One Who Is Subject To The Persecutor Bar To Asylum Eligibility May Claim A Limited Duress Defense.

The minimum requirements of such a asylum eligibility defense mandate that the applicant establish by a preponderance of the evidence that:

1) He acted under an imminent threat of death or serious bodily injury to himself or others;
2) He reasonably believed that the threatened harm would be carried out unless he acted or refrained from acting;
3) He had no reasonable opportunity to escape or otherwise frustrate the threat;
4) He did not place himself in a situation in which he knew or reasonably should have known that he would likely be forced to act or refrain from acting; and,
5) He know or reasonably should have known that the harm he inflicted was not greater than the threatened harm to himself or others.

In yet another exceptionally lengthy opinion, on June 28, 2018, the Board of Immigration Appeals (BIA or Board), in a 2-1 decision with a concurring and dissenting opinion by Board Member Garry D. Malphrus – on remand from the U.S. Supreme Court – dismissed the respondent’s appeal of the denial by the Immigration Judge (IJ) of his asylum and withholding of removal applications, along with the granting of his claim for CAT relief. However, the BIA concluded that duress is relevant in determining whether one who assisted or otherwise participated in persecution is prevented by the persecutor bar from establishing eligibility for asylum, withholding, or CAT relief, and set forth a standard for evaluating duress claims in this context. Applying that standard to the record here, the Board held that respondent had not established “that he was under duress when he assisted in the persecution of prisoners who were persecuted under his guard in an Eritrean prison camp.”

Respondent testified he had been forcibly conscripted into the Eritrean military, refused to fight against fellow Ethiopians, and was jailed for two years while subjected to forced labor, beatings, and exposure to the hot sun. He was then made to serve as a uniformed/armed guard at a prison camp, guarding prisoners and keeping them from access to showers and fresh air; he also guarded prisoners placed in the hot sun as punishment, during which he testified he saw at least one man die. He also claimed to have disobeyed orders and assisted prisoners, for which he received verbal reprimands. He eventually escaped from the camp and stowed away on a ship to the U.S.; he claimed asylum based on the persecution he suffered when the “prison guards harmed him on account of a protected ground while he was a prisoner” and was placed into proceedings.

The IJ found the persecutor bar applied to respondent’s application because prisoners he guarded were tortured and left to die in the hot sun on account of a protected ground and thus held he was ineligible for asylum and withholding “as one who has assisted in the persecution of others on account of race, religion, nationality, membership in a particular social group, or political opinion.” Still, the IJ found him credible and that it is more likely than not “that he would be arrested and tortured by the Eritrean government upon return to Eritrea because he is a military deserter,” and granted deferral of removal under CAT. Both respondent and DHS appealed.

Initially, the BIA dismissed the applicant’s appeal and the Fifth Circuit of Appeals affirmed, but the Supreme Court reversed and remanded for the Board to determine whether, under the INA, one who is coerced to assist in persecuting others is barred from asylum relief. Relying on the fact that Congress did not provide an explicit duress exception “or make intent an element for establishing culpability under the persecutor bar,” DHS argued that the Board should be reluctant to read such an exception into the bar and argued for a “bright-line” rule prohibiting any exception. The applicant, contending that victims should not suffer adverse consequences for acts committed under duress, argued that such an exception is found in the Exclusion Clauses of the 1951 U.N. Convention Relating to the Status of Refugees (Convention), which are “couched in the language of criminal violations”; these clauses, he claimed, required that individual responsibility be established “before a ground of exclusion may be applied.” Respondent emphasized that he clearly acted under duress, noting the execution of a friend who tried to escape guard duty and the death threats he received.

The BIA concluded that “it is in eminently reasonable to recognize a narrow duress exception to the persecutor bar.” Finding that such claims are justiciable under both the Convention and the 1967 UN Protocol Relating to the Status of Refugees (Protocol), the Board concluded that “any anticipated difficulty in applying a duress exception” would not prevent it from recognizing a “narrow exception” protecting “those found to have assisted or participated in acts of persecution for which they bear no culpability.”

Finding that a duress exception fulfills the purpose of both the persecutor bar and Refugee Act and is consistent with the implementation of the Convention and Protocol, the BIA first looked at the Refugee Act’s legislative history, noting that it had been enacted by Congress to bring U.S. law “into conformity with the Convention and the Protocol.” Further, noted the opinion, Congress intended that the bar be interpreted such that it reflects the international understanding of America’s obligations under the Convention. The Board found that Article 1F(a) of the Convention includes a duress exception based on that Article’s history: after World War II, the International Military Tribunal held that “persons could not be held individually responsible for executing an order unless they had the ability to make a moral choice.” Article 1F(a)’s references to “war crimes” and “crimes against humanity” indicate that the Convention’s drafters purposely used the term “crime” and thus intended, at least implicitly, that international criminal law concepts such as “duress” should be included. Therefore, persons could not be guilty of war crimes if they acted under duress because the very principle of duress was carried over into the Article’s enactment. In sum, stated the BIA, a limited defense of “duress” is consistent with the opinion’s interpretation of the bar, whereas exclusion of such a defense “arguably departs from the overall congressional intent,” that the Refugee Act be interpreted consistently with the Convention.

