The Persecutor Bar in U.S. Immigration Law: Toward a More Nuanced Understanding of Modern "Persecution" in the Case of Forced Abortion and Female Genital Cutting (2007)

I. INTRODUCTIONThe language of the Immigration and Nationality Act (INA) provision that bars a persecutor from being granted asylum mirrors the language that defines for purposes of establishing asylum: the persecutor must persecute account of race, religion, national origin, political opinion, or social group2 and the asylum seeker must be persecuted on one of these grounds order for his or her claim to prevail.3 The legal definition of persecutor and persecuted originally applied to the Nazi war criminal and Holocaust victim, respectively; that context, the symmetrical provisions both apply. In the nearly forty years that the persecutor bar has been used to bar asylum seekers, however, the relationship between persecutor and persecuted has proven to be less tidy.This comment explores the legal evolution of the persecutor bar within the original context of the Nazi war criminal and the bar's application modern contexts. Part II describes the way which the historical origins of the bar affected its development. The Nazi war criminal/Holocaust victim dichotomy set up a clear-cut-some even argue, simplistic-contrast between persecutor and victim. The practical difficulty of finding eyewitness testimony for events forty to sixty years the past led to, among other developments, a broad reading of participatfion] in persecution. Perhaps most important, the bar is set up structurally such that a finding of presupposes a persecutor, a fact that posed little difficulty the context of the Holocaust but is a presumption that leads to more troubling results modern contexts.Part III looks at the way which the persecutor bar does not map well to the political and cultural realities that give rise to modern persecutors. In the context of civil war or civil unrest, the bar can be overinclusive, making ineligible for asylum child soldiers forcibly conscripted, or underinclusive, the case of perpetrators whose violent acts do not constitute because the acts do not target individuals on an enumerated ground. However, U.S. courts' treatment of combatants situations of civil war or civil unrest suggests an alternate approach. Courts may determine, part for policy reasons, that an individual is ineligible for asylum at the same time his or her victims are not seen as having been persecuted.4 When a nexus to an enumerated ground is not established, there is no persecution under the INA; victims of indiscriminate violence, for example, are not eligible for asylum. If the level of violence reaches killing, however, spite of the fact that the violence may not be seen as account of an enumerated ground, the perpetrator may still be ineligible for asylum. Courts have explained that, as a policy matter, we cannot shelter every individual subjected to random violence. At the same time, we do not want to offer asylum to perpetrators of that violence. This approach, essentially an uncoupling of persecuted and persecutor, allows for consideration of the offense itself and suggests a more nuanced approach that better accounts for practices that are called but may be less straightforward than those anticipated by the persecutor bar as it was originally conceived.Two groups of individuals became presumptive persecutors 1996, when forced abortion/sterilization and female genital cutting (FGC) were designated persecution: doctors and others who participated forced abortions/sterilizations China and women and others who perform FGC.5 Part III documents the political genesis of these changes immigration law and compares these persecutors to the threshold test established by the Supreme Court an early use of the persecutor bar involving the denaturalization and deportation of a Nazi war criminal.Part IV discusses the way which these politically motivated changes to the INA undermine the legitimacy of the persecutor bar and explores the problematic nature of labeling whole categories of individuals as persecuted. …