

After years of litigation, the U.S. Supreme Court remanded, or sent back, Negusie to the BIA in 2009 and instructed the BIA to determine whether a duress defense to the prosecutor bar existed. In 2018, the BIA established that immigration courts may consider a duress defense to the persecutor bar when the asylum seeker assisted or participated in persecution.

In its decision, the BIA stressed that the duress defense should be applied very narrowly. While the duress defense does permit courts to consider the asylum seeker’s intent as relevant information, it does not require a full review of the asylum seeker’s situation. Specifically, the BIA stated that the duress defense should only be used in “rare and extraordinary circumstances.”

Requirements to Establish a Duress Defense to the Prosecutor Bar

In order for the duress defense to be applicable, the Department of Homeland Security (“DHS”) must first establish that the asylum seeker assisted or participated in persecution. To do so, the asylum adjudicator must consider:

1. The nexus (or relationship) between the persecution and the asylum seeker’s action or inaction, and
2. The asylum seeker’s knowledge of the persecution.

Once DHS establishes the asylum seeker’s participation in persecution, the asylum seeker must demonstrate that the persecutor bar does not apply because:

• They never engaged in the persecution, or
• They engaged in persecution under duress.

If establishing that they engaged in persecution under duress, an asylum seeker must prove five elements by a preponderance of the evidence.

1. Imminent Threat: The asylum seeker must have participated in the persecution because of an imminent threat of death or serious bodily injury.
2. Reasonable Belief: A reasonable person must also have acted in a similar way under the circumstances due to the belief that the threat would be acted upon if they did not comply.
3. No Escape: The asylum seeker must have lacked a reasonable opportunity to escape the situation.
4. No Availment: The asylum seeker must not have knowingly placed himself in a position where he would be forced to comply with acts of persecution.
5. Proportionality of Harm: The harm the asylum seeker inflicted must not have been worse than the harm threatened to himself.

If all five elements are met, the asylum seeker may be eligible for asylum. However, the grant of asylum is still subject to the DHS adjudicator’s exercise of discretion.

Ultimately, the duress defense permits former persecutors to still receive asylum if they are found to not be culpable, or blameworthy, for contributing to acts of persecution.

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UPDATE: On November 5, 2020, the U.S. Attorney General issued a decision declaring that:

(1) The bar to eligibility for asylum and withholding of removal based on the persecution of others does not include an exception for coercion or duress; and

(2) The U.S. Department of Homeland Security does not have an evidentiary burden to show that an applicant is ineligble for asylum and withholding of removal based on the persecution of others. If evidence in the record indicates the persecutor bar may apply, the applicant bears the burden of proving by a preponderance of the evidence that it does not.