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

An Eritrean who worked at a prison where torture occurred gets another chance to live in America.

By , Staff writer of The Christian Science Monitor

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.

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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.

Negusie routinely guarded prisoners who were kept in the hot sun as a form of punishment, according to the government's brief. At least one person Negusie guarded died during such punishment, the brief says.

Government lawyers compared the Negusie case with a 1981 Supreme Court decision 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 in Poland, where 800,000 Jews and others were murdered.

After the war, 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.

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 that ruling on its reading of a 1948 immigration law, the Displaced Persons Act. The law 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.

In his majority opinion, Justice Kennedy said the 1980 law is different from the 1948 law that formed the basis of the high court's decision in the Fedorenko case.

"Fedorenko does not compel the same conclusion in the case now before us," he wrote.

The majority justices said the BIA wrongly relied on the Fedorenko decision as the controlling authority in the Negusie case. Instead, Kennedy said, the agency must exercise its own interpretive authority to determine the precise meaning of the 1980 Refugee Act.

"The BIA is not bound to apply the Fedorenko rule that motive and intent are irrelevant," Kennedy wrote. "Whether the statute permits such an interpretation based on a different course of reasoning must be determined in the first instance by the agency," he said.

In a concurrence and partial dissent, Justice John Paul Stevens wrote that the high court should have issued a broader ruling, answering the central question in the case.

"I think it plain that the persecutor bar does not disqualify from asylum or withholding of removal an alien whose conduct was coerced or otherwise the product of duress," Justice Stevens wrote. He was joined by Justice Stephen Breyer.

In a dissenting opinion, Justice Clarence Thomas said that in writing the law Congress made no distinction of a persecutor's intent. "Because [immigration law] unambiguously precludes any inquiry into whether the persecutor acted voluntarily, i.e., free from coercion or duress, I would affirm the judgment of the court of appeals," Justice Thomas wrote.

The case is Negusie v. Holder (07-499).

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