In re Negusie
| Decision Date | 28 June 2018 |
| Docket Number | Interim Decision #3930 |
| Parties | Matter of Daniel Girmai NEGUSIE, Applicant |
| Court | U.S. DOJ Board of Immigration Appeals |
(1) 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, which is limited in nature.
(2) To meet the minimum threshold requirements of the duress defense to the persecutor bar, an applicant must establish by a preponderance of the evidence that (1) he 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.
FOR APPLICANT: Andrew J. Pincus, Esquire, Washington, D.C.
GRANT, Board Member:
In a decision dated May 31, 2005, an Immigration Judge denied the applicant's applications for asylum and withholding of removal but granted his request for deferral of removal under the Convention Against Torture and Other Cruel, Inhuman or Degrading Treatment or Punishment, adopted and opened for signature Dec. 10, 1984, G.A. Res. 39/46, 39 U.N. GAOR Supp. No. 51, at 197, U.N. Doc. A/RES/39/708 (1984) (entered into force June 26, 1987; for the United States Apr. 18, 1988) ("Convention Against Torture"). On February 7, 2006, we dismissed the appeals of both the applicant and the Department of Homeland Security ("DHS").1 This case is now before us on remand pursuant to a decision of the United States Supreme Court inNegusie v. Holder, 555 U.S. 511 (2009). Having reviewed the record and the arguments presented by the parties and amici curiae, we will again dismiss the applicant's appeal.2
We conclude that duress is relevant in determining whether an alien who assisted or otherwise participated in persecution is prevented by the so-called "persecutor bar" from establishing eligibility for asylum and withholding of removal under sections 101(a)(42), 208(b)(2)(A)(i), and 241(b)(3)(B)(i) of the Immigration and Nationality Act, 8 U.S.C. §§ 1101(a)(42), 1158(b)(2)(A)(i), and 1231(b)(3)(B)(i) (2012), and for withholding of removal under the Convention Against Torture pursuant to 8 C.F.R. § 1208.16(c) and (d)(2) (2018).3 In this decision, we set forth a standard for evaluating claims of duress in this context. Applying that standard to the uncontested findings of fact in the record, we conclude that the applicant has not established that he was under duress when he assisted in the persecution of prisoners who were persecuted under his guard in an Eritrean prison camp.
The applicant is a national and citizen of both Ethiopia and Eritrea. He arrived in the United States on December 20, 2004, as a stowaway. Once in this country, he claimed that he would be persecuted upon his return and applied for asylum and withholding of removal.
At a credible fear interview, the applicant testified that he had been forcefully conscripted into the Eritrean military. As a result of his refusal to fight against fellow Ethiopians, he was incarcerated for 2 years, subjected to forced labor, beaten, and exposed to the hot sun. Thereafter, he was forced to serve as a uniformed and armed guard at a prison camp operated by the Eritrean military. His duties included guarding prisoners to make sure they did not escape and keeping prisoners from taking showers and obtaining fresh air. At times, he guarded prisoners who were placed in the hot sun as a form of punishment and saw at least one man die after being in the sun for more than 2 hours. On at least two occasions, the applicant disobeyed orders and assisted prisoners, for which he received verbal reprimands from hissuperiors but was not harmed or threatened with physical harm. The applicant escaped from the prison and hid in a container that was loaded on board a ship heading to the United States. His claim of persecution is based on his assertion that prison guards harmed him on account of a protected ground while he was a prisoner.
Following his credible fear interview, the applicant was issued a Notice of Referral to Immigration Judge (Form I-863). In a decision dated May 31, 2005, the Immigration Judge determined that the persecutor bar applied to the applicant because he guarded prisoners who were tortured and left to die in the hot sun on account of a protected ground. Thus, the Immigration Judge concluded that the applicant was ineligible for asylum and withholding of removal as one who has assisted in the persecution of others on account of race, religion, nationality, membership in a particular social group, or political opinion. However, finding that the applicant was credible and that it is more likely than not that he would be arrested and tortured by the Eritrean Government upon return to Eritrea because he is a military deserter, the Immigration Judge granted his request for deferral of removal under the Convention Against Torture pursuant to 8 C.F.R. § 1208.17 (2005). Both the applicant and the DHS appealed.
