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.
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After the war, Mr. Fedorenko came to the US and eventually became a citizen. When his service at the death camp was uncovered, the government sought to strip him of his citizenship and deport him.Skip to next paragraph
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Fedorenko claimed his work at the death camp was involuntary, that he was simply following orders. The Supreme Court rejected that argument in a 7-to-2 ruling.
The high court based the ruling on a 1948 immigration law that required the exclusion from the US of anyone who "assisted the enemy in persecuting civilians" or "voluntarily assisted the enemy forces ... in their operations."
After being deported to the Soviet Union, 80-year-old Fedorenko was placed on trial by the Soviets, convicted, and executed in 1987.
"[Negusie's] conduct is strikingly similar to Fedorenko's," Garre says. "Both were trained to serve as prison guards after a period of incarceration by armed forces; both stood guard as persons were tortured and killed on account of protected grounds; both were armed and charged with keeping prisoners from escaping; both received payment for their services; and both served as guards for several years."
Pincus rejects the government's comparison. Negusie refused to carry out the "heinous tasks his oppressors wished him to," he says.
"This case is not about simply following orders," Pincus writes. "He was coerced to remain as a prison guard by threats of death and severe injury."
The consequences of America's categorical policy are heart wrenching, according to lawyers who work with survivor-refugees. Individuals who fled persecution and somehow made it to the US are not only denied sanctuary but face the prospect of being returned to the place of their original persecution, they say.
"The idea of a duress defense is that there are some circumstances where any moral person would have ended up doing what you did," says Anwen Hughes, a lawyer with Human Rights First. "It is very difficult for adjudicators to look at that situation and say, 'Maybe, but legally we don't care, so I've got to order you deported to persecution.' That is what it comes down to."
Ms. Hughes says the US government should recognize the harsh reality experienced by some refugees. "There are forces out there in the world who understand that forcing people to engage in violence against people they care about or people they identify with can be one of the worst things you can do to a person," she says. "For a lot of people, it ends up being the worst thing they suffer beyond whatever purely physical harm they have endured."
Friend-of-the-court briefs chronicle the grim stories. Christian villagers in Burma were forced to destroy their churches, graveyards, and religious monuments and then replace them with military camps and Buddhist pagodas. Child soldiers are proliferating in ongoing conflicts in Burma, Chad, Colombia, the Democratic Republic of Congo, Somalia, and Sudan. Human rights groups say they are frequently forced by commanders to take part in atrocities against their families or communities to stigmatize them and prevent them from returning home.