Persecuted or persecutor?

It’s the sort of thing you might expect to see on a final exam for Ethics 101.
According to court records, Daniel Negusie was born to an Eritrean father and an Ethiopian mother, a dual-national of two African nations with, to say the least, a stormy history.
Negusie grew up in Ethiopia but moved to Eritrea when he turned 18 in 1994. When war broke out between the two countries in 1998, Negusie was forced to join the Eritrean army.
Negusie refused to fight against his former homeland, saying he considered them his “brothers.” Negusie was thrown in prison for his refusal to fight and because he was half-Ethiopian, where his initial sentence was six months of solitary confinement.
Negusie served an additional year and a half of forced labor after his term of solitary confinement. Because he converted to Protestant Christianity while in prison, Negusie faced additional persecution.
On at least one occasion, Negusie was forced to roll on the ground in the hot sun while being beaten with a stick every day for two weeks for talking with fellow Christians in the prison.
Upon his release in 2001, Negusie was forced to perform duties as a prison guard. He was never permitted to leave the military base and would have been executed if he tried to flee. At least two of Negusie’s friends were killed for attempting to escape their duties.
In his duties as a guard, Negusie said he carried a gun, guarded the gate to prevent escape and kept prisoners from taking showers and obtaining fresh air. He was at times forced to keep prisoners in the sun as a form of punishment. He watched at least one person die after enduring extended sun exposure.
Negusie said that he never shot at or directly punished any prisoners, and had attempted to help prisoners by permitting them to take showers in secret at night, giving them food, water and cigarettes in secret and letting them out into the fresh air at night.
In 2004, Negusie escaped by swimming out to a container ship in the Red Sea and sneaking on board with food and water. He arrived in the United States a month later and filed for asylum.
At this point, Negusie’s fate was in the hands of the law.
An immigration judge rejected Negusie’s asylum claim, and the Board of Immigration Appeals and the Fifth Circuit Court of Appeals upheld the judge’s ruling.
Negusie’s problem was the “persecutor bar,” a section of immigration law that prohibits “any person who ordered, incited, assisted, or otherwise participated in the persecution of any person on account of race, religion, nationality, membership in a particular social group, or political opinion” from receiving asylum.
Based on this law and previous court precedent, the immigration judge, board and appellate court all agreed that although Negusie “was credible” and that there was “no evidence to establish [he] is a malicious person or that he was an aggressive person who mistreated the prisoners … the very fact that he helped keep [the prisoners] in the prison compound where he had reason to know that they were persecuted constitutes assisting in the persecution of others and bars [him] from relief.”
So Negusie took his case to the Supreme Court. The Court’s decision, issued last Tuesday, essentially bounced Negusie back down to the Board of Immigration Appeals, with the specific instruction that the earlier Court case upon which the board based their decision — a 1980 decision involving former guards from the Treblinka concentration camp — was not applicable in this case, and the decision whether the persecutor bar applied to involuntary oppressors was one that the board still had to make.
Fortunately for Negusie, this decision reversed the prior decisions and granted him the possibility of gaining asylum when his case goes back before the board.
Unfortunately for Negusie, his asylum status is still up in the air, and his plea for asylum could still be denied.
Consistent with the thorny nature of the case, four different Supreme Court justices wrote opinions. All except for one agreed that Negusie deserved another hearing. There was marked disagreement, however, when it came to deciding whose duty it was to determine whether coercion was a valid exemption from the persecutor bar.
Justice John Paul Stevens wrote in a concurring opinion that, while he agreed Negusie should get a new hearing, he thought it was the job of the court to interpret the persecutor bar to apply only to those who acted of their own volition.
Stevens wrote that the law was not intended to keep out individuals who acted under coercion or duress. He thought that the court should have clarified the law, and then left the Board of Immigration Appeals to determine whether, in his particular situation, Negusie had actually acted under coercion or duress.
Justice Clarence Thomas, the lone dissenter in the case, argued that the statutory language was abundantly clear and that the court’s job was simply to uphold the law.
The controlling law, Thomas wrote, “unambiguously precludes any inquiry into whether the persecutor acted voluntarily.” According to the plain language of the statute, it didn’t matter what Negusie thought about what he did, under the law, he could not be granted asylum.
As things stand now, Negusie’s situation is still unclear. He must again face the Board of Immigration Appeals, and he still has the option to appeal the board’s decision in the courts, if it’s unfavorable.
As Justice Antonin Scalia noted in his opinion, “the culpability of one who harms another under coercion is, and has always been, a subject of intense debate, raising profound questions of moral philosophy and individual responsibility.”
These “profound questions” mentioned by Scalia have yet to be answered in Negusie’s case.
The final decision in this case will tell us a great deal about how our nation deals with the letter, the policy and the humanity of the law.

Jake Parsley welcomes comments to jparsley@mndaily.com.