With a Gun to Their Head

• Publication year: 2022

With a Gun to Their Head

Adopting a Duress Exception to the Serious Nonpolitical Crime Bar

Nathan Hall ^*

Abstract: Current asylum laws include several bars to entry into the United States. Among these is the "serious nonpolitical crime" bar, which prohibits entry to any asylum seeker who is suspected of having committed such a crime in their home country. A serious problem with the bar is that it does not contain a duress or coercion exception, meaning that even crimes committed under duress serve as bars to asylum. Thus, an asylum seeker who sells drugs or commits a theft with a gun to their head will not be allowed into the United States. The problem is only more serious because of the nature of gang violence in the Northern Triangle, common origin countries for U.S. asylum seekers. This article documents the gap in the statute as well as the statutory law and judicial decisions that have formed the basis of this problem today. While this article does provide a framework for decision makers to find a duress exception under the current law, it ultimately proposes a statutory exception to be added.

Introduction

William Ernesto Rubio Barahona is a son and a husband. ¹ He is a native and citizen of El Salvador and entered the United States without documents in December of 2012. ² Mr. Barahona's father was murdered in 2006 by one of the most prominent gangs in El Salvador, MS-13. ³ His father was a police officer who had been investigating a murder by the gang. ⁴ After his father was murdered, the gang began extorting money from him and his mother. ⁵ He was only 13 years old. ⁶ Eventually, the gang attempted to recruit him and threatened to kill him if he did not join. ⁷ He resisted, refusing to drive a getaway car ⁸ and declining to steal a police uniform. ⁹ He was forced at gunpoint to rob a man, and when he came back empty handed, he was shot by a member of the gang. ¹⁰ When he woke up at the hospital, he was charged with unlawful possession of a firearm. ¹¹ Members of the gang attended the trial, and Mr. Barahona was too scared to testify against them. ¹² He fled to the United States, fearing for his life and safety, in 2012. ¹³

In 2018, his wife Cecila Rivera de Rubio, who had been granted asylum in the United States after she had been sexually assaulted by the same gang, ¹⁴ filed an asylum petition on Mr. Barahona's behalf. ¹⁵ In reviewing the petition, the Department of Homeland Security (DHS) found that he had an Interpol

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Red Notice requesting his extradition to El Salvador for being charged with the crime of participating in an "illicit gathering." ¹⁶ The Red Notice indicated that Mr. Barahona was speculated to be a gatillero (hitman) for MS-13, according to an investigation performed in 2010. ¹⁷

The immigration judge (IJ) denied his asylum petition based on this information, finding that there were serious reasons to believe that Mr. Barahona had committed a "serious nonpolitical crime" ¹⁸ outside the United States. ¹⁹ This barred Mr. Barahona's asylum claim under 8 U.S.C. § 1158(b)(2)(A)(iii). ²⁰ The Board of Immigration Appeals (BIA) dismissed his appeal in 2020, rejecting his argument that he had committed the crimes under duress. ²¹ Mr. Barahona's case has since been appealed and remanded back to the BIA for consideration of a separate issue. ²² Mr. Barahona has suffered immensely at the hands of MS-13, yet because he was forced to associate with them, he was barred from asylum because he was deemed by the BIA to have committed a "serious nonpolitical crime." ²³

As this case illustrates, U.S. immigration law needs to accommodate duress exceptions to its bars to asylum. Under 8 U.S.C. § 1158(b)(2), ²⁴ there are certain exceptions to who is eligible for asylum in the United States. These include persons who have been convicted of a particularly serious crime in the United States ²⁵ (which includes any aggravated felony ²⁶ ), provided any material support to a terrorist organization, ²⁷ participated in persecution, ²⁸ or have firmly resettled in another country prior to coming to the United States. ²⁹ This article focuses on the same bar that Mr. Barahona faced, the "serious nonpolitical crime" bar, codified at 8 U.S.C. § 1158(b)(2)(A)(iii). ³⁰

The serious nonpolitical crime bar makes one ineligible for asylum when "[t]here are serious reasons for believing the alien has committed a serious nonpolitical crime outside the United States prior to the arrival of the alien in the United States." ³¹ "Serious reasons for believing" ³² has been interpreted as requiring a standard of proof equivalent to probable cause. ³³ This means that no criminal conviction by a foreign government is required to make a finding that the asylum seeker committed the serious nonpolitical crime. ³⁴ Indeed, at the time of Mr. Barahona's trial, DHS was unable to verify whether the charges in El Salvador were still pending. ³⁵ In these proceedings, IJs are often sitting as de facto criminal courts in the sense that they are determining whether a crime has been committed in the first instance. ³⁶

