ATTORNEY GENERAL HOLDS THAT THE PERSECUTOR BAR TO ELIGIBILITY FOR ASYLUM AND WITHHOLDING OF REMOVAL DOES NOT INCLUDE AN EXCEPTION FOR COERCION OR DURESS. DHS DOES NOT HAVE AN EVIDENTIARY BURDEN TO SHOW THAT AN APPLICANT IS INELIGIBLE FOR ASYLUM AND WITHHOLDING BASED ON THE PERSECUTION OF OTHERS. IF EVIDENCE IN THE RECORD INDICATES THAT THE PERSECUTOR BAR MAY APPLY, THE APPLICANT BEARS THE BURDEN OF PROVING BY A PREPONDERANCE OF THE EVIDENCE THAT IT DOES NOT.
On November 5, 2020, U.S. Attorney General (AG) William Barr overruled prior determinations of the Board of Immigration Appeals (BIA or Board) which had incorrectly 1) recognized a duress exception to the persecutor bar and 2) placed an initial burden on DHS to show evidence the persecutor bar applies. AG Barr vacated the BIA’s decision in the instant matter and remanded to the Board with instructions to place the case on hold per 8 C.F.R. §1003.1 (d)(6)(ii)(B) pending the completion of all identity, law enforcement, or security checks. Once these are completed, the BIA was instructed to “enter an appropriate order.”
The AG’s extremely lengthy opinion initially traced the procedural history of the case: in October 2018, former AG Sessions had directed the Board to refer the case to him for review of its June 2018 precedent decision, Matter of Negusie, 27 I&N Dec. 347 (BIA 2018). His order invited the parties and interested amici to brief “whether duress and coercion are relevant to the application of the so-called ‘persecutor bar’”, which renders ineligible for asylum or withholding of removal one who has “ordered, initiated, assisted, or otherwise participated in the persecution” of any person on account of race, religion, nationality, membership in a particular social group or political opinion. In vacating the BIA’s June 2018 decision, AG Barr found that the Board had not adopted the best interpretation of the persecutor bar viewed in light of its text, context, and history, as well as in light of longstanding BIA precedent and Justice Department policies. Additionally, the AG concluded that the prior opinion had not appropriately weighed relevant diplomatic considerations and had “introduced collateral consequences that would be detrimental to the administration of immigration law.” The original opinion had also incorrectly placed an initial burden on DHS to show evidence indicating the applicant assisted or otherwise participated in persecution. In sum, the Board had held that the persecutor bar does not apply where one can establish that his assistance or participation in persecution was the product of duress; Barr held that “the best reading of the persecutor bar” does not include a duress or coercion exception, further finding that where the record contains evidence from which a reasonable fact finder could conclude that the persecutor bar may apply, the applicant bears the burden of showing that it does not.
The AG’s factual history initially explained that Respondent, a member of the Eritrean armed forces, was imprisoned by the Eritrean military, subjected to forced labor, forced to roll on the ground in the sun for 2-3 hours a day, and beaten with a stick if he stopped; after his release, he resumed his military duties, including working as a uniformed, armed guard at the same prison where he was held and was paid with “pocket money”. Respondent’s work as a prison guard involved preventing prisoners from escaping, showering, or obtaining fresh air and guarding those punished by exposure to the hot sun – one of whom died – and “he knew that his supervisors tortured prisoners with electricity.” Additionally, the parties did not dispute that these prisoners were persecuted on account of protected grounds under the INA.
Respondent claimed that he was a prisoner even while employed as a prison guard, that he disobeyed orders and helped prisoners, and that “his service as a guard was a result of duress and coercion.” However, he conceded that he assisted in the persecution of others but was ultimately able to escape and stow away to the U.S. The IJ held that Respondent was ineligible for asylum and withholding because he had assisted or participated in persecuting others by guarding them at, and preventing them from leaving, the prison; in effect, the fact that he kept others in a compound “where he had reason to know that they were persecuted” meant he assisted in persecuting them and barred Respondent from relief. Yet the IJ also concluded that it was more likely than not that Respondent would be arrested and tortured if returned to Eritrea, primarily because he was a military deserter, and granted him deferral of removal under CAT. Both DHS and Respondent appealed.
