The doctrine of duress is common to other bodies of law, but the application of the duress doctrine is both unclear and highly unstable in immigration law. Outside of immigration law, a person who commits a criminal act out of well-placed fear of terrible consequences is different than a person who willingly commits a crime, but American immigration law does not recognize this difference. The lack of clarity leads to certain absurd results and demands reimagining, redefinition, and an unequivocal statement of the significance of duress in ascertaining culpability. While there are inevitably some difficult lines to be drawn in any definition or application of the doctrine, as a general matter, it is well established everywhere but in immigration law that varying levels of culpability exist and that those variations matter. U.S. criminal law has long recognized the principle of duress in both common law and criminal statutes. International criminal law and international refugee law both largely mirror these domestic principles. While certainly not reaching the level of a jus cogens norm, the synchrony among the bodies of law is striking, and the distinctions are relatively small. These diverse bodies of law share core elements: that the person acted from fear of imminent and grave consequences, that the fear was “well-grounded,” and that the person had no real opportunity to escape to avoid committing the act. Almost in tandem, the domestic criminal law and international law reflect a concern that punishment be meted out in relationship to culpability and recognize that duress diminishes culpability. Immigration law is the straggler and outlier to this otherwise richly developed legal landscape. As seen through the small variations in Ana’s story, the duress doctrine manifests in very different ways in immigration law and with important gaps. It might reduce the likelihood of a criminal case feeding into immigration removals. It might provide affirmative benefits, in the case of our trafficking law—not merely a way to avoid removal but a means of accessing the elusive path to citizenship. It is an express exception for people who were involuntary members of the Communist Party or other totalitarian parties. But it exists more in principle than in practice for those forced to support terrorists, and it offers nothing to asylum-seekers. As the greatest outlier, the treatment of duress in asylum law reveals the critical importance of expressly incorporating the duress defense and also harmonizing the understanding of the work done by the doctrine throughout immigration law. This Article demands a statutory solution because of the pervasiveness of the disharmony and because the structures that generate administrative common law are too unstable themselves to be trusted with resolving the issue.
Elizabeth A. Keyes, Duress in Immigration Law, 44 SEATTLE U. L. REV. 307 (2021).
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