Practice Advisory

In Negusie v. Holder, 555 U.S. 511 (2009) the U.S. Supreme Court reviewed whether the persecutor bar for asylum and withholding of removal 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’ earlier position that circumstance, knowledge, and coercion did not matter under the persecutor bar. It remanded the case for the BIA to decide how broadly the persecutor bar sweeps.

After years of fits and starts, the Board heard oral argument in September and is now poised to determine the scope of the persecutor bar. Given the length of time the Board may take to issue its interpretation and the potential for further federal court review, this alert outlines arguments practitioners can advance and preserve in cases implicating the persecutor bar. The Practice Advisory summarizes the arguments asserted by Negusie and various amici in support of a duress exception. The Alert concludes with a checklist of arguments and supporting authority for practitioners to consider when challenging the application of the persecutor bar.