The Supremes Speak

This week, the Supreme Court took the rare step of deciding an asylum case, Negusie v. Holder, which examines the availability of a duress exception to the persecutor bar. The Court has decided very few asylum cases in its history, and when it does so, the result is often messy. The Negusie decision is no exception– while Justice Kennedy commands a majority of six, the proliferation of concurrences and dissents doesn’t inspire confidence in the unity of the court. It does, however, make for a fun read for immigration law junkies as well as for aficionados of administrative law and moral philosophers.

First, for the admin law types, this case continues and amplifies recent tussles in the immigration field over who has the authority to interpret the Immigration and Nationality Act — the federal courts or the Board of Immigration Appeals (the administrative entity charged with reviewing immigration court decisions and establishing national uniformity in immigration law). Kennedy’s majority opinion gives some deference to the administrative agency (deference that, in my opinion, is misplaced, given the dysfunctional nature of the Board, which I’ve discussed in more detail here), finding that while the Board misapplied precedent in interpreting the statute to preclude a duress exception to the persecutor bar, it should be allowed to reinterpret the statute free from this error. But as Scalia notes in his concurrence, the tone of the opinion indicates that Kennedy thinks the Board should come down in favor of a duress exception. Scalia disagrees with this approach, arguing that the Board “deserve[s] to be told clearly whether we are serious about allowing them to exercise . . . discretion, or are rather firing a warning shot across the bow.”

Stevens and Breyer, on the other hand, think the warning shot isn’t clear enough, finding that the question of whether the duress exception exists is one for the courts, and that the role of the administrative agency should be to determine how to apply the standard to be used in deciding whether participation in persecution was voluntary or coerced. Thomas doesn’t explicitly address whether the authority to interpret this provision of the statute should lie with the courts or the administrative agency; he thinks that the Board’s underlying decision was correct because the language of the statute doesn’t contain a duress exception.


For the moral philosophers among us, the duress exception to the persecutor bar presents questions ripe for study. Immigrants within the borders of the United States who fear persecution in their homeland on account of one of five protected grounds are eligible for asylum, which is granted as a matter of discretion. The statute bars from asylum protection those who have “ordered, incited, or participated in the” persecution of others on account of one of the five grounds — thus a Hutu who had persecuted Tutsis during the genocide in Rwanda and then suffered persecution under the Kagame regime would not be eligible for asylum in the United States, and Mr. Negusie, who was tortured and then forced to work as a prison guard by the Eritrean government, may be excluded from asylum for acts he performed under coercion.

Is the reason for the persecutor bar, as Negusie argues, “because ‘persecution” presumes moral blameworthiness”? More importantly, does it then follow that those who persecute under duress are not culpable? Can coercion ever be an excuse for intentional killing? Or, as Scalia argues, is the persecutor bar simply a measure of desirability? Can we assume that those who persecuted others would be “relatively undesirable” as immigrants? Should this matter in the context of asylum, when the individual’s life may hang in the balance? Is it morally appropriate to lay down a bright line rule that excludes all those involved in persecution from asylum status, rather than examining individual situations on a case-by-case basis?

Difficult questions, all, and I’m afraid I don’t share the Supreme Court’s confidence in the Board of Immigration Appeals’ ability to answer them impartially, thoughtfully and fairly. Mr. Negusie will just have to wait and see.

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3 Responses

  1. Matt says:

    It seems to me that Scalia’s argument would have more force if the rules for granting withholding of removal didn’t have the same language. To my mind, the best way to understand the withholding rule is that it recognizes that there are some people who legitimately need protection but who, for various reasons, we do not think should have the option to become citizens, as those granted asylum eventually do. This seems quite reasonable to me. I’m pretty skeptical that all former persecutors, including those who were clearly and seriously coerced into taking part in the persecution, fall into the category of people who we want to prevent from having access to citizenship. From what I understand about Negusie’s case, it seems unreasonable to me to see him in that light. But, having such a category does not seem unreasonable. But if the withholding rule has the same “persecutor” bar, and it’s applied the same way, this makes the categorical application of the rule much more suspect from a moral point of view, it seems to me. (My preference would be for the “persecutor” bar to be read to have exceptions both for asylum and withholding, but if we don’t at least have one for withholding, then it seems to me that Scalia’s argument is not a very good one.)

  2. Jaya says:

    Thanks for your comment, Matt. While withholding of removal has the same persecutor bar, deferral of removal under the Convention Against Torture does not — and that’s what Scalia relies upon in his argument. (I discuss the CAT issue further on IntLawGrrls: http://intlawgrrls.blogspot.com/2009/03/cats-double-edged-sword.html).

  3. Matt says:

    Hi Jaya,- thanks for pointing me to the other post- it was very interesting. I agree that CAT withholding and similar lesser remedies can’t be a general substitute for asylum. It’s not even a substitute for “normal” withholding, as you of course know, since it’s pretty hard to get, both because of the evidentiary standards and because of the stronger state-actor standards. The second, in particular, seems to me important in cases where we are considering someone who was a non-willing persecutor, as it’s not hard to imagine the danger not directly coming from the state in those cases.