NEGUSIE

Cite as 27 I&N Dec. 347 (BIA 2018) Interim Decision #3930

Matter of Daniel Girmai NEGUSIE, Applicant

Decided June 28, 2018

U.S. Department of Justice

Executive Office for Immigration Review

Board of Immigration Appeals

(1) An applicant who is subject to being barred from establishing eligibility for asylum or

withholding of removal based on the persecution of others may claim a duress defense,

which is limited in nature.

(2) To meet the minimum threshold requirements of the duress defense to the persecutor

bar, an applicant must 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 knew or reasonably should have known that the harm he inflicted was

not greater than the threatened harm to himself or others.

FOR APPLICANT: Andrew J. Pincus, Esquire, Washington, D.C.

FOR THE DEPARTMENT OF HOMELAND SECURITY: George R. Martin, Associate

Legal Advisor

BEFORE: Board Panel: GRANT and GREER, Board Members. Concurring and

Dissenting Opinion: MALPHRUS, Board Member.

GRANT, Board Member:

In a decision dated May 31, 2005, an Immigration Judge denied the

applicant’s applications for asylum and withholding of removal but granted

his request for deferral of removal under the Convention Against Torture and

Other Cruel, Inhuman or Degrading Treatment or Punishment, adopted and

opened for signature Dec. 10, 1984, G.A. Res. 39/46, 39 U.N. GAOR Supp.

No. 51, at 197, U.N. Doc. A/RES/39/708 (1984) (entered into force June 26,

1987; for the United States Apr. 18, 1988) (“Convention Against Torture”).

On February 7, 2006, we dismissed the appeals of both the applicant and the

Department of Homeland Security (“DHS”). 1 This case is now before us

on remand pursuant to a decision of the United States Supreme Court in

1

The DHS does not now challenge the applicant’s grant of deferral of removal under the

Convention Against Torture.

347

Cite as 27 I&N Dec. 347 (BIA 2018) Interim Decision #3930

Negusie v. Holder, 555 U.S. 511 (2009). Having reviewed the record and

the arguments presented by the parties and amici curiae, we will again

dismiss the applicant’s appeal. 2

We conclude that duress is relevant in determining whether an alien who

assisted or otherwise participated in persecution is prevented by the so-called

“persecutor bar” from establishing eligibility for asylum and withholding

of removal under sections 101(a)(42), 208(b)(2)(A)(i), and 241(b)(3)(B)(i)

of the Immigration and Nationality Act, 8 U.S.C. §§ 1101(a)(42),

1158(b)(2)(A)(i), and 1231(b)(3)(B)(i) (2012), and for withholding of

removal under the Convention Against Torture pursuant to 8 C.F.R.

§ 1208.16(c) and (d)(2) (2018). 3 In this decision, we set forth a standard for

evaluating claims of duress in this context. Applying that standard to the

uncontested findings of fact in the record, we conclude that the applicant has

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.

I. FACTUAL AND PROCEDURAL HISTORY

The applicant is a national and citizen of both Ethiopia and Eritrea. He

arrived in the United States on December 20, 2004, as a stowaway. Once in

this country, he claimed that he would be persecuted upon his return and

applied for asylum and withholding of removal.

At a credible fear interview, the applicant testified that he had been

forcefully conscripted into the Eritrean military. As a result of his refusal to

fight against fellow Ethiopians, he was incarcerated for 2 years, subjected to

forced labor, beaten, and exposed to the hot sun. Thereafter, he was forced

to serve as a uniformed and armed guard at a prison camp operated by the

Eritrean military. His duties included guarding prisoners to make sure they

did not escape and keeping prisoners from taking showers and obtaining

fresh air. At times, he guarded prisoners who were placed in the hot sun as

a form of punishment and saw at least one man die after being in the sun for

more than 2 hours. On at least two occasions, the applicant disobeyed orders

and assisted prisoners, for which he received verbal reprimands from his

2

On September 8, 2017, a three-member panel of the Board heard oral argument from

both parties. We acknowledge and appreciate the briefs submitted by the parties and amici

curiae.

3

The “persecutor bar” is set forth in in the definition of a “refugee” in section 101(a)(42)

of the Act, which provides, in pertinent part: “The term ‘refugee’ does not include any

person who 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 language bars aliens from establishing eligibility for

asylum and withholding of removal under the Act and the Convention Against Torture.

348

Cite as 27 I&N Dec. 347 (BIA 2018) Interim Decision #3930

superiors but was not harmed or threatened with physical harm. The

applicant escaped from the prison and hid in a container that was loaded on

board a ship heading to the United States. His claim of persecution is based

on his assertion that prison guards harmed him on account of a protected

ground while he was a prisoner.

Following his credible fear interview, the applicant was issued a Notice

of Referral to Immigration Judge (Form I-863). In a decision dated May 31,

2005, the Immigration Judge determined that the persecutor bar applied to

the applicant because he guarded prisoners who were tortured and left to die

in the hot sun on account of a protected ground. Thus, the Immigration Judge

concluded that the applicant was ineligible for asylum and withholding of

removal 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. However, finding that the applicant was 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,

the Immigration Judge granted his request for deferral of removal under the

Convention Against Torture pursuant to 8 C.F.R. § 1208.17 (2005). Both the

applicant and the DHS appealed.

We dismissed the applicant’s appeal, affirming the Immigration Judge’s

finding that the applicant is subject to the persecutor bar. Based primarily on

our decision in Matter of Fedorenko, 19 I&N Dec. 57, 69 (BIA 1984), and

Fedorenko v. United States, 449 U.S. 490 (1981), we determined that it was

immaterial that the applicant was compelled to act as a prison guard

and concluded that an alien’s motivation and intent are irrelevant to

whether he “assisted” or “participated” in persecution. The United States

Court of Appeals for the Fifth Circuit affirmed our decision following the

same reasoning. Negusie v. Gonzales, 231 F. App’x 325 (5th Cir. 2007).

The Supreme Court reversed and remanded. The Court first held that the

persecutor bar’s silence with regard to a duress exception “is not conclusive”

and that on this precise point, the statute is ambiguous. Negusie, 555 U.S. at

518. The Court held that the Board and the Fifth Circuit erred in concluding

that Fedorenko is controlling on the question because, in that case, the Court

was interpreting the Displaced Persons Act of 1948, ch. 647, 62 Stat. 1009,

which is distinct in purpose and language from the statute at issue here, the

Refugee Act of 1980, Pub. L. No. 96-212, 94 Stat. 102 (“Refugee Act”).

Negusie, 555 U.S. at 518–20.

The Court emphasized the distinction between the DPA, which was

enacted to address not only the post-World War II refugee crisis “but also the

Holocaust and its horror,” and the Refugee Act, which was “designed to

provide a general rule for the ongoing treatment of all refugees and displaced

persons.” Id. at 520. Since Fedorenko addressed “a different statute enacted

349

Cite as 27 I&N Dec. 347 (BIA 2018) Interim Decision #3930

for a different purpose,” it does not control interpretation of the persecutor

bar in the Refugee Act. Id. The Court also recognized that it is not “clear

that Congress had an intention on the precise question at issue.” Id. at 518.

Finding that the Board “has not exercised its interpretive authority” on the

question, id. at 522, the Court remanded for us to make a “determination of

the statutory interpretation question,” id. at 524, “with respect to whether an

alien who was coerced to assist in persecution is barred from obtaining

asylum in the United States,” id. at 525 (Scalia, J., concurring).

II. ARGUMENTS OF THE PARTIES

Both parties rely on the legislative history, the international instruments,

and other provisions of the Act to reach opposite conclusions. The parties’

arguments are similar to those considered by the Supreme Court, and both

positions have merit. We will summarize the most salient points.

The DHS maintains that neither the 1967 United Nations Protocol

Relating to the Status of Refugees, opened for signature Jan. 31, 1967,

19 U.S.T. 6223, 606 U.N.T.S. 267 (entered into force Oct. 4, 1967; for the

United States Nov. 1, 1968) (“Protocol”), nor the 1951 United Nations

Convention Relating to the Status of Refugees, adopted July 28, 1951,

19 U.S.T. 6259, 189 U.N.T.S. 150 (entered into force Apr. 22, 1954)

(“Convention”), indicates that the persecutor bar in the Act should be read to

incorporate a duress exception. This is particularly so in regard to Article 1F

of the Convention, which identifies persons who are ineligible for protection

under the Convention (referred to as the “Exclusion Clauses”).

While acknowledging that the Board may examine the treaty obligations

that inform the Act, the DHS argues that the Board has no authority to expand

our obligations beyond that which has been provided by the Act and

regulations. See Matter of G-K-, 26 I&N Dec. 88, 93 (BIA 2013). 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, the

DHS contends that the Board should be “reluctant” to construe the

ambiguous persecutor bar as providing such an exception. According to the

DHS, if the Board were to recognize a duress exception, it “would risk

effectively expanding U.S. treaty obligations beyond what the President and

Congress intended.” The DHS emphasizes that the drafting history of Article

1F of the Convention establishes that each State party was free to make its

own decision regarding how the Exclusion Clauses are to be applied and that

rejection of a duress exception does not mean that a State is in violation of

its treaty obligations.

The DHS further argues that even a narrowly crafted duress exception

would create a high risk of erroneous determinations, undermine the Act’s

350

Cite as 27 I&N Dec. 347 (BIA 2018) Interim Decision #3930

grounds of removability related to human rights, add significant caseload

burdens to the Immigration Courts, and even require overseas investigations

to assess the veracity of an applicant’s claim of duress. Although the

Supreme Court rejected the proposition that its decision in Fedorenko

resolves the statutory ambiguity in the persecutor bar, the DHS contends that

Fedorenko and our interpretation of the Holtzman Amendment in Matter of

Laipenieks, 18 I&N Dec. 433, 464 (BIA 1983), rev’d, 750 F.2d 1427 (9th

Cir. 1985), remain highly persuasive authority on the question of a duress

exception. 4 The DHS acknowledges that “declining to read an implicit

duress exception into the persecutor bar . . . would carry significant

implications,” namely, the denial of relief to applicants who were compelled

to engage in the persecution of others and who may have “endured

unimaginable harm themselves.” However, the DHS contends that the same

consequence flowed from the Supreme Court’s decision in Fedorenko that

the nation has a legitimate interest in not providing safe haven to violators of

human rights or importing “ethnic strife” from other countries. Negusie, 555

U.S. at 527 (Scalia, J., concurring). Accordingly, the DHS argues for a

“bright-line” persecutor bar that prohibits any exception.

For his part, the applicant contends that the only permissible

interpretation of the persecutor bar must reflect the principle that persons

should not suffer serious adverse consequences for acts committed under

duress. The applicant argues that this principle is reflected in the Exclusion

Clauses of the Convention, which are couched in the language of criminal

violations. Thus, he asserts that the Exclusion Clauses necessarily import the

requirement that individual responsibility must be established before a

ground of exclusion may be applied.

