Negusie v. Mukasey
Issues
Whether the bar against granting asylum in the United States to refugees who have participated in acts of persecution should automatically apply to those who have been forced into participation under threat of torture or death.
Daniel Negusie was forcibly conscripted into the Eritrean military but refused to fight. After two years’ imprisonment at an Eritrean military camp, he spent four years serving as a guard at the camp, without freedom to leave. His duties included keeping prisoners in the sun and denying them showers and fresh air, but he was verbally reprimanded for sometimes refusing to do so. Eventually, Negusie escaped to the U.S., where an immigration judge denied his application for protection from deportation. The judge held that, under the “persecutor bar” of the Immigration and Nationality Act (“INA”), Negusie’s role in the persecution of others made him ineligible for refugee status, notwithstanding his service as a guard and his probable torture if returned to Eritrea. The Board of Immigration Appeals (“BIA”) and the Fifth Circuit affirmed. On certiorari, Negusie argues that the INA’s persecutor bar is not meant to apply to individuals who involuntarily took part in the persecution of others. Attorney General Mukasey responds that the bar contains no voluntariness requirement, and that the Court should defer to the BIA’s interpretation of the INA. The Court’s decision could affect the international community’s approach to human rights; it will clarify whether the U.S. Attorney General has discretion to consider an individual’s degree of moral culpability before granting or denying him refuge, or deciding to deport him to a country where he faces danger, which is considered a violation of core human rights principles.
Questions as Framed for the Court by the Parties
The Immigration and Nationality Act (“INA”) prohibits the Secretary of Homeland Security and the Attorney General from granting asylum to, or withholding removal of, a refugee who has “ordered, incited, assisted, or otherwise participated in the persecution of any person on account of race, religion, nationality, membership in a particular social group, or political opinion.” INA § 208(b)(2)(A), 8 U.S.C. § 1158(b)(2)(A). The question presented is:
Whether this “persecutor exception” prohibits granting asylum to, and withholding of removal of, a refugee who is compelled against his will by credible threats of death or torture to assist or participate in acts of persecution.
Eritrea, which lies between Ethiopia and the Red Sea in northeastern Africa, gained independence from Ethiopia in 1993 after thirty years of war. See History of Eritrea and Ethiopia. Five
The authors would like to thank Professor Jens Ohlin from Cornell Law School for his insights into this case.
Additional Resources
- International Crisis Group: Ethiopia/Eritrea
- LII Wex: Immigration
- Immigration and Nationality Act
- U.S. Citizenship and Immigration Services: Humanitarian Benefits
- Asylum in the United States