The asylum system is in disarray. The United States is unable to guarantee that every asylum seeker will receive a fair and impartial hearing. Although media attention recently has focused on the asylum system's procedural flaws, unjust statutory interpretations also work against those seeking refuge in the United States. This Note focuses on one particular example within this commonly criticized area of the law: the prevailing interpretation of section 101(a)(42) of the Immigration and Nationality Act to bar those who have persecuted others under duress from attaining refugee status.
It is intuitively appealing that a system of laws should hold persons accountable only for actions undertaken pursuant to their own free will and not for coerced actions. This concept is a staple of criminal law, under which duress serves as an excuse for conduct otherwise considered criminal. Courts have interpreted asylum law, however, to preclude consideration of this moral precept in determining whether an applicant for asylum has participated or assisted in the persecution of others.
A person seeking asylum in the United States must prove she satisfies the definition of "refugee" under the Immigration and Nationality Act ("INA"), which requires that she be unwilling or unable to return to her home country because of "[past] persecution or a well- founded fear of [future] persecution." The INA qualifies this definition of "refugee," however, to exclude "any person who ordered, incited, assisted, or otherwise participated in the persecution of any person." This clause bars those considered "unworthy" of obtaining protection from refugee status. Thus, the United States will not grant an applicant asylum due to the persecution she suffered if she inflicted the same type of harm upon others. The past persecutory acts taint the applicant.
Barring Too Much: An Argument in Favor of Interpreting the Immigration and Nationality Act Section 101(a)(42) to Include a Duress Exception,
60 Vanderbilt Law Review
Available at: https://scholarship.law.vanderbilt.edu/vlr/vol60/iss6/7