Pulling the Trigger: An Analysis of Circuit Court Review of the “Persecutor Bar”

By:  Martine Forneret

 

The Immigration and Nationality Act contains a provision, commonly referred to as the “persecutor bar” or “persecution of others bar,” which prohibits granting asylum to an alien who, although otherwise meeting the criteria for asylum, is determined to have been a “persecutor” in her native country. Use of the persecutor bar by the Board of Immigration Appeals and circuit courts leads to situations of legal complexity because neither the judiciary nor the legislature has concretely defined “persecution.” As applicants alleged to be persecutors are often themselves fleeing persecution, the lack of clarity in this area can have devastating consequences for those seeking refuge in the United States.

 

This Note explains how inconsistent implementation of the persecutor bar across circuit courts creates unequal treatment for asylum applicants. By identifying “triggering factors” that affect courts’ persecutor bar analysis, this Note categorizes circuit court cases that review denials of asylum based on the bar. This Note argues that a proper analysis requires, first, a clarification of the definition of “persecution” and, second, a thorough, nuanced examination of triggering factors that emphasizes the relationship between the asylum applicant and the persecutory acts, rather than a strict application of the bar based on the commission of the acts alone. By looking at the history and underlying purpose of the persecutor bar, as well as international standards, this Note proposes that circuit courts use a contextual balancing test of multiple triggering and mitigating factors when reviewing the exercise of the persecutor bar.

 

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