The U.S. Supreme Court, the highest court in our country, has ruled that an Eritrean prison guard who was forced to persecute inmates can still be considered for asylum in the United States. The high court reversed a lower court decision on the fate of former Eritrean prison guard Daniel Girmai Negusie by overturning a broad interpretation of the statute barring persecutors from eligibility for asylum even if their participation was under threat of death. The Court held that both the Board of Immigration Appeals (BIA) and the U.S. Court of Appeals for the Fifth Circuit erred in relying on the Court’s 1981 decision in Fedorenko v. United States, in applying what is known as the “persecutor bar” to asylum.
The Supreme Court held that the BIA and the Fifth Circuit misapplied Fedorenko as mandating that whether an alien is compelled to assist in persecution is immaterial for prosecutor-bar purposes, and held that the BIA must interpret the statute, free from this mistaken legal premise, in the first instance.
Daniel Girmai Negusie, petitioner in the case, was forced to serve as a guard in the prison camp in which he himself had been imprisoned and tortured for his refusal to serve in the Eritrean military. He later sought asylum in the United States. Negusie eventually escaped to the United States and applied for asylum.
The U.S. Court of Appeals for the Fifth Circuit upheld the denial of asylum, holding that because the “objective effect” of Mr. Negusie’s conduct – even though involuntary – assisted persecution of others in the camp, he was barred from protection. The unpublished opinion of the Fifth Circuit is reprinted in 231 Fed. App’x 325.
Eighth Circuit Finds Reliance on State Department Investigation Violates Due Process
In Banat v. Holder, the Eighth Circuit recently held that “[r]eliance on reports of investigations that do not provide sufficient information about how the investigation was conducted are fundamentally unfair because, without that information, it is nearly impossible for the immigration court to assess the report’s probative value and the asylum applicant is not allowed a meaningful opportunity to rebut the investigation’s allegations.”
The Court went on to say that the report in this case was glaringly deficient in providing the most basic indicia of its circumstantial probability of reliability.
Bassel Banat is a Palestinian refugee who was born and lived most of his life in Beirut, Lebanon. While at the airport, he was told to go with the men to answer some questions, and he was blindfolded, handcuffed, and driven away in a car. Lebanese officials at the airport witnessed his abduction but did nothing to stop it. According to Banat’s story, he was held for several days at a Palestinian refugee camp, questioned, and beaten. His captors spoke with Syrian accents, but he thought some were also Lebanese. The outside of the building indicated it belonged to the Popular Front for the Liberation of Palestine (PFLP). After arriving in the United States, Banat’s father sent him a handwritten letter purporting to be from the PFLP that had been sent to Banat’s Lebanon address prior to his return to the United States. The letter commanded Banat to return for questioning on January 26, 2002, and threatened death if he did not comply. Banat’s parents allegedly received numerous threatening inquiries from the PFLP about his whereabouts. When his father died, Banat did not attend the funeral, and allegedly there were armed PFLP men at the funeral looking for Banat.
The Department of Homeland Security had not verified the authenticity of the letter, and the Immigration Judge inquired with the State Department about its authenticity. The State Department responded with a letter dated March 22, 2006, and acknowledged that the U.S. Embassy in Beirut had not had any previous experience with that type of document, but that its investigation suggested that the letter had been fabricated.
The Court ruled that the Immigration Judge’s reliance on a State Department letter in making adverse credibility finding violated the Banat’s due process right to a fundamentally fair hearing, and that Banat was prejudiced by the due process violation.
Nothing in this article should be taken as legal advice for an individual case or situation. The information is intended to be general and should not be relied upon for any specific situation. For legal advice, consult an attorney experienced in immigration law.
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About Igbanugo Partners International Law Firm
Igbanugo Partners Int'l Law Firm is based in Minneapolis, Minnesota. It focuses on (1) U.S. immigration law and (2) international trade law in Sub-Saharan Africa.
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