IRLI Files BIA Brief to Confirm Absence of Duress Exception to the “Persecutor Bar” in U.S. Immigrat

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September 14, 2016

Assisting Government Administrative Tribunals Properly Interpret the Law

September 14, 2016

(Washington, D.C.) – The Immigration Reform Law Institute (IRLI) has filed an important amicus brief (attached here) on behalf of the Federation for American Immigration Reform (FAIR) with the Board of Immigration Appeals (BIA), in response to the U.S. Supreme Court’s March 3, 2009 ruling in Negusie v. Holder, where an Ethiopian forced to serve as a guard at a camp in Eritrea for political prisoners had been denied asylum under the “persecutor bar” in U.S. immigration law. The Supreme Court remanded the case back to the BIA and ordered the agency to determine whether the persecutor bar contained an implicit duress exception. The BIA then asked FAIR and immigration experts to recommend what limitations if any should be placed on the duress exception.

In its amicus brief, FAIR strongly urged the BIA to remain true to the language of the asylum law statute and affirm that a duress exception to the persecutor bar does not exist. Neither the plain language of the statute nor congressional intent supports an implied exception that does not appear in the text. FAIR directed the BIA’s attention to the regulatory language which states that denial of asylum is mandatory if the applicant even assisted in persecuting others. If the BIA did recognize a duress exception, FAIR argued that only a very narrow use of the duress exception, which places the burden on the applicant, could be compatible with the goal of protecting the human rights that U.S. asylum law requires. Specific limitations, such as ensuring that only the most indirect and passive acts made under an immediate threat of death or bodily harm should be considered to ensure that the duress exception does not become a loophole benefiting participants in crimes against humanity. FAIR also strongly called for the BIA to never grant asylum to an applicant who participated in persecutory acts that directly resulted in the death of another person.

Dale L. Wilcox, IRLI’s Executive Director commented, “Our Immigration law is clear and unambiguous and contains no duress exception to the persecutor bar.” Wilcox continued, “We would hope that if the BIA reads into the law such an exception, it would narrowly construe the exception to protect the human rights that U.S. asylum law requires.”

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