Denied US asylum, an Eritrean prison guard appeals to high court
He says he was forced to stand guard as others were tortured and killed.
US immigration law bars the granting of asylum to any foreign national involved in the persecution of others overseas. But what if the asylum seeker was coerced into assisting in abuses or atrocities?Skip to next paragraph
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Mr. Negusie says he was forced under threat of death to act as a prison guard, and that although he witnessed torture, he never personally beat or killed anyone.
Two of his friends were killed trying to escape the prison, he says. He eventually fled and stowed away on a cargo ship to the US.
But Negusie's asylum application was denied because, officials said, US law makes no allowance for those who were coerced into assisting acts of persecution.
The law prohibits granting asylum to "any person who 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."
Negusie's lawyers say Congress intended to exclude only those who voluntarily participate in persecution. "The threat of being forced to engage in persecution of others itself constitutes persecution," says Washington lawyer Andrew Pincus in Negusie's brief to the court.
He cites atrocities in the Ivory Coast in 2002 and 2003 where rebels waging ethnic warfare sometimes forced people to rape their own relatives. In one case, a middle aged-man told human rights investigators that gunmen forced him to rape his sister while they watched before they raped her. In another instance, a young woman said her brother was killed in front of her after he refused to rape her.
"Such individuals plainly are not persecutors; they are victims of persecution," Mr. Pincus says.
"The consequences of the government's position are breathtaking," he writes. "Entirely blameless conduct would be labeled 'persecution.' "
Solicitor General Gregory Garre says in his brief that Congress sought to draw a bright line in the statute to "firmly dissociate this nation from all those who participated in persecution of others." The brief adds: "The fact that a person may have acted under duress does not make the suffering of his victims any less horrific."
The government's brief says Negusie routinely guarded prisoners who were kept in the hot sun as a form of punishment. At least one person Negusie guarded died during such punishment, the brief says. Negusie "acknowledged his integral role in the torture and execution of prisoners, stating that he was the person responsible for 'mak[ing] sure that [the prisoners] stayed out in the sun," the brief says.
Garre highlights a 1981 Supreme Court decision in a case involving Feodor Fedorenko, a Russian soldier captured during World War II by the Nazis. After serving time as a war prisoner, he became a guard at the Treblinka death camp where 800,000 Jews and others were murdered.