Washington International Law Journal


Lori K. Walls


Congress installed the persecutor bar to asylum seekers in the United States thirty years after the end of World War II to facilitate the deportation of Nazi war criminals. The persecutor bar’s legal evolution was rooted in part in the practical difficulties of prosecuting crimes committed in the distant past. The bar also is based on the notion, problematic in modern contexts, that persecution has a corollary persecutor. The persecutor bar does not map well to the messy political, cultural, and practical realities that give rise to modern “persecutors.” Ten years ago, for example, forces from opposite ends of the political spectrum successfully lobbied to have two practices designated persecution under the Immigration and Nationality Act (INA)—forced abortion and female genital cutting (FGC). Given these designations, the persecutor bar automatically defines doctors who perform forced abortion and women who perform FGC as persecutors. This comment argues that the political genesis of these changes to immigration law and the ill-fitting persecutor bar itself work to undermine the legitimacy of the persecutor label. The bar as applied in modern contexts is at times over- or underinclusive in its reach. The prosecution of persecutors in the context of civil war, although offering further examples of the way in which the persecutor bar is a blunt tool, suggests one solution. For policy reasons, persecution is essentially uncoupled from the persecutor: those victimized by indiscriminate violence are ineligible for asylum while those who perpetrate this violence may be barred. The independent consideration of persecuted and persecutor suggests a more nuanced understanding that better accounts for modern practices designated persecution. This approach suggests one way of making more subtle immigration law’s now-simplistic approach to persecutors.

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