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

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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