After the former guard, Daniel G. Negusie, escaped to the United States, an immigration judge found that he would face torture were he returned to Eritrea but, citing a 1980 law that bars the government from even considering granting asylum to people who had participated in persecution, denied him asylum.
The question before the Supreme Court was whether that seemingly categorical “persecutor bar” should include an exception for conduct performed under duress. The justices approached the issue from revealingly different perspectives, invoking morality, history and plain English.
Justice Stephen G. Breyer grew emphatic in insisting that the court was free to interpret the statute to require a level of intentional or voluntary conduct. Those requirements, Justice Breyer said, were deeply rooted in the law and in thousands of years of human history “which traces back to at least Aristotle.”
An assistant attorney general, Gregory G. Katsas, responded that it might be appropriate to read such requirements into criminal statutes. But asylum, Mr. Katsas said, is different.
Justice Antonin Scalia agreed. “Limiting the nation’s generosity,” he said, “may or may not have anything to do with blame.”
Chief Justice John G. Roberts Jr. focused on the language of the law itself. He said it barred asylum claims only from people who “participated in persecution on account of race, religion” or other characteristics.
“When these people are forced to engage in persecution,” the chief justice said, “it’s not because of the victim’s race or religion. It’s because someone’s got a gun at their head.”
Mr. Katsas said the chief justice’s interpretation would gut the law and protect “every single guard at Treblinka,” the Nazi death camp, since a simple assertion that they were following orders could then merit asylum. “Persecution,” he added, “is not typically a grass-roots phenomenon.”
Mr. Katsas acknowledged that there were “sympathetic persecutors” who must nonetheless be denied asylum. The immigration judge had said Mr. Negusie’s conduct as a guard had been neither malicious nor aggressive. At the asylum hearing, though, Mr. Negusie acknowledged that his duties included punishing prisoners “by exposing them to the extreme sun heat,” which could be lethal.
In 1981, in Fedorenko v. United States, the court revoked the citizenship of a former guard at a Nazi concentration camp who claimed that his service had been involuntary. Much of the argument in Negusie v. Mukasey, No. 07-499, concerned the significance of that earlier case.
Justice Ruth Bader Ginsburg asked whether the categorical exclusion of people who had committed persecution under duress “was special to the Holocaust” and whether the court should consider how other nations now treat “this notion of duress, coercion.”
Mr. Katsas said it would have been odd for “the uniquely horrific nature of the Nazi regime” to result in “a dramatically expanded class of people who can credibly raise a duress defense.” He did not respond to the question about consulting foreign law.
Justice Samuel A. Alito Jr. pressed Mr. Negusie’s lawyer, Andrew J. Pincus, to define what level of coercion might justify what level of persecution. “There are 500 men, women and children in a shed,” Justice Alito said. “If you don’t administer lethal gas to them, we are going to administer 20 lashes — that would be sufficient in your view?”
Mr. Pincus avoided answering the question directly. The question in the case, he said, was whether the immigration system may take any account of persecution under duress. The attorney general, Mr. Pincus said, would retain wide discretion to decide when to grant asylum even if the court allowed for a duress exception.
The court was less engaged in the day’s second argument, Van de Kamp v. Goldstein, No. 07-854, which concerned prosecutorial immunity. It was brought by Thomas L. Goldstein, who served 24 years in prison for murder based on false testimony from a jailhouse informant.
Prosecutors are ordinarily immune from lawsuits arising from their work
in court cases. Mr. Goldstein sued a former district attorney and his deputy
on the theory that they had failed in their administrative duties, as
opposed to their immunized work in court, by not setting up a system to
share information about informants. Several justices expressed skepticism
about Mr. Goldstein’s effort to distinguish between administrative and court
duties.