High court orders a new look at one man's quest for US asylum

An Eritrean man who was forced to serve as a guard in a military prison where inmates were tortured and killed has won another chance to obtain asylum in the United States.

In an 8-to-1 decision Tuesday, the US Supreme Court reversed an immigration board decision rejecting the man's asylum bid.

Daniel Negusie's application was denied because US officials concluded he had participated in persecution of inmates while serving at the prison in Eritrea.

Mr. Negusie and his lawyers argued that he was coerced under threat of death to serve as a guard and that his prison work was involuntary. He said although he witnessed torture during his four years as a guard, he never personally beat or killed anyone. Negusie eventually fled and stowed away on a cargo ship to the US.

His asylum application was rejected under a US law that bars any refugee involved in 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 was told that US law makes no allowance for those who were coerced into assisting acts of persecution. The decision was upheld by the Board of Immigration Appeals (BIA) and the Fifth US Circuit Court of Appeals.

Negusie's lawyers took his case to the Supreme Court, arguing that the law bars only those who voluntarily commit acts of persecution, not those forced to commit such acts. The threat of being forced to engage in the persecution of others is itself a form of persecution, they said.

Writing for the majority, Justice Anthony Kennedy said the appeals court and the immigration board misapplied a prior precedent. Under that precedent, a person who engaged in persecution, even involuntarily, must be excluded.

Justice Kennedy said the prior precedent interpreted a World War II-era statute. The statute that applies in Negusie's case, the Refugee Act of 1980, has not yet been thoroughly interpreted by the immigration agency, he said. The court reversed the earlier decisions and remanded Negusie's case back to immigration officials to interpret and apply the 1980 law.

The court action leaves it open to the Obama administration to decide whether to adopt a restrictive reading of the law requiring anyone who persecutes to be excluded from living in the US. The remand order also leaves it open for the agency to adopt a broader interpretation that would allow Negusie and others like him to be granted asylum in the US.

Government lawyers had argued that Congress sought to draw a bright line in the statute to "firmly dissociate" the US from anyone who participates in persecution of others. The suffering of the victims was no less horrific, they said, simply because those involved were acting under duress.

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