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 Ethiopiaand the Red Sea in northeastern Africa, gained independence from Ethiopia in 1993 after thirty years of war. See History of Eritrea and Ethiopia. Five years later, ongoing border disputes and Eritrea’s introduction of a new currency sparked the Eritrean–Ethiopian War, which lasted until 2000. See id.During the conflicts, the Eritrean government forcibly conscripted soldiers by rounding up young citizens and authorizing the use of lethal force against anyone resisting the draft. See U.S. Department of State: Eritrea Country Report on Human Rights Practices (2007). The government also harassed, detained, and discriminated against practitioners of Protestant Christianity and other religions. See id.
Petitioner, Daniel Girmai Negusie, is an Eritrean citizen who was forcibly conscripted at age eighteen when soldiers conducted a roundup at a movie theater; he was discharged and then recalled to service in 1998. See Brief for Respondent at 4; Brief for Petitioner at 13–14. Because Negusie refused to fight, he was placed in solitary confinement for six months, and then imprisoned in a harsh labor camp for a year and a half. See Brief for Petitioner at 14. During his incarceration, he adopted Protestant Christianity, for which he received physical punishment. See id. at 14.
In 2001, Negusie was released from prison and returned to service. See Brief for Respondent at 4. For four years, he served as an armed guard on a military base where the Eritrean government persecuted prisoners on the basis of religion and nationality. See id. at 5. Negusie was never allowed to leave the base; his duties included keeping prisoners in the sun and denying them showers and fresh air. See id.; Negusie v. Gonzales, 231 Fed. Appx. 325, 326 (5th Cir. 2007). Although he never injured anyone with his own hands, he knew his superiors badly mistreated the prisoners. See Negusie, 231 Fed. Appx at 326. Negusie was verbally reprimanded because he sometimes refused to punish prisoners, or secretly allowed them food, water, cigarettes, fresh air and showers. See id.; Brief for Petitioner at 15.
In 2005, Negusie escaped his post and fled his country by hiding in a shipping vessel. See Brief for Petitioner at 15. Upon entering the United States, he sought protection from deportation by filing for asylum and withholding of removal. See Brief for Respondent at 6. Asylum allows an alien to remain in the U.S. as a refugee based on his showing of a credible fear that he would be persecuted if returned to his home; withholding of removal prevents the U.S. from sending an alien to a country where he has shown he will most likely face persecution. SeeU.S. Citizenship and Immigration Services.
An immigration judge found that Negusie was not malicious and that his testimony that he hated his job was credible, but denied Negusie’s applications. See Brief for Respondent at 6. However, because Negusie had a credible fear of, and would most likely face, torture by the Eritrean government if deported, the judge delayed his deportation under the Convention against Torture; this prevented the U.S. from sending him to Eritrea, but granted Negusie no right to remain in the U.S. See Brief for Petitioner at 16, 16–17 n.5.
The Board of Immigration Appeals upheld the findings and denied Negusie’s appeal. See Negusie v. Gonzales, 231 Fed. Appx. at 326. The court held that because Negusie had been involved in the persecution of others at the prison camp, he was ineligible for asylum and withholding of removal under the “persecutor bar” of the Immigration and Nationality Act. See id.The persecutor bar prohibits the granting of asylum or withholding of removal to individuals who have“ordered, incited, assisted, or otherwise participated in the persecution of any person” on the basis of “race, religion, nationality, membership in a particular social group, of political opinion,” even if the individual otherwise qualifies for refugee status. 8 U.S.C. § 1158(b)(2)(A)(i), 8 U.S.C. § 1231(b)(3)(B)(i). The Fifth Circuit Court of Appealsaffirmed. See Negusie, 231 Fed. Appx.
Under the Immigration and Nationality Act (“INA”), an alien, or non-U.S. citizen who has left his country and does not wish to return, can seek certain U.S. protections. The U.S. Attorney General (“AG”) may grant refugee status to an alien who has a well-grounded fear of persecution in his home country because of his race, religion, nationality, political opinion, or membership in a particular social group; a refugee may enter and remain in the U.S. See 8 U.S.C. § 1101(a)(42). If an alien is already in the U.S., he can apply for asylum and withholding of removal. The AG may grant asylum and allow the alien to remain in the U.S. if the alien otherwise qualifies for refugee status. See 8 U.S.C. § 1158(b)(1)(A). The AG must grant withholding of removal if the individual qualifies as a refugee, and would most likely face persecution if deported to another country; this prevents deportation to that specific country, but confers no right to remain in the U.S. See 8 U.S.C. § 1231(b)(3); see alsoU.S. Asylum and Refugee Policy Fact Sheet.
