"Duress" Defense Perversely Opens the Door for Persecutors, War Criminals, and Human Rights Abusers to Seek Asylum or Refugee Status

By Dan Cadman on July 2, 2018

Law360 (partially behind a paywall) has published a short piece about a recent ruling by the Board of Immigration Appeals (BIA), the administrative appellate tribunal of the immigration courts, which creates a defense against removal from the United States for aliens who have engaged in persecution "under duress".

Questions linger about whether the BIA exceeded its authority — as expressed, for instance, in a dissent by one of the Board members. But even larger questions arise as to the morality of such a decision, which potentially even eliminates a longstanding bar against persecutors seeking asylum or refugee status under the Immigration and Nationality Act.

According to Law 360, the majority decision asserts that:

Those seeking to overcome a bar on immigration relief for those deemed to be persecutors by claiming that they acted under "duress" must establish that they had no "reasonable opportunity" to escape or to "frustrate" what they were forced to do, and must establish that they did not place themselves in situations in which they knew they would be forced to perform as persecutors, according to the decision [and the] individuals must also establish that they acted under an "imminent threat" of physical injury or death, that they believed the physical harm would actually occur, and that the harm they inflicted on others was not "greater" than the harm threatened against them, according to the decision.

This decision comes against the backdrop of an alarming report issued earlier this year, that memory of the Holocaust is fading among America's young adults: Two thirds of American Millennials have no idea what Auschwitz was. This is shocking given that Auschwitz and its sister extermination camp, Birkenau, were Nazi death factories responsible for more than a million murders, the vast majority of the victims being European Jews.

How, one asks, do immigration judges thousands of miles, and likely many years distant, from the site of genocidal or war crimes atrocities make reasoned assessments about the truth of the "duress" defense, in that the more heinous the offender, the more likely he will lie about the extent of his participation, or the force of threats against him to coerce that participation in acts of murder, torture, genocide, or ethnic cleansing?

How do they judge whether the harm was "greater" than that perceived when aliens participate in crimes against humanity?

Albert Speer, the preeminent Nazi architect, never got his hands dirty with the actual mechanics of death, but he was creator of the machinery that made death and slave labor possible. Yet he was, rightly in my view, convicted of atrocities at the Nuremberg trials, the predecessor of all of today's tribunals weighing judgment on genocide, war crimes, and crimes against humanity. Speer clearly falls into the Board's decision as regards the amount of harm inflicted.

But what about an individual who was simply a perimeter guard at a camp where atrocities routinely occurred and inmates were periodically, or even only occasionally, tortured to death? Is that harm "greater"?

Is, or should, any defense at all be adequate when one acts as a cog in a death machine? Surely the answer must be "no."

The Board's precedent stands logic on its head by creating a situation in which persecutors may themselves, given the right circumstances and murky facts, become "victims" seeking legal relief using the same mechanisms created by the United States to protect the persecuted. How can this possibly be either legally or morally acceptable?

Attorney General Jeff Sessions has recently evinced a willingness to certify to himself decisions of the BIA when they appear to exceed the boundaries of the law or create pockets of protection and relief from removal where none were intended.

This decision seems ripe for such a review.