Recalibrating the Scales: Balancing the Persecutor Bar

Abstract

Just as U.S. asylum law accepts individuals fleeing persecution, it also excludes from eligibility those who have assisted or otherwise participated in the persecution of others under what is known as the “persecutor bar.” In applying the persecutor bar, courts look to whether the applicant’s conduct played any causal role in the persecution, whether the applicant knew that his conduct would have some causal effect on the persecution, and whether the conduct was voluntary. Because exclusionary provisions to asylum such as the persecutor bar are to be applied restrictively, U.S. jurisprudence wrongly ignores other key factors that are necessary in assessing the application of the persecutor bar. After surveying both domestic and international critiques of U.S. asylum law, this Note argues that courts applying the persecutor bar should employ a balancing test that weighs the persecution from which the applicant is fleeing against the gravity of the applicant’s conduct, the nature of the persecution in which the applicant assisted, and any other mitigating factors such as the time elapsed since the applicant’s conduct or any redemptive acts performed by the applicant.