Under the INA’s so-called “persecutor bar,” aliens are ineligible for refugee status, asylum, or withholding of removal if they have previously “ordered, incited, assisted, or otherwise participated in” the persecution of others. See8 U.S.C. § 1101(a)(42)(A); 8 U.S.C. § 1158(b)(2)(A)(i); 8 U.S.C. § 1231(b)(3)(B)(i). Congress enacted the INA’s current refugee-related provisions, including the persecutor bar as part of the Refugee Act of 1980. See Brief for Respondent, Mukasey at 42. The Act updated U.S. immigration law in accordance with two international treaties: 1951 United Nations Convention Relating to the Status of Refugees (“U.N. Refugee Convention”) and the 1967 United Nations Protocol Relating to the Status of Refugees (“U.N. Refugee Protocol”). SeeBrief for Petitioner, Negusie at 32.
Here, the U.S. Supreme Court will determine whether the persecutor bar applies to individuals who contributed to the persecution of others involuntarily under credible threats of death or serious bodily harm. Specifically, it will decide whether such individuals can be considered to have “assisted” or “otherwise participated” in the persecution of others. Petitioner, Daniel Negusie, argues that the bar does not apply to individuals who acted involuntarily. SeeBrief for Petitioner at 3. Respondent, Attorney General Michael Mukasey, says Congress intended the bar to apply to anyone who objectively took part in the persecution of others, regardless of any mitigating circumstances. SeeBrief for Respondent at 10.
Does the persecutor bar apply regardless of moral blameworthiness; is duress a defense?
Negusie takes the view that, in order to “assist” or “participate in” persecution within the meaning of the persecutor bar, a person must be morally blameworthy for his conduct. See Brief for Petitioner at 19, 23–26. He defines moral blameworthiness as requiring either hostile intent or voluntary action. See id. Hostile intent is motivation to harm the victims of persecution; voluntary action involves choosing or consenting to a persecutor’s role, even if indifferent to the victims.See id. at 19, 25–27. Legally, someone who acts under credible threats of death or serious bodily harmdoes so under duress and does not act voluntarily. In some civil and criminal contexts, individuals can only be held responsible for voluntary acts. Where voluntariness is a requirement, someone may be able to avoid liability or responsibility for an admitted wrong by asserting the affirmative defenseof duress.
Negusie reasons that the persecutor bar requires hostile intent because persecution itself requires hostile intent. SeeBrief for Petitioner at 23–28. He cites an Oxford English Dictionary definition of persecution which requires hostile intent. See id.at 23–25. Furthermore, he argues,in the context of the persecutor bar, “assisting” and “participating” are specific ways of committing persecution, so they must also require hostile intent. See id. at 24–25.
Mukasey counters that persecution itself does not require hostile intent. SeeBrief for Respondent at 15. He cites three dictionaries that define persecution as oppression carried out because of a belief or characteristic of the victim, without reference to a perpetrator’s subjective motivation. See id. at 15. Even if persecution does require a certain motivation, he claims, “assisting” and “participating” in persecution do not. See id. at 20. Congress would not have included the terms unless they expanded on the meaning of persecution. See id. at 14, 20. Moreover, according to Mukasey, Negusie conceded earlier in the case that subjective intent is irrelevant to whether someone assisted in persecution, so the Court should only consider the matter of voluntariness. See id. at 19.
Negusie argues that the persecutor bar also implicitly requires voluntariness and thus allows a duress defense. SeeBrief for Petitioner at 28–32. He points to legislative history, arguing that Congress chose a wording that would give the Attorney General maximum discretion to consider mitigating circumstances in applying the persecutor bar. See id.at 5–6, 35.
Mukasey counters that Congress did not imply a voluntariness requirement in the persecutor bar. See Brief for Respondent at 22–27. He reasons that Congress would have been explicit if it had intended to do so, because some other INA provisions barring immigration benefits explicitly require voluntariness. See id. at 22.
Negusie points out that courts generally allow a duress defense to statutes that impose serious adverse consequences, even absent an explicit voluntariness requirement and especially in the context of criminal law. SeeBrief for Petitioner at 20, 28–29, 33. He says Court should do so here because deportation is a “drastic measure,” and because the persecutor bar is triggered by criminal conduct. See id. at 20, 31, 33.
However, says Mukasey, duress is not available in all civil or criminal statutes that impose severe consequences. See Brief for Respondent at 24–26. He says criminal law principles do not apply because the Court has classified deportation as a civil proceeding. See id. at 23. When Congress has made immigration benefits depend on criminal principles, it has done so explicitly. See id.
