Beth Werlin, Deputy Legal Director for the American Immigration Council, discusses the recent...
Supreme Court Holds that Fifth Circuit Misapplied Fedorenko v. United States
Negusie v. Holder, 555 U.S. 511 (2009)
In an 8-1 decision, the Supreme Court held that the Fifth Circuit misapplied the Supreme Court case, Fedorenko v. United States, 449 U.S. 490 (1981), to find that the persecutor bar at INA § 208(b)(2)(A)(i) applies even if a person's assistance in persecution was coerced or the product of duress.
Negusie involved an Eritrean citizen who worked as an armed prison guard. He objected to and occasionally disobeyed orders to inflict punishment on the prisoners. Nonetheless, relying on its earlier decisions that found Fedorenko controlling, the BIA ruled that Negusie assisted in the persecution of others and therefore was statutorily ineligible for asylum and withholding of removal. The Fifth Circuit affirmed the BIA's decision, noting that whether Petitioner was compelled to assist authorities or whether he shares the authorities' intentions is irrelevant.
The Supreme Court disagreed and held that Fedorenko addressed a different statute enacted for a different purpose and should not control the BIA's interpretation of the persecutor bar at issue in Negusie. Because the BIA wrongly deemed its interpretation of the persecutor bar to be mandated by Fedorenko, and therefore did not interpret the statute in the first instance, the Court applied the ordinary remand rule established in INS v. Ventura, 537 U.S. 12 (2002), and remanded to the BIA to fully consider the statutory question presented. The court noted that the persecutor bar provision is ambiguous and therefore, the BIA's interpretation of the statute is entitled to deference under Chevron U.S.A. Inc. v. Natural Resources Defense Council, Inc., 467 U.S. 837 (1984).