Tuesday, March 3, 2009
“In this case the Board of Immigration Appeals (BIA) determined that the persecutor bar [to asylum] applies even if the alien’s assistance in persecution was coerced or otherwise the product of duress. In so ruling the BIA followed its earlier decisions that found Fedorenko v. United States, 449 U. S. 490 (1981), controlling. The Court of Appeals for the Fifth Circuit, in affirming the agency, relied on its precedent following the same reasoning. We hold that the BIA and the Court of Appeals misapplied Fedorenko. We reverse and remand for the agency to interpret the statute, free from the error, in the first instance.” Download 07-499.pdf
The issue presented by the case was whether the provision of the Immigration and Naturalization Act that prohibits the granting of asylum to individuals found to have themselves engaged in persecution applies to those who were compelled to do so by threats of deaths or torture. The petitioner in the case, Daniel Girmai Negusie, at age 18, was forcibly conscripted by Eritrean military forces in the longstanding war with Ethiopia. On account of his Ethiopian heritage, however, Negusie refused to fight against those he deemed his “brothers.” His refusal resulted in roughly two years in prison. Following his imprisonment, Negusie was directed to serve as a guard at the same prison where he had been held. Torture reportedly is common at the prison. Based on his work at the prison, the Fifth Circuit denied Negusie relief, finding the forcible service as a prison guard irrelevant to the applicability of the provision of the bar of asylum to persons who had persecuted others on account of race, religion, nationality, political opinion, or membership in a particular social group.
The Court reversed the Fifth Circuit's decision for the U.S. government and remanded, Justice Kennedy wrote the opinion for an 8-1 Court. The Court held that the BIA had wrongly believed itself bound by the Court's 1981 decision in Federenko, which dealt with another statute (Displaced Persons Act of 1948), and remanded to the agency for consideration of the issue under the asylum provisions of the Immigration & Nationality Act; according to the Court, ordinary deference to the agency's interpretation of the statute under Chevron was not warranted given the BIA's incorrect conclusion that it was bound be Federenko. Justice Scalia concurred, joined by Justice Alito, and emphasized that it was an open question whether the agency could adopt the rule barring persons like Negusie from relief. Justice Stevens concurred in part and dissented in part, joined by Justice Breyer, concluding that the persecutor bar under the statute should not apply to a person who acted under coercion. Justice Thomas filed a dissent, claiming that the persecutor bar should apply to a person who persecuted others, coerced or not.
DAN KAHAN and TERRI-LEI O’MALLEY of the Yale Law School Supreme Court Clinic represented Negusie, along with ANDREW J. PINCUS and CHARLES A. ROTHFELD of Mayer Brown LLP. GREGORY G. GARRE Acting Solicitor General, GREGORY G. KATSAS Assistant Attorney General, EDWIN S. KNEEDLER Deputy Solicitor General, THOMAS H. DUPREE, JR. Deputy Assistant Attorney General, NICOLE A. SAHARSKY Assistant to the Solicitor General, DONALD E. KEENER, KEITH I. MCMANUS, KOHSEI UGUMORI, and JENNIFER J. KEENEY of the Department of Justice were on the brief for the U.S. government. Amicus briefs were filed by
American Jewish Congress and the American Jewish Committee in Support of Petitioner
Becket Fund for Religious Liberty and 16 Religious and Religious Freedom Organizations in Support of Petitioner
The Office of the United Nations High Commissioner for Refugees in Support of Petitioner
Scholars of International Refugee Law in Support of Petitioner Brief for Advocates for Human Rights in Support of Petitioner
Human Rights First, the American Immigration Lawyers Association, Human Rights Watch, and the U.S. Committee for Refugees and Immigrants in Support of Petitioner