On March 3, 2009, the Supreme Court reversed a lower court decision holding that the so-called “persecutor bar,” which prohibits granting refugee protection to anyone who “ordered, incited, assisted, or otherwise participated in the persecution” of another person, applied without regard to whether a refugee’s involvement in acts of persecution was the result of coercion. In its March 3rd decision in Negusie v. Holder, the Supreme Court held that the U.S. Court of Appeals for the Fifth Circuit and the Board of Immigration Appeals had mistakenly relied on a prior Supreme Court decision in ruling that duress was irrelevant to the application of the persecutor bar. The Supreme Court stated that its 1981 decision in Fedorenko v. United States did not apply to this case because it concerned the Displaced Persons Act of 1948 rather than the relevant Refugee Act of 1980. The Court remanded the Negusie case so that the Board of Immigration Appeals could interpret the “persecutor bar” of the Refugee Act in the first instance.
As the Supreme Court has previously recognized and noted again in this decision, Congress passed the Refugee Act in order to implement the United States’ obligations under the 1951 U.N. Refugee Convention and its 1967 Protocol. The Court’s decision in Negusie gives the Board of Immigration Appeals the opportunity to fulfill those obligations by recognizing that the persecutor bar applies only to culpable, voluntary acts, as other states parties to the Convention and the Protocol have done. As Justice Stevens noted in a separate opinion, “[w]ithout an exception for involuntary action, the Refuge Act’s bar would . . . treat entire classes of victims as persecutors.”
The Court’s decision was written by Justice Kennedy, joined by Chief Justice Roberts and Justices Scalia, Souter, Ginsburg, and Alito, with a concurring opinion by Justice Scalia (joined by Justice Alito) and an opinion by Justice Stevens (joined by Justice Breyer) concurring in part and dissenting in part. Justice Thomas dissented. The read the decision, click here
The petitioner in this case was represented by the law firm of Mayer Brown LLP and the Supreme Court Clinic at Yale Law School. Human Rights First helped coordinate amicus briefing in the case and submitted an amicus brief describing the range of refugees who could be affected by the ultimate decision in this case. To read the amicus brief, click here
For additional information about this issue, please contact Anwen Hughes at HughesA@humanrightsfirst.org.