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Viewing entries tagged
persecutor bar
The Fifth Circuit has upheld the application of the persecutor bar to an Eritrean applicant who guarded prisoners who were detained for being perceived political traitors, knew these prisoners faced long imprisonment or death, and still impeded their escape.
The full text of Gebrgzabher v. Garland can be found here:
https://www.ca5.uscourts.gov/opinions/pub/21/21-60223-CV0.pdf
The Attorney General (AG) has determined that the bar to eligibility for asylum and withholding of removal based on the persecution of others does not include an exception for coercion or duress. The AG additionally determined that the Department of Homeland Security does not have an evidentiary burden to show that an applicant is ineligible for asylum and withholding of removal based on the persecution of others.
The full text of Matter of Negusie can be found here:
The First Circuit has deferred to the Board of Immigration Appeals’ decision in Matter of JM Alvarado, and determined that an individual who assists a persecutor of others need not share the persecutor’s motive of persecution on account of the victim’s political opinion. Instead, so long as the direct persecutor was seeking to harm the person because of political opinion, the persecutor bar applies to any who aided that persecution, regardless of the aider’s motivation for doing so.
The full text of Alvarado v. Whitaker can be found here:
The BIA has determined that 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. The requirements for the defense are: (1) the applicant 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. The initial burden is on the DHS to show evidence that indicates that the alien 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.
Regarding the DHS’s initial burden of proof to show that the alien assisted or otherwise participated in persecution, an adjudicator must assess: (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.
In the instant case, the BIA determined that neither the applicant's forced conscription nor his assignment to guard duty meet the high standard for a duress defense. "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." The BIA also determined that the applicant had the opportunity to escape before committing the acts of persecution. "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."
The full text of Matter of Negusie can be found here:
The Board of Immigration Appeals has found that a person is subject to the persecutor bar if they assisted or aided in the persecution of any person and the persecutor was motivated to harm the person on account of a protected ground, even if the assisting individual was not so motivated. Thus, because Alvarado stood guard while his superiors tortured someone on account of his political opinion, he is subject to the persecutor bar, even though he was not personally motivated to harm the person on account of his political opinion.
The full text of Matter of Alvarado can be found here:
