Introduction

On October 22, 2025, the U.S. Attorney General issued the decision Matter of Negusie, 29 I&N Dec. 285 (A.G. 2025), in which the long-running question of whether a “duress” or “coercion” exception exists to the so-called persecutor bar under the Immigration and Nationality Act (INA) was definitively resolved: the bar to asylum and withholding of removal for an individual who ordered, incited, assisted or otherwise participated in persecution does not include a coercion or duress exception. In other words, even if the participation was compelled under threat, the statute renders the applicant ineligible. This article explains the significance of the decision, offers a historical overview of the persecutor bar and duress question, analyzes the Negusie decision and its practical implications and closes with key takeaways. 

What the Decision Holds

  1. The Attorney General vacated the stay that had been in place since the Board of Immigration Appeals (BIA) decision in March 2021 and returned to effect the earlier AG decision Matter of Negusie (A.G. 2020), 28 I&N Dec. 120 (A.G. 2020). In the 2025 decision the AG made clear that the 2020 decision is now operative law.
  2. The holding: The persecutor-bar provisions of the INA — specifically Sections 208(b)(2)(A)(i) and 241(b)(3)(B)(i) (i.e., 8 U.S.C. §§ 1158(b)(2)(A)(i), 1231(b)(3)(B)(i)) — do not contain a duress or coercion exception for asylum or withholding of removal.
  3. Burden-shifting: The decision makes explicit that once the record indicates the persecutor-bar may apply, the applicant has the burden of proving by a preponderance of the evidence that the bar does not apply (i.e., that they did not assist in persecution). DHS (or the government) bears no initial evidentiary burden on this point.
  4. Scope limitation: The decision distinguishes the persecutor bar (for asylum and withholding of removal) from protection under the Convention Against Torture (CAT). The duress question doesn’t affect the CAT relief channel.
  5. Practical effect: The upshot is that immigration judges, the BIA and practitioners must treat any assistance in persecution — even under coercion — as potentially disqualifying for asylum and withholding of removal, unless the applicant affirmatively shows otherwise.

Historical Overview and Case Background

A. Origins of the Persecutor Bar

  • The concept of excluding individuals from refugee or asylum status who have “assisted in persecution” goes back decades. For example, under the Displaced Persons Act after World War II and the Immigration and Nationality Act predecessor regimes, participation in persecution (especially Nazi or enemy regimes) barred relief even if coerced. The Supreme Court in Fedorenko v. United States, 449 U.S. 490 (1981) held that the statutory bar did not include an involuntary-assistance exception: “Congress was perfectly capable of adopting a ‘voluntariness’ limitation where it felt that one was necessary.”
  • When Congress enacted the Refugee Act of 1980 (Pub. L. 96-212, 94 Stat. 102) it added language excluding from the definition of “refugee” 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.” Later, the Anti-Terrorism and Effective Death Penalty Act and the Illegal Immigration Reform and Immigrant Responsibility Act (IIRIRA) extended or clarified similar persecutor-bar language for asylum and withholding of removal.
  • The key textual point: the statute uses “assisted” and “otherwise participated,” without explicitly requiring voluntariness. Courts and agencies long took that omission as significant.
  • The historical jurisprudence: Courts held the persecutor bar is categorical; once participation is shown, relief is barred. The question remained: what about participation under duress?

B. The Supreme Court’s 2009 Decision: Negusie v. Holder

  • The case Negusie v. Holder, 555 U.S. 511 (2009) arose from an Eritrean national forced to serve as a prison guard in Eritrea. After fleeing to the United States, he applied for asylum and withholding of removal. The IJ and BIA found him ineligible under the persecutor bar (even though his service was under coercion). The Fifth Circuit affirmed.
  • The Supreme Court held that the statute was ambiguous on the question of whether duress matters; because the BIA had not engaged in meaningful statutory interpretation of duress, the Court remanded for the agency to assess that question. Id. at 518, 524.
  • Importantly, the Court did not resolve whether duress should excuse the bar; it left the door open to agency interpretation.

C. The BIA and the Duress Exception

  • On remand, in Matter of Negusie (BIA 2018), 27 I&N Dec. 347 (BIA 2018), the BIA concluded that there is a narrow duress exception to the persecutor bar and set out a five-part test (including imminent threat of death, no reasonable means of escape, knowledge of the persecutory nature of the conduct, harm inflicted is not greater than threatened harm, and the assistance was compelled). The BIA then held that the respondent had not established the exception because he had adequate opportunity to leave.
  • This BIA decision represented a shift toward recognizing the moral intuition that coercion should matter.

