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March 4, 2009

Legal Error Causes no Chevron Deference, but Court Remands: Negusie v. Holder

An alient who seeks refugee status in the US due to fear of persecution is not enttiled to that relief he he has persecuted others.  This fairly straightforward "persecutor bar" was in issue in Negusie v. Holder __ US __ (March 3, 2009).  The BIA had determined that the statutory bar applied even if the refugee had been forced into persecuting others through duress or coercion, and by regulation had so formalized its views.

The petitioner had been forced to guard people, on the basis of race, while in Ethiopia after he had been conscripted into the military and had experienced hard labor.  He forced prisoners to stay in the sun, causing the death of at least one.  Eventually he escaped on a ship to the US where he sought asylum.  He was denied asylum under the persecutor bar.

The Supreme court refused to give Chevron deference to the BIA because it had relied on distinguishable supreme court precedent in deciding what the statute meant.  It then remanded to the agency for further action.

Scalia and Alito dissented.  Boiled down, they did not believe remand was proper since the only possible interpretation was that given to the statute by the agency.

Stevens and Breyer concurred and dissented in part.  They thought remand was improper because the only possible interpretation was the opposite of the one given by the agency.

Thomas, alone, dissented, in part chastising the majority for misreading Chevron.

March 4, 2009 | Permalink

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