Negusie further argues that, because the current persecutor bar was enacted in order to comply with the U.N. Refugee Convention and Protocol, the provision must be interpreted and applied in accordance with those treaties. See Brief for Petitioner at 32–35. Negusie cites the U.N. Handbook on Procedures and Criteria for Determining Refugee Status under the 1951 Convention and the 1967 Protocol Relating to the Status of Refugees (“Handbook”), which guides courts in the interpretation and application of the two treaties. See id. at 33–34. It says the persecutor bar principle should apply only after careful consideration of all circumstances. See id.
Does the Supreme Court’s decision in Fedorenko apply to the INA?
In Fedorenko v. United States ("Fedorenko"), the Supreme Court held a former Nazi concentration camp guard ineligible for a U.S. visa based on a persecutor bar contained in the Displaced Persons Act of 1948 (“DPA”). SeeFedorenko v. United States, 449 U.S. 490 (1981). The DPA’s persecutor bar was similar to the one at issue in the INA, and the Court held that it applied without regard to voluntariness. See id. at 495, 512. At earlier stages of Negusie’s case, the Board of Immigration Appeals (“BIA”) and the Fifth Circuit relied on Fedorenko. See Negusie v. Gonzales, 231 Fed. Appx. 325, 326 (5th Cir. 2007). Mukasey supports those holdings and maintains that Fedrenko applies here because both cases involve language about “assisting” in persecution. SeeBrief for Respondent at 9.
Negusie argues that the Fedorenko does not apply here, because it was decided under a different statute. SeeBrief for Petitioner at 42. He says the persecutor bar in the INA is intended to be more flexible than that of the DPA. See id. at 43. Whereas the DPA was enacted in response to the refugee crisis created by a unique historical event, the INA guides asylum policies “with respect to a variety of conflicts.” See id.Some portions of the DPA’s persecutor bar expressly required voluntariness while the portion applied in Fedorenko did not; by contrast, “voluntary” appears nowhere in the INA’s persecutor bar. See id. at 45 n.13; Reply Brief for Petitioner at 23–24.
Mukasey responds that courts have routinely applied Fedorenko to cases involving the INA since it was decided in 1981. SeeBrief for Respondent at 33. He claims Congress approved of that interpretation by re-enacting the INA’s persecutor bar without change in 1996.See id. at 31, 48–49. Additionally, the INA and the DPA persecutor bars have practically the same language regarding “assisting” in persecution, he argues; neither requires voluntariness. See id. at 31.
In their amicus brief in support of Negusie, the Advocates for Human Rights ("AHR")argue that even if Fedorenko applies to INA cases, the BIA and the Fifth Circuit have misinterpreted and misapplied the Fedorenko holding. SeeBrief of Amicus Curiae AHR at 19–28. It claims that Fedorenko creates no rule against considering mitigating circumstances or duress when applying the persecutor bar; rather, it means that forcibly conscripted servicemen can be held responsible as persecutors if they show hostile intent or some degree of voluntariness. See id.at 25–26.
How should the Court resolve ambiguity in the INA?
In Chevron, USA v. Natural Resources Defense Council (“Chevron”), the Supreme Court held that, under certain circumstances, courts must adopt whatever interpretation a federal agency, such as the BIA, has given to a statute. SeeChevron, USA v. Natural Resources Defense Council, 467 U.S. 837 (1984). This so-called Chevron deferenceapplies only if the proper interpretation of a statute is unclear from the text; if courts find a statute ambiguous, they should follow the relevant federal agency’s interpretation as long as that interpretation is reasonable and not arbitrary, capricious, or at odds with the obvious purpose of the statute. Seeid.Here, the parties disagree whether the Court should show Chevron deference to the BIA’s interpretation of the persecutor bar, or whether ambiguity should be resolved in some other way. SeeBrief for Petitioner at 46; Brief for Respondent at 11.
Negusie argues that Chevron deference would be inappropriate because the text of the persecutor bar clearly requires voluntariness and leaves no room for interpretation. SeeBrief for Petitioner at 46. He further claims that even if the statute is ambiguous, the BIA is not entitled to deference because it unreasonably interpreted the INA as being controlled by Federenko. See id.at 46–47. Therefore, he believes the Court should follow the established principle of resolving any statutory ambiguity in favor of the individual seeking asylum. See id.at 36.
Mukasey responds that the Court should only resolve ambiguity in favor of the alien as a last resort if ambiguity remains after all interpretive tools, including Chevron deference, have been exhausted. SeeBrief for Respondent at 51. Here, he claims Chevron deference is appropriate and fully resolves the ambiguity; Congress left a gap in the INA’s persecutor bar by declining to define “persecution,” and the BIA’s interpretation of it as being controlled by Federenko is reasonable. See id. at 48.
