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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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