According to the applicant, since Congress manifestly intended that the

provisions of the Refugee Act should be interpreted in light of these treaty

obligations, a duress exception commensurate with this principle must be

4

The Holtzman Amendment, Pub. L. No. 95-549, §§ 101, 103, 92 Stat. 2065, 2065–66

(1978), amended the Act to provide for the exclusion and deportation of any alien

associated with the Nazi forces who “ordered, incited, assisted, or otherwise participated

in the persecution of any person because of race, religion, national origin, or political

opinion.” See former sections 212(a)(33), 241(a)(19) of the Act, 8 U.S.C. §§ 1182(a)(33),

1251(a)(19) (Supp. II 1978) (recodified at sections 212(a)(3)(E), 237(a)(4)(D) of the Act,

8 U.S.C. §§ 1182(a)(3)(E), 1227(a)(4)(D) (2012)); see also former section 243(h) of the

Act, 8 U.S.C. § 1253(h) (Supp. II 1978) (including the persecutor bar language for

withholding of deportation). According to the Supreme Court, the Board “has not

exercised its interpretive authority but, instead, has determined that Fedorenko controls.”

Negusie, 555 U.S. at 522. While the DHS contends that the Board did perform a “limited

statutory analysis” of the Holtzman Amendment in Laipenieks, we follow the Court’s

assessment of our decision.

351

Cite as 27 I&N Dec. 347 (BIA 2018) Interim Decision #3930

recognized. 5 Failure to do so risks excluding from protection the victims of

a “commonplace” form of persecution in the contemporary world—forcing

those who are victims of persecution themselves to persecute others.

Examples include child soldiers forcibly recruited from victim populations,

individuals tortured to identify the names of others with similarly disfavored

political views, and victims of widespread religious persecution. The

applicant discounts the administrative burdens of applying a duress

exception, noting that the difficulties are similar to those already encountered

in litigating and adjudicating claims of persecution. In this case, the

applicant contends that he plainly acted under duress, noting the execution

of two friends who tried to escape duty as prison camp guards and the threats

of death he personally received.

Against this background, in which the parties’ respective arguments cut

both ways, the Supreme Court has indicated that we can recognize a duress

exception, provided that doing so is reasonable. We conclude that it is

eminently reasonable to recognize a narrow duress exception to the

persecutor bar. While Congress’ expression of its explicit intent would be

preferable, the lack of it in the intervening years since the Supreme Court

provided its direction in Negusie does not prevent us from making an

exception based on traditional tools of statutory construction and common

sense. Indeed, the Court observed that filling the statutory gap “involves

difficult policy choices that agencies are better equipped to make than

courts.” Negusie, 555 U.S. at 523 (citation omitted) (internal quotation mark

omitted).

Furthermore, the experience of our own courts, as well as tribunals in

sister jurisdictions that also adhere to the Convention and Protocol,

demonstrates that such claims are justiciable, both in theory and practice.

Moreover, any anticipated difficulty in applying a duress exception should

not prevent us from recognizing a narrow exception that will continue to

protect those found to have assisted or participated in acts of persecution for

which they bear no culpability. The added burden would be one of degree,

not of kind, in light of what we and the Immigration Courts routinely face in

the adjudication of claims for protection under the Act and the Convention

Against Torture. 6

5

The applicant contends that the text of the persecutor bar “unambiguously” provides for

a duress exception. So phrased, this argument is foreclosed by the Supreme Court’s

determination that the statutory text is ambiguous on this point. At oral argument, counsel

for the applicant clarified that while the specific text of the persecutor bar may be

ambiguous, the context of its enactment leads to only one permissible interpretation.

6

In this regard, our conclusion is analogous to that reached by the Attorney General in

Matter of Y-L-, A-G-, & R-S-R-, 23 I&N Dec. 270, 276 (A.G. 2002), where he determined

that he would be “well within [his] discretion to conclude that all drug trafficking offenses

352

Cite as 27 I&N Dec. 347 (BIA 2018) Interim Decision #3930

III. DURESS EXCEPTION

Recognizing a narrow duress exception is reasonable because it fulfills

the purposes of the persecutor bar and the overall purposes of the Refugee

Act. A narrow duress exception is also consistent with the purposes and

implementation of the Convention and Protocol. And it is the best of the

permissible approaches. Negusie, 555 U.S. at 528 (Scalia, J., concurring)

(“It is to agency officials, not to the Members of this Court, that Congress

has given discretion to choose among permissible interpretations of the

statute.” (emphasis added)).

A. Parallel Provisions

We look first to the legislative history of the Refugee Act. Matter of

L-A-C-, 26 I&N Dec. 516, 518 (BIA 2015) (“Where the statutory language

is unclear, we consider legislative history to help discern congressional

intent.”). It is well established that Congress enacted the Refugee Act to

bring United States law into conformity with the Convention and the Protocol.

See Negusie, 555 U.S. at 520 (citing INS v. Aguirre-Aguirre, 526 U.S. 415,

427 (1999), and INS v. Cardoza-Fonseca, 480 U.S. 421, 436–47 (1987)).

The United States agreed to comply with Articles 2 through 34 of the

Convention when it acceded to the Protocol in 1968. See Cardoza-Fonseca,

480 U.S. at 429; INS v. Stevic, 467 U.S. 407, 416 (1984).

The Refugee Act added provisions to the Immigration and Nationality

Act that closely correspond to the Protocol and the Convention. The

definitions of a “refugee” in the Refugee Act and Article 1A(2) of the

Convention are almost identical. 7 The Supreme Court has observed that

there were “many statements indicating Congress’ intent that the new

statutory definition of ‘refugee’ be interpreted in conformance with the

Protocol’s definition.” Cardoza-Fonseca, 480 U.S. at 437. For example, in

reporting out its version of the Refugee Act, the House Judiciary Committee

are per se ‘particularly serious crimes’ under the [Act],” but he did “not consider it

necessary . . . to exclude entirely the possibility of the very rare case where an alien may

be able to demonstrate extraordinary and compelling circumstances that justify treating a

particular drug trafficking crime as falling short of that standard.”

7

Article 1A(2) of the Convention defines a “refugee” as

any person who . . . owing to well-founded fear of being persecuted for reasons of

race, religion, nationality, membership of a particular social group or political

opinion, is outside the country of his nationality and is unable or, owing to such fear,

is unwilling to avail himself of the protection of that country.

353

Cite as 27 I&N Dec. 347 (BIA 2018) Interim Decision #3930

stated, “All witnesses appearing before the Committee strongly endorsed the

new [refugee] definition, which will finally bring United States law into

conformity with the internationally-accepted definition of the term ‘refugee’

set forth in the . . . Convention and the Protocol . . . .” H.R. Rep. No. 96-608,

at 9 (1979).

Similarly, section 208(a) of the Act, authorizing a grant of asylum,

corresponds to Article 34 of the Convention. 8 See Cardoza-Fonseca, 480

U.S. at 441. Former section 243(h) to the Act, 8 U.S.C. § 1253(h) (1994)

(now codified as section 241(b)(3) of the Act), which prohibits the

removal of an alien to a country where his “life or freedom would be

threatened” on account of a protected ground, corresponds to Article 33.1

of the Convention. 9 See Aguirre-Aguirre, 526 U.S. at 427 (stating that “the

basic withholding provision of [former section 243(h)(1) of the Act] parallels

Article 33” of the Convention); Cardoza-Fonseca, 480 U.S. at 429, 441.

The Refugee Act, like the Convention, makes certain categories of aliens

ineligible for asylum and withholding of deportation. The “refugee”

definition itself excludes those who persecute others. 10 Section 203(e) of the

Refugee Act, 94 Stat. at 107, added former section 243(h)(2) to the Act,

making withholding of deportation unavailable to an alien if

(A) the alien 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;

(B) the alien, having been convicted by a final judgement of a particularly serious

crime, constitutes a danger to the community of the United States;

(C) there are serious reasons for considering that the alien has committed a serious

nonpolitical crime outside the United States prior to the arrival of the alien in the

United States; or

(D) there are reasonable grounds for regarding the alien as a danger to the security

of the United States.

The House Judiciary Committee explained that these statutory bars “are

those provided in the Convention.” H.R. Rep. No. 96-608, at 18 (“As with

the asylum provision, the Committee feels that the proposed change in

8

Article 34 provides, in pertinent part: “The Contracting States shall as far as possible

facilitate the assimilation and naturalization of refugees.”

9

Article 33.1 provides: “No Contracting State shall expel or return (‘refouler’) a refugee

in any manner whatsoever to the frontiers of territories where his life or freedom would be

threatened on account of his race, religion, nationality, membership of a particular social

group or political opinion.”

10

The persecutor bar is still codified at section 101(a)(42) of the Act. Aliens who engage

in persecution are ineligible for asylum and withholding of removal under sections

208(b)(2)(A)(i) and 241(b)(3)(B)(i) of the Act, respectively.

354

Cite as 27 I&N Dec. 347 (BIA 2018) Interim Decision #3930

section 243(h) is necessary so that U.S. statutory law clearly reflects our legal

obligations under international agreements.”).

These statutory bars correlate to the Article 1F of the Exclusion Clauses,

which make Convention protections unavailable to a person if

(a) he has committed a crime against peace, a war crime, or a crime against

humanity, as defined in the international instruments drawn up to make provision in

respect of such crimes; 11

(b) he has committed a serious non-political crime outside the country of refuge

prior to his admission to that country as a refugee;

(c) he has been guilty of acts contrary to the purposes and principles of the United

Nations.

Certain provisions of the Act obviously correspond to those in the

Convention because the language is the same. For example, the “serious

nonpolitical crime” provisions of sections 208(b)(2)(A)(iii) and

241(b)(3)(B)(iii) of the Act correspond to Article 1F(b) of the Convention.

See Aguirre-Aguirre, 526 U.S. at 427.

Although the language of the persecutor bar is different from the

Exclusion Clauses, the legislative history of the Refugee Act shows that it

was based on the language of the Protocol and is intended to be interpreted

consistent with the Protocol and Convention, specifically, Article 1F(a). See

Matter of J.M. Alvarado, 27 I&N Dec. 27, 30 n.3 (BIA 2017) (recognizing

that Congress considered the persecutor bar to be consistent with the

exception under Article 1F(a) of the Convention). In explaining its adoption

of the “refugee” definition, the House Judiciary Committee reported that

“[t]his is consistent with the U.N. Convention (which does not apply to those

who, inter alia, ‘committed a crime against peace, a war crime, or a crime

against humanity’).” H.R. Rep. No. 96-608, at 10. Notably, in choosing

between language passed by the Senate that merely referred to aliens facing

persecution whose deportation would nonetheless “be permitted under the

U.N. Convention and Protocol,” the Conference Committee opted for the

more specific language in the House version of the refugee definition, but

“with the understanding that [the House version] is based directly upon the

language of the Protocol and it is intended that the provision be construed

consistent with the Protocol.” H.R. Rep. No. 96-781, at 20 (1980) (Conf.

Rep.).

11

Article 1F(a) makes relevant international instruments drawn up since the time of the

Convention. See U.N. High Commissioner for Refugees, Background Note on the

Application of the Exclusion Clauses: Article 1F of the 1951 Convention relating to the

Status of Refugees, para. 25 (Sept. 4, 2003). For example, crimes against humanity are

defined in Article 5 of the Statute of the International Criminal Tribunal for the former

Yugoslavia and Article 3 of the Statute of the International Criminal Tribunal for the

former Rwanda. See id. annex C (listing instruments defining crimes against humanity).

