AG: No Coercion or Duress Exception for the Asylum and Withholding Bars for Persecutors

A long, tightly packed decision given the succinct holdings, that is 40 years overdue

By Andrew R. Arthur on November 12, 2020

Attorney General Barr issued a decision in Matter of Negusie last week. He found that no coercion or duress exception applies to the persecutor bars to asylum, statutory withholding, and withholding under the Convention Against Torture, and that DHS does not have an evidentiary burden in showing that those bars apply. It is a long decision (26 pages), and tightly packed (with at least 100 references, likely more), particularly given the Attorney General's rather succinct holdings. It is also overdue.

Part of the length of that decision has to do with the case's extended procedural history, which stretches over a 16-year period and includes a stop at the Supreme Court.

The respondent is a national of both Eritrea and Ethiopia. He was conscripted into the Eritrean military in 1995, did a two-year stint, and was released, only to be recalled to fight in a war against Ethiopia. He asked that he not be forced to serve at the battlefront, a request that was granted. He instead was assigned to surveillance and guard duty at a military base.

Thereafter, however, he was imprisoned and forced to perform hard labor. As punishment for talking with other prisoners, his jailers forced him to roll on the ground for two to three hours in the hot sun — and beat him with a stick when he stopped — for a two-week period. He was released after two years, and returned to military service, including as a uniformed and armed guard at the same prison where he had been detained.

In that capacity, he prevented prisoners from escaping, showering, and obtaining fresh air. In addition, he guarded prisoners being punished by sun exposure, at least one of whom died. He was also aware that his superiors were using electricity to torture prisoners. He contended that his service at the prison was as a result of duress and coercion, but conceded that he had "assisted in the persecution of other prisoners at the prison camp."

He eventually escaped and made his way to the United States. After coming to Louisiana in 2004, he claimed credible fear, asserting he would be persecuted, tortured, or killed if returned to Eritrea. USCIS referred his case to an immigration judge.

The immigration judge denied his applications for asylum, statutory withholding, and withholding under the Convention Against Torture, finding that respondent had assisted or participated in the persecution of others.

Under section 208(b)(2)(A)(i) of the Immigration and Nationality Act (INA), an alien is barred from receiving asylum if the Attorney General (or his delegate) determines that the applicant "ordered, incited, 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." The same bar applies to statutory withholding pursuant to section 241(b)(3)(B)(i) of the INA, and this provision also bars an alien from receiving withholding under Convention Against Torture by regulation.

The immigration judge determined, in essence, that the respondent did not assist or participate in that persecution out of malice, but found that these bars applied nonetheless.

Here is the problem (or more precisely, was the problem before the Attorney General issued his decision): There was no direct precedent that applied these bars to aliens who had committed such persecution allegedly under coercion or duress. What precedent there was could be found in Fedorenko v. United States, a 1981 case that involved the revocation of naturalization from an alien who (the government claimed) had obtained that status illegally, or through willful misrepresentation of a material fact.

You may ask what that has to do with asylum. Well, Fedorenko (a Ukrainian) had been captured by the German Army while fighting for the Soviet Red Army sometime in 1941. The Nazis trained him to be a concentration camp guard, issued him a uniform and a gun, and sent him to work at a death camp (Treblinka in Poland, described by one court as a "human abattoir"). He served as a guard at Treblinka during 1942 and 1943.

He eventually was sent to guard, serially, a labor camp in Danzig, a prisoner-of-war camp in Poelitz, and a warehouse in Hamburg. When the war ended, he got rid of his uniform, passed as a civilian, and worked in Germany for four years. In 1949, he applied for admission to the United States under the Displaced Persons Act, which was essentially the first U.S. refugee law. He lied about how he had spent the war, and thereby was allowed to come to this country, eventually becoming a citizen.

The government eventually uncovered the truth, and moved to denaturalize him.

Under section 2(b) of the Displaced Persons Act (by incorporation), "individuals who 'assisted the enemy in persecuting civil[ians]' were ineligible for visas." The district court found, however, that Fedorenko was not barred under that provision "because he had served involuntarily" (and thus his misrepresentations were not "material" when he applied initially), a determination that was sustained by the circuit court.

The Supreme Court held that this was error, because there was no "basis for an 'involuntary assistance' exception in the language of" section 2(a) of the Displaced Persons Act. As odd as it sounds, Fedorenko was the leading case on coercion and duress in applying the persecution bars — I cited it many times while at the INS, and the Board of Immigration Appeals (BIA) relied on it in sustaining the immigration judge's decision in this matter.

Specifically, the BIA initially concluded that "motivation and intent are irrelevant to the issue of whether" Negusie "'assisted' in persecution", but rather "the objective effect of an alien's actions ... is controlling". That decision was affirmed by the U.S. Court of Appeals for the Fifth Circuit, and Negusie went to the Supreme Court.

