On August 8, 2016, the Board of Immigration Appeals (BIA) issued an amicus invitation [PDF version]1 regarding whether there exists a “duress exception” to the “persecutor bar” to asylum under section 208(b)(2)(A)(i) of the Immigration and Nationality Act (INA) and to withholding of removal under section 241(b)(3)(B)(i). The amicus invitation allows attorneys to file a Request to Appear as Amicus Curiae along with a brief discussing the issues presented in the amicus invitation. The deadline for filing is September 7, 2016.
The amicus invitation presents the two following questions:
1. Does a duress exception exist to limit the application of the persecutor bar to asylum and the persecutor bar to withholding of removal?
2. If there is a duress exception to the persecutor bar, what ought to be the standards (including burden of proof) to determine if an individual asylum application qualifies for the exception?
The BIA will also consider amicus briefs that were filed with the Supreme Court regarding Negusie v. Holder, 555 U.S. 511 (2009) [PDF version]. In Negusie, the Supreme Court majority held that the language of the persecutor bar was ambiguous as to whether coercion or distress was relevant in determining whether an applicant for asylum or withholding of removal had participated in persecution. The majority left the issue for the Board to eventually resolve in its discretion.
We discussed Negusie peripherally in our article on the Matter of M-H-Z-, 26 I&N Dec. 757 (BIA 2016) [PDF version] [see article]. In the Matter of M-H-Z-, the Board held that there is no duress exception from the separate, but related, material support bar. In the Matter of M-H-Z-, the Board discussed Negusie, but made clear that the issue of whether there is a duress exception to the material support bar is a distinct issue from whether there is a duress exception to the persecutor bar.
The amicus invitation indicates that the Board may soon provide concrete guidance on whether there is a duress exception to the persecutor bar to asylum and withholding of removal. We will be sure to update the site if the Board issues such guidance on the issue. For the time being, please see our resources on the persecutor bar to asylum [see section] and to withholding of removal [see section] to learn more about the persecutor bar in general.
