Posted on November 4, 2008 at 6:13 pm by Ben Winograd
Since the enactment of the Refugee Act of 1980, the Attorney General (acting through lower immigration officials) has been authorized to grant asylum to any individual demonstrating a well-founded fear of future persecution on account of race, religion, nationality, political opinion, or membership in a particular social group. At the same time, Congress has barred the Attorney General from granting asylum to individuals who, though themselves victims of persecution, had also “ordered, incited, assisted, or otherwise participated” in the persecution of others.
Over time, the federal courts of appeal became divided over the question of whether this so-called “persecutor bar” should apply to individuals who, though having committed or assisted in persecutory act, did so only due to threats of death or serious bodily harm. Put another way, courts were split over whether immigration officials could take duress into account in determining whether otherwise eligible refugees should be excluded under the persecutor bar. In mid-March, the Court granted certiorari in Negusie v. Mukasey (07-499) to resolve the conflict.
The petitioner in the case, Daniel Girmai Negusie, was born in Eritrea but by heritage was both Eritrean and Ethiopian. When Negusie was 18, Eritrean military forces forcibly conscripted him to fight its longstanding war with neighboring Ethiopia. After serving as a gunner on a naval vessel, during which he says he never fired a gun, Negusie called to the front lines. On account of his Ethiopian heritage, however, Negusie refused to fight against those he deemed his “brothers.” He served roughly two years in prison on account of his refusal, where he was alternatively subjected to hard labor and solitary confinement. During his time in prison, Negusie also converted to Christianity, for which he reportedly suffered additional persecution. (Eritrea is divided almost equally between Muslims and Christians, though anti-Christian sentiment reportedly is widespread in the military.)
Following his term of imprisonment, Negusie was directed to serve as a guard at the same prison where he had been held. According to the government’s brief, prisoners were routinely tortured or killed during Negusie’s tenure as a prison guard, and Negusie received “pocket money” for his service. The government also says Negusie was responsible for ensuring prisoners did not escape, and routinely stood guard over prisoners forced to lie in the sun. Negusie’s attorneys say he frequently disobeyed orders to inflict torture on the prisoners himself, and secretly gave them food, water, cigarettes, and access to fresh air. Guards who were caught attempting to escape were apparently executed. Eventually, Negusie managed to escape and stowed away on a container ship bound for the United States, where he applied for asylum.
At the administrative level, an Immigration Judge found Negusie met the statutory criteria to receive asylum as well as a lesser form of relief, known as withholding of removal, which would bar his deportation to Eritrea. But the IJ found Negusie’s service as a prison guard amounted to assisting the Eritrean government in persecution, thus rendering him ineligible for either form of relief. On appeal, a panel member of the Board of Immigration Appeals likewise determined that whether Negusie was compelled to serve as a prison guard, and whether he personally refused to engage in persecution, was immaterial to his claim. Affirming the decision, the U.S. Court of Appeals for the Fifth Circuit, relying on a prior panel ruling, concluded that “whether an alien was compelled to assist authorities is irrelevant, as is the question whether the alien shared the authorities’ intention.”
In his brief on the merits, Negusie argues that the text and history of the Refugee Act, as well as the background legal principles against which it was passed, suggest that involuntary conduct made under duress does not trigger the persecutor bar. Citing the Oxford English Dictionary, the petitioner says one only can engage in “persecution” by harboring “hostile intent.” Thus, Negusie argues, immigration officials may consider his mental state and other factors relating to the “moral offensiveness” of his time as a prison guard. For similar reasons, the petitioner says, one lacking any animus toward his victims cannot be said to “order,” “incite,” “assist,” or “otherwise participate” in persecution. A contrary ruling, Negusie argues, “would be akin to labeling the victim of a crime as an aider and abettor of that crime.”
