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Asylum case for immigrants hinges on ‘participation in persecution’ issue

Should an immigrant be denied asylum because he participated in persecution, even if his participation was forced?

The U.S. Supreme Court recently took up a case addressing this question.

Daniel Girmai Negusie, an immigrant with dual citizenship in Eritrea and Ethiopia, was imprisoned in Eritrea for refusing to fight in a war against Ethiopia. After two years, he was forced to work as a prison guard himself until he managed to escape to the United States.

Negusie said he never mistreated prisoners and actually helped them when he could.

In the view of the Bureau of Immigration Appeals, however, Negusie was not eligible for asylum because, as a prison guard, he himself had participated in a system of persecution, and “the persecutor bar applies even if the alien’s assistance in persecution was coerced or otherwise the product of duress.”

The 5th U.S. Circuit Court of Appeals affirmed the BIA’s position.

In a March 3 decision (PDF), the Supreme Court tossed out that ruling, but only on grounds that it rested on the improper application of an earlier decision. “The BIA must interpret the statute, free from this mistaken legal premise,” the opinion said.

Immigration lawyer Benjamin Casper, a solo practitioner currently collaborating with the Immigrant Law Center of Minnesota, spoke with MinnPost about Negusie v. Holder and its significance.

MinnPost: How were you involved with this case?

Benjamin Casper:
I co-authored an amicus brief supporting Negusie’s position, based on a prior experience. In 2000, I represented a guy named Rolando Hernandez in Minnesota. He was a Guatemalan who was forcibly recruited under threat of death by a guerrilla organization and held captive for 21 days. He voiced his objection; they forced him to participate in a firing squad, but he shot off to the side; at his first opportunity, he fled and escaped into Mexico and then into the United States. But in the government’s view, he assisted persecution.

MP: Are you happy with the outcome of Negusie v. Holder?

I’m disappointed with the decision, and I’m also glad about it. The Supreme Court resolved it here in a fairly limited way and punted it back to the Board of Appeals. I wish the court had actually ruled that a different standard is necessary.

The bottom line was that we wanted the government’s rule to be rejected because it’s just stupid. It was legally wrong and morally unsupportable. There are some cases where people as part of their own torture are forced to participate in acts of sexual depravity with family members. By the government’s definition, those people are participating in persecution.

MP: Will the decision have a big impact on Minnesota?

Our community is one in which a disproportionately large amount of our immigrants are refugees and asylees. You’re more likely to see cases like Mr. Hernandez. Or another example is child soldiers, children who are forced as very young kids to take part, maybe their families are killed in front of them and they’re forced into a military group.

MP: So what will happen with those kinds of cases now?

It will require a separate round of advocacy. The Supreme Court essentially said to the government, no, your standard is not justified in the way you say it is, but you’ve got to actually deal with the thorny problem yourself. Now it’s back at the BIA, and the next round will be back there. I have hope that they’ll adopt a test that’s rational, fair and humanitarian. But the fight’s not over by any means.

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