Section Members, 

Whether you are new or a longtime member, I would like to take a moment to recap some of our recent activities and to invite you to join us at our upcoming forum on May 10 — and beyond.

Over the past few months, the Immigration Section Executive Council has been working to develop meaningful learning opportunities for our members. For instance, in November, Judge Charles Pazar and Andrew Rankin, produced the unforgettable CLE Immigration Judges Unfiltered: A Candid Discussion on Judicial Independence, Internal Ethics and Communication, and Other Structural Concerns. The CLE was unforgettable to me because through our connections, we were able to create a space to hear the candid thoughts of former immigration judges and to learn that they shared my concerns as I perceived them from my standpoint as an immigration law practitioner and academic. Judge Pazar, who sits on our executive council, also teaches immigration law at the University of Memphis Cecil C. Humphreys School of Law and he sits on the Round Table of Former Immigration Judges. Andrew Rankin, who is a full-time immigration attorney and a former student of Judge Pazar’s, also sits on the executive council. Through their unique relationship, our EC members were able to produce a unique CLE and conversation to enrich our membership.  

Our next big event will be 2023's Immigration Law Forum on May 10. We are excited to be able to meet in person this year for the first time since COVID — and we hope you will join us in Nashville! The executive council is working diligently to produce more meaningful learning opportunities for our members. For instance, Steven Simerlein will be presenting a primer on the intersection between immigration law and criminal law, including post-conviction relief. Terry Olsen will instruct us on how to submit successful applications in family-based immigration petitions. William Gill, who also teaches at Lincoln Memorial University, will be discussing the aftermath of the class action settlement following the Bean Station raid. Collectively, it is our sincere hope that these presentations will also enrich our membership.

Thank you for being part of our section. Please chime in if there are other topics you would like to learn more about at our upcoming forum or beyond. I look forward to seeing what we can build together in the months and years ahead!  

Sincerely,
Arléne Amarante

Throughout World War II, the Nazi regime forced millions of Jewish prisoners to support the Nazi war effort. Tens of thousands of Jewish prisoners were forced to work in rubber plants, coal mines and munitions factories. If a former Nazi guard who oversaw this forced labor were to apply for withholding of removal in the United States today, he would be denied. This is because of the “persecutor bar,” which renders those who have participated in the persecution of others ineligible for asylum and for withholding of removal. INA § 101(a)(42), INA § 208(b)(2)(A)(i); § 241(b)(3)(B)(i). 

This is a reasonable rule. After all, why would our country want to provide shelter to people who persecute others? But because of a recent decision of former Attorney General William Barr, the persecutor bar has been stretched beyond reason. Today, if one of the Jewish prisoners who were forced to work in a Nazi munitions factory were to apply for withholding of removal, they would face the same denial as the Nazi guard. This is because Barr held that there is no duress or coercion exception to the persecutor bar. 

The effects of Barr’s decision are not limited to hypothetical Nazi guards and Jewish prisoners. Only last month, the absence of an exception to the persecutor bar prevented Mohamed (his name has been changed), an applicant from Sierra Leone, from obtaining asylum. Over 20 years ago, Mohamed was kidnapped by a rebel faction. The rebels targeted Mohamed because his father was a prominent politician in the ruling party. During his imprisonment, Mohamed was subject to harsh forced labor. He was forced not only to work in diamond mines operated by the rebels, but also to carry heavy weapons and ammunition for hundreds of miles. He had no volition in this labor, and he would have faced severe punishment if he refused. Nevertheless, because Mohamed provided assistance to a group who harmed others, he was deemed ineligible for asylum and withholding of removal. 

Genesis of the Persecutor Bar

The evolution of the persecutor bar is complex and convoluted, but like much of asylum and refugee law, finds its genesis in the aftermath of World War II. In 1948, Congress passed the Displaced Persons Act, which authorized admission to refugees from Europe, but disallowed relief to anyone “who can be shown: (a) to have assisted the enemy in persecuting civil populations ... ; or (b) to have voluntarily assisted the enemy forces ... in their operations.” Negusie, 28 I&N Dec. at 127 (quoting Constitution of the International Refugee Organization, opened for signature Dec. 15, 1946, annex I, pt. II, § 2, 62 Stat. 3037, 3051-52, 18 U.N.T.S. 3, 20 (“IRO Constitution”) (incorporated in DPA § 2(b))). 

Two years after passing the Displaced Persons Act, Congress added a second persecutor bar, barring relief to those who “advocated or assisted in the persecution of any person because of race, religion or national origin, or to any person who has voluntarily borne arms against the United States during World War II.” The Act of June 16, 1950, 64 Stat. 219, 227. Like the Displaced Persons Act, the language of the 1950 Act was clearly steeped in references to the second world war.

