David A. Karp, Setting the “Persecutor Bar” for Political Asylum after Negusie: Negusie v. Holder, 129 S. Ct. 1159 (2009)

61 Fla. L. Rev. 933 (2009) | | | |

INTRODUCTION :: After night fell in the port city of Massawra, Eritrea, Daniel Girmai Negusie slipped out of the military prison where he had been held for four years. During the day, he hid at a friend’s house; at night, he swam out to container ships anchored off the coast of the Red Sea. On his fifth night, Negusie, twenty-eight years old, slipped into a luggage container with an air hole aboard a tanker, the Atlantic Forest. He said later that he did not know where the ship was headed.

When the Atlantic Forest arrived a month later on December 14, 2004, in Morehead City, North Carolina, crew members found Negusie and two other stowaways inside the containers. Negusie had the equivalent of $ 10.60 in Eritrean money on him.

Negusie told immigration officials that if sent back to Eritrea, he would be killed for deserting and for converting to Christianity. He applied for political asylum and withholding of removal from the United States based on a “well-founded fear of persecution.” But an immigration judge denied his application, and the Board of Immigration Appeals (BIA) and the U.S. Court of Appeals for the Fifth Circuit affirmed.


While the immigration judge found that Negusie had been conscripted into the army and then abused in prison in Eritrea, the judge also determined that Negusie had been forced to work as a prison guard, a position in which he helped punish others. Thus, federal law treated Negusie both as a victim and as a perpetrator. Although he had been forced-at gunpoint-to act as an accomplice to persecution, federal law imposed a black-and-white bar on granting political asylum to anyone who helped persecute others. The law did not allow immigration officials to consider the moral culpability of the persecutor, or to evaluate whether the persecutor was coerced. As the Fifth Circuit explained, “The question whether an alien was compelled to assist authorities is irrelevant, as is the question whether the alien shared the authorities’ intentions.”

With help from a group of Yale law students, Negusie appealed to the United States Supreme Court. In March, the Court reversed. In an 8-to-1 decision, the Court held that federal law did not require officials evaluating Negusie’s political asylum application to ignore whether he had been coerced into persecuting others. But rather than decide the full meaning of the federal law, the Court sent Negusie’s case back to the Board of Immigration Appeals. It instructed the BIA, an executive arm of the Justice Department whose members are appointed by and serve the Attorney General, to first interpret the ambiguity in the law.

By remanding the case back to the executive branch, the Court displayed the type of “judicial modesty” that Chief Justice John G. Roberts, Jr. has touted as a hallmark of judicial restraint. The Court’s limited decision allowed the Court to speak with near unanimity and eliminated any appearance that the Court was crafting immigration policy from the bench. The decision also placed the complicated public policy choice at the heart of Negusie’s case before the politically-accountable executive branch. It allowed Attorney General Eric Holder to craft immigration policy that balances international relations, humanitarian concerns, and America’s intolerance of persecution.

Yet, as Justice John Paul Stevens argued in a separate opinion, the Court did not abdicate its responsibility to “say what the law is.” The Court reserved the right under the Chevron doctrine to review the BIA’s interpretation to ensure that it complied with Congress’ intent. Thus, Negusie stands as an example of the Roberts Court’s pragmatism and shows the wisdom of deferring to the political branches in close calls of statutory interpretation.

The complexity of Negusie’s case, which presented questions of foreign affairs, international law, and Congress’ plenary immigration power, illustrates why courts so often ask the political branches to settle these types of policy issues. Negusie was born in the Horn of Africa, a region beset by malnutrition, human rights abuses, and war. Almost two-thirds of Ethiopia’s population is illiterate, and an estimated 980,000 people live with AIDS. According to Amnesty International, human rights violations are rampant amid this poverty. The Eritrean government banned minority religions in 2002, arrested hundreds of believers, and held them without trial.The government regularly jails- and sometimes tortures-political opponents, and forces children into military service. If children try to escape conscription, they may be killed or their family members may be tortured.

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