## Facts

- Daniel Girmai Negusie, a citizen of Ethiopia and Eritrea, entered the United States as a stowaway and applied for asylum, withholding of removal, and protection under the Convention Against Torture (CAT).
- Negusie testified that he was forced into the Eritrean military and refused to fight against Ethiopians.
- As a result of his refusal, he was incarcerated for about two years.
- After release, he was forced to work as an armed guard at an Eritrean military prison camp.
- The prisoners he guarded were denied basic necessities such as showers and fresh air and were at times placed in the hot sun as punishment.
- Negusie testified that he disobeyed orders on two occasions to help prisoners and was reprimanded.
- An Immigration Judge denied asylum and statutory withholding, concluding the “persecutor bar” applied, but granted CAT deferral of removal.
- In 2006, the Board of Immigration Appeals dismissed both Negusie’s appeal and DHS’s appeal, leaving the asylum/withholding denials and CAT deferral in place.
- The United States Supreme Court reviewed the case and remanded for the agency to decide, as a matter of statutory interpretation, whether coercion or duress is relevant to the persecutor bar.
- On remand, the BIA issued this precedential decision addressing whether, and in what form, a duress defense is available to an applicant otherwise subject to the persecutor bar.

## Issues

1. Whether an applicant who “ordered, incited, assisted, or otherwise participated” in persecution can avoid the INA persecutor bar to asylum and withholding by showing duress.
2. If duress is available, what minimum elements and burden of proof govern that defense.
3. Whether Negusie established duress sufficient to avoid the persecutor bar based on his service as an armed prison guard.

## Decision

- The BIA held that duress is relevant to the persecutor bar and may be raised as a defense, but only in a limited form.
- The BIA treated duress as an affirmative defense and held that, once the record shows potential application of the persecutor bar, the applicant must prove duress by a preponderance of the evidence.
- The BIA adopted minimum threshold requirements for duress and required proof that:
  - the applicant acted under an imminent threat of death or serious bodily injury to self or others;
  - the applicant reasonably believed the threatened harm would be carried out unless he acted or refrained from acting;
  - the applicant had no reasonable opportunity to escape or otherwise frustrate the threat;
  - the applicant did not place himself in the coercive situation knowing, or having reason to know, he would likely be forced to act or refrain from acting; and
  - the applicant knew or reasonably should have known that the harm he inflicted was not greater than the threatened harm.
- The BIA concluded that Negusie’s work as an armed guard at a camp where detainees were mistreated on protected grounds constituted assisting or otherwise participating in persecution for purposes of the bar.
- Applying the minimum duress requirements, the BIA held that Negusie did not carry his burden to show duress sufficient to avoid the persecutor bar.
- The BIA again dismissed Negusie’s appeal, leaving him ineligible for asylum and withholding; DHS did not challenge the existing grant of CAT deferral of removal.

## Legal Principles

- The INA bars asylum and withholding of removal for an applicant who “ordered, incited, assisted, or otherwise participated” in the persecution of any person on account of a protected ground (the persecutor bar).
- After the Supreme Court’s remand recognizing statutory ambiguity on whether coercion matters, the BIA interpreted the persecutor bar to allow a limited duress defense.
- Duress, as recognized by the BIA, is an affirmative defense requiring the applicant to prove the minimum elements by a preponderance of the evidence once the persecutor bar is implicated.
- The minimum duress showing requires imminent threat, a reasonable belief the threat will be carried out, no reasonable chance to escape or thwart the threat, no voluntary placement into the situation with foreseeability of being forced to participate, and proportionality between threatened harm and harm inflicted.
- Service as an armed guard at a facility where prisoners are mistreated for protected reasons can constitute assistance or participation in persecution, even if the guard also engaged in limited acts of help.
- CAT deferral is distinct from asylum and statutory withholding and may remain available even when the persecutor bar blocks those forms of relief.

## Conclusion

In *In re Negusie*, the BIA held on remand that a duress defense may apply to the INA persecutor bar, but only if the applicant proves a five-element, minimum threshold test by a preponderance of the evidence; applying that framework, the BIA concluded Negusie’s prison-guard role amounted to assistance in persecution and that he did not establish duress sufficient to avoid the bar, leaving the denial of asylum and withholding intact while CAT deferral remained in effect.


In re Negusie, 27 I. & N. Dec. 347 (2018)