D. The 2020 AG Decision: Matter of Negusie (A.G. 2020)

  • On November 5, 2020, AG William P. Barr certified the BIA decision to himself, vacated it, and held that the persecutor bar contains no duress exception. See Matter of Negusie, 28 I&N Dec. 120 (A.G. 2020).
  • His reasoning: The statutory text and context (including precedent like Fedorenko) did not require voluntariness; Congress knew how to require “voluntary” assistance when it wanted to (but did not) and therefore must have meant to impose a strict liability-type bar. The legislative history and surrounding provisions pointed away from a duress exception. He also emphasized that the purpose of the persecutor bar is deterrence and exclusion of persons who assisted persecution, even under coercion.
  • The opinion further clarified the burden — the applicant must prove by a preponderance of the evidence that the bar does not apply once indications on the record exist.
  • The BIA implemented the new rule in March 2021 when it dismissed the appeal, and then AG Merrick B. Garland in October 2021 directed the Board to refer the decision to him for review and stayed the Board’s order, meaning the 2020 decision was effectively paused.

E. The 2025 AG Decision and Return to 2020 Rule

  • On October 22, 2025, the Attorney General issued the decision in Matter of Negusie, 29 I&N Dec. 285 (A.G. 2025), vacating the stay of the Board’s March 16, 2021 order and explicitly reinstating the 2020 Barr decision as the operative rule.
  • The AG explained that since the stay was vacated and review declined, the 2020 opinion is controlling. The language: “For clarity … the INA’s bar … does not contain a duress exception.”
  • Thus, as of late 2025, the governing law is that no duress or coercion exception to the persecutor bar exists for asylum or withholding of removal.
  1. Statutory text matters: The AG’s 2020 and 2025 decisions emphasize that when Congress uses “assisted” or “otherwise participated” without modifying language indicating voluntariness, the default reading is that voluntariness is not required. The fact that elsewhere Congress used “voluntarily assisted” underscores this.
  2. Precedent (Fedorenko): The Court in Fedorenko found no duress exception under the DPA bar for post-war visa ineligibility of Nazi camp guards, then the persecutor bar analogs built on that high-liability model. Fedorenko v. United States, 449 U.S. 490 (1981)
  3. Policy and purposive arguments: Advocates of a duress exception argued moral fairness and the fact of compelled participation under threat of death. The AG’s view is that policy concerns do not override the statutory language and structure.
  4. Burden shift: Once the record raises the possibility of the persecutor bar (e.g., an applicant worked in a paramilitary unit, prison guard role, informant role), the applicant must present evidence to show non-participation or that the bar doesn’t apply. The government need not produce initial proof of the bar.
  5. Differentiation from CAT: The decision does not eliminate claims under CAT (8 C.F.R. § 1208.17). Even those excluded from asylum/withholding may still seek protection if they can show a likelihood of torture. But counsel must now be especially clear about the different standards and relief tracks.
  6. Potential chilling effect / humanitarian critique: Some voices warn that the no-duress rule places refugees who were forced into roles (child soldiers, coerced militias, prison guards under threat) at extreme risk of exclusion, raising questions about fairness and internal consistency with U.S. treaty obligations.
  7. Operational and practice implications:
    • Screening: Intake must aggressively identify any past roles that might constitute “assistance in persecution.”
    • Record building: Document efforts to highlight absence of specific assistance, whether the individual fled and refused roles, whether roles were non-persecutory, timing, nature and extent of coercion (though not a duress “escape hatch,” this may help show lack of “assistance”).
    • Decision drafting: IJ and BIA decisions must carefully analyze whether “assisted or otherwise participated in persecution” under statute and then whether the applicant has rebutted the bar.
    • Client counseling: Make absolutely clear that coercion/duress is not a statutory defense to the bar for asylum/withholding, so the client must understand the risk of exclusion and the fallback to CAT or other relief.
    • Expert/support evidence: If duress evidence is offered, it may help in CAT context or in mitigating other relief decisions, but cannot prevent the bar for asylum/withholding.
    • Strategic decisions: In cases where participation under coercion is alleged, counsel may evaluate whether to emphasize CAT only, or attempt to show non-assistive roles, highlight minimal involvement, or focus on earlier exit from involvement.

