Supreme Court hears Negusie

Daniel G. Negusie, a former guard in Eritrea, escaped to the United States where he would have faced torture were he returned to Eritrea. However an immigration judge, citing a 1980 law that bars the government from even considering granting asylum to people who had participated in persecution, denied him asylum. The New York Times reports:

The question before the Supreme Court was whether that seemingly categorical “persecutor bar” should include an exception for conduct performed under duress

Justice Stephen G. Breyer grew emphatic in insisting that the court was free to interpret the statute to require a level of intentional or voluntary conduct. Those requirements, Justice Breyer said, were deeply rooted in the law and in thousands of years of human history “which traces back to at least Aristotle.”

Justice Antonin Scalia agreed. “Limiting the nation’s generosity,” he said, “may or may not have anything to do with blame.”

Chief Justice John G. Roberts Jr. focused on the language of the law itself. He said it barred asylum claims only from people who “participated in persecution on account of race, religion” or other characteristics.

Justice Ruth Bader Ginsburg asked whether the categorical exclusion of people who had committed persecution under duress “was special to the Holocaust” and whether the court should consider how other nations now treat “this notion of duress, coercion.”

Justice Samuel A. Alito Jr. pressed Mr. Negusie’s lawyer, Andrew J. Pincus, to define what level of coercion might justify what level of persecution. “There are 500 men, women and children in a shed,” Justice Alito said. “If you don’t administer lethal gas to them, we are going to administer 20 lashes — that would be sufficient in your view?"

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