Negusie v. Holder

PETITIONER:Daniel Girmai Negusie
RESPONDENT:Eric H. Holder, Jr., Attorney General

DOCKET NO.: 07-499
DECIDED BY: Roberts Court (2006-2009)
LOWER COURT: United States Court of Appeals for the Fifth Circuit

CITATION: 555 US (2009)
ARGUED: Nov 05, 2008
DECIDED: Mar 03, 2009

Andrew J. Pincus – argued the cause for the petitioner
Gregory G. Katsas – argued the cause for the respondent

Facts of the case

Daniel Negusie, an Eritrean citizen, worked as a prison guard in Eritrea before seeking asylum in the United States. When Negusie tried to come into the country, however, the U.S. Immigration and Naturalization Service (INS) denied his application for asylum and withholding of removal. The INS based its decision on evidence that Negusie assisted in the persecution of prison inmates on the basis of a protected ground, specifically, the prisoners’ Protestant religious beliefs. Negusie appealed his case to the Board of Immigration Appeals (BIA), arguing that he did not voluntarily assist in the persecution but rather attempted to help the individuals who were being mistreated.

The BIA gave little weight to Negusie’s argument that he was trying to help the prisoners, instead focusing on his more prominent involvement in the persecution as an armed guard who oversaw and was complicit in the acts. After the BIA upheld the INS’ denial of his application for asylum and withholding of removal, Negusie filed a petition to have his case reviewed before the U.S. Court of Appeals for the Fifth Circuit. Finding that the evidence from the BIA decision did not compel a conclusion that Negusie was uninvolved in the persecution of inmates, the Fifth Circuit denied his petition.


Can a foreign citizen who is denied asylum due to his involvement in the persecution of others on the basis of a protected ground argue that he was compelled to do so by his military superiors and, on several occasions, actually attempted to help those who were being persecuted?

Media for Negusie v. Holder

Audio Transcription for Oral Argument – November 05, 2008 in Negusie v. Holder

Audio Transcription for Opinion Announcement – March 03, 2009 in Negusie v. Holder

John G. Roberts, Jr.:

Justice Kennedy has our opinion this morning in case 07-499, Negusie versus Holder.

Anthony M. Kennedy:

This case arises under the Immigration and Nationality Act.

It concerns a provision of the Act that is commonly called the persecutor bar.

With certain simplifications under the Act, an alien who is deportable can seek refugee status here if he has shown a well-founded fear of prosecution in his country once he’s been returned to it, but the alien is not eligible for refugee status if before coming here, he himself assisted or otherwise participated in other acts of prosecution.

The persecution must be on account of certain protected characteristics such as of raise, religion, or national origin.

If the alien engaged in those acts, the so-called persecutor bar in the statute prevents him from getting the refugee status.

This alien, Daniel Girmai Negusie, is the petitioner in this case when the petitioner sought refugee status, he found himself disqualified by reason of the persecutor bar.

He countered that he’d been forced or coerced to assist in the prosecution.

We granted certiorari to consider whether the prosecutor bar applies if an alien has been forced or coerced in prosecuting others.

Petitioner is a dual national of Eritrea and Ethiopia.

He was conscripted into the Eritrea in military in the 1990s.

When the petitioner refused to file against Ethiopia, his other native, he was incarcerated and persecuted in Eritrea.

The Eritrean Government then forced him to work as an armed guard in a prison where individuals were persecuted.

The immigration judge found that the petitioner had not shot at or directly prosecuted the inmates, but the petitioner did guard them at gunpoint and forced them to remain in the hand sand which he knew was a form of persecution.

The petitioner escaped and fled to the United States.

Here, he applied for the refugee status in the form of asylum and withholding of removal based on the persecution he suffered in Eritrea.

The immigration judge, the Board of Immigration Appeals and the United States Court of Appeals for the Fifth Circuit all concluded that the persecutor bar does apply even if the petitioner’s assistance in persecution was coerced or otherwise, the product of duress.

The petitioner argues that the statutory text, the structure, and the history make clear that involuntary acts do not implicate the persecutor bar and the Government on the other hand argues that Congress explicitly spoke to the contrary by not including a duress exception.

Because there is substance to both contentions, we find that the statute has an ambiguity that the agency should address in the first instance.

In deciding this case and in ruling against the petitioner, the agency and the Court of Appeals relied on a case from this Court.

That case was Fedorenko versus United States decided in 1981, but Fedorenko arose under a different statute than the one we consider here and the Fedorenko’s statute was enacted for a different purpose.

We now conclude it was error to treat the result or the reasoning Fedorenko is controlling the interpretation of the prosecutor bar at issue here.

A review of the agency’s prior decisions on point reveals that the agency has erroneously felt itself bound by our decision of Fedorenko and thus, believed it had no discretion to exercise.

Having concluded that the agency has not yet exercised its Chevron discretion, we see no reason to depart from the ordinary remand rule that is well-established and no administrative law precedent.

Here, the agency can bring in its expertise to bear on the matter and so doing it can through informed discussion and analysis help a court later determine whether the agency’s interpretation exceeds the leeway the law provides.

We thus remand to the agency for consideration of the question in the first instance.

The judgment of the United States Court of Appeals for the Fifth Circuit is reversed.

The case is remanded for further proceedings consisted with this opinion.

Justice Scalia has filed a concurring opinion in which Justice Alito has joined.

Justice Stevens has filed an opinion concurring in part and dissenting in part, in which Justice Breyer has joined.

Anthony M. Kennedy:

Justice Thomas has filed a dissenting opinion.