Example Fact Patterns & Practice Scenarios

  • Example A: Applicant was forced at gunpoint to serve as a prison guard for a persecutory regime but left at first opportunity. Under the current rule, service as guard likely triggers the persecutor bar; even if threatened, duress does not provide an exception for asylum/withholding, so counsel must explore CAT relief.
  • Example B: Applicant was in a military unit that engaged in persecution, but the applicant claims s/he never personally inflicted harm, never had command or supervisory role, and instead had a logistic role. Counsel must parse whether “participation” under statute includes logistic assistance, and build evidence to show non-assistance or non-participation.
  • Example C: Applicant served as a low-level informer for the regime, but never physically harmed persons, and immediately left the function once possible. Counsel must show record is not one of “assistance” as interpreted, then rebut the bar; mere presence or forced service may not alone defeat the bar if “assistance” can be shown.
  • Example D: Applicant was a child soldier, forced into a militia that committed acts of persecution. Even though coercion is clear, under the current rule the persecutor bar could apply; counsel must evaluate whether the child soldier’s role qualifies as “assisted or otherwise participated” and whether there might be arguments around capacity, age, mental state – though note the duress exception is unavailable.
  • Strategic Note: In many cases, the safest routing may be to emphasize CAT relief or other non-barred relief pathways, while simultaneously attempting to show that the persecutor bar does not apply because the applicant did not “assist or otherwise participate” in persecution within the statutory meaning.

Key Implications

  • Screen early: Analyzing any early involvement with guard duty, informant roles, service in paramilitary, prison guard, security, interrogations, checkpoints, or militias is paramount.
  • Document thoroughly: If involvement is claimed, collecting records of time, role, threat/coercion, escape options, duration, location, reason for role, exit from role, and subsequent risk of return to involvement is paramount. While duress does not bar asylum/withholding, a well-documented record may help with CAT, credibility, or, in some cases, other forms of relief.
  • Understand: that the law now treats participation in persecution (even under coercion) as potentially disqualifying for asylum and withholding of removal. This is crucial for informed decision-making regarding what relief to pursue.
  • Some Practical Tips -It is very important to:
    • Focus on showing the applicant did not assist or otherwise participate in persecution within the statutory meaning.
    • If assistance is in question, building evidence to show a minimal or non-persecutory role, lack of nexus to protected ground, or that the conduct did not qualify as persecution of another on account of a protected ground.
    • When possible, using duress evidence where helpful to establish lack of intent, minimize culpability, but frame it in terms of “did not assist” rather than a “duress excuse.”
    • For CAT, emphasizing threat of torture, capacity of regime, individual risk, etc., where the persecutor bar does not apply.
    • Decision drafting: When drafting briefs or decisions, ensuring the structure reflects the correct burden allocation: (1) Determine whether record indicates “assisted or otherwise participated in persecution” on account of a protected ground; (2) If yes, then the asylum/withholding claim is barred unless the applicant proves by a preponderance that the bar does not apply; (3) Duress/coercion is no longer an exception to the bar (for asylum/withholding) but may still be relevant in CAT or credibility/context analysis.
    • Staying alert to future developments: Although the current rule is binding, legislative change, future AG decisions or court challenges could affect it. Proper monitoring of updates is important.

Frequently Asked Questions (FAQ)

Does this decision mean that someone forced under threat to commit persecution can neverget asylum or withholding?

Not automatically. If the person’s role did not amount to “assisted or otherwise participated in persecution” under the statute (for example, purely victim-role, or role with no nexus to protected ground and no assistance in persecution), then the bar may not apply. The key issue is assistance/participation. If the bar does apply, duress is not a defense for asylum/withholding. However, CAT relief may remain available.

What is “participation in persecution” under the statute?

The INA refers to 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.” 8 U.S.C. § 1158(b)(2)(A)(i) (asylum) and § 1231(b)(3)(B)(i) (withholding). The agency and courts interpret the terms broadly: helping, enabling, facilitating persecution can count. Mere passive presence may or may not; facts matter.

How does burden shifting work under the new rule?

No. The persecutor bar addressed here applies to asylum and statutory withholding of removal. CAT relief (deferral or withholding of removal under the Convention Against Torture) has a separate legal standard and the duress/coercion analysis may be relevant in that context (e.g., assessing risk, credibility, past conduct) but the bar as discussed here does not apply to CAT.

How does burden shifting work under the new rule?

When the record indicates the persecutor bar may apply (such as evidence of participation in persecutory acts), the applicant must show by a preponderance of the evidence that they did not participate or assist, or otherwise that the bar does not apply. The government does not have to initially prove the bar.

What should I do if my client was a coerced child soldier or forced militia member?

This is a highly sensitive fact pattern. While the duress exception is not available for asylum/withholding, you should evaluate carefully: (a) Did the client actually assist or participate in persecutory acts (and was there nexus to protected ground)? (b) Was the client’s role such that it might not qualify as “assisted or otherwise participated in persecution”? (c) Explore CAT relief or other forms of protection. Gather detailed evidence of age, coercion, role, exit from the role, and risk of future persecution/return.

Conclusion

The decision in Matter of Negusie, 29 I&N Dec. 285 (A.G. 2025) marks a definitive turning point: for asylum and withholding of removal, participation in persecution — even under coercion or threat — triggers the persecutor bar and cannot be excused by duress. Practitioners must adjust screening, strategy, record development and client counseling accordingly.

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