In Matter of Negusie, AG Barr rules that the "persecutor bar" to asylum and withholding of removal does not contain a duress exception, vacating the BIA decision that allowed for a limited exemption.
Barr also rules that, if the persecutor bar is an issue, DHS does not have the burden of showing it applies. Rather, the burden is on the applicant to show, by a preponderance of the evidence, that it does not.
In 2009, the U.S. Supreme Court overturned the BIA’s decision in Negusie's initial appeal based upon a legal error. The Supreme Court stopped short of holding that there is a duress exception to the persecutor bar and sent the case back to the BIA to answer that question unencumbered by the Board’s previous legal error.
In 2016, DHS and DOJ issued an NPRM to explore a limited exception for actions taken by the applicant under duress and clarify the required levels of the applicant's knowledge of the persecution, but the rule was never issued because DHS and DOJ could not reach an agreement.
In 2018, the BIA held that a limited duress exception does exist to the persecutor bar, articulating standards for how an applicant for asylum or withholding of removal could claim duress or coercion to overcome automatic ineligibility based upon "persecution of others." To qualify for the duress exception, applicants must demonstrate that they acted under an imminent threat of death, that they had no reasonable opportunity to escape, and that they knew that the harm they inflicted was not greater than the threatened harm to self or others.
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