In answering the DHS argument that recognizing a duress defense would create a significant administrative burden, the Board found it nonsensical to automatically bar a hypothetical former child soldier (who qualified as a PSG member) from asylum eligibility because of participation in persecutory acts committed under duress; yet a “bright-line” persecutor bar proposed by DHS (and the dissent) would do just that.

The BIA also emphasized the limited “boundaries” of the duress standard, holding that at a minimum an applicant must establish by a preponderance of the evidence that he: 1) acted under an imminent threat of death or serious bodily injury to himself or others; 2) reasonably believed that the threatened harm would be carried out unless he acted or refrained from acting; 3) had no reasonable opportunity to escape or otherwise frustrate the threat; 4) did not place himself in a situation in which he knew or reasonably should have known that he would be forced to act or refrain from acting; and, 5) knew or reasonably should have known that the harm he inflicted was not greater than the threatened harm to himself or others. In effect, stated the Board, this formulation incorporates a “proportionality” element requiring the applicant “to show that the threatened harm to himself or others was greater than or equal to the harm he was forced to inflict”; this narrows the defense for those who have assisted or engaged in persecution by requiring that the harm threatened against an applicant must always rise to the level of “persecution.” The duress defense, found the decision, “is intended for rare cases where the [applicant] was not culpable for contributing to the persecution.”

Setting forth the framework for analyzing duress claims, the BIA noted that DHS may satisfy its burden to show that the persecutor bar applies to an asylum applicant even though he or she acted under duress. The question of whether the defense applies is “distinct”: whether protection otherwise afforded under the law should be foreclosed based on conduct that is claimed not to be culpable because of duress. The initial burden, held the Board, is on DHS to show evidence that indicates the applicant assisted or participated in persecution. Once DHS does so, the burden shifts to the applicant to establish by a preponderance that the bar does not apply “because he did not engage in persecution because he acted under duress.”

Citing to a recent precedent decision, Matter of D-R-, 27 I&N Dec. 105 (BIA 2017),the Board reiterated that an adjudicator must consider: 1) the nexus between the applicant’s acts, role or inaction and the persecution of others and 2) his scienter, i.e., his prior or contemporaneous knowledge of such persecution.

As to the instant claim, because DHS met its initial burden of proving respondent assisted or participated in persecution, the burden shifted to him to show that the bar did not apply or he had acted under duress. The BIA held that the death threats he received, should he disobey orders, when viewed in context, did not constitute the threat of death or serious bodily injury required to meet the duress standard. Because the record establishes respondent had a “reasonable opportunity to escape or otherwise avoid guarding the prisoners who were subjected to harm and torture,” a remand is not warranted and the appeal was dismissed. The record was remanded to the IJ to allow DHS to complete or update its security checks, for any necessary further proceedings and for entry of an order as provided by 8 CFR §1003.47(h).

In a fairly extensive concurring and dissenting opinion, Board Member Malphrus noted that he agreed with the majority decision “only to the extent that it dismisses the applicant’s appeal,” dissenting otherwise “from the majority’s creation of a duress exception to the persecutor bar.” In sum, he accused the majority of reading a duress exception into the Protocol and, by extension, the Refugee Act “that simply does not exist.” In his analysis, Board Member Malphrus claimed the issue before the BIA is whether there is an implicit duress exception to the bar; in answer, he stated that the BIA must first consider the text and structure of the statute, then consider the text and negotiating history of the Convention. Neither the text of the Refugee Act and Protocol nor their relevant histories indicates: “an intent to include a duress exception to the persecutor bar…”

As to statutory interpretation, the dissent found that Article 1F of the Convention does not provide for a duress exception, claiming that its language differs significantly from the more precise wording of the persecutor bar in the INA. Further, the fact that duress may be available as a defense in criminal law does not mean a duress exception “is implicit in the Act’s persecutor bar”; the bar does not provide for criminal punishment for persecutors, it is merely a bar to immigration benefits.

Regarding the international interpretation of the issue of duress, Board Member Malphrus argued the majority reads too much into the existing obligations under Article 1F, which focused “on preventing persecutors from benefiting from the protections of the Convention, not on protecting persecutors who acted under some form of coercion.” Even if certain member states to the Convention found an implied duress exception in Article 1F, argued the dissent, “we are under no obligation to follow their interpretation.”

Nor did Congress intend to extend the same protections to persecutors as are extended to their victims; the fact that the limited protection of deferral of removal under CAT is available here shows that the bar must be strictly applied. It was notable, implied Board Member Malphrus, that “the relevant judicial and administrative interpretations” of the various refugee and asylum statutes have never found a duress exception and “Congress has never acted to change these interpretations.”

Finally, complained the dissent, the duress standard promulgated by the majority is a hybrid approach not tied to any specific source; it is therefore “far from clear how the standard will be applied in practice.” Credibility will be a challenge and “it is unclear what, if any, corroboration an Immigration Judge could reasonably require” of one who claims he was coerced into persecuting another. Congress is the entity that should adopt such an exception to, or waiver of, the persecutor bar; the Board should have resisted the temptation to do so. Matter of Negusie, 27 I&N Dec. 347 (BIA 2018).

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