355

Cite as 27 I&N Dec. 347 (BIA 2018) Interim Decision #3930

As noted, in 1978 the Holtzman Amendment added the persecutor bar to

the withholding of deportation provision at former section 243(h) of the Act

and made those who assisted in Nazi persecution inadmissible and deportable.

In its report accompanying the bill, the House Judiciary Committee found it

unnecessary to define the term “persecution because of race, religion,

national origin or political opinion.” According to the Committee,

In applying the ‘persecution’ provisions of the bill, it is the intention of the committee

that determinations be made on a case-by-case basis in accordance with the case law

that has developed under the [relevant sections of the Act], as well as international

material on the subject such as the opinions of the Nuremberg tribunals.

H.R. Rep. No. 95-1452, at 7 (1978) (emphasis added). The Committee

specifically referred to international instruments that defined “crimes against

humanity” as including “persecution on political, racial or religious

grounds.” Id. at 6; see also London Agreement of 8 August 1945 and Charter

of the International Military Tribunal (“London Charter”) and Control

Council Law No. 10 (“Law No. 10”), in I Trials of War Criminals

Before the Nuernberg Military Tribunals Under Control Council Law

No. 10, at IX–XII, XVI–XVII (Oct. 1946–Apr. 1949), http://www.loc.

gov/rr/frd/Military_Law/NTs_war-criminals.html [hereinafter Trials of War

Criminals].

This shows that Congress deliberately left terms like “persecution” open

to interpretation on a case-by-case basis—and that it specifically endorsed

reliance on the referenced international authorities in making these

determinations. It also demonstrates a specific awareness by Congress of

pre-Convention instruments relevant to the issue of “persecution” and

specifically directed that these be applied in making administrative

determinations. The Committee acknowledged that consular officers would

be required to make “difficult and very delicate determinations” regarding an

alien’s admissibility but that “[i]t is an accepted precept of international law

that ‘persecution’ is a ‘crime against humanity’, condemned by all civilized

nations.” H.R. Rep. No. 95-1452, at 8.

This reinforces our conclusion that Congress intended that the persecutor

bar be interpreted in a way that not only comports with our obligations

under Article 1F(a) of the Convention but also reflects the international

understanding of those obligations. See Matter of McMullen, 19 I&N Dec.

90, 97 (BIA 1984) (observing that the provisions under the Act that exclude

persons who engage in persecution from asylum and withholding of

deportation “parallel and are consistent with the fundamental principles

embodied in the” Convention and the Protocol), aff’d on other grounds, 788

F.2d 591 (9th Cir. 1986), overruled in part on other grounds by Barapind

v. Enomoto, 400 F.3d 744, 751 n.7 (9th Cir. 2005) (en banc) (per curiam).

356

Cite as 27 I&N Dec. 347 (BIA 2018) Interim Decision #3930

There is no clear indication that Congress intended an interpretation different

from those set forth in these international instruments.

B. Article 1F(a) of the Convention

Having established that the persecutor bar parallels Article 1F(a) of the

Convention and that Congress intended the bar to be interpreted in accord

with predecessor instruments to the Convention, we now address whether

Article 1F(a) includes a duress exception. In so doing, we cannot lose sight

of the overriding purpose of the Article 1F(a), which is to protect the

“integrity of the international refugee regime” by ensuring that those who are

undeserving of international protection, in particular war criminals, cannot

benefit under the Convention. James C. Hathaway, The Michigan Guidelines

on the Exclusion of International Criminals, 35 Mich. J. Int’l L. 3, 7 (2013).

Article 1F(a) excludes persons who have committed “a crime against

peace, a war crime, or a crime against humanity” and states that these three

crimes are as defined in “international instruments drawn up to make

provision in respect of such crimes.” Two such contemporaneous

international instruments, the London Charter and the Law No. 10, which

were referenced by Congress when enacting the Holtzman Amendment,

provide definitions of these crimes. Both instruments governed the trials of

war criminals in Nuremberg, Germany, after World War II. Under both

instruments, “crimes against humanity” include “persecutions on political,

racial or religious grounds.”

The London Charter established the International Military Tribunal to try

major war criminals. See I Trials of War Criminals, supra, at XI. Article

6 of the London Charter defines “crimes against humanity” as

murder, extermination, enslavement, deportation, and other inhumane acts

committed against any civilian population, before or during the war; or persecutions

on political, racial or religious grounds in execution of or in connection with any

crime within the jurisdiction of the Tribunal . . . .

Id. at XII; see also Matter of McMullen, 19 I&N Dec. at 96 (referring to the

definition of “crimes against humanity” in Article 6 of the London Charter

in determining that the respondent engaged in persecution).

In trying persons for war crimes and crimes against humanity, the

International Military Tribunal recognized that persons could not be held

individually responsible for executing an order unless they had the ability to

make a moral choice. See I Trial of the Major War Criminals before the

International Military Tribunal 224 (Nuremberg 1947), https://www.loc.gov

/rr/frd/Military_Law/pdf/NT_Vol-I.pdf (“The true test, which is found in

357

Cite as 27 I&N Dec. 347 (BIA 2018) Interim Decision #3930

varying degrees in the criminal law of most nations, is not the existence of

the order, but whether moral choice was in fact possible.”). This “test” is

known as the “Nuremberg Principle IV,” which states: “The fact that a

person acted pursuant to order of his Government or of a superior does not

relieve him from responsibility under international law, provided a moral

choice was in fact possible to him.” Principles of International Law

Recognized in the Charter of the Nürnberg Tribunal and in the Judgment of

the Tribunal, http://legal.un.org/ilc/texts/instruments/english/draft_articles/

7_1_1950.pdf (1950 Report of the International Law Commission to the

General Assembly).

The Law No. 10 established a “uniform legal basis in Germany for the

prosecution of war criminals . . . , other than those dealt with by the

International Military Tribunal.” I Trials of War Criminals, supra, at XVI.

The definition of “crimes against humanity” in Law No. 10 is similar to that

in the London Charter:

Atrocities and offences, including but not limited to murder, extermination,

enslavement, deportation, imprisonment, torture, rape, or other inhumane acts

committed against any civilian population, or persecutions on political, racial or

religious grounds whether or not in violation of the domestic laws of the country

where perpetrated.

Id. at XVII. The parties and amici point to several decisions by the

Nuremberg Military Tribunals under Law No. 10 that consider the duress

defense to war crimes and crimes against humanity. Although there was no

uniform definition of duress, these decisions describe the characteristics of a

duress defense. For example, in “The Einsatzgruppen Case,” the Tribunal

held that superior orders is a defense to criminal liability for crimes against

humanity and war crimes only when duress is involved, stating:

But it is stated that in military law even if the subordinate realizes that the act he

is called upon to perform is a crime, he may not refuse its execution without incurring

serious consequences, and that this, therefore, constitutes duress. Let it be said at

once that there is no law which requires that an innocent man must forfeit his life or

suffer serious harm in order to avoid committing a crime which he condemns. The

threat, however, must be imminent, real, and inevitable. No court will punish a man

who, with a loaded pistol at his head, is compelled to pull a lethal lever.

IV Trials of War Criminals, supra, at 480.

Thus, Article 1F(a)’s reference to these definitions of “war crimes” and

“crimes against humanity” indicates that the drafters of the Convention chose

the term “crime” and intended, at least implicitly, that international criminal

law concepts such as duress should be included. This makes the rulings of

358

Cite as 27 I&N Dec. 347 (BIA 2018) Interim Decision #3930

the military tribunals relevant since they interpreted and applied those terms.

The Tribunals determined that persons could not be guilty of these crimes

if they acted under duress, that is, without freedom of choice. It is thus clear

both that Article 1F(a) was informed by these war crime tribunal precedents

and that the principle of duress was carried over into its enactment.

This conclusion is also consistent with guidance of the United Nations

High Commissioner for Refugees (“UNHCR”) regarding the Convention.

Given that the Convention was drafted in the years immediately following

the Holocaust and World War II, there was “an agreement on the part of the

States that war criminals should not be protected” by the Convention. Office

of the High Commissioner for Refugees, Handbook and Guidelines on

Procedures and Criteria for Determining Refugee Status under the 1951

Convention and the 1967 Protocol Relating to the Status of Refugees para.

148 (Geneva, January 1992) (“Handbook”). At the same time, the Exclusion

Clauses were to be restrictively applied given the “serious consequences of

exclusion.” Id. para. 149. 12 More recently, the UNHCR issued further

guidance on the application of the Exclusion Clauses in its Background Note,

which specifically provides for a duress defense to war crimes and crimes

against humanity. See UNHCR, Background Note on the Application of the

Exclusion Clauses: Article 1F of the 1951 Convention relating to the Status

of Refugees, paras. 69, 70, annex C (Sept. 4, 2003) (“Background Note”). 13

The decisions of other State Parties to the Convention, including

Australia, Canada, New Zealand, and the United Kingdom, likewise support

this conclusion. Those State Parties interpret Article 1F(a) as excluding from

refugee protection only those persons who are culpable for their crimes. For

example, the Federal Court of Australia has held that a person cannot be held

to have committed a crime under Article 1F(a) if he has a defense that would

clear him from criminal liability. See SRYYY v Minister for Immigration

& Multicultural & Indigenous Affairs (2005) 147 F.C.R. 1, para. 127 (Austl.).

Similarly, the Supreme Court of the United Kingdom, in highlighting the

serious consequences of excluding a person who has a well-founded fear of

persecution from the protection of the Convention, has held that Article 1F

should be interpreted restrictively and applied with caution, such that “there

should be serious reasons for considering that the person concerned bore

12

We agree with the DHS that we are not bound by the Handbook, but it provides useful

guidance for interpreting the Protocol. See Cardoza-Fonseca, 480 U.S. at 439 n.22.

Further, due to the nature of the question before us, the Handbook may be of particular use

in determining the intent behind certain provisions.

13

The dissent dismisses this UNHCR guidance in large part as being remote in time from

adoption of the Convention and Protocol. However, it is clear that the Background Note

was not proposing a new interpretation but rather reflected an established interpretation

consistent with the overall purposes of the Convention and the antecedent legal authorities

discussed above.

359

Cite as 27 I&N Dec. 347 (BIA 2018) Interim Decision #3930

individual responsibility for acts of that character.” Al-Sirri v. Sec’y of State

for the Home Dep’t [2012] UKSC 54 [16] (appeal taken from EWCA (Civ)

222).

Although the dissent disputes our conclusion that the Convention and

Protocol implicitly acknowledge a defense of duress, it cannot refute that

such a defense was recognized, at least in principle, by tribunals interpreting

the antecedents to Article 1(F) of the Convention. Furthermore, while

authorities such as the UNHCR Handbook and jurisprudence from other

jurisdictions are not binding, they take on added authority in light of

Congress’ specific direction, in the Conference Report on the Refugee Act,

that the persecutor bar “be construed consistent with the Protocol.” H.R.

Rep. No. 96-781, at 20.

