U.S. Department of Justice http://eoirweb/library/lib_index.htm Executive Office for Immigration Review Published since 2007 Immigration Law Advisor May 2009 A Monthly Legal Publication of the Executive Office for Immigration Review Vol 3. No.5 Assistance in Persecution Under Duress: In this issue... The Supreme Court’s Decision in Negusie v. Holder and the Misplaced Reliance on Page 1: Feature Article: Fedorenko v. United States Assistance in Persecution Under Duress: The Supreme Court’s by Brigette L. Frantz Decision in Negusie v. Holder ... Page 5: Federal Court Activity t is a difficult issue faced by the immigration courts. An individual appears in immigration court seeking asylum on account of a Page 12: BIA Precedent Decisions Istatutorily protected ground—race, religion, nationality, membership Page 13: Regulatory Update in a particular social group, or political opinion. The Immigration Judge hears testimony revealing that the respondent is fully credible and has, in fact, suffered persecution and appears eligible for asylum. Yet, the Immigration Judge finds that the respondent is statutorily barred from The Immigration Law Advisor is asylum in the United States based on his participation and assistance in the a professional monthly newsletter of the Executive Office for Immigration persecution of others. This statutory provision, more commonly referred Review (“EOIR”) that is intended to as the “persecutor bar,” precludes the granting of asylum to anyone who solely as an educational resource has “ordered, incited, assisted, or otherwise participated in the persecution to disseminate information on of any person on account of race, religion, nationality, membership in a developments in immigration law particular social group, or political opinion.” Section 208(b)(2)(A)(i) of pertinent to the Immigration Courts the Immigration and Nationality Act, 8 U.S.C. § 1158(b)(2)(A)(i). The and the Board of Immigration Appeals. respondent asserts in his defense that any persecutory acts he committed Any views expressed are those of the were involuntary and the result of coercion and duress. However, relying authors and do not represent the on a long history of case law, the Immigration Judge denies relief because positions of EOIR, the Department of duress is not an exception to the persecutor bar. This issue—whether there Justice, the Attorney General, or the is a duress exception to the persecutor bar—recently reached the Supreme U.S. Government. This publication contains no legal advice and may Court in Negusie v. Holder, 129 S. Ct. 1159 (2009). This article will explore not be construed to create or limit the history of this issue, from the incorporation of the persecutor bar into any rights enforceable by law. EOIR the Act through the Court’s decision in Negusie. will not answer questions concerning the publication’s content or how it The prohibition against granting asylum to any individual who may pertain to any individual case. persecuted another was first introduced into the Immigration and Nationality Guidance concerning proceedings Act by the Refugee Act of 1980, Pub. L. No. 96-212, 94 Stat. 102 (“Refugee before EOIR may be found in the Act”). One primary purpose of the Refugee Act was to implement the Immigration Court Practice Manual United States obligations under the 1967 United Nations Protocol Relating and/or the Board of Immigration to the Status of Refugees, Jan. 31, 1967, 19 U.S.T. 6223, 606 U.N.T.S. Appeals Practice Manual. 1 267, and the 1951 United Nations Convention Relating the Court’s decision in Fedorenko did not directly relate to to the Status of Refugees, July 28, 1951, 19 U.S.T. 6259, asylum. Instead, the Court granted certiorari to examine 189 U.N.T.S. 150. INS v. Cardoza-Fonseca, 480 U.S. whether the circuit court had applied the appropriate 421, 436-38 (1987). Section 201(a) of the Refugee Act test in revoking the citizenship of an individual who had excluded from the definition of a “refugee” “any person served as a prison guard at a Nazi concentration camp who ordered, incited, assisted, or otherwise participated in in Treblinka, Poland. However, the Court analyzed a the persecution of any person on account of race, religion, different persecutor bar containing wording similar to the nationality, membership in a particular social group, persecutor bar to asylum found in the Act and found no or political opinion.” This language was incorporated basis for an “involuntary assistance” exception. into the definitional provisions of the Act at section 101(a)(42), 8 U.S.C. § 1101(a)(42), which defines the The petitioner in Fedorenko was conscripted into term “refugee,” as well as into the asylum provisions of the the Russian Army in 1941 and was later captured by the Act at section 208(b)(2)(A), which sets forth those groups Germans. He was eventually trained as a concentration of individuals who are ineligible for asylum. camp guard and assigned to Treblinka