The BIA has determined that an applicant who is subject to being barred from establishing eligibility for asylum or withholding of removal based on the persecution of others may claim a duress defense. The requirements for the defense are: (1) the applicant acted under an imminent threat of death or serious bodily injury to himself or others; (2) he reasonably believed that the threatened harm would be carried out unless he acted or refrained from acting; (3) he had no reasonable opportunity to escape or otherwise frustrate the threat; (4) he did not place himself in a situation in which he knew or reasonably should have known that he would likely be forced to act or refrain from acting; and (5) he knew or reasonably should have known that the harm he inflicted was not greater than the threatened harm to himself or others. The initial burden is on the DHS to show evidence that indicates that the alien assisted or otherwise participated in persecution. Once the DHS meets its burden, the burden shifts to the alien to show by a preponderance of the evidence that the persecutor bar does not apply either because he did not engage in persecution or because he acted under duress.
Regarding the DHS’s initial burden of proof to show that the alien assisted or otherwise participated in persecution, an adjudicator must assess: (1) the nexus between the alien’s role, acts, or inaction and the persecution; and (2) the alien’s scienter, meaning his prior or contemporaneous knowledge of the persecution.
In the instant case, the BIA determined that neither the applicant's forced conscription nor his assignment to guard duty meet the high standard for a duress defense. "The applicant testified that when he disobeyed orders to render assistance to prisoners, he received verbal reprimands from his superiors. Thus, the threats of death he received should he disobey orders, when viewed in context, did not constitute the imminent threat of death or serious bodily injury required to meet the standard of duress." The BIA also determined that the applicant had the opportunity to escape before committing the acts of persecution. "The applicant testified that he could not leave the military base, but he eventually escaped through a weak spot' and walked through the jungle to his friend’s home."
The full text of Matter of Negusie can be found here: