BIA (unpub.) on Duress, Particularly Serious Crime

Jon Bauer writes: "I'm pleased to attach this decision recently issued by the Board of Immigration Appeals in a case handled by the Asylum and Human Rights Clinic at the University of Connecticut School of Law.  Our client is a longtime U.S. permanent resident from Zimbabwe whose father was a vocal opponent of the Mugabe regime.  She came to the U.S. as a child, and attended high school and college here, but later became involved with an abusive boyfriend who coerced her into carrying drugs for him.  Her abuser threatened to beat and sexually abuse her son if she refused.  She was convicted of a drug trafficking crime, but the sentencing judge found that had acted under duress and issued a lenient sentence.  The Immigration Judge, at a 2009 hearing, granted our client CAT deferral of removal, but held that under the Attorney General's decision in Matter of Y-L-, 23 I&N Dec. 270 (A.G. 2002), withholding of removal is unavailable to a person convicted of a drug trafficking crime, regardless of the sentence imposed, unless six specific factors are met.  Because the amount of money and drugs that our client had been forced to carry was more than minimal, she could not satisfy all of the Y-L- factors.  The BIA initially upheld the IJ's decision, but the Second Circuit Court of Appeals vacated and directed the BIA to address whether coercion and duress are relevant factors in determining whether a crime is particularly serious.  The BIA, in its recently-issued decision on remand, accepted the Second Circuit's invitation to find that the Attorney General's decision in Y-L- is not controlling because that case did not involve "circumstances such as the respondent's where coercion and duress clearly played a role in the commission of the crime."  It also reiterated the Second Circuit's statement that courts "have long recognized that the presence of coercion and duress vastly reduces the culpability of a person's conduct, and have therefore applied a presumption that legislators must have contemplated making allowance for conduct motivated by coercion and duress, even if such exceptions are not explicitly stated in the statute."  It remanded to the Immigration Judge to "determine whether, under the totality of the circumstances, the respondent's offense is a particularly serious crime," and whether the persecution she fears in Zimbabwe is on account of a protected ground so that she would be eligible for withholding of removal.  The former law students in the Asylum and Human Rights Clinic who tried the case before the immigration judge, and created a great record for appeal, were Dallas Dodge '09 and Brian Sullivan '09.  Louis Cruz '10 worked on the BIA appeal, and Pat Mott '11, as a student in UConn's Criminal Appellate Clinic, took the lead in the Second Circuit Appeal, supervised by me and my colleague Tim Everett."

Jon Bauer

Clinical Professor of Law and Director, Asylum and Human Rights Clinic

Richard Tulisano '69 Scholar in Human Rights Scholar 2012-13

University of Connecticut School of Law

65 Elizabeth Street

Hartford, CT  06105

(860) 570-5165 or -5205

Jon.Bauer@law.uconn.edu