The dissent’s claim that the Convention and Protocol do not provide for

a defense of duress is disproved by the fact that these authorities uniformly

recognize such a defense, and the dissent cites to no authority interpreting

the Convention or Protocol that holds otherwise. The dissent’s argument that

duress is a question justiciable in criminal law, but not in civil immigration

proceedings, fails because the language of criminal culpability was carried

over into Article 1(F) and is widely recognized as equally justiciable as the

myriad other factors that are to be determined in refugee adjudications. 14

In sum, given the legislative history of the Refugee Act, our interpretation

of the persecutor bar is consistent with the Exclusion Clauses, which require

consideration of the actual culpability of an applicant who might be subject

to those clauses. A limited defense of “duress” is consistent with this

interpretation, whereas the exclusion of such a defense arguably departs from

the overall congressional intent that we should interpret the Refugee Act

consistent with the Convention.

C. Adverse Consequences

Adverse consequences follow from the dissent’s interpretation, which

advocates for precluding a duress defense. For example, the dissent’s

approach effectively finds that an alien who is otherwise fully eligible for

asylum or withholding of removal would be barred from relief for conduct

that he or she finds completely abhorrent but that was undertaken wholly

under severe duress, such as imminent threat of loss of life or subjection to

torture. The dissent concludes that congressional silence is sufficient to

14

The dissent’s claim that no duress exception should be recognized because Congress

has provided for analogous exceptions in other provisions of the Act is not persuasive

because none of the cited provisions involved implementation of a treaty obligation. For

the same reason, the dissent’s reliance on Matter of M-H-Z-, 26 I&N Dec. 757 (BIA 2016),

is misplaced.

360

Cite as 27 I&N Dec. 347 (BIA 2018) Interim Decision #3930

support this result. However, it can be contended with equal force that

congressional silence should not be interpreted to reach such an extreme

result.

The DHS argues that the administrative burden resulting from allowing

the agency to adjudicate a duress defense is so significant that it is best not

to recognize one. But administrative convenience cannot settle the matter.

Asylum adjudication is full of challenging determinations, including, most

prominently and frequently, credibility. While asylum claims form a very

large portion of the Immigration Court dockets nationwide, the same cannot

be said of asylum cases involving the persecutor bar, which are a small

fraction of the asylum caseload. The challenges inherent in adjudicating

these claims is no reason to shut off a life line in a compelling case in the

refugee context.

A straightforward example illustrates the dilemma that will be raised by

creating the bright line rule advanced by the DHS that admits of no

exceptions. While not dispositive as a tool of statutory construction, the child

soldier scenario warrants consideration and is relevant to the asylum context.

Children are recruited worldwide by persecutors to engage in persecutory

acts. They do not have the option to resist. Congress enacted the Child

Soldiers Accountability Act of 2008, Pub. L. No. 110-340, 122 Stat. 3735,

making the recruitment of child soldiers abroad a violation of domestic law

under 18 U.S.C. § 2442 (Supp. II 2008), as well as grounds of inadmissibility

and deportability under sections 212(a)(3)(G) and 237(a)(4)(F) of the Act,

8 U.S.C. §§ 1182(a)(3)(G) and 1227(a)(4)(F) (Supp. II 2008).

The legislative history of the Child Soldiers Accountability Act makes

clear that child soldiers, who themselves have engaged in persecutory

conduct, are considered victims of adult war criminals. According to the

legislative history, former child soldiers should not be subjected to legal

disability. See 154 Cong. Rec. 18,790, 18,792 (2008); 154 Cong. Rec.

18,018 (2008); 153 Cong. Rec. 36,173, 36,174 (2007). Moreover, case

law has recognized former child soldiers who escaped captivity as a

cognizable particular social group for purposes of asylum. See, e.g.,

Lukwago v. Ashcroft, 329 F.3d 157, 183 (3d Cir. 2003) (remanding to

consider whether the applicant had demonstrated a well-founded fear of

persecution on account of his membership in a particular social group of

former child soldiers who have escaped captivity). It does not make sense to

automatically bar a former child soldier who qualifies as a member of a

particular social group with a well-founded fear of persecution from

receiving asylum based on participation in persecutory acts under duress.

Yet no other outcome would be available under the “bright line” persecutor

bar that does not permit any exception proposed by the DHS and the dissent.

361

Cite as 27 I&N Dec. 347 (BIA 2018) Interim Decision #3930

IV. LIMITED NATURE OF THE DEFENSE

Given the humanitarian purposes of the Refugee Act and the clear intent

of Congress that it be interpreted in accord with the scope of protection

offered by the Convention and Protocol, we adopt a limited and strictly

construed duress defense to the persecutor bar.

In the United States, the defense of duress has roots in statutory and

common law, as reflected in the Model Penal Code 15 and decisions of the

United States Supreme Court. See Dixon v. United States, 548 U.S. 1, 6–7,

8–9 (2006) (holding that the duress defense is a common-law rule that

excuses otherwise punishable conduct but does not obviate the elements

of the offense, and which places the burden of proof on the defendant);

United States v. Bailey, 444 U.S. 394, 409–10 (1980). The duress defense

also has roots in international law, as reflected in the Rome Statute of

the International Criminal Court (2002), https://www.icc-cpi.int/nr

/rdonlyres/ea9aeff7-5752-4f84-be94-0a655eb30e16/0/rome_statute_english

.pdf (“Rome Statute”), which is used by other State Parties to the

Convention. 16 Moreover, the Background Note cites the Rome Statute in

15

Regarding the defense of duress, section 2.09 of the Model Penal Code provides, in

pertinent part:

(1) It is an affirmative defense that the actor engaged in the conduct charged to

constitute an offense because he was coerced to do so by the use of, or a threat to use,

unlawful force against his person or the person of another, that a person of reasonable

firmness in his situation would have been unable to resist.

(2) The defense . . . is unavailable if the actor recklessly placed himself in a situation

in which it was probable that he would be subjected to duress.

16

Article 31(1) of the Rome Statute provides in pertinent part:

[A] person shall not be criminally responsible if, at the time of that person’s conduct:

...

(d) The conduct which is alleged to constitute a crime within the jurisdiction of

this Court has been caused by duress resulting from a threat of imminent death or

of continuing or imminent serious bodily harm against that person or another

person, and the person acts necessarily and reasonably to avoid this threat,

provided that the person does not intend to cause a greater harm than the one sought

to be avoided.

Rome Statute, supra, at 20; see also Zimbabwe v. Sec’y of State for the Home Dep’t [2012]

UKUT 00015 (IAC) [106]; Diaz v. Canada (Minister of Citizenship and Immigr.) [2013]

F.C.J. No. 66 [51] (Can.).

362

Cite as 27 I&N Dec. 347 (BIA 2018) Interim Decision #3930

concluding that “[t]here are, therefore, stringent conditions to be met for the

defence of duress to arise,” and decisions from other jurisdictions reflect this

stringency. Background Note, supra, at para. 69; Canada (Minister of

Citizenship and Immigration) v. Maan [2007] FC 583 [16]–[21] (Can.);

VWYJ v Minister for Immigration & Multicultural & Indigenous Affairs

(2005) FCA 658, 9 (Austl.); Refugee Appeal No. 61/91 [1992] NZRSAA

(N.Z.).

The minimum threshold requirements of the duress defense to the

persecutor bar are based on the formulations found in United States criminal

law and international law. While we need not define the precise boundaries

of a duress standard in the context of this case, at a minimum the 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 likely 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. Only if the applicant establishes each element by a

preponderance of the evidence would it be appropriate to consider whether

the duress defense applies.

This duress standard is intended to apply only in rare and extraordinary

circumstances consistent with United States law. 17 First, the threat must be

present and immediate, and it must involve a threat of death or serious bodily

injury to the applicant or others. 18 According to United States law,

[T]he term “serious bodily injury” means bodily injury which involves—

17

In Dixon, 548 U.S. at 4 n.2, the Court accepted the following description of the elements

of the duress defense:

(1) the defendant was under an unlawful and imminent threat of such a nature as to

induce a well-grounded apprehension of death or serious bodily injury; (2) the

defendant had not recklessly or negligently placed herself in a situation in which it

was probable that she would be forced to perform the criminal conduct; (3) the

defendant had no reasonable, legal alternative to violating the law, that is, a chance

both to refuse to perform the criminal act and also to avoid the threatened harm; and,

(4) that a direct causal relationship may be reasonably anticipated between the

criminal act and the avoidance of the threatened harm.

18

The follwing circuit courts allow for the threat to be directed at any third person. See

6th Cir. Pattern Crim. Jury Instr. 6.05 (2017); 3d Cir. Model Crim. Jury Instr. 8.03 (2015);

8th Cir. Model Crim. Jury Instr. 9.02 (2014); 7th Cir. Pattern Crim. Jury Instr. 6.08 (2012);

10th Cir. Crim. Pattern Jury Instr. 1.36 (2011); 11th Cir. Pattern Crim. Jury Instr. 16 (2010).

363

Cite as 27 I&N Dec. 347 (BIA 2018) Interim Decision #3930

(A) a substantial risk of death;

(B) extreme physical pain;

(C) protracted and obvious disfigurement; or

(D) protracted loss or impairment of the function of a bodily member, organ, or

mental faculty . . . .

18 U.S.C. § 1365(h)(3) (2012); see also, e.g., 18 U.S.C. § 2119 (2012)

(cross-referencing § 1365 for the definition of serious bodily injury); United

States v. Morrison, 332 F.3d 530, 533 (8th Cir. 2003) (holding that injuries

sustained from two blows to the head with a baseball bat constitute serious

bodily injury); United States v. Two Eagle, 318 F.3d 785, 792 (8th Cir. 2003)

(holding that gunshot wounds to the leg constitute serious bodily injury). 19

Moreover, this standard 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 element

derives from international law, which prescribes that the “harm inflicted on

the victim . . . must not be in excess of that which would otherwise have been

directed at the applicant.” Kathiravel v. Canada (Minister of Citizenship and

Immigration), 2003 F.C.T. 680, para. 48 (Can.) (concluding that threats of

beatings and food deprivation against the applicant, who was forced to work

as an informant in a Sri Lankan prison camp, were not greater than the torture

suffered by those he identified as Tamil Tigers); see also Ramirez v. Canada

(Minister of Employment and Immigration), 1992 F.C.L. 109, para.

39 (Can.) (concluding that the hard training exercises and 10 years of

imprisonment used to punish the applicant’s dissent from or nonparticipation

in the Salvadoran military’s torture and killing of prisoners was “clearly less

than the harm actually inflicted on the victims”). 20

19

The United States Supreme Court and every circuit court have endorsed the view that

an imminent threat of “death or serious bodily injury” is an element of the duress defense.

Dixon, 548 U.S. at 4 n.2; United States v. Ricks, 573 F.3d 198, 202 (4th Cir. 2009); United

States v. Sawyer, 558 F.3d 705, 710–11 (7th Cir. 2009); United States v. Deleveaux, 205

F.3d 1292, 1296 n.3 (11th Cir. 2000); United States v. Posada-Rios, 158 F.3d 832, 873 (5th

Cir. 1998); United States v. Newcomb, 6 F.3d 1129, 1134–35 (6th Cir. 1993); United States

v. Amparo, 961 F.2d 288, 291 (1st Cir. 1992); United States v. Santos, 932 F.2d 244, 249

(3d Cir. 1991); United States v. Bakhtiari, 913 F.2d 1053, 1057 (2d Cir. 1990); United

States v. Scott, 901 F.2d 871, 873 (10th Cir. 1990); United States v. Wells, 773 F.2d 230,

231 (8th Cir. 1985) (per curiam); United States v. Jenrette, 744 F.2d 817, 820–21 (D.C.