Each year, thousands of people come to the United States seeking asylum. In 2007 alone, there were 82,200 new asylum-seekers in addition to the 147,200 refugees and asylum-seekers already present, according to the U.S. Committee for Refugees and Immigrants (USCRI). One of the many rules limiting the granting of asylum rights is the Persecutor Bar, which automatically denies asylum to those who have “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.” 8 U.S.C.A. § 1158(b)(2)(A)(i). Currently, both the INS and lower courts interpret this limitation “objectively,” applying it to any refugee who has participated in persecutory acts, including the intimidation and torture of others. SeeNegusie v. Gonzales, 231 Fed. Appx. 325, 326 (5th Cir. 2007). Negusie urges that this bar should not apply to refugees such as child-soldiers or prisoners who have been forced into persecution; courts should instead focus on refugees’ intent when considering whether to apply the bar. SeeBrief for Petitioner, Negusie at 19–22. How this case is decided will have a direct impact not only on many of the thousands of asylum-seekers in the United States today, but will also help shape certain core principles of refugee and human rights in America.
If the Court finds for Negusie and rejects an objective effects test, it will implement a “Personal Culpability” standard that looks at the asylum-seeker’s subjective intent in participating in activities of persecution. SeeBrief of Amicus Curiae Advocates for Human Rights in Support of Petitioner at 29–34; see alsoBrief for Respondent, Mukasey at 38–40. If this were to happen, permitting asylum for those who involuntarily participated in persecution has the potential to harmfully affect human rights principles. Article 29 of the Universal Declaration of Human Rights holds that everyone is entitled to the exercise of their rights and freedoms, but not to the extent that holding those rights violates the rights of others. Some international courts have followed this principle. For example, the International Criminal Tribunal for the former Yugoslavia held that duress was not a defense to crimes against humanity in the international war crimes case of a general forced to partake in the shootings of hundreds of unarmed Bosnian Muslim men. See Prosecutor v. Drazen Erdemovic, IT-96-22, ICTY, 7 Oct. 1997.
On the other hand, there are those that argue that duress and necessity should be considered as factors in assessing a person’s participation in acts of persecution. The dissent in Erdemovic argued that international law should not expect standards of behavior that require people to “perform acts of martyrdom.” SeeErdemovic, Separate and Dissenting Opinion of Judge Cassese, IT-96-22, ICTY, 7 Oct. 1997.
Either way, the decision in this case will have an immediate effect on refugees currently seeking asylum. Human rights groups and religious liberty organizations contend that upholding the objective effects test will deny asylum to those who need it most, such as former child soldiers and other victims of torture who cooperated with persecutors under duress. SeeBrief of Amici Curiae Human Rights First et al. in support of Petitionerat 4–5.Negusie fears that the logic of an objective effects test could be expand to reach even those refugees who were forced into acting as “human shields” by their persecutors, and thus have assisted in persecution by providing persecutors with cover. See Brief for Petitionerat 4.
Human rights groups contend that forced persecution is itself a form of persecution. See Brief of Human Rights First et al.at 10. Critics of the objective effects test, such as the United Nations High Commissioner for Refugees (“UNHCR”), contend that it puts all refugees who have been forced to persecute others in danger by potentially returning them to persecution. See Brief of Amicus Curiae the United Nations High Commissioner for Refugees (“UNHCR”) in Support of Petitioner at 4–5. The UNHCR claims that most refugees who escape situations where they are forced to participate in persecution will face torture and worse if returned, violating the non-refoulement principle. See e.g., Brief of UNHCR in Support of Petitioner at 4–5. Non-refoulement is a core principle of immigration rights, which states that governments should not return refugees to places where they will most likely be tortured. See generally The Principle of Non-Refoulement Roundtable, organized by the United Nations High Commissioner for Refugees, 2001. The Becket Fund for Religious Liberty et al. thus argue that to deny refugees in this situation asylum is to tacitly condone authoritarian regimes’ religious persecution of those who are coerced into participation. See Brief of Amici Curiae the Becket Fund for Religious Liberty et al. in Support of Petitioner at 4.
This case will decide whether the “Persecutor Bar” to asylum-seekers should be read objectively, in terms of effects, or subjectively, in terms of the refugee’s intent. Respondent argues that it must be read objectively because the act of persecution does not require subjective intent, and Congress intended to exclude those who participated in any persecutory acts, whether they did so willingly or not. Petitioner argues that it must be read subjectively, because not only should intent matter, but also to discount circumstances of coercion and duress would directly impact a huge number of asylum-seekers. The decision in this case will contribute to the shaping of certain core principles of human rights.
Edited by: Allison Condon
The authors would like to thank Professor Jens Ohlin from Cornell Law School for his insights into this case.
- 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