https://www.justice.gov/eoir/page/file/967306/download#31
BIA HEADNOTE:
“Where the record contains some evidence from which a reasonable factfinder could conclude that one or more grounds for mandatory denial of an application for relief may apply, the alien bears the burden under 8 C.F.R. § 1240.8(d) (2016) to prove by a preponderance of the evidence that such grounds do not apply.”
PANEL: Appellate Immigration Judges Malphrus, Mullane, Liebowitz
OPINION BY: Judge Mullane
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This was an unusual case, with lots of competing evidence on both sides. But, normally, this issue came up in routine NACARA or even TPS cases.
Here’s a more “normal”scenario.” The respondent was a private in the El Salvaoran Army during the Civil War in the 1980s. The DHS introduces old country reports and excerpts from the “El Rescate Database” showing that the respondent’s unit was in the department where human rights abuses took place. That’s sufficient to shift the burden to the respondent. to prove he did not engage in persecution.
The respondent testifies that he performed routine duties around the base and was never involved on combat, never harmed any civilian, and never witnessed any civilian being harmed.
That’s the case! Now the Immigration Judge has to make a decision on that skimpy evidence.
Things to keep in mind:
!) The U.S. Government was supporting the Salvadoran military during the Civil War. Indeed, a number of the individuals that DHS now claims were “persecutors of others” received military training in the U.S. or from U.S. officers.
2) The INS and the Immigration Courts summarily rejected asylum claims from individuals who suffered severe human rights violations amounting to persecution inflicted by the Salvadoran Government, the Armed Forces, the Civil Patrol, and entities aligned with them, such as so-called “death squads.”
Victim or persecutor,
Friend or foe,
The U.S. system,
Is a tough go.
PWS
05-19-17
Given the facts in Matter of M-B-C- , 27 I&N Dec. 31 (BIA 2017), I agree with both the BIA precedent and the IJ’s careful credibility finding. But the “strict liability” interpretation of the “persecutor” bar has always troubled me ever since as a BIA staff attorney I wrote one of the landmark “strict liability” precedents Matter of Kulle , 19 IN Dec. 318 (B.I.A. 1985).
The persecutor bar is one of the “Holtzman” amendments to the INA, and it made sense in its original context, Nazi war criminals. But now that most Nazi war criminals more than 70 years ago are dead, I think the “strict liability” bar needs some judicial gloss to address the “whistle blower” exceptions.
When I was a Board member I had hoped to contribute by suggesting a solution similar to what the courts apply to harmonize the conflict between 2 First Amendment clauses, Freedom of Religion and Establishment of Religion. That is, since the purpose of the Establishment clause is to protect Freedom of Religion, when both clash, the Freedom of Religion clause controls. Consequently, our duty to protect potential victims of persecution should control. And the Chinese One-Child population control cases we often addressed in the 1990s would have been the perfect cases where a local Chinese population control official refuses to further participate after initial participation and comes to the US seeking protection because of his actions refusing to participate in more forced abortions or sterilizations. He should not be automatically precluded from asylum by a “strict liability” persecutor bar because his official duties were eventually deemed “assistance to persecution” under US immigration law standards. As an IJ in Miami I also had several cases of former Haiti Ton Ton Macoutes who were likewise precluded after testifying that they also “assisted” in persecution as part of their regular duties.
I had no realistic hope that a majority of the BIA would accept my “wacky” theory. But a federal court may have agreed with my dissent or concurring opinion, and require either an additional fact finding on voluntariness, or require a discretionary determination instead of imposing “strict liability”. I even “seeded” my Kulle write-up with a cite to a BIA “persecutor” precedent where the BIA precedent was circumscribed by the Ninth Circuit in Matter of Laipenieks, 18 IN Dec. 433 (BIA 1983), rev’d on other grounds, Laipenieks v. INS, 750 F.2d 1427 (9th Cir. 1985). In Laipeninks, the court rejected a strict interpretation an required “that the government provide proof of personal active assistance or participation in persecutorial acts before deportability (as a persecutor) may be established.”
Thanks so much for the historical insights, Gus. It’s what makes this blog “special.”
Maybe there should be something like “recanting” for persecution. Otherwise, as Judge Posner might say, you actually discourage those in charge from switching over to the “good guys.” Just like discouraging folks from leaving gangs by failing to recognize “former gang members” as a PSG!
Also, going back to a comment from former Arlington intern, now Attorney Alexa Glock, what did the BIA ever do with the Supremes’ remand in Neguise v. Holder? The issue involved duress and the persecutor bar. The remand was a decade ago! If the BIA has decided this issue, they haven’t said so directly. And according to several Justices, there were some strong reasons for recognizing a “duress exception!” How could, the BIA not even discuss this?
Best,
PWS