The BIA affirmed, comparing Respondent to someone forced to serve at a Nazi concentration camp and finding that whether he was forced to work as a prison guard and may not have actively tortured others was irrelevant; he assisted in the persecution of others and the effect of his actions controls. The Board also found no error in the decision to grant deferral. On review, the Fifth Circuit Court of Appeals affirmed the application of the persecutor bar, insisting that the proper inquiry should focus on whether Respondent’s conduct assisted in the persecution of civilians. The U.S. Supreme Court reversed and remanded for the BIA to determine whether duress and coercion are relevant in applying the persecutor bar and to apply its statutory interpretation to this case in the first instance.
Thus, in June 2018, the Board held that recognizing “a narrow duress exception” to the persecutor bar is the best approach and concluded that Respondent had failed to prove that he was sufficiently under duress when he assisted in persecution as a prison guard. The BIA also concluded that DHS has the initial burden to submit evidence that a respondent “assisted or otherwise participated in persecution” and that, once it does so, the burden shifts to the applicant to show by a preponderance “that the persecutor bar does not apply either because he did not engage in persecution or because he acted under duress.”
In beginning his analysis, Barr considered whether duress and coercion are relevant to the application of the persecutor bar; he concluded “that there is no exception to the INA’s persecutor bar for conduct that resulted from duress or coercion.” While on remand, the Board had declined to perform additional statutory analysis; here, the AG found that the “bare language” of the bar is susceptible to multiple interpretations and a careful analysis of the statutory context and history “is instructive as to which of those possible interpretations is most coherent and consistent with the INA and best accommodates Department [of Justice] policy.” Further, noting that the Supreme Court had explained that the absence of an express duress exception is not conclusive, AG Barr stated that Congress could have specified that the persecutor bar applies only to conduct undertaken voluntarily and that the absence of such language “provides strong evidence that the statute should be read to prohibit granting asylum to any applicant who has assisted in past persecution.” Statutory context and history, concluded Barr, reinforce the absence of an express exception: The current persecutor bar was adopted by Congress in 1980, but for decades other statutes had barred those who had assisted in persecuting others, using language similar, if not identical, to that now in the INA – and these “have been construed as having no exception for duress or coercion.” Moreover, the BIA had ruled in 1988 that the withholding of removal bar added in 1980 had no duress exception and Congress, in effect, endorsed that interpretation by re-enacting the persecutor bar to withholding and adding a new persecutor bar provision applicable to asylum in 1996. Congress’s consistent use of the same language over time in regard to the same subject and underlying statute, found the opinion, strongly suggests that Congress intended that language to have the same meaning.
Next, AG Barr stated that in its Negusie decision, the Supreme Court had rejected the argument that its 1981 Fedorenko opinion, which had interpreted the Displaced Persons Act (DPA) of 1948, determined the scope of the INA’s persecutor bar. He explained that the Court held that Fedorenko neither foreclosed an implied duress exception nor required that the bar include a voluntariness mandate. Instead, Barr found, the question is to be determined by the DOJ in the first instance; the AG and the Board have the “interpretive authority” to determine which reading of the bar to adopt. The existence of a voluntariness requirement in some bars and not in others, concluded the AG, bears upon the question presented.
Barr then listed 3 “statutory developments” that reinforce his reading of the persecutor bar: First, Congress reenacted the existing bar to withholding with minor amendments and added a new persecutor bar provision to asylum applications in 1996; Congress was presumably aware of the law’s judicial interpretation and if it wanted to add an exception it would have done so then. Second, the 1996 statute added a provision to the INA that allows for a grant of asylum to be terminated if the asylee voluntarily avails him- or herself of the protections of his or her home country by returning to it under certain circumstances and this change was part of the amendments in the same statutory subsection as the withholding persecutor bar. Third, Congress had occasionally expressly delegated authority to create and apply new waivers to certain immigration bars, a delegation that includes “unreviewable discretion that was carefully tailored with specific limitations”; DHS exercised this authority by creating a waiver for duress to the bar on admissibility as to those who have provided material support for terrorism. As such, a duress exception to the prosecutor bar “should not be lightly inferred.” Lastly, as U.S. immigration laws have imposed an absolute bar on immigration relief for those who have assisted in persecution for over 70 years, while Board and Court decisions consistently affirm “that the various persecutor bars imply no exception for involuntary conduct, including conduct perpetuated under duress or coercion”, the current bar’s place “in the history of statutory provisions” counsels strongly against a duress exception.