Cir. 1984); United States v. Contento-Pachon, 723 F.2d 691, 693 (9th Cir. 1984).

20

In United States criminal law, the concept of proportionality is historically associated

with the necessity defense. See Model Penal Code § 3.02(1)(a) (2018) (“Conduct that the

actor believes to be necessary to avoid a harm or evil to himself or to another is justifiable,

provided that: (a) the harm or evil sought to be avoided by such conduct is greater than

that sought to be prevented by the law defining the offense charged . . . .”).

364

Cite as 27 I&N Dec. 347 (BIA 2018) Interim Decision #3930

Thus, this “proportionality” element narrows the scope of the duress

defense for applicants who have assisted or otherwise engaged in persecution.

The harm these applicants inflict on their victims will always rise to the level

of persecution. Therefore, as a practical matter, the proportionality element

means that the threatened harm against an applicant must at least rise to the

same level. Otherwise, the duress defense cannot apply.

Second, this is an objective standard requiring the applicant to

demonstrate that a reasonable person in similar circumstances would have

acted in a similar way. See, e.g., Matter of Mogharrabi, 19 I&N Dec. 439,

445 (BIA 1987) (stating that an asylum applicant establishes a well-founded

fear “if he shows that a reasonable person in his circumstances would fear

persecution”). According to the explanatory note to section 2.09 of the

Model Penal Code, “The standard is thus partially objective; the defense is

not established simply by the fact that the defendant was coerced; he must

have been coerced in circumstances under which a person of reasonable

firmness in his situation would likewise have been unable to resist.”

Third, the standard we adopt requires the applicant to show that he did not

have a reasonable opportunity to escape or to otherwise avoid engaging in

the act or omission. And he must show that 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. These requirements taken

together underscore that the duress defense is intended for rare cases where

the alien was not culpable for contributing to the persecution.

Finally, even if an applicant is able to meet these standards, a grant of

relief is by no means ensured. For example, although the applicant in this

case was granted deferral of removal under the Convention Against Torture,

there is no assurance that other applicants would meet the high standard for

this form of protection. The same holds true for applicants for withholding

of removal, who must establish a probability that their life or freedom would

be threatened on account of a protected ground. An applicant for asylum

must demonstrate that he warrants this relief in the exercise of discretion, and

nothing in this opinion should be construed as foreclosing an adverse

discretionary finding in the case of an alien who has participated in

persecution, even if against his will. Thus, the concerns raised by the late

Justice Scalia in his concurring opinion in Negusie regarding the merits of

granting asylum to some applicants should not lead us to deny the defense

of duress to all applicants, but they may be relevant in particular cases.

Negusie, 555 U.S. at 527 (Scalia, J., concurring) (suggesting that it might “be

imprudent to grant entry to a coerced persecutor, who may end up living in

the same community as one of his victims”).

365

Cite as 27 I&N Dec. 347 (BIA 2018) Interim Decision #3930

V. FRAMEWORK FOR ANALYZING A CLAIM OF DURESS

The Court in Negusie noted that, on remand, “‘persecution’ may be

explained by a more comprehensive definition, one designed to elaborate on

the term in anticipation of a wide range of potential conduct; and that

expanded definition in turn may be influenced by how practical, or

impractical, the standard would be in terms of its application to specific

cases.” Negusie, 555 U.S. at 524. Thus, it is incumbent on us to consider

not only whether the Refugee Act permits the establishment of a duress

defense to the persecutor bar, but also whether such a defense can be

successfully adjudicated in practice.

As an initial point, we interpret the term “persecution” in the persecutor

bar as carrying the same meaning as it does in the context of determining an

alien’s eligibility for asylum or withholding of removal. Duress is not

relevant to establishing whether one has been subject to or reasonably fears

“persecution.” An alien applying for asylum need not establish that those

who persecuted him acted without duress. Nor is duress relevant to

determining whether one has “ordered, incited, assisted, or otherwise

participated in” persecution. In other words, the DHS may satisfy its burden

to show that the persecutor bar may apply even though the alien acted under

duress. 21 The question of duress is distinct: whether protection otherwise

afforded under the law should be foreclosed based on conduct that is claimed

not to be culpable because of such duress.

Issues arising under the persecutor bar will be justiciable as a practical

matter. The adjudicator should first determine whether the applicant is

otherwise eligible for asylum or withholding of removal. Our established

Board precedent provides a framework for analyzing a claim of duress

against the application of the persecutor bar. Claims of duress, if accepted,

will be considered within the regulatory structure at 8 C.F.R. § 1240.8(d)

(2018). Pursuant to that regulation, the initial burden is on the DHS to

show evidence that indicates that the alien assisted or otherwise participated

in persecution. See Matter of A-H-, 23 I&N Dec. 774, 786 (A.G. 2005)

(acknowledging that the Government must “offer sufficient prima facie

evidence” that the alien “incited, assisted, or otherwise participated in

persecution”). Once the DHS meets its burden, the burden shifts to the alien

to show by a preponderance of the evidence that the persecutor bar does not

apply either because he did not engage in persecution or because he acted

under duress. See Matter of M-B-C-, 27 I&N Dec. 31, 36 (BIA 2017)

21

We disagree with the applicant’s contention that acts that would otherwise qualify as

“persecution” are not “persecution” if taken under duress. This is not how the defense of

duress has been applied in our sister jurisdictions and, as previously explained, it is

inconsistent with how the defense of duress has been interpreted in American courts.

366

Cite as 27 I&N Dec. 347 (BIA 2018) Interim Decision #3930

(holding that “the relevant inquiry under 8 C.F.R. § 1240.8(d) is whether the

evidence indicates that the grounds for mandatory denial . . . may apply to

[the applicant] so that he then has the burden to show that they do not apply”).

Regarding the DHS’s initial burden of proof to show that the alien assisted

or otherwise participated in persecution, we find it appropriate to apply the

standard we recently adopted in Matter of D-R-, 27 I&N Dec. 105 (BIA

2017). In that case, we concluded that the phrase “assisted or otherwise

participated in” extrajudicial killing under section 212(a)(3)(E)(iii) of the Act

is ambiguous. Id. at 118. We constructed a standard to determine whether

an alien’s conduct amounted to assistance or participation in extrajudicial

killing, stating that an adjudicator should consider “(1) the nexus between

the alien’s role, acts, or inaction, and the extrajudicial killing; and (2) his

scienter, meaning his prior or contemporaneous knowledge of the killing.”

Id. at 120. We specifically noted that this interpretation of the term “assisted,

or otherwise participated in” can be applied in the context of the persecutor

bar. Id. at 119 n.17. Additionally, when determining whether an alien

assisted or participated in the persecution of others, the proper focus is not

on the alien’s motives, but “rather on the intent of the perpetrator of the

underlying persecution.” Matter of J.M. Alvarado, 27 I&N Dec. at 29.

Thus, to determine whether the DHS satisfied its initial burden of proving

that the alien assisted or otherwise participated in persecution, the adjudicator

should consider (1) the “nexus between the alien’s role, acts, or inaction” and

the persecution; and (2) the alien’s “scienter, meaning his prior or

contemporaneous knowledge” of the persecution. Matter of D-R-, 27 I&N

Dec. at 120. While distinct from the question of duress, the issues raised in

these cases involve similar complexities of fact-finding against a common

legal standard as that which would arise in addressing a claim of duress.

Recognition of such a defense, therefore, would not constitute a departure

from the types of questions commonly addressed by the Board and

Immigration Courts. Nor would it impose burdens of fact-finding that are

not already encountered in addressing such questions.

Once the DHS has met its initial burden, the burden shifts to the alien to

show by a preponderance of the evidence that the persecutor bar does not

apply, either because he did not engage in persecution or because he acted

under duress. An applicant must satisfy each element of the 5-part duress

standard by a preponderance of the evidence. Only then will the adjudicator

consider whether a duress defense to the persecutor bar is warranted.

VI. APPLICANT’S DURESS CLAIM

It is undisputed that the DHS met its initial burden of proving that the

applicant assisted or otherwise participated in persecution. The applicant did

367

Cite as 27 I&N Dec. 347 (BIA 2018) Interim Decision #3930

not challenge the Immigration Judge’s finding that he had knowledge of the

persecution and that the nexus requirement was met. Therefore, under the

standard we have articulated, the burden shifts to the applicant to show that

the persecutor bar did not apply or that he was not subject to the bar because

he acted under duress. Applying the regulatory framework to this case, we

conclude that when viewing the facts and circumstances in the light most

favorable to the applicant, he cannot meet this burden.

The applicant testified that he was conscripted into the Eritrean military

and, when he refused orders, was punished severely and transferred to serve

as an armed prison guard. Neither his forced conscription nor his assignment

to guard duty meet the high standard for a duress defense.

Even if an alien claims a “superior orders” defense, he must show duress.

See Background Note, supra, paras. 67–69. The applicant testified that when

he disobeyed orders to render assistance to prisoners, he received verbal

reprimands from his superiors. Thus, the threats of death he received should

he disobey orders, when viewed in context, did not constitute the imminent

threat of death or serious bodily injury required to meet the standard of duress.

Furthermore, the record indicates that the applicant had a reasonable

opportunity to escape or otherwise avoid guarding the prisoners who were

subjected to harm and torture. The applicant testified that he could not leave

the military base, but he eventually escaped through a “weak spot” and

walked through the jungle to his friend’s home. We therefore find that a

remand for further proceedings is not warranted. Accordingly, the

applicant’s appeal will be dismissed.

ORDER: The applicant’s appeal is dismissed.

FURTHER ORDER: Pursuant to 8 C.F.R. § 1003.1(d)(6) (2018), the

record is remanded to the Immigration Judge for the purpose of allowing the

Department of Homeland Security the opportunity to complete or update

identity, law enforcement, or security investigations or examinations, and

further proceedings, if necessary, and for the entry of an order as provided

by 8 C.F.R. § 1003.47(h) (2018).

CONCURRING AND DISSENTING OPINION: Garry D. Malphrus,

Board Member

I concur with the majority’s decision only to the extent that it dismisses

the applicant’s appeal. However, I respectfully dissent from the majority’s

creation of a duress exception to the persecutor bar.

The United States Supreme Court remanded this case for us to make an

“initial determination of the statutory interpretation question,” Negusie

v. Holder, 555 U.S. 511, 524 (2009), “with respect to whether an alien who

368

Cite as 27 I&N Dec. 347 (BIA 2018) Interim Decision #3930

was coerced to assist in persecution is barred from obtaining asylum in the

United States,” id. at 525 (Scalia, J., concurring). The remand directed us to

interpret the statute anew based on principles of statutory construction, free

of our prior assumption that Fedorenko v. United States, 449 U.S. 490

(1981), definitively resolved this question. The majority decision is artfully

drafted, but it does not engage in this analysis. Instead, the majority reads a

duress exception into the 1967 United Nations Protocol Relating to the Status

of Refugees, opened for signature Jan. 31, 1967, 19 U.S.T. 6223, 606

U.N.T.S. 267 (entered into force Oct. 4, 1967; for the United States Nov. 1,

1968) (“Protocol”), and, by extension, the Refugee Act of 1980, Pub. L. No.

