IRLI encourages the Attorney General to uphold “persecution bar” to asylum
WASHINGTON—Last Friday, the Immigration Reform Law Institute (IRLI) filed a brief with Acting Attorney General Matthew Whitaker, who is considering whether to overrule a decision by the Board of Immigration Appeals granting asylum to aliens who participated in the persecution of others in their home countries. IRLI urges Whitaker to keep in place the bar on granting asylum or similar relief to persecutors – the so-called “persecution bar” – and to reject the Board’s exception for those who only persecuted others under duress.
The alien in this case, a dual citizen of Eritrea and Ethiopia, was imprisoned by Eritrea, after being drafted into its military, because he refused to fight against Ethiopia. The alien claims that when he later became a prison guard for Eritrea, he tortured political prisoners by, among other things, making them stand in the sun for long periods, and that one man died from this treatment. The alien claims, however, that he acted under duress when he engaged in his acts of persecution.
The persecution bar has never been interpreted to have a duress exception. As IRLI shows in its brief, no such exception appears in or seems implied by the asylum statute. Nevertheless, the Board had relied on treaty interpretations by international bodies to read a duress exception into the statue. As IRLI points out, however, these international interpretations came decades after Congress passed the persecution bar, and so are useless in determining congressional intent.
IRLI also argues that, because asylum comes with generous benefits – including potential U.S. citizenship – persecutors, even those who acted under some degree of duress, do not deserve such relief, and because other laws already forbid the government to return even persecutors to countries where they will be tortured, creating a duress exception to the persecution bar would be unfair.
“Persecution on account of political opinion is a terrible scourge in many countries,” said Dale L. Wilcox, executive director and general counsel of IRLI. “Our asylum system is meant to provide many aliens a refuge from it. It would turn that system on its head to grant asylum to those who have committed the persecution, even if a degree of duress was involved. We’re not going to send unwilling prison camp guards back to be tortured, but we shouldn’t be giving them the privilege of U.S. citizenship, either.”
The case is Matter of Daniel Girmai Negusie, 27 I&N Dec. 481 (A.G. 2018).
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