Second Circuit Orders Bia To Consider “duress” As Defense For Asylum

Foreign nationals in the United States who fear that, if required to leave the United States and return to their native country, they will be persecuted have the option of seeking asylum here and also requesting withholding of removal from this country. If the Immigration Judge who hears the applicant’s case denies the petition, the applicant can appeal it to the Board of Immigration Appeals (BIA) which will review the lower court’s ruling. And an order of the BIA can itself be reviewed by the federal circuit court of appeal overseeing that jurisdiction.

A Chinese foreign national, Zi Xin Chen, applied for asylum on the basis that he feared if he was sent back to China, he, as a father of two children, would be subjected to forced sterilization. (Under that country’s policy, Mr. Chen may not be allowed to have additional children were he to resume his residence in China.)  After his petition was denied initially by the Immigration Judge, he appealed the decision to the BIA which affirmed the ruling on the basis that the applicant himself was a persecutor when he served as a member of the Chinese military as he was tasked with enforcing the sterilization policy. Mr. Chen claimed that his conduct in such a role was involuntary; that he was merely following orders. The BIA found that the involuntariness of persecutor’s conduct cannot be considered in such cases, only his behavior as a whole.

Upon appeal of the BIA’s affirmance to the Second Circuit Court of Appeals, that federal appellate court in Chen v. Holder, No. 12-2712-ag (2nd Cir. 2014) found that the BIA may have misinterpreted the Refugee Act of 1980 which governs whether an alleged persecutor can stay in the United States. The Second Circuit ordered the BIA to review the statute to determine if that law permits a “duress” exception to the rule that persecutors cannot qualify for asylum. The appellate court is prepared to give deference to the BIA’s interpretation but demands they reconsider Mr. Chen’s case in light of the interpretation they give to the pertinent part of the law. If the BIA determines a petitioner can claim duress to avoid removal from the United States, the Immigration Judge may then consider his argument that, because his military service in China was compulsory, his conduct was the product of duress he felt from his superiors.

Not only does the Second Circuit’s decision reopen the door to Mr. Chen’s chances to stay in this country but it also may set a precedent which could influence the manner in which subsequent petitioners for asylum present their cases.

The Shulman Law Group, LLC has successfully handled and effectuated many asylum cases.  The firm and its staff are well-versed in the nuances and underpinnings of claims of persecution involving individuals from many countries.  What sets our firm apart from other law offices is that we skillfully prepare comprehensive applications that include country reports, autobiographical statements, affidavits from friends, family and colleagues, psychological evaluations, and expert witness testimonials–strategies that predispose the applicant to a higher probability of an approval. Our firm maintains an up-to-date knowledge on the latest case law which affects the manner in which these cases are reviewed.