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16 Pac. Rim L. & Pol'y J. 227 (2007)
The Persecutor Bar in U.S. Immigration Law: Toward a More Nuanced Understanding of Modern "Persecution" in the Case of Forced Abortion and Female Genital Cutting

handle is hein.journals/pacrimlp16 and id is 233 raw text is: Copyright 0 2007 Pacific Rim Law & Policy Journal Association THE PERSECUTOR BAR IN U.S. IMMIGRATION LAW: TOWARD A MORE NUANCED UNDERSTANDING OF MODERN PERSECUTION IN THE CASE OF FORCED ABORTION AND FEMALE GENITAL CUTTING Lori K. Wallst Abstract: Congress installed the persecutor bar to asylum seekers in the United States thirty years after the end of World War I1 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 modem 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 modem 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 modem 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 modem practices designated persecution. This approach suggests one way of making more subtle immigration law's now-simplistic approach to persecutors. I. INTRODUCTION The language of the Immigration and Nationality Act (INA) provision that bars a persecutor from being granted asylum mirrors the language that defines persecution for purposes of establishing asylum: the persecutor must persecute on account of race, religion, national origin, political opinion, or social group'2 and the asylum seeker must be persecuted on one of these t The author would like to thank Professor Stephen H. Legomsky, Washington University in St. Louis School of Law, for his encouraging mail in response to a question from a law student at a distant university; University of Washington School of Law Professors Kathleen O'Neill, Joel Ngugi, and Kristin Stilt; and the journal editorial staff. This practice, described below, also is referred to as female genital mutilation (F.G.M.), a term Makau Wa Mutua convincingly argues stigmatizes the practitioners and their cultures as barbaric savages. Savages, Victims, and Saviors: The Metaphor of Human Rights, 42 HARV. INT'L L. J. 201, 225 (2001). The more neutral female genital cutting is used here. 2 An alien is ineligible for asylum if he or she ordered, incited, assisted, or otherwise participated in the persecution of any person on account of race, religion, nationality, membership in a particular social

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