The AG next stated that the BIA inferred a duress exception here based largely on its view that Congress intended the persecutor bar to comport with international agreements and the understanding thereof. Yet, it was error to infer an exception aligning the bar with international protocols and conventions, held the opinion, as such an interpretation is not compelled by our international agreements. This position, stated the AG Barr, is “consistent with my responsibility to consider the diplomatic repercussions that may arise if the United States were to grant protection or relief” to one who has assisted in persecution.
Regarding Respondent’s additional arguments in support of a duress exception, the opinion found none persuasive. The argument that the term “persecution” requires morally culpable conduct and that, therefore, involuntary conduct can not qualify as persecution was properly dismissed by the Board, which explained that this is not how the defense is applied or interpreted “in American courts.” Additionally, the bar would still apply to one who, like Respondent, assisted in such conduct. Similarly, Respondent’s reliance on general principles of criminal law to support his claim that individuals should not suffer serious adverse consequences due to involuntary acts held little water as he identified no cases applying this principle to immigration law and it is well-established that immigration proceedings do not require the same protections as criminal law.
Respondent’s argument that the immigration “rule of lenity” should apply here was also flawed, in that the INA’s persecutor bar, when considered in its context and history, is sufficiently clear that the rule cannot contravene the BIA’s reasoned interpretation of the statute nor can it supercede the various policy considerations taken into account by AG Barr. Otherwise, he concluded, the Supreme Court would have ruled in Respondent’s favor rather than remanding the case to allow the Justice Department to resolve the statutory ambiguity. Barr also rejected Respondent’s claim that Congress’s grant of discretion over asylum to the AG supports an exception to the bar, explaining that this grant includes the discretion to deny asylum to those who are eligible for it but not the discretion to grant it to those who are subject to a mandatory bar on asylum. Respondent also concluded that his forced prison guard service was itself persecution and one cannot be both persecuted and a persecutor but the AG found that the persecutor bar applies to all (including those who have been persecuted) and necessarily contemplates the possibility that one can simultaneously be both persecuted and assist in persecution. In sum, the decision held that the sole question is whether to infer a coercion or duress exception to the persecutor bar and AG Barr did not find it warranted in light of the statute’s “text, context, and history, longstanding precedent, or relevant policy considerations within the scope of my discretion under the INA.”
Barr went on to note that even when the persecutor bar prevents a grant of relief, an applicant may still obtain deferral of removal under CAT, which Respondent did here. The absence of a duress exception, therefore, does not mean that one who assisted in persecution due to coercion will lack protection.
As to the Board’s conclusion that the initial burden is on DHS to show evidence indicating a respondent has assisted or otherwise participated in persecution, the decision initially noted that the INA generally requires one who is applying for relief from removal to demonstrate eligibility for the protection sought. Additionally, the regulations are clear that if evidence in the record indicates the persecutor bar may apply, the applicant bears the added burden of proving that it does not. In other words, explained the opinion, while the IJ must determine if the evidence indicates the bar applies and whether the applicant must then prove its inapplicability, that determination is an evidentiary one that does not stem from any burden on DHS. Because, in general, the burden of proof is on an applicant to show that he is clearly and beyond a doubt entitled to admission into the U.S. and not inadmissible as charged, Barr held that placing an initial burden on DHS to establish the applicability of the persecutor bar would be contrary to the INA’s regularly and statutory scheme and unnecessarily tax DHS’s limited resources; the BIA’s contrary conclusion was therefore error.
The AG thus overruled the Board’s holding that a duress exception to the persecution bar exists, vacated its decision, and remanded the matter to the BIA. Matter of Negusie, 28 I&N Dec. 120 (A.G. 2020).