Persecutors of Others? Really?

In the early 1990s thousand of thousands of people immigrated to the United States from El Salvador due to the civil war that was raging in the country. People were dying by the thousands, and innocent civilians were being forced to take sides in the conflict, or face death themselves. Young men were forced, against their will, to enlist in the Salvadoran armed forces. Many of the young men fled to the United States after spending a short time in the military.

A vast majority of Salvadorans came to the United States and sought political asylum, claiming fear of returning to El Salvador. Because of the enormous amount of asylum applications received from the fleeing Salvadorans, the Asylum Office of U.S. Citizenship & Immigration Services only recently began calling people for their asylum interviews (first step in the process of gaining asylum), nearly 20 years after the applicants came to the United States.

Even more shocking than the delay is that many asylum applications are being denied by the Asylum Office and referred to immigration court on the basis that the applicant was a persecutor of others (INA § 208(b)(2)(A)(i)) for having been a member of the Salvadoran army, and being witness to atrocities, and is barred from receiving asylum, this despite the fact that many of the applicants never fired a gun or captured anybody, and some applicants abandoned the military and escaped to the United States to avoid further military service. Unfortunately, in many instances immigration courts are echoing the Asylum Office’s decision that the applicant was a persecutor of others, and are finding them ineligible for asylum, ordering the applicants removed from the United States to El Salvador.

Hope may be on the horizon for these people forced into conflict and did not participate in harming others. The Supreme Court granted certiorari in Negusie v. Mukasey to decide whether a person who was compelled, against his will, to assist or take part in persecution is barred from asylum. Though the case involves an Eritrean citizen who worked as an armed prison guard, it will without doubt be applicable to Salvadorans.

Hopefully the Supreme Court will interject reason and common sense and resolve this issue once and for all. USCIS’s (and consequently many immigration courts’) current position that service in the military automatically equals persecutor of other resulting in a bar from asylum is absurd and the result is unjust.