Negusie also argues that Congress legislated against the longstanding legal principle that individuals should not be punished for involuntary actions. Absent an express congressional indication otherwise, he says, Congress presumably did not intend to eliminate duress as a defense to asylum-seekers who were themselves forced to engage in persecution. Negusie similarly argues the Fifth Circuit ignored the context in which Congress passed the Refugee Act of 1980, which extended asylum eligibility to anyone in the world. Prior to the Act’s enactment, Congress authorized grants of asylum on an ad-hoc basis for specific conflicts or nations. Congress changed course, the petitioner says, to fulfill its obligations under the 1967 United Nations Protocol Relating to the Status of Refugees. According to the petitioner, the U.N. handbook for interpreting the protocol stated that its exclusion clauses applied only to asylum-seekers who had engaged in “criminal” acts, including “instigators and accomplices,” and that government officials must take any mitigating circumstances into account.
Negusie further argues that the statute does not require the government to grant asylum to every qualified application, but instead leaves such decisions to the discretion of the Justice Department. By construing the statute not to extend the persecutor bar to aliens forced to engage in persecution, the petitioner says, the Court would do nothing more than allow immigration officials to exercise their discretion. Also, because the government is barred under the Convention Against Torture from deporting aliens to any country in which they would suffer persecution – regardless of whether the previously engaged in persecution themselves – finding the petitioner entitled to withholding of removal would make little practical difference to the government.
Finally, the petitioner challenges the Fifth Circuit’s reliance on Fedorenko v. United States (1981), where the Supreme Court held a captured Russian soldier assigned to guard a Nazi concentration camp would not have been eligible for relief under the Displaced Persons Act, a post-World War II governing the admission of European refugees that barred the admission of those who had engaged in persecution. The petitioner argues that the DPA was passed solely to address the humanitarian fallout from the war, that the law used different language than the Refugee Act, and that Federenko himself – in addition to not having faced threats of death or torture – was paid for his service and never attempted to escape during regular leave.
In its brief on the merits, the government primarily argues that the text of the persecutor bar makes no exception for involuntary conduct or actions taken under duress – and that the Attorney General (through the Board of Immigration Appeals) has reasonably interpreted the term “persecution” to apply irrespective of the actor’s motivations. By focusing on conduct rather than state of mind, Congress specifically declined to allow the Attorney General to weigh aliens’ relative “moral offensiveness,” the government says. The brief also notes that with respect to aliens applying for asylum, the BIA has deemed victims of female genital mutilation eligible regardless of whether those performing the procedure – seen as a right of passage in many African countries – acted with benign intent. Furthermore, other sections of the INA, unlike the persecutor bar, makes exceptions for aliens who acted “involuntarily” – such as the ban on admission and naturalization of members of totalitarian parties. And by using the terms “assisted,” “ordered,” “incited,” or “otherwise participated in,” Congress intended to exclude all aliens who took part in the persecution of others, regardless of the extent of their role.
The government also argues that from a historical standpoint, none of the persecutor bars in the asylum laws that preceded the Refugee Act contained exceptions for involuntary conduct. The Displaced Persons Act, for example, barred any European refugee who “assisted the enemy in persecuting civilians.” The Refugee Relief Act of 1953 barred “any person who personally advocated or assisted in…persecution.” And a 1977 law for Vietnamese, Laotian, and Cambodian refugees barred individuals who “ordered, assisted, or otherwise participated in…persecution.” The government, calling the petitioner’s conduct “strikingly similar” to that of the Nazi concentration camp guard in Federenko, says the Court’s decision should apply “in full force.”
Looking to congressional intent, the government says Congress intended to offer asylum to only “the most deserving applicants” and believed “persecution in any form is unacceptable.” Finally, the government argues that any ambiguity in the term “persecution” should be resolved in favor of the Attorney General, not the alien. In addition to the practice of deferring to agencies’ interpretations of statutes they are charged with enforcing, the government says, deferring to the alien would usurp the Attorney General’s discretionary authority.