In re Negusie
| Decision Date | 05 November 2020 |
| Docket Number | Interim Decision #3999 |
| Citation | 28 I&N Dec. 120 |
| Parties | Matter of Daniel Girmai NEGUSIE, Respondent |
| Court | U.S. DOJ Board of Immigration Appeals |
(1) 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.
(2) 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. If evidence in the record indicates the persecutor bar may apply, the applicant bears the burden of proving by a preponderance of the evidence that it does not.
On October 18, 2018, Attorney General Sessions directed the Board of Immigration Appeals ("Board") to refer for review its June 28, 2018 decision in this matter. Matter of Negusie, 27 I&N Dec. 481 (A.G. 2018); Matter of Negusie, 27 I&N Dec. 347 (BIA 2018). To assist in this review, the order invited the parties and any interested amici to submit briefs on whether duress and coercion are relevant to the application of the so-called "persecutor bar" in the Immigration and Nationality Act, which forecloses the possibility of asylum or withholding of removal for an alien 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. §§ 1101(a)(42), 1158(b)(2)(A)(i), 1231(b)(3)(B)(i); see also 8 C.F.R. § 1208.16(d)(2).
For the reasons set forth in the accompanying opinion, I vacate the Board's June 28, 2018 decision. The Board's decision did not adopt the best interpretation of the persecutor bar viewed in light of its text, context, and history, as well as of longstanding Board precedent and policies of the Department of Justice. In addition, the decision did not appropriately weigh relevant diplomatic considerations, and it introduced collateral consequences that would be detrimental to the administration of immigration law. The Board's decision also placed an initial burden on the Department of Homeland Security ("DHS") to show evidence indicating the applicant assisted or otherwise participated in persecution, which is contrary to the plain language of the governing regulations.
Because the Board incorrectly recognized a duress exception to the persecutor bar, and incorrectly placed an initial burden on DHS to show evidence the persecutor bar applies, I overrule those determinations and any other Board precedent to the extent it is inconsistent with this opinion. I vacate the Board's decision and remand this matter to the Board with instructions to place the case on hold pursuant to 8 C.F.R. § 1003.1(d)(6)(ii)(B) pending the completion or updating of all identity, law enforcement, or security investigations or examinations. Once those investigations or examinations are complete, the Board should enter an appropriate order.
The Immigration and Nationality Act ("INA") provides that an alien who has assisted or participated in acts of persecution is ineligible for asylum and other forms of protection. This "persecutor bar" excludes from asylum "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." INA § 101(a)(42), 8 U.S.C. § 1101(a)(42); see id. § 208(b)(2)(A)(i), 8 U.S.C. § 1158(b)(2)(A)(i). A similar provision prevents persecutors from seeking withholding of removal under the INA, see id. § 241(b)(3)(B)(i), 8 U.S.C. § 1231(b)(3)(B)(i), and applies to withholding of removal under the regulations implementing the Convention Against Torture and Other Cruel, Inhuman, or Degrading Treatment or Punishment, opened for signature Dec. 10, 1984, S. Treaty Doc. No. 100-20, 1465 U.N.T.S. 113 ("CAT"), see 8 C.F.R. § 1208.16(d)(2). Persecutors remain eligible for deferral of removal under the CAT. Id. §§ 1208.16(c)(4), 1208.17(a).
The Board of Immigration Appeals ("Board") concluded here that the persecutor bar does not apply when an alien can establish that his assistance or participation in persecution was the product of duress. Having reviewed the text, context, and history of the persecutor bar, in light of longstanding Board precedent and policies of the Department of Justice ("Department"), seeking to avoid collateral consequences that would be detrimental to the administration of immigration law, and weighing the diplomatic implications of this decision, I conclude that the best reading of the persecutor bar does not include an exception for coercion or duress. I further clarify that where the record contains evidence from which a reasonable factfinder could conclude that the persecutor bar may apply, the alien bears the burden of showing that it does not.
The respondent is a national of both Eritrea and Ethiopia. In 1995, at the age of nineteen, he was conscripted into the Eritrean military for two years. In 1998, Eritrea recalled members of the military to fight in a war with Ethiopia. The respondent reported for service, but told his commanding officer that he did not want to serve at the battlefront against Ethiopians. The respondent was subsequently assigned to surveillance and guard duty at a military base.
The Eritrean military later imprisoned the respondent and subjected him to forced labor, which he believes was a result of his refusal to serve at the battlefront. During that time he was also punished for two weeks for talking with other prisoners, being forced to roll on the ground in the hot sun for two to three hours each day and beaten with a stick when he stopped. The respondent was then released after two years and resumed his military duties, which included work as a uniformed and armed guard at the same prison where he had been detained. The respondent received what he terms "pocket money" during his service.
The respondent's duties as a prison guard included preventing prisoners from escaping, taking showers, or obtaining fresh air. He also guarded prisoners who were being punished by exposure to the hot sun, one of whom subsequently died, and he knew that his supervisor tortured prisoners with electricity. The parties do not dispute that prisoners in the Eritrean prison were being persecuted on account of protected grounds under the INA.
The respondent claims that he remained a prisoner even while working as a guard in the prison camp, that he disobeyed orders and helped other prisoners on occasion, and that his service as a guard was the result of duress and coercion. But he concedes that he assisted in the persecution of other prisoners at the prison camp. He explains that he ultimately escaped and stowed away in a cargo container, which was eventually loaded on a ship destined for the United States. After arriving in Louisiana in 2004, the respondent applied for asylum, withholding of removal, and protection under the CAT on the grounds that he would be persecuted and tortured or killed if returned to Eritrea. The Department of Homeland Security ("DHS") referred the matter to an immigration judge.
The immigration judge found that the respondent was ineligible for asylum and withholding of removal because he The immigration judgeexplained that "there's no evidence to establish that the respondent is a malicious person or that he was an aggressive person who mistreated the prisoners," but "the very fact that he helped keep them in the prison compound where he had reason to know that they were persecuted constitutes assisting in the persecution of others and bars the respondent from relief." The immigration judge concluded, however, that it was more likely than not the respondent would be arrested and tortured if returned to Eritrea, primarily because he was a military deserter, and so the immigration judge granted his request for deferral of removal under the CAT.1 The respondent and DHS appealed.
The Board affirmed. Citing precedent that traces back to Fedorenko v. United States, 449 U.S. 490 (1981), the Board compared the respondent's conduct to that of someone forced to serve as a guard in a Nazi concentration camp and explained that whether "the respondent was compelled to participate as a prison guard, and may not have actively tortured or mistreated anyone, is immaterial." This is so, the Board continued, because "motivation and intent are irrelevant to the issue of whether he 'assisted' in persecution" and "the objective effect of an alien's actions . . . is controlling" (some internal quotation marks omitted). The Board also found no error in the decision to grant deferral of removal.
On review, the U.S. Court of Appeals for the Fifth Circuit affirmed the application of the persecutor bar, holding that "[t]he question whether an alien was compelled to assist authorities is irrelevant, as is the question whether the alien shared the authorities' intentions." Negusie v. Gonzales, 231 F. App'x 325, 326 (5th Cir. 2007) (per curiam), rev'd and Negusie v. Holder, 555 U.S. 511 (2009) ("Negusie"). Instead, the court said that the proper "inquiry should focus on 'whether particular conduct can be considered assisting in the persecution of civilians.'" 231 F. App'x at 326 (quoting Fedorenko, 449 U.S. at 512 n.34). Because the respondent "worked as an armed prison guard," "knew about the forms of punishment used by his superior officer," "stood guard while prisoners were kept in the sun as a form of punishment," and "acknowledged that his job description...
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