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Duke Law, Aug. 12, 2021
"Duke Law School’s Immigrant Rights Clinic filed amicus curiae briefs before the Fifth Circuit Court of Appeals last week on behalf of a group of international refugee law scholars and the American Immigration Lawyers Association (AILA) in the latest round of an ongoing fight to determine whether refugees who are forced to assist their persecutors – such as child soldiers – should be excluded from asylum and related protections regardless of circumstance.
The so-called persecutor bar prohibits individuals who have participated in the persecution of others from receiving immigration benefits. In 2009, the U.S. Supreme Court determined that the Board of Immigration Appeals (the chief appellate body in agency immigration adjudications) had erroneously ruled out a duress defense to the persecutor bar. In correcting the Board’s error, the Court remanded the case for the agency to consider the question anew. The Board did just that in 2018 and concluded that there was a duress defense to the persecutor bar, but the decision was reversed by the Trump administration in 2020, and now the case is before the Fifth Circuit on appeal.
The amicus briefs filed last week build upon scholarship in which the clinic’s faculty have been engaged for years. Clinical Professor Kate Evans, the clinic’s director, leveraged her past research on the persecutor bar to support arguments in favor of a substantive duress defense. “The international refugee agreements that form the basis for U.S. asylum law do not exclude people from protection unless they have deliberately chosen to harm others,” explained Evans, who co-authored the scholars brief in partnership with the Harvard Immigrant and Refugee Clinic. “Victims of persecution who are forced to hurt others under duress, like children or individuals with intellectual disabilities, do not meet this requirement.”
Supervising Attorney Shane Ellison, who has likewise published on the subject, co-authored the AILA amicus brief on behalf of the 15,000-member organization with faculty from the University of Minnesota Law School and University of Texas School of Law. The AILA brief advocates for the adoption of procedural safeguards to ensure that refugees are not errantly returned to their country to suffer persecution due to faulty persecutor bar determinations. “While bona fide human rights abusers should not be given safe haven in the U.S., this objective must not be so vehemently pursued that it is accomplished at the expense of innocent refugees’ lives,” he said.
Evans and Ellison were part of a coalition of advocates submitting amicus briefs in the case, including the United Nations High Commissioner for Refugees (UNHCR), a group of former immigration judges and members of the Board of Immigration Appeals, and a collection of non-profit organizations and law school clinics.
“This case is yet another example of Trump administration officials replacing refuge with cruelty,” Evans said. “We hope that this case prompts a return to a more humane approach to refugees and asylum-seekers.” "