96-212, 94 Stat. 102 (“Refugee Act”), that simply does not exist. And it does

so essentially by deferring to international expectations of how the Protocol

should be interpreted. I cannot agree with this approach.

A faithful application of the principles of statutory construction in this

case clearly leads to the result that Congress—and the drafters of the treaty

at issue here—did not create a duress exception to the persecutor bar. The

Board has never found a duress exception in the nearly four decades since

the Refugee Act was enacted, and Congress has not amended the applicable

language to add one during that time. The Board exceeds its authority by

reading an intent into the law that was never there. I recognize that the lure

for us to create a duress exception is strong, but the greater strength is in

recognizing the limits of our role within the legal system and in deferring to

Congress on how to best address this most fundamental issue of asylum law.

I. ANALYSIS

The “persecutor bar” precludes from eligibility for asylum or withholding

of removal “any person who 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.”

Section 101(a)(42) of the Immigration and Nationality Act, 8 U.S.C.

§ 1101(a)(42) (2012) (added by section 201(a) of the Refugee Act, 94 Stat.

at 102–03). The issue before us is whether there is an implicit duress

exception to the persecutor bar. To answer this question, we “first review

the text and structure of the statute . . . and then consider the text and

negotiating history of the Convention.” Sale v. Haitian Ctrs. Council, Inc.,

509 U.S. 155, 171 (1993); see also INS v. Stevic, 467 U.S. 407, 428 n.22

(1984) (stating that the Protocol is a non-self-executing treaty, which does

not confer any rights upon aliens beyond those granted by the implementing

domestic legislation). Neither the text of the Refugee Act and the Protocol

nor the relevant history of these documents indicates an intent to include a

duress exception to the persecutor bar in the Act.

369

Cite as 27 I&N Dec. 347 (BIA 2018) Interim Decision #3930

A. Statutory Interpretation

The applicant initially argues that the term “persecution” in the Act

inherently requires voluntariness and excludes duress. However, the

majority properly rejects this argument, which the Board has never adopted.

The Supreme Court has held that while duress is a defense to liability in the

criminal context, it does not negate the fact that the offender acted knowingly

or voluntarily. Dixon v. United States, 548 U.S. 1, 6–7 (2006); United States

v. Bailey, 444 U.S. 394, 409–10 (1980). Thus, the Court has rejected the

fundamental premise of the applicant’s claim that duress goes to whether

the offender’s conduct was voluntary. The term “persecution” does not

differentiate based on the actor’s intent or motivation. See Matter of J.M.

Alvarado, 27 I&N Dec. 27, 29–30 (BIA 2017) (holding that the persecutor

bar applies to an alien who assists or otherwise participates in the persecution

of another person without regard to the alien’s personal motivation for his or

her actions).

The majority is correct that the legislative history of the Refugee Act

makes clear that it was designed to bring the domestic laws of the United

States into conformity with its treaty obligations under the Protocol, which

incorporated the 1951 United Nations Convention Relating to the Status of

Refugees, adopted July 28, 1951, 19 U.S.T. 6259, 189 U.N.T.S. 150 (entered

into force Apr. 22, 1954) (“Convention”). See, e.g., Matter of J.M. Alvarado,

27 I&N Dec. at 30 n.3; see also Stevic, 467 U.S. at 421 (“Section 203(e) of

the Refugee Act of 1980 amended the language of [the withholding of

deportation provision], basically conforming it to the language of Article

33 of the United Nations Protocol.”).

The majority also accurately notes that the legislative history explains

that the persecutor bar should be construed consistent with the Protocol and

the Convention. H.R. Rep. No. 96–608, at 10, 19–20 (1979); see also

H.R. Rep. No. 96–781, at 20 (1980) (Conf. Rep.); S. Rep. No. 96-256, at 4,

9, 14–15, 18 (1979). However, beyond referring to the Convention and the

Protocol, the legislative history does not answer the question presented in

this case, namely, whether Congress intended duress to be an exception to

the persecutor bar.

Next, in looking to the language and drafting history of the Convention,

and by extension the Protocol, we still do not find an answer. The

Convention places an obligation on signatory States not to “expel or return

(‘refouler’) a refugee in any manner whatsoever to . . . territories where his

life or freedom would be threatened on account of his race, religion,

nationality, membership of a particular social group or political opinion.”

Convention, Art. 33(1). However, Article 1F of the Convention contains a

370

Cite as 27 I&N Dec. 347 (BIA 2018) Interim Decision #3930

mandatory exclusion provision that prohibits the granting of refugee status

to

any person with respect to whom there are serious reasons for considering that:

(a) he has committed a crime against peace, a war crime, or a crime against

humanity, as defined in the international instruments drawn up to make

provision in respect of such crimes;

(b) he has committed a serious non-political crime outside the country of refuge

prior to his admission to that country as a refugee;

(c) he has been guilty of acts contrary to the purposes and principles of the United

Nations.

(Emphasis added.)

The text of Article 1F of the Convention does not provide a duress

exception for the prohibited acts. See Sumitomo Shoji Am., Inc. v. Avagliano,

457 U.S. 176, 180 (1982) (“Interpretation of [a treaty] must, of course, begin

with the language of the [t]reaty itself.”). Instead, it references types of

crimes that bar “any person” from refugee protection. The language it uses

is significantly different from the more precise wording of the persecutor bar

in the Act. But like the persecutor bar, it makes no reference to different

treatment for persons who are found to have engaged in the specified conduct

while under duress. Even if Congress had adopted the language of Article

1F verbatim, it simply does not contain a duress exception.

Like the legislative history of the persecutor bar in the Act, the drafting

and negotiating history of the Convention is also silent as to whether there is

a duress exception in Article 1F, and it does not otherwise address this issue.

Air France v. Saks, 470 U.S. 392, 400 (1985) (“In interpreting a treaty it is

proper, of course, to refer to the records of its drafting and negotiation.”

(citation omitted)). The negotiating history of the Convention clearly shows

an intent to ensure that war criminals were not afforded refugee protection.

See Conference of Plenipotentiaries on the Status of Refugees and Stateless

Persons: Summary Record of the Twenty-fourth Meeting (Nov. 27, 1951),

Conference of the Draft Convention on the Status of Refugees,

http://www.unhcr.org/protect/PROTECTION/3ae68cde18.html (statements

of Mr. Von Trützschler, Federal Republic of Germany, and Mr. Robinson,

Israel) [hereinafter Conference of Plenipotentiaries]. However, there is no

indication that the Convention’s drafters intended to provide a duress

exception to Article 1F, particularly given the dearth of discussion between

the negotiators on this controversial and complex issue. See Negusie, 555

U.S. at 526 (Scalia, J., concurring) (“The culpability of one who harms

another under coercion is, and has always been, a subject of intense debate,

raising profound questions of moral philosophy and individual

responsibility.”). As the Israeli representative recognized, the “Conference

371

Cite as 27 I&N Dec. 347 (BIA 2018) Interim Decision #3930

was restricted to establishing a legal status for refugees. It was not called

upon to legislate in questions of international criminal law, or to define

international crimes and embody them in provisions which would exclude

certain categories of persons from the scope of the Convention.” Conference

of Plenipotentiaries, supra (statement of Mr. Robinson).

The majority claims that since the text of Article 1F of the Convention

refers to crimes, the drafters must have intended a criminal duress exception

to exist. However, this argument assumes far too much. The fact that duress

may sometimes be available as a defense to negate culpability in the criminal

context does not mean that a duress exception is implicit in the Act’s

persecutor bar.

As an initial matter, it is important to recognize that immigration

proceedings are civil, not criminal, in nature. See INS v. Lopez-Mendoza,

468 U.S. 1032, 1038–39 (1984). Such a distinction is particularly significant

in the refugee context, where, as in this case, the alien is seeking an

immigration benefit. The persecutor bar does not provide for criminal

punishment for persecution—rather, it is a bar to immigration benefits for an

individual who was involved in persecution. See, e.g., Schellong v. INS, 805

F.2d 655, 662 (7th Cir. 1986) (stating that the purpose of a bar to relief from

deportation for individuals who participated in Nazi crimes against humanity

was “not to punish [these] individuals for actions previously taken, but to

ensure that the United States is not a haven for individuals who assisted the

Nazis in the brutal persecution and murder of millions of people”). Such a

distinction is significant in the context of the persecutor bar and the overall

structure of the Act, which indicates that Congress has prioritized protecting

those who have been victims of persecution. 1

Moreover, duress is not always a defense in criminal law. For example,

at common law, duress was not a defense to intentional killing. See Arp

v. State, 12 So. 301, 302 (Ala. 1893); Commonwealth v. Vasquez, 971 N.E.2d

783, 790–92 (Mass. 2012); see also 2 Wayne R. LaFave, Substantive

Criminal Law § 9.7(b) (3d ed.), Westlaw (database updated Oct. 2017).

Further, even today, nearly half of the States in the United States do not

permit the duress defense if the defendant has been charged with murder.

See, e.g., LaFave, supra, § 9.7(b) & nn.53–54.

1

Further, it is noteworthy that the mandatory exclusion provision at Article 1F of the

Convention does not condition exclusion on an actual finding of criminal responsibility.

Rather, it provides for exclusion if there are “serious reasons for considering” that the

person has committed one of the crimes in question. While there may be circumstances in

which a person would be excused from criminal responsibility by a duress defense in an

actual prosecution, the possibility that such a defense might be raised does not mean that

there are not at least “serious reasons for considering” that the individual committed the

crime. Nor does it mean that the person did not actually commit an action that constitutes

persecution.

372

Cite as 27 I&N Dec. 347 (BIA 2018) Interim Decision #3930

The majority relies heavily on the reference in Article 1F to “international

instruments” to find a duress exception, citing the London Agreement of

8 August 1945 and Charter of the International Military Tribunal

(“London Charter”) and Control Council Law No. 10 (“Law No. 10”), in

I Trials of War Criminals Before the Nuernberg Military Tribunals Under

Control Council Law No. 10, at IX–XI, XVI–XVII (Oct. 1946–Apr.

1949), http://www.loc.gov/rr/frd/Military_Law/NTs_war-criminals.html

[hereinafter Trials of War Criminals]. However, the language of the London

Charter and Law No. 10 does not contain a duress exception but, instead,

indicates that the fact that someone acted pursuant to the orders of superior

military officers potentially “may be considered in mitigation” of

punishment. I Trials of War Criminals, supra, at XII, XVII.

Unlike military tribunals or criminal courts, Immigration Courts are not

called upon to assess an alien’s criminal guilt or innocence. Nor can an

Immigration Court consider factors in mitigation of punishment. “[T]hese

are civil immigration proceedings whose purpose is to determine [an alien’s]

eligibility to remain in this country, not to punish him for criminal or other

conduct in his home country.” Matter of D-R-, 25 I&N Dec. 445, 462 (BIA

2011) (citation omitted), remanded on other grounds, Radojkovic v. Holder,

599 F. App’x 646 (9th Cir. 2015). While duress may mitigate a criminal

defendant’s moral blameworthiness in military tribunals or criminal courts,

the statutory scheme designed by Congress does not provide for mitigation

of punishment, as in the criminal context. Rather, it only permits us to

determine whether the persecutor bar applies and, thus, whether an alien may

or may not be eligible for the benefit of asylum and withholding of removal.

