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Assisting In The Persecution Of Others

by David L. Cleveland

A person is barred from asylum if he "assisted" in the persecution of "any person." INA § 208(b)(2)(A)(i).

Immigration Judge John R. O'Malley, [Kansas City, Missouri,] ruled that a ten-year veteran of the Rhodesian military did not assist in the persecution of others, even though he watched and took notes during waterboarding, and provided his Air Force with the location of a camp which contained children, which was later attacked. His 23-page Decision, dated March 31, 2011, is available at

Ian Smith, the President of Rhodesia from 1965 to 1979, who said, "The white man is master" of the country, ruled it under an "apartheid" system. The United States did not recognize his regime. [Decision at 15, ¶4, referencing Group Exhibit 10, Tab M, submitted by the DHS, which were "excerpts of an address the then-Secretary of State Henry Kissinger delivered on April 27, 1976."].

During the "Bush War," the Rhodesian military attacked refugee camps, containing civilians, including women and children. The Army engaged in "systematic torture," and used biological and chemical weapons. The Central Intelligence Organization, or "CIO," engaged in surveillance, and assaulted and "perhaps" killed people. [Id. at 10] The Judge found that "some members of the Rhodesian military" engaged in "persecution." [Id. at 15].

After the war, most of the whites were driven out, and the country of Zimbabwe came into existence. Robert Mugabe became, and still is, President.

Respondent's military activities

Respondent was a Sergeant in the "CIO." He parachuted into areas, to determine where guerrillas, and guerrilla camps were located.

In 1975, he performed surveillance on a large camp known as "Chimoio." He determined its precise location, so that the air force and army could later "hit" it. Chimoio was a refugee camp for civilians; however, 8,000 guerrillas were there also. The army was unable to separate the guerrillas from the civilians. Respondent testified he did not see any children in the camp.

He was 15 miles away when the attack on Chimio occurred.

He "did not decide whether to attack the camp, when to attack, or what degree of force to employ."[Id. at 16]. He did not have "prior or contemporaneous knowledge" that the objective effect on his intelligence gathering was to assist in persecution. [Id. at 17].

Neither "mere membership" nor "mere proximity to a persecutory act" makes one a persecutor. " [Id. at 16]. Does every member of an Army "assist" in persecution? NO. See Matter of Rodriguez-Majano, 19 I&N Dec. 811, 816 (BIA 1988) ("We do not believe Congress intended to restrict asylum and withholding only to those who had taken no part in armed conflict.").

War is hell

Bad things happen in wars. Both sides use powerful weapons; collateral damage is unavoidable. It is legitimate for a government to defend itself against armed rebels.

If there is an ongoing civil war, persecution does not include harm "that is directly related to the military objectives of the armed conflict." Matter of H-, 23 I&N Dec. 774, 784 (A.G. 2005). There were guerrillas in the camp, so respondent's surveillance was in furtherance of "military objectives." [Id. at 16].

In Matter of Rodriguez-Majano, 19 I&N Dec. 811, 816 (BIA 1988), the Board held that "activity related to a civil war is not persecution, unless it can be shown that the persecutor intended to harm another in order to overcome a protected belief or characteristic." [Id. at 14] The actions of the respondent in that case did not rise to the level of persecution because 'the only harm or injury he may have inflicted arose as the natural consequence of civil strife.'" [Id. at 14]

Watching his fellow soldiers waterboard Black Nationalists

The United States has engaged in waterboarding. [Id. at 18].

The Rhodesian military captured guerrillas, and waterboarded them. The interrogator put a cloth into a bucket of water, and then put it across the person's face. Respondent's role "was to record 'military intelligence.'" [Id. at 8].

Waterboarding does "rise to the level of persecution." [Id. at 18]. However, respondent "never personally participated in the interrogation process, except as a scrivener, and did not prepare the waterboarding facilities." He was unarmed. Thus, he did not "actually" assist in persecution. [Id.]. Furthermore, "the interrogations appear to have been 'directly related to… the military objectives of the armed conflict.'' [Id.] .


  1. As noted by the IJ, the United States has engaged in waterboarding. We waterboarded three Al-Qaeda suspects in 2002 and 2003. Shane, "C.I.A. Chief Doubts Tactic To Interrogate Is Still Legal," New York Times, February 8, 2008, page 9.
  2. NATO forces killed three grandchildren, all under the age of 12, of Col. Muammar el-Qaddafi in April 2011, in a bombing raid. Fahim and Kirkpatrick, "Qaddafi Survives A NATO Airstrike That Kills A Son," New York Times, May 1, 2011, page 1.
  3. Judge O'Malley did not mention a number of other decisions:
    • One week after this decision, the BIA published Matter of D-R, 25 I&N Dec. 445 (BIA 2011). In that case, a platoon leader who helped deliver prisoners to another platoon, where the prisoners were executed, was deemed to have "assisted" in persecution. The BIA suggested that "assist" should be interpreted broadly, so as to include a large number of persons.
    • The Ninth Circuit ruled that a member of the Peruvian Civil guard who served as a translator while prisoners were given electric shocks was a persecutor. Miranda-Alvarado v. Gonzalez, 449 F.3d 915 (9th Cir. 2006).
    • The Fourth Circuit ruled that an intelligence officer in the Philippines who gathered information leading to the death of suspects was a persecutor. Higuit v. Gonzalez, 433 F.3d 417 (4th Cir. 2006).
    • The Seventh Circuit ruled that an intelligence officer in the Philippines who gathered information leading to the death of suspects was a persecutor. Singh v. Gonzalez, 417 F.3d 736 (7th Cir. 2005).
    Did the respondent in the Kansas City case dodge a bullet?

About The Author

David L. Cleveland, a staff attorney at Catholic Charities of Washington, DC, was Chair of the AILA Asylum Committee (2004-05) and has secured asylum or withholding for people from 35 countries.

The opinions expressed in this article do not necessarily reflect the opinion of ILW.COM.