Negusie v. Mukasey: Supreme Court Reverses Fifth Circuit

The Supreme Court issued an opinion on Negusie v. Mukasey (here for more):

“In this case the Board of Immigration Appeals (BIA) determined that the persecutor bar [to asylum] applies even if the alien’s assistance in persecution was coerced or otherwise the product of duress. In so ruling the BIA followed its earlier decisions that found Fedorenko v. United States, 449 U. S. 490 (1981), controlling. The Court of Appeals for the Fifth Circuit, in affirming the agency, relied on its precedent following the same reasoning. We hold that the BIA and the Court of Appeals misapplied Fedorenko. We reverse and remand for the agency to interpret the statute, free from the error, in the first instance.” Download 07-499.pd

The issue presented by the case is whether the provision of the Immigration and Naturalization Act that prohibits the granting of asylum to individuals found to have themselves engaged in persecution applies to those who were compelled to do so by threats of deaths or torture. The petitioner in the case, Daniel Girmai Negusie, at age 18, was forcibly conscripted by Eritrean military forces in the longstanding war with Ethiopia. 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. Following his term of imprisonment, Negusie was directed to serve as a guard at the same prison where he had been held. Torture reportedly is common at the prison. Based on his work as a prisoner, the Fifth Circuit denied Negusie relief, finding the forcible service as a prison guard irrelevant to deciding applicability of the bar.

The Court reversed the Fifth Circuit's decision for the U.S. government and remanded, Justice Kennedy wrote the opinion for an 8-1 Court. Justice Scalia concurred, joined by Justice Alito. Justice Stevens concurred in part and dissented in part, joined by Justice Breyer. Justice Thomas filed a dissent.

For Thomas Ragland's analysis of the Supreme Court's recent decision in Neguisie v. Holder, which addressed the bar on asylum to persecutors, click here.

(HT: ImmigrationProf Blog)