In addition to its overreliance on Article 1F of the Convention, the

majority emphasizes that, in the face of congressional silence, the Supreme

Court’s remand of this case gives the Board the authority to create a duress

exception. While the Supreme Court found that Congress’ silence was

not dispositive, its silence should cause us to exercise great caution as we

apply our judgment and expertise to this complex issue and consider the

ramifications of creating a duress exception for the first time.

B. International Interpretation

The Office of the United Nations High Commissioner for Refugees

(“UNHCR”) has generally addressed the issue of duress through

interpretative guidance based on the practices of some of the member States.

However, this guidance was issued in 2003, more than two decades after the

United States assented to the treaty in 1980, and it did not include how this

issue had been interpreted in the United States. The UNHCR Guidelines

encourage contracting States to consider “[f]actors generally considered to

373

Cite as 27 I&N Dec. 347 (BIA 2018) Interim Decision #3930

constitute defenses to criminal responsibility,” such as “duress.” UNHCR,

Guidelines on International Protection: Application of the Exclusion

Clauses: Article 1F of the 1951 Convention Relating to the Status of

Refugees, para. 22 (Sept. 4, 2003) (“Guidelines”). Previously, the UNHCR’s

Handbook, which was first issued in 1979 and reedited in 1992, urged a

“restrictive” interpretation of the exclusion clause. Office of the High

Commissioner for Refugees, Handbook and Guidelines on Procedures and

Criteria for Determining Refugee Status under the 1951 Convention and the

1967 Protocol Relating to the Status of Refugees, para. 149 (Geneva, January

1992) (“Handbook”).

As the UNHCR has recognized, the question of how to interpret the

treaty is clearly left to the States that adopted it. See id. While the

views of the UNHCR may be “a useful interpretive aid,” they are

“not binding on the Attorney General, the [Board], or United States

courts.” INS v. Aguirre-Aguirre, 526 U.S. 415, 427 (1999); see also INS

v. Cardoza-Fonseca, 480 U.S. 421, 439 n.22 (1987) (“[T]he explanation in

the U.N. Handbook [does not have] the force of law [nor does it] in any way

bind[] the [agency] . . . .”); Guidelines at 1 (stating that the Guidelines are

not binding and are “intended to provide interpretative legal guidance”).

Further, we recently declined to adopt the UNHCR’s approach to particular

social group analysis for asylum where an alternative interpretation “more

accurately captures the concepts underlying the United States’ obligations

under the Protocol and will ensure greater consistency in the adjudication

of asylum claims under the Act.” Matter of M-E-V-G-, 26 I&N Dec. 227,

248–49 (BIA 2014). We should do the same in this case.

The majority cites to member States that have adopted some form of a

duress exception. However, there is no clear, consistent resolution of this

issue within the international community. See Prosecutor v. Erdemovic,

Case No. IT-96-22-T, ¶¶ 67, 88 (Int’l Crim. Trib. for the Former Yugoslavia

1997) (joint separate opinion of Judge McDonald and Judge Vohrah) (“The

rules of the various legal systems of the world are . . . largely inconsistent

regarding the specific question whether duress affords a complete defence to

a combatant charged with a war crime or a crime against humanity involving

the killing of innocent persons.”); see also Negusie, 555 U.S. at 526 (Scalia,

J., concurring) (“[T]here is no historical support for the duress defense when

a soldier follows a military order he knows to be unlawful.”).

The majority reads too much into “the international understanding” of the

member States’ obligations under Article 1F of the Convention. The drafters

of Article 1F were focused on preventing persecutors from benefiting from

the protections of the Convention, not on protecting persecutors who acted

under some form of coercion. But even to the extent that member States have

found an implied duress exception from Article 1F, we are under no

374

Cite as 27 I&N Dec. 347 (BIA 2018) Interim Decision #3930

obligation to follow their interpretation. We should act based on an

understanding of our own statutory and treaty obligations, not on

international expectations.

C. Intent of Congress

Congress’ policy of protecting refugees is based on our Nation’s

condemnation of persecution. See, e.g., Refugee Act § 101(a), 94 Stat. at

102 (“The Congress declares that it is the historic policy of the United States

to respond to the urgent needs of persons subject to persecution in their

homelands . . . .”). Congress has enacted a comprehensive statutory scheme

to address immigration and refugee protection in the United States, and it has

deliberately targeted certain immigration problems with specific solutions in

the Act. See Cardoza-Fonseca, 480 U.S. at 427, 436–37; see also Oceanic

Steam Navigation Co. v. Stranahan, 214 U.S. 320, 339 (1909) (“[O]ver no

conceivable subject is the legislative power of Congress more complete than

it is over” the decision to admit or to exclude aliens). The “interlocking,

interrelated, and interdependent” statutory scheme created by Congress to

address immigration reasonably provides that those who have persecuted

others are not entitled to the same protection as their victims. Massachusetts

Mut. Life Ins. Co. v. Russell, 473 U.S. 134, 146 (1985).

Under the statutory scheme, an individual who has engaged in

persecution is barred from asylum and withholding of removal but may still

receive deferral of removal under the Convention Against Torture and Other

Cruel, Inhuman or Degrading Treatment or Punishment, adopted and opened

for signature Dec. 10, 1984, G.A. Res. 39/46, 39 U.N. GAOR Supp. No. 51,

at 197, U.N. Doc. A/RES/39/708 (1984) (entered into force June 26,

1987; for the United States Apr. 18, 1988) (“Convention Against

Torture”). Sections 208(b)(2)(A)(i), 241(b)(3)(B)(i) of the Act, 8 U.S.C.

§§ 1158(b)(2)(A)(i), 1231(b)(3)(B)(i) (2012); 8 C.F.R. §§ 1208.16(d)(2),

1208.17(a) (2018); see also Negusie, 555 U.S. at 513–14.

Given the Act’s “interlocking, interrelated, and interdependent” scheme,

the assumption that Congress inadvertently omitted a voluntariness

requirement for the persecutor bar “is rendered especially suspect.” Russell,

473 U.S. at 146. While the legal standard is not the same, the strict

application of the persecutor bar is tempered to some degree by the fact that

such an alien remains eligible for the more limited protection of deferral of

removal under the Convention Against Torture. See Negusie, 555 U.S. at

514. The applicant’s case embodies this principle, since the Immigration

Judge granted deferral of removal under the Convention Against Torture,

which the Department of Homeland Security (“DHS”) has not challenged.

375

Cite as 27 I&N Dec. 347 (BIA 2018) Interim Decision #3930

Congress has also included provisions that ameliorate the immigration

consequences of certain conduct through waivers or exceptions. Most

significantly, in 2005 Congress created a waiver in section 212(d)(3)(B)(i)

of the Act, 8 U.S.C. § 1182(d)(3)(B)(i) (Supp. V 2005), to provide a

mechanism for the Government to exercise its unreviewable discretion to

allow aliens to avoid the consequences of the bar for providing material

support to terrorists. See Matter of S-K-, 23 I&N Dec. 936, 941 (BIA 2006)

(noting that the inclusion of the waiver was a means of balancing the “harsh

provisions” of the material support bar), remanded, 24 I&N Dec. 289 (A.G.

2007), clarified, 24 I&N Dec. 475 (BIA 2008). 2

In fact, it would be very reasonable for Congress to provide a waiver

similar to the one it enacted for material support for a terrorist organization.

A waiver would be a better avenue for ameliorating the effects of the

persecutor bar in deserving cases than the duress exception the majority

creates. By enacting the material support waiver, Congress effectively

addressed the over-inclusive nature of the material support bar by allowing

the Secretaries of State and Homeland Security to consider each situation in

a more holistic manner. Further, the waiver is not limited to an alien who

acts under duress. See, e.g., Sesay v. Att’y Gen. of U.S., 787 F.3d 215, 223

n.8 (3d Cir. 2015) (noting that the Secretaries “have continued to expand the

categories of activities eligible for waiver” (citation omitted)); Annachamy

v. Holder, 733 F.3d 254, 263 n.10 (9th Cir. 2013) (“The Act amended the

waiver provision to permit the Secretary to waive almost all of the terrorism-

related bars.”), overruled on other grounds by Abdisalan v. Holder, 774 F.3d

517 (9th Cir. 2014). A waiver could more effectively allow for consideration

of all the facts and circumstances holistically in any given case regarding not

only duress but also other issues. It could help ensure that asylum was

granted in meritorious cases and not granted in others, consistent with the

humanitarian principles underling the refugee laws.

In Matter of M-H-Z-, 26 I&N Dec. 757, 760–61 (BIA 2016), we recently

rejected the argument that the Act included an implied duress exception for

an alien who has provided material support to a terrorist organization

pursuant to section 212(a)(3)(B)(iv)(VI) of the Act. In reaching our

conclusion, we relied on the “well-known canon of statutory construction

that ‘[w]here Congress includes particular language in one section of a statute

but omits it in another section of the same Act, it is generally presumed that

Congress acts intentionally and purposely in the disparate inclusion or

2

Other examples of Congress providing ameliorative provisions are found in its

treatment of first offenses for alien smuggling and counterfeiting involving certain family

members, as well as petty offenses for crimes involving moral turpitude. See sections

101(a)(43)(N), (P), 212(a)(2)(A)(ii)(II) of the Act, 8 U.S.C. §§ 1101(a)(43)(N), (P),

1182(a)(2)(A)(ii)(II) (2012).

376

Cite as 27 I&N Dec. 347 (BIA 2018) Interim Decision #3930

exclusion.’” Id. at 761 (alteration in original) (quoting Cardoza-Fonseca,

480 U.S. at 432). We found it significant that Congress created explicit

exceptions for involuntary actions in other parts of the Act and also created

a waiver under section 212(d)(3)(B)(i) of the Act. Id. at 761–62. These

principles of statutory construction should be applied equally in the case

before us.

For example, Congress created an explicit exception to the ground of

inadmissibility based on an alien’s membership in a Communist or other

totalitarian party for an alien who establishes that “the membership or

affiliation is or was involuntary.” Section 212(a)(3)(D)(ii) of the Act. There

is also an explicit exception to the material support provision in section

212(a)(3)(B)(iv)(VI)(dd) for aliens who demonstrate a lack of knowledge

that the organization was a terrorist organization. In section 208(c)(2)(D) of

the Act, Congress provided that asylum may be terminated when an “alien

has voluntarily availed himself or herself of the protection of the alien’s

country of nationality.”

The persecutor bar in our asylum laws did not originate with the Refugee

Act, and we have never before adopted a duress exception to a persecutor

bar. The persecutor bar, including the exact phrase “ordered, incited,

assisted, or otherwise participated in the persecution of any person because

of race, religion, national origin, or political opinion,” was first added to the

Act in 1978 by sections 101 and 103 of the Holtzman Amendment, Pub. L.

