March 03, 2009

Supreme Court Decides Negusie v. Holder

On March 3, 2009, the Supreme Court decided Negusie v. Holder, No. 07-499.

The Immigration and Naturalization Act ("the Act") excludes from the definition of a "refugee" who is eligible for asylum in the United States any person who has "ordered, incited, assisted, or otherwise participated in" persecution of others because of their race, religion, etc. In Federenko v. United States, 449 U.S. 490 (1981), the Supreme Court held that a similar "persecution bar" in the Displaced Persons Act of 1948 applied even if the person seeking asylum claimed that he had been coerced against his will to participate or assist in persecution. The Board of Immigration Appeals assumed that Federenko likewise established that an asylum-seeker's motivation and intent were irrelevant in applying the Act's persecution bar, and it therefore denied the asylum request of a person from Eritrea who admitted that, before fleeing to the United States, he had been coerced to guard prisoners who were persecuted but whom he had not persecuted himself.

The Court held that the BIA's reliance on Federenko as preventing it from recognizing a coercion exception to the persecution bar in this case was erroneous. It found that the language of the Act differed materially from the language at issue in Federenko and that the Act was ambiguous as to the relevance of coercion or duress. Therefore, the Court remanded the case to allow the agency to resolve the statutory ambiguity without considering its interpretation to be dictated by Federenko.

Justice Kennedy delivered the opinion of the Court, in which Chief Justice Roberts and Justices Scalia, Souter, Ginsburg, and Alito joined. Justice Scalia filed a concurring opinion in which Justice Alito joined. Justice Stevens filed an opinion concurring in part and dissenting in part, in which Justice Breyer joined. Justice Thomas filed a dissenting opinion.

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