We dismissed the applicant's appeal, affirming the Immigration Judge's finding that the applicant is subject to the persecutor bar. Based primarily on our decision in Matter of Fedorenko, 19 I&N Dec. 57, 69 (BIA 1984), and Fedorenko v. United States, 449 U.S. 490 (1981), we determined that it was immaterial that the applicant was compelled to act as a prison guard and concluded that an alien's motivation and intent are irrelevant to whether he "assisted" or "participated" in persecution. The United States Court of Appeals for the Fifth Circuit affirmed our decision following the same reasoning. Negusie v. Gonzales, 231 F. App'x 325 (5th Cir. 2007).
The Supreme Court reversed and remanded. The Court first held that the persecutor bar's silence with regard to a duress exception "is not conclusive" and that on this precise point, the statute is ambiguous. Negusie, 555 U.S. at 518. The Court held that the Board and the Fifth Circuit erred in concluding that Fedorenko is controlling on the question because, in that case, the Court was interpreting the Displaced Persons Act of 1948, ch. 647, 62 Stat. 1009, which is distinct in purpose and language from the statute at issue here, the Refugee Act of 1980, Pub. L. No. 96-212, 94 Stat. 102 ("Refugee Act"). Negusie, 555 U.S. at 518-20.
The Court emphasized the distinction between the DPA, which was enacted to address not only the post-World War II refugee crisis "but also the Holocaust and its horror," and the Refugee Act, which was "designed to provide a general rule for the ongoing treatment of all refugees and displaced persons." Id. at 520. Since Fedorenko addressed "a different statute enactedfor a different purpose," it does not control interpretation of the persecutor bar in the Refugee Act. Id. The Court also recognized that it is not "clear that Congress had an intention on the precise question at issue." Id. at 518. Finding that the Board "has not exercised its interpretive authority" on the question, id. at 522, the Court remanded for us to make a "determination of the statutory interpretation question," id. at 524, "with respect to whether an alien who was coerced to assist in persecution is barred from obtaining asylum in the United States," id. at 525 (Scalia, J., concurring).
Both parties rely on the legislative history, the international instruments, and other provisions of the Act to reach opposite conclusions. The parties' arguments are similar to those considered by the Supreme Court, and both positions have merit. We will summarize the most salient points.
The DHS maintains that neither the 1967 United Nations Protocol Relating to the Status of Refugees, opened for signature Jan. 31, 1967, 19 U.S.T. 6223, 606 U.N.T.S. 267 () ("Protocol"), nor the 1951 United Nations Convention Relating to the Status of Refugees, adopted July 28, 1951, 19 U.S.T. 6259, 189 U.N.T.S. 150 (entered into force Apr. 22, 1954) ("Convention"), indicates that the persecutor bar in the Act should be read to incorporate a duress exception. This is particularly so in regard to Article 1F of the Convention, which identifies persons who are ineligible for protection under the Convention (referred to as the "Exclusion Clauses").
While acknowledging that the Board may examine the treaty obligations that inform the Act, the DHS argues that the Board has no authority to expand our obligations beyond that which has been provided by the Act and regulations. See Matter of G-K-, 26 I&N Dec. 88, 93 (BIA 2013). Relying on the fact that Congress did not provide an explicit duress exception or make intent an element for establishing culpability under the persecutor bar, the DHS contends that the Board should be "reluctant" to construe the ambiguous persecutor bar as providing such an exception. According to the DHS, if the Board were to recognize a duress exception, it "would risk effectively expanding U.S. treaty obligations beyond what the President and Congress intended." The DHS emphasizes that the drafting history of Article 1F of the Convention establishes that each State party was free to make its own decision regarding how the Exclusion Clauses are to be applied and that rejection of a duress exception does not mean that a State is in...
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