In Negusie v. Holder, a 2009 opinion, the Court, finding that the issue of whether duress and coercion are relevant in applying the persecutor bar is ambiguous, reversed and remanded the case to the BIA to interpret it. Justice Kennedy, writing for the majority, held that the BIA had erred in relying on Fedorenko, because the Displaced Persons Act is different in text and purpose from the provisions in question.

It took a while, but in 2018, the BIA issued the first (published) Matter of Negusie. It held that an applicant subject to the persecutor bars could claim a limited "duress defense". To do so, at a minimum, the applicant had to show five facts by a preponderance of the evidence.

First, the alien "acted under an imminent threat of death or serious bodily injury to himself or others." Second, the alien "reasonably believed" that "threatened harm would be carried out unless" he or she "acted or refrained from acting." Third, the alien "had no reasonable opportunity to escape or otherwise frustrate the threat." Fourth, the alien "did not place himself in a situation in which" he or she "knew or reasonably should have known that" he or she "would likely be forced to act or refrain from acting." Fifth, the alien "knew or reasonably should have known that the harm" he or she "inflicted was not greater than the threatened harm to himself or others."

The Attorney General blew all of that up, finding that there was nothing in the text of the provisions, or in the context or history of the INA, that contained an exception for duress or coercion, or that required proof that the applicant had acted voluntarily in ordering, inciting, assisting, or otherwise participating in persecution, for the persecutor bar to apply. Congress could have added that latter requirement or the former exceptions, the Attorney General held, but didn't.

It did so in various forms elsewhere, but not here, not in the Displaced Persons Act  and not in any of its subsequent refugee acts. This actually gives short shrift to the Attorney General's rather exhaustive analysis of each, but it is more or less the point.

That is not to say that those omissions were oversights by Congress, as the operative statutes were interpreted in this manner by reviewing courts, but Congress kept (more or less) saying the same thing.

The BIA (the second time) concluded that a duress exception was inferred, as the Attorney General put it, "based largely upon its view that Congress intended the persecutor bar to comport with international agreements and the international understanding of those agreements", including the 1967 United Nations Protocol Relating to the Status of Refugees and the 1951 Convention Relating to the Status of Refugees.

The Attorney General concluded, however, that those agreements do not "overcome the text, context, and history of the persecutor bar, and indeed, neither agreement's text contains such an exception." He further concluded that interpreting the bar to exclude such exceptions would sidestep the diplomatic ramifications that could follow a grant of protection or relief to a persecutor.

In addition, the Attorney General identified policy reasons for not inferring a duress exception to the persecutor bar, not least of which is the burden that it would place on the (already overburdened) DHS in verifying or alternatively countering claims of duress, particularly where the persecutor is a foreign government. Significantly, he held:

The Board dismissed these concerns by assuming that inquiries into duress or coercion would be no different from the kinds of fact-findings that immigration judges and DHS must already make in asylum proceedings. Whether or not that assumption is true, the need for additional facts is a need for additional facts. Foisting such responsibility on DHS and immigration judges will inescapably burden an already resource-depleted process and impede the ability of non-persecutors to obtain protection or relief. Those limited resources should instead be directed towards applicants who have not persecuted others, even under duress or coercion.

Respectfully, I always believed that this practical consideration was the best reason not to read a coercion or duress exception into the persecutor bar. From my experience, persecutors (like terrorists) never admit that they carried out their acts willingly — and often don't admit that they carried out any misdeeds until they are confronted with them.

In any event, even this holding does not leave aliens like Negusie with no protection at all. They are still eligible for deferral under the Convention Against Torture, a more limited protection that nonetheless ensures that they will not be returned to torture.

Similarly, the Attorney General held that DHS does not bear any burden to prove that an alien could possibly be a persecutor before the alien shows that he or she is not, rejecting the BIA's conclusion that DHS bore the initial burden to show that the alien assisted or otherwise participated in persecution by prima facie evidence of persecutory conduct.

Simply put, the alien bears the burden of proving eligibility for protection, and proof that the alien is or could be a persecutor could come from either DHS or the alien. That does not mean that every applicant for asylum has to show that he or she is not a persecutor, but where there is evidence that suggests that the bar may apply, the alien has to counter it by a preponderance of the evidence, or be barred from relief or protection.

Again, all of this is just common sense. DHS usually knows very little at all about the hundreds of thousands of aliens who apply for asylum, and lacks the resources to do more than cursory investigations on even a handful of them. Plus, if the alien makes a statement suggesting that he or she is a persecutor, why would DHS have to independently prove that same fact before the alien had to prove he or she is not?

This is a singularly important decision that provides needed guidance on a question that has lurked around every asylum case involving an alien who may be barred as a persecutor. Remember — for decades, courts in those cases have often (if not usually) relied on precedent that is now almost 40 years old and issued in a different context involving a different statute.

The issues — whether there was a requirement that persecution be committed voluntarily for the bar to apply, whether coercion or duress were exceptions to that bar, and what burden DHS bore in those cases — has been resolved. Dispositively, I hope.

Topics: Asylum