There is no exception for duress or coercion under the serious nonpolitical crime bar. ³⁷ The lack of a duress exception has the potential to lead to absurd results like the one in Mr. Barahona's case: a store owner is forced to sell drugs out of their house by a gang, a family is threatened with death unless the father agrees to help the gang carry out a robbery, or young men are watched by armed older members as they engage in gruesome "initiation" rituals. ³⁸ In each of these hypothetical scenarios, the culprit would be barred from asylum because they committed a serious nonpolitical crime. ³⁹ Because of the immense power of organized criminal syndicates like MS-13, ⁴⁰ these scenarios will only become more common as the United States remains a refuge

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for many people in Northern Triangle ⁴¹ countries. ⁴² U.S. immigration law is in need of a change to prevent these kinds of humanitarian abuses.

The United States should adopt a statutory change to the INA that expressly provides for a duress exception to the serious nonpolitical crime bar to asylum. The rising number of immigrants from the Northern Triangle and the proliferation of gang violence there means that the issue of duress will only become a larger problem. ⁴³ While there is a legal framework available for federal judges and BIA members to find this exception, ⁴⁴ recent decisions and the legislative demonstrate that this would likely be a temporary solution. ⁴⁵ Statutory reform is a more preferable option for lasting change. ⁴⁶

This article explores the history of the serious nonpolitical offense bar to asylum in the INA, addresses an alternative international law interpretation, and then focuses on how the law in this area has evolved through caselaw developed by courts and the BIA. Those sections seek to provide context to these statutory provisions and background for potential judicial or statutory reform. This article then looks at the country conditions in the Northern Triangle countries that relate to the practical need for a duress exception to this bar to asylum. It analyzes why this exception is needed and the judicial framework that might be available to judges for finding a duress exception, and addresses counterarguments that ultimately lead to the conclusion that statutory reform is preferable. Lastly, this article examines options for statutory reform: incorporating common law defenses for all immigration law or creating a duress exception solely for the serious nonpolitical crime bar to asylum.

History

This section outlines the history of U.S. asylum policy beginning with the legislative history of the asylum provisions and proceeding to examine international and judicial interpretations. It begins with a brief history of the INA and the U.S. position on asylum. It then proceeds to discuss how the specific language of the serious nonpolitical crime bar was enacted, the purpose of the broader statutory scheme it was contained in, and the goals of the administration that passed it. This section also discusses a potential alternative interpretation of the provision based on the provisions origin in the international law context. Next it addresses how the bar has been interpreted by courts and tells the story of how the duress exception failed under a parallel bar. Finally, this section explores the country conditions that practically justify a duress exception to the serious nonpolitical crime bar.

United States Asylum Policy

The INA was passed in 1952 with no refugee or asylum provision. ⁴⁷ During the 1950s and 1960s, Congress would occasionally pass ad hoc statutes to

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help during specific crises. ⁴⁸ In 1965, Congress created a "seventh preference" under the INA's existing preference and quota system ⁴⁹ for certain groups of refugees fleeing Communist countries, certain areas of the Middle East, and natural disasters. ⁵⁰ In 1980, Congress passed what would become the current statutory framework for dealing with refugees and asylum seekers, the Refugee Act of 1980. ⁵¹ This act gave the president the power to determine how many refugees to accept in a given year, ⁵² adopted the statutory definition of refugee still used today, ⁵³ and created the Office of Refugee Resettlement within the Department of Health and Human Services to administer these laws. ⁵⁴ The refugee acceptance ceiling set by the president is often far above the actual number admitted, with only 53,691 out of 110,000 possible admissions being granted in 2017. ⁵⁵

In 1996, restrictions to asylum were added. To justify these restrictions, Representative Bill McCollum, a cosponsor of the Illegal Immigration Reform and Immigrant Responsibility Act of 1996 (IIRAIRA), ⁵⁶ said in a discussion of its Committee Report:

We have had lots of people coming in here claiming [asylum]. Most of them who claim it have no foundation in claim at all. Once they get a foot in the airport

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