during 1942 and 1943. Fedorenko admitted that, during his time at The plain language of the Refugee Act does not Treblinka, he had served as a perimeter guard and had articulate any exceptions to the persecutor bar, whether shot in the direction of inmates attempting to escape. based on duress or any other factor. There is no direct After an uprising by the inmates at Treblinka necessitated provision indicating whether the bar applies only to the camp’s closure, Fedorenko was transferred to another individuals who voluntarily committed persecutory acts, city where he served as a warehouse guard until just or whether an alien could be exempted from the bar if he before the British army arrived in 1945. Fedorenko then or she acted as a result of coercion or force. However, the worked as a civilian laborer in Germany for several years question whether a duress exception exists has frequently before applying for a visa to the United States under the been at issue in persecutor bar cases and has appeared in Displaced Persons Act of 1948, 62 Stat. 1009 (“DPA”). many forms. See, e.g., Singh v. Gonzales, 417 F.3d 736 The DPA was enacted “to enable European refugees (7th Cir. 2005) (holding that the petitioner, a member driven from their homelands by [World War II] to of India’s police force, assisted in the persecution of Sikhs emigrate to the United States without regard to traditional despite the petitioner’s claims that he was opposed to immigration quotas.” Fedorenko, 449 U.S. at 495. In his such persecution); Bah v. Ashcroft, 341 F.3d 348 (5th visa application, Fedorenko falsely stated that he worked Cir. 2003) (holding that the petitioner, a member of the in a factory during the war and omitted any reference to Revolutionary United Front in Sierra Leone, assisted in his service as a guard. Fedorenko’s false statements were persecution although he alleged he was forcibly recruited not discovered until 1977—nearly 30 years after he left into the group); see also Hajdari v. Gonzales, 186 Fed. Germany and 7 years after he had obtained United States Appx. 565 (6th Cir. 2006) (finding that the petitioner, citizenship. an Albanian prison guard, assisted in the persecution of others). The United States Government sought to revoke Fedorenko’s citizenship, alleging that he had fraudulently The immigration courts, the Board of Immigration obtained his initial DPA visa, and later his citizenship, Appeals, and the Federal circuit courts of appeals have by materially misrepresenting his military service. The all been presented with the complicated and often Government argued that Fedorenko was ineligible for his emotionally compelling question whether to bar an initial visa based on the definition of a “displaced person” individual from asylum for having assisted in persecution under the DPA, which adopted the definition contained under duress. These bodies have also all relied extensively in the Constitution of the International Refugee on the Supreme Court’s decision in Fedorenko v. United Organization of the United Nations, Dec. 15, 1946, 62 States, 449 U.S. 490 (1981), to resolve the matter. While Stat. 3037 (entered into force Aug. 20, 1948) (“IRO”). this reliance has potentially reached its end in light of the The IRO specifically excluded from the definition of Court’s Negusie decision, an understanding of Fedorenko “displaced persons” two distinct groups—in section is critical to any discussion of the persecutor bar and a 2(a) those who “assisted the enemy in persecuting civil potential duress exception. As will be discussed below, populations” and in section 2(b) those who “voluntarily 2 assisted the enemy forces.” IRO Annex I, Part II, 62 Stat. construction, the deliberate omission of at 3051-52. Relying on a witness who was an expert the word “voluntary” from § 2(a) compels on the interpretation of the DPA, the Government the conclusion that the statute made all contended that Fedorenko’s service as a Treblinka guard those who assisted in the persecution of constituted assisting the enemy in persecution, regardless civilians ineligible for visas. of whether his service was voluntary. Fedorenko claimed that his service was forced and that he had therefore not Fedorenko, 449 U.S. at 512. assisted in the persecution of the concentration camp inmates. Interestingly, the United States district court The Court noted that the district court had a that initially heard the case entered judgment in favor of reason for reading a voluntariness requirement where one Fedorenko, in United States v. Fedorenko, 455 F. Supp. did not exist. The district court was “concerned that a 893 (D.C. Fla. 1978). The court found that Fedorenko’s literal interpretation of § 2(a) would bar ‘every Jewish service as a guard was forced and he could not be found to prisoner who survived Treblinka because each one of them have assisted the enemy in persecution under section 2(a) assisted the SS in the operation of the camp.’” Id.