Litigation Update in Negusie v. Holder: The Board of Immigration Appeals Nears Decision on the Persecutor Bar

In Negusie v. Holder, the U.S. Supreme Court reviewed whether the statutory bars to asylum and withholding of removal for individuals who otherwise qualified as refugees but had engaged in the persecution of others should be interpreted to contain an exception for conduct performed under duress. Immigrant advocates, international law scholars, and religious groups, filed amici briefs with the Court describing how vulnerable groups are often forced to persecute others as part of the persecution perpetuated against them and how the United Nations and many other countries interpret the U.N. Convention and Protocol Relating to the Status of Refugees to include a duress exception. The Court’s 2009 decision rejected the Board of Immigration Appeals’ position that any conduct that had the objective effect of assisting in the persecution of others disqualified an applicant from protection — regardless of circumstance, knowledge, or choice. After years of fits and starts, the Board is now poised to determine the scope of the persecutor bar in the United States’ refugee provisions. In 2016, the Board requested briefs from the parties and invited amici curiae to address whether there is “an involuntariness or duress” exception to the persecutor bar and if so, what standard should govern the exception. The Alert reviews the initial position of the Department of Homeland Security (DHS) alongside the contrary position taken by DHS under the Trump Administration. The Alert then summarizes the arguments asserted by Negusie and various amici in support of a duress exception, which practitioners can draw on in their own cases. It also provides links to the briefs filed with the Board. It concludes with a checklist of arguments and supporting authority for practitioners to consider when challenging the application of the persecutor bar.