Duress as an Exception to the Persecutor Bar

The Board of Immigration Appeals ruled recently that duress may be an exception to the persecutor bar of inadmissibility. This ruling may help many asylum applicants who were previously denied asylum for their role in foreign armed forces.

What is the Persecutor Bar?

The persecutor bar is found in INA Section 101(a)(42), which exempts any person from meeting the refugee definition if they participated in the persecution of others on account of a protected ground. This same language bars immigrants from establishing eligibility for other relief under the Torture Convention.

Matter of Daniel Girmai NEGUSIE

In this case, the Board of Immigration Appeals previously held that Negusie did not qualify for asylum because of his role in persecuting Protestants in Eritrea. Negusie applied for asylum after arriving in the United States in 2004. He was forcibly conscripted into the Eritrean military. He was incarcerated for 2 years for refusing to participate in the persecution. The Service issued a Notice to Appear and the Immigration Judge denied his application because of the persecutor bar.  The Board and the Fifth Circuit affirmed.

He appealed to the Supreme Court, which ruled that the respective decisions were erroneous since they failed to recognize the duress exception to the persecution bar.

Upon remand, the Board ruled that the law recognizes a duress exception to the persecutor bar. The Board reached this conclusion after surveying the United States’ treaty obligations and the history of the Refugee Convention. The Board reasoned that the Nuremberg papers recognized a defense to war crimes, which it dubbed the “duress exception”, who allowed accused war criminals to argue that they were under duress when they committed crimes.

How Would An Applicant Prove Duress?

The Board reiterated in its decision that the duress exception under the ruling is very limited in scope. The Board ruled that a person seeking to take advantage of such duress exception must prove:

1. The person must have acted under threat of death or serious bodily injury
2. Reasonably believed that these threats were real and capable of being carried out
3. Had no reasonable opportunity to escape
4. He should not have put one’s self in a situation where he would be forced to act
5. Known that the harm inflicted was not greater than the harm he would have experienced

The Board highlighted the fact that this duress exception to the persecutor bar brings the United States in accordance with international instruments and other countries that have recognized this duress defense to the persecutor bar.

Were You denied Asylum because of the Persecutor Bar?

If you were denied asylum because of the persecutor bar, you may qualify for this narrow duress exception. If you do qualify for the duress exception and had been previously denied, you should file a Motion to Reopen your case with the immigration court or the Board of Immigration Appeals. The motion would allow you to renew your asylum application before the administrative body with control over your case. Please call us to discuss your case.