No. 95-549, 92 Stat. 2065, 2065–66 (1978). Congress provided the exclusion

and deportation grounds at former sections 212(a)(33) and 241(a)(19) of the

Act, 8 U.S.C. §§ 1182(a)(33) and 1251(a)(19) (Supp. II 1978), to ensure that

persons who entered the United States by means other than the Displaced

Persons Act of 1948, ch. 647, 62 Stat. 1009 (“DPA”), or the Refugee Relief

Act of 1953, ch. 336, 67 Stat. 400 (“Refugee Relief Act”), would not also be

entitled to procure or retain immigration benefits if they had assisted Nazi

Germany or others in persecution. See Matter of Laipenieks, 18 I&N Dec.

433, 456 (BIA 1983), rev’d on other grounds, 750 F.2d 1427 (9th Cir. 1985).

We have interpreted the bar added by the Holtzman Amendment, which

contained the same statutory language as the Act’s current persecutor bar, as

extending to guards whose service was involuntary. See Matter of Kulle,

19 I&N Dec. 318, 332 (BIA 1985) (finding the alien deportable under former

section 241(a)(19) of the Act because his service as a perimeter guard to

prevent prisoners from escaping constituted “assistance in persecution,” even

if it was involuntary), aff’d, 825 F.2d 1188 (7th Cir. 1987); see also, e.g.,

Fedorenko, 449 U.S. at 510, 512 (holding that an “individual’s service as a

concentration camp armed guard—whether voluntary or involuntary—made

him ineligible for a visa” under section 2(a) of the DPA, 62 Stat. at 1009, as

a person who had “assisted the enemy in persecuting civil[ians]” (alteration

377

Cite as 27 I&N Dec. 347 (BIA 2018) Interim Decision #3930

in original)); Matter of Fedorenko, 19 I&N Dec. at 68 (finding the alien

deportable under former section 241(a)(19) of the Act, despite his claim of

involuntary service); Matter of Laipenieks, 18 I&N Dec. at 463–65.

As the Court discussed in Negusie, 555 U.S. at 522–23, these cases

addressed a different statute, and the principles of statutory construction

invoked in Fedorenko are not binding here. However, regardless of

differences in the legislative context, the relevant judicial and administrative

interpretations of the various statutes have never found a duress exception

for persecutors. 3 Congress has never acted to change these interpretations.

In fact, subsequent to these judicial and administrative interpretations,

Congress recodified the persecutor bar in 1996 by moving the language in

former section 243(h) of the Act, 8 U.S.C. § 1253(h) (1994), to section

241(b)(3) but without changing it. See Illegal Immigration Reform and

Immigrant Responsibility Act of 1996, Div. C of Pub. L. No. 104-208,

§§ 305(a)(3), 601(a)(1), 604(a), 110 Stat. 3009-546, 3009-602, 3009-689,

3009-691. Congress’ use of the persecutor bar language from the Refugee

Act in section 241(b)(3)(B)(i) of the Act without including a duress exception

suggests that it did not intend a different interpretation for the persecutor bar.

Further, Congress has twice addressed the waiver provision for the

material support bar without providing a similar waiver in the persecutor bar

context, even though neither had been interpreted to have an implied duress

exception. See REAL ID Act of 2005, Div. B of Pub. L. No. 109-13, § 104,

119 Stat. 302, 309; Consolidated Appropriations Act, 2008, Div. J of Pub.

L. No. 110-161, § 691(a), 121 Stat. 1844, 2364; see also Annachamy, 733

F.3d at 262 n.8. Thus, Congress has had several opportunities to add a

duress exception or provide a waiver to the persecutor bar to clarify the issue

if it intended such a result. The fact that it has never done so should be

instructive as to the proper course for us to follow. 4

3

In 1950, Congress added a second persecutor bar to the DPA, which provided that “[n]o

visas shall be issued . . . to any person who advocated or assisted in the persecution of any

person because of race, religion, or national origin.” Act of June 16, 1950, ch. 262, § 11,

64 Stat. 219, 227 (amending section 13 of the DPA). Courts refused to recognize a duress

exception to this provision. See United States v. Reimer, 356 F.3d 456, 459–60 (2d Cir.

2004). Subsequently, Congress enacted the Refugee Relief Act, in which it provided that

“[n]o visa shall be issued under this Act to any person who personally advocated or assisted

in the persecution of any person or group of persons because of race, religion, or national

origin.” Refugee Relief Act, § 14(a), 67 Stat. at 406. Courts concluded that, based on the

plain language of statute, there is no voluntariness requirement. See United States v. Hansl,

439 F.3d 850, 854 (8th Cir. 2006); United States v. Kumpf, 438 F.3d 785, 790–91 (7th Cir.

2006); United States v. Friedrich, 402 F.3d 842, 844–45 (8th Cir. 2005).

4

The majority’s discussion of the Child Soldiers Accountability Act of 2008, Pub. L. No.

110-340, 122 Stat. 3735, which enacted 18 U.S.C. § 2442 (2012), a more specific statute,

378

Cite as 27 I&N Dec. 347 (BIA 2018) Interim Decision #3930

D. Duress Standard

After creating a duress exception to the persecutor bar, the majority

proceeds to create a legal standard for duress that is not tied to any specific

source but, instead, appears to be a hybrid approach that finds support in the

Model Penal Code, Federal law, the common law of criminal duress, and

international sources, including guidance of the UNHCR. The standard it

creates is generally consistent with the criminal law of duress but, at bottom,

depends on whether the persecutor “acted under an imminent threat of death

or serious bodily injury to himself or others.” Matter of Negusie, 27 I&N

Dec. 347, 363 (BIA 2018). It is, of course, far from clear how this standard

will be applied in practice, but the phrase “serious bodily injury” is defined

in various Federal criminal statutes as including “impairment of the function

of a bodily member.” See, e.g., 18 U.S.C. § 113 (2012) (referencing

18 U.S.C. § 1365(h)(3) (2012)). Federal courts have defined “serious bodily

injury” to include one person breaking another’s ankle or biting another

person. See United States v. Mutte, 424 F. App’x 765, 767–68 (10th Cir.

2011); United States v. Moore, 846 F.2d 1163, 1166–67 (8th Cir. 1988). 5

Thus, the persecutory conduct that could be excused under the majority’s

approach is much broader than it may appear.

The majority repeatedly emphasizes that the duress exception it creates is

limited and narrow in scope, but characterizing it as such does not make it

so. The parameters the majority attempts to place on the standard it creates

are vague. They will be hard to apply in a consistent manner and, as a

practical matter, will not effectively limit the application of the exception.

There are myriad possible factual scenarios and circumstances that could

meet the standard announced today.

many years after the more general persecutor bar, does more to undermine the reasoning

of the majority than to support it. See HCSC-Laundry v. United States, 450 U.S. 1, 6 (1981)

(per curiam) (applying the “basic principle of statutory construction that a specific

statute . . . controls over a general” one). This law provides criminal penalties for those

who recruit or use child soldiers in their illicit activities. To the extent that the Act can be

read as expressing an intent that child soldiers should be eligible for asylum, it would be

an indication that Congress can amend the immigration laws to protect certain groups from

an asylum bar when it chooses to do so. See Matter of M-H-Z-, 26 I&N Dec. at 761.

Moreover, in discussing this issue, the majority mischaracterizes this dissent as

automatically barring former child soldiers from asylum. The statute defines child soldiers

as those under the age of 15, and we need not decide at this time whether a child of just

14 years or younger has the legal capacity to form the intent to commit acts that the

persecutor bar was intended to address.

5

Moreover, the persecutor’s conduct that would qualify for the duress exception under

the majority’s approach is not limited to harm to himself or a family member but could

include “any person.”

379

Cite as 27 I&N Dec. 347 (BIA 2018) Interim Decision #3930

In these cases, the applicant’s credibility will be key and generally

dispositive of the claim. But credibility can be hard to discern in any asylum

case and can be even more challenging in a case that involves the persecutor

bar. It is often hard to evaluate the reliability of testimony and other

evidence, and even more difficult and unusual for the DHS to meaningfully

investigate incidents that an applicant claims occurred years before in his

home country. See Angov v. Lynch, 788 F.3d 893, 901 (9th Cir. 2015); see

also, e.g., Dia v. Ashcroft, 353 F.3d 228, 261–62 (3d Cir. 2003) (Alito, J.,

concurring in part and dissenting in part). An Immigration Judge at least can

require an applicant for asylum to present reasonably available corroborating

evidence to meet his burden of proof. See section 208(b)(3)(B)(iii) of the

Act. However, it is unclear what, if any, corroboration an Immigration Judge

could reasonably require of an alien who claims that he was coerced into

persecuting an innocent person. It is also exceedingly unlikely that the

individual who coerced the persecutor would provide such corroboration.

Thus, there is a serious risk that applicants will be granted asylum after

falsely claiming they persecuted innocent victims under duress. See Negusie,

555 U.S. at 524 (noting that our interpretation “may be influenced by how

practical, or impractical, the standard would be in terms of its application to

specific cases”).

The majority’s duress exception will add more complexity to our already

complex asylum laws and to the adjudication of individual cases in the

Immigration Courts, as well as before the DHS. It will also adversely

impact Justice Department prosecutions for human rights violations. The

unintended consequences will be that many persecutors will improperly

obtain asylum relief, contrary to the fundamental purpose of the asylum laws

to protect legitimate victims of persecution.

Going forward, the majority’s approach will require us to address not

only the parameters of this duress exception but also whether an implied

duress exception should be adopted in various other provisions of the Act.

Adopting a duress exception to the persecutor bar will require us to confront

whether to adopt the criminal law principles of duress to excuse other related

and very serious misconduct that would otherwise bar aliens from relief, such

as for their involvement in genocide or extrajudicial killings. See sections

212(a)(3)(E)(ii), (iii) of the Act. Also, there are other types of misconduct

that bar relief using the same operative language as the persecutor bar, such

as alien smuggling. See section 212(a)(6)(E) of the Act. Further, claims for

a duress exception could arise in situations where an alien may be barred

from relief based on a lack of good moral character. See sections 101(f)(3),

(9) of the Act (relating to alien smugglers under section 212(a)(6)(E) and

to aliens who assisted in Nazi persecution, participated in genocide, or

380

Cite as 27 I&N Dec. 347 (BIA 2018) Interim Decision #3930

committed acts of torture or extrajudicial killing under section 212(a)(3)(E),

respectively).

For the reasons discussed above, we should not read a duress exception

into the Refugee Act or the treaty. See Chan v. Korean Air Lines, Ltd., 490

U.S. 122 (1989) (“We are to find out the intention of the parties by just rules

of interpretation applied to the subject matter; and having found that, our

duty is to follow it as far as it goes, and to stop where that stops—whatever

may be the imperfections or difficulties which it leaves behind.” (quoting

The Amiable Isabella, 19 U.S. (6 Wheat.) 1, 71 (1821))). It is clear that

Congress can and does expressly excuse involuntary actions and provide

waivers or exceptions to the statutory bars to relief when it deems them

appropriate. See Matter of M-H-Z-, 26 I&N Dec. at 761; see also, e.g.,

Whitfield v. United States, 543 U.S. 209, 216–17 (2005) (stating that where

Congress has included certain requirements in other statutes but not the one

under review, courts should not “override that choice”). Congress is the

entity that should adopt a duress exception or a waiver for the persecutor bar,

as it has done in the terrorism context, if it determines that it is in the best

interest of the United States to do so. We should resist the temptation to do

so ourselves. Thus, I respectfully dissent.

381