High Court Overturns Guard’s Asylum Denial

(CN) - The U.S. Supreme Court Tuesday overturned the government's refusal to grant asylum to an Eritrean immigrant under a rule that denies immigration to "persecutors." The Eritrean said he had been forced to act as a prison guard.

Daniel Girmai Negusie went to the movies in Eritrea, and police literally dragged him off to join the army. He was then asked to fight for the East African country against its neighbor, Ethiopia. Negusie is a dual citizen of both nations.

When he refused to fight against Ethiopia, he was sent to prison and forced to become a prison guard himself. He carried a gun and prevented prisoners from taking showers and enjoying fresh air. He finally escaped and hid in a container on a boat to the United States.

He applied for asylum, and an immigration judge agreed with him that he would be tortured if he were returned to Eritrea. However, since he did persecute others in his homeland, he was not eligible for asylum.

The BIA and 5th Circuit reached the same conclusion, relying on the 1984 U.S. Supreme Court decision in Fedorenko v. United States that "an alien's motivation and intent are irrelevant to the issue of whether he assisted in persecution...it is the objective effect of an alien's action that is controlling."

Justice Kennedy ruled that Fedorenko is not the correct precedent in this case of a whether Negusie is covered under the Immigration and Nationality Act's "persecutor-bar" exception.

"In holding that voluntariness is not required with respect to such a bar in the Displaced Persons Act of 1948," Kennedy wrote. "Fedorenko contrasted the omission there of the word 'voluntary' with the word's inclusion in a related statutory subsection.

"Because Congress did not use the word 'voluntary' anywhere in the persecutor bar at issue here," Kennedy added, "its omission cannot carry the same significance it did in Fedorenko."

The Supreme Court remanded the case to the BIA to decide it without the influence of Fedorenko as a controlling precedent.

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