Golden Gate University Law Review


Melani Johns


This Comment explores the different interpretations of the "persecutor bar" among the circuits and proposes an exception for those who have persecuted others while under duress. Part I begins with the background and policy reasons behind the establishment of the persecutor bar, including the split in the courts as to how to interpret it and whether to allow the defense of duress. Part II focuses on Justice Scalia's concurring opinion in Negusie v. Holder, which summarizes and explains the arguments supporting an absolute persecutor bar. Justice Scalia posited that duress is not a defense against harming others, that asylum is a privilege requiring consideration of an individual's "desirability," and that a bright-line rule is needed to support the BIA's administrative needs. Finally, Part III recommends a case-by-case analysis of the applicability of the persecutor bar, one that allows the defense of duress in limited circumstances for those seeking asylum who have persecuted others against their will. To accomplish this goal, the duress defense should be a "totality of the circumstances" test that takes into consideration: 1) the degree of assistance that the alien gave to the persecution of others, 2) whether the alien was acting to avoid a threat of death or serious bodily injury, 3) whether the harm inflicted was less than the harm avoided, and 4) whether the alien escaped as soon as possible. This Comment concludes by recommending that the BIA adopt a new approach allowing a defense of duress and proposing that Congress amend the INA to specifically include the duress defense.