Similarly, the Refugee Relief Act of 1953, 67 Stat. 400 (“RRA”), denied visas to anyone “who personally advocated or assisted,” in persecution. Id. §14(a), 67 Stat. at 406. The act of October 28, 1977, 91 Stat. 1223, denied permanent residence to anyone “who ordered, assisted or otherwise participated in the persecution of any person ...”. The Holtzman Amendment of 1978 denied admission and made deportable anyone who “under the direction of, or in association with” Nazi or Nazi-affiliated governments, had “ordered, incited, assisted, or otherwise participated in the persecution of any person because of race, religion, national origin, or political opinion.” Negusie, 28 I&N at 129 (quoting The Holtzman Amendment of 1978, sec. 101(a)(2), § 241(a)(19), 92 Stat. at 2065).   

In 1980, the United States formalized a refugee policy by enacting the Refugee Act, which barred anyone 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” from obtaining asylum or withholding of removal. Negusie, 28 I&N Dec. at 131 (citing RRA, sec. 201(a), § 101(a)(42)). And in 1996, Congress enacted the Illegal Immigration Reform and Immigrant Responsibility Act (IIRIRA), which largely left the existing persecutor bar to withholding of removal untouched while adding a parallel provision to asylum. See IIRIRA sec. 305(a)(3). 

These laws add up to show a clear congressional intent: those who engage in persecution will not be permitted to take advantage of laws intended to help the victims of persecution. But these laws did not expressly state an exception to the persecutor bar for duress or coercion. 

This silence was made explicit in 1981, when the Supreme Court first wrestled with the scope of the persecutor bar’s applicability in Fedorenko v. United States. Fedorenko involved the denaturalization of a former concentration camp guard who had obtained a visa to the United States by concealing his service during the war. 449 U.S. 490 (1981). Petitioner in that case acquired a visa under the Displaced Persons Act, so the court analyzed the language of the Displaced Persons Act and concluded that the Displaced Persons Act did not contemplate an exception to the persecutor bar. Id.  

More recently, in 2009, the Supreme Court determined that although the Immigration and Nationality Act was silent about whether duress or coercion could provide an exception to the persecutor bar, the question had been considered settled based on Fedorenko. However, the precedent in Matter of Fedorenko, 19 I&N Dec. 57 (BIA 1984) was not based on the INA, but on the Displaced Persons Act. 

Matter of Negusie 

Last year, Attorney General Barr self-referred the Board of Immigration Appeals’ (BIA) June 2018 decision which sought to clarify the applicability of the “persecutor bar” where the persecutor acted under duress or coercion.

 Daniel Girmani Negusie is a dual national of Eritrea and Ethiopia who was conscripted into the Eritrean army and punished for refusing to fight against Ethiopia. He was incarcerated for two years, during which time he was beaten with sticks and made to roll in the hot sun. When he was released, he was forced to work as a prison guard in the same prison, where he guarded prisoners who were being beaten with sticks and made to roll in the hot sun.

In 2005, the IJ found Negusie was ineligible for asylum and withholding of removal because he “assisted or participated in the persecution of others; in that, he guarded them, so that they were not able to leave the prison camp. He guarded them, so they were not able to get fresh air, and he guarded them, so they could not take showers, which assisted the government of Eritrea in its persecutory conduct.” Negusie, 28 I&N Dec. 120, 122 (A.G. 2020). In 2006, the BIA dismissed the appeals filed by Negusie and by the Department of Homeland Security.

On remand from the Supreme Court, the BIA determined recognizing a duress exception would be “the best of permissible approaches,” and established a five-part test to determine the applicability of the defense. Matter of Negusie, 27 I&N Dec. 347, 353 (BIA 2018). 

Attorney General Barr noted, by this time, the board and several courts had interpreted the 1950 Act, the Holtzman Amendment, and the Displaced Persons Act to lack an exception to the persecutor bar for duress or coercion. See Negusie, 28 I&N Dec. at 134. Moreover, Attorney General Barr noted that Congress provided an involuntariness exception to other bars in other statutes, but no such exception was articulated for the persecutor bar. Matter of Negusie, 28 I&N Dec. at 129. 

Conclusion

By eliminating all defenses to the persecutor bar, Attorney General Barr has cruelly ensured that even persecuted prisoners, such as Mohamed, could find no mechanism to explain the circumstances of their actions. A prohibition this cruel should be revoked.

Arlene Amarante is an assistant professor of law at Lincoln Memorial University, where she teaches legal writing, immigration law, asylum and refugee law, and critical race theory. Arlene received her J.D. from Nova Southeastern University in 2011. She can be reached at arlene.amarante@lmunet.edu.