Denied US asylum, an Eritrean prison guard appeals to high court

He says he was forced to stand guard as others were tortured and killed.

US immigration law bars the granting of asylum to any foreign national involved in the persecution of others overseas. But what if the asylum seeker was coerced into assisting in abuses or atrocities?

On Wednesday, the US Supreme Court takes up the case of Daniel Negusie, who served for four years as a guard at a military prison in Eritrea where detainees were tortured and killed.

Mr. Negusie says he was forced under threat of death to act as a prison guard, and that although he witnessed torture, he never personally beat or killed anyone.

Two of his friends were killed trying to escape the prison, he says. He eventually fled and stowed away on a cargo ship to the US.

But Negusie's asylum application was denied because, officials said, US law makes no allowance for those who were coerced into assisting acts of persecution.

The law prohibits granting asylum to "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."

Negusie's lawyers say Congress intended to exclude only those who voluntarily participate in persecution. "The threat of being forced to engage in persecution of others itself constitutes persecution," says Washington lawyer Andrew Pincus in Negusie's brief to the court.

He cites atrocities in the Ivory Coast in 2002 and 2003 where rebels waging ethnic warfare sometimes forced people to rape their own relatives. In one case, a middle aged-man told human rights investigators that gunmen forced him to rape his sister while they watched before they raped her. In another instance, a young woman said her brother was killed in front of her after he refused to rape her.

"Such individuals plainly are not persecutors; they are victims of persecution," Mr. Pincus says.

"The consequences of the government's position are breathtaking," he writes. "Entirely blameless conduct would be labeled 'persecution.' "

Solicitor General Gregory Garre says in his brief that Congress sought to draw a bright line in the statute to "firmly dissociate this nation from all those who participated in persecution of others." The brief adds: "The fact that a person may have acted under duress does not make the suffering of his victims any less horrific."

The government's brief says Negusie routinely guarded prisoners who were kept in the hot sun as a form of punishment. At least one person Negusie guarded died during such punishment, the brief says. Negusie "acknowledged his integral role in the torture and execution of prisoners, stating that he was the person responsible for 'mak[ing] sure that [the prisoners] stayed out in the sun," the brief says.

Garre highlights a 1981 Supreme Court decision in a case involving Feodor Fedorenko, a Russian soldier captured during World War II by the Nazis. After serving time as a war prisoner, he became a guard at the Treblinka death camp where 800,000 Jews and others were murdered.

After the war, Mr. Fedorenko came to the US and eventually became a citizen. When his service at the death camp was uncovered, the government sought to strip him of his citizenship and deport him.

Fedorenko claimed his work at the death camp was involuntary, that he was simply following orders. The Supreme Court rejected that argument in a 7-to-2 ruling.

The high court based the ruling on a 1948 immigration law that required the exclusion from the US of anyone who "assisted the enemy in persecuting civilians" or "voluntarily assisted the enemy forces ... in their operations."

After being deported to the Soviet Union, 80-year-old Fedorenko was placed on trial by the Soviets, convicted, and executed in 1987.

"[Negusie's] conduct is strikingly similar to Fedorenko's," Garre says. "Both were trained to serve as prison guards after a period of incarceration by armed forces; both stood guard as persons were tortured and killed on account of protected grounds; both were armed and charged with keeping prisoners from escaping; both received payment for their services; and both served as guards for several years."

Pincus rejects the government's comparison. Negusie refused to carry out the "heinous tasks his oppressors wished him to," he says.

"This case is not about simply following orders," Pincus writes. "He was coerced to remain as a prison guard by threats of death and severe injury."

The consequences of America's categorical policy are heart wrenching, according to lawyers who work with survivor-refugees. Individuals who fled persecution and somehow made it to the US are not only denied sanctuary but face the prospect of being returned to the place of their original persecution, they say.

"The idea of a duress defense is that there are some circumstances where any moral person would have ended up doing what you did," says Anwen Hughes, a lawyer with Human Rights First. "It is very difficult for adjudicators to look at that situation and say, 'Maybe, but legally we don't care, so I've got to order you deported to persecution.' That is what it comes down to."

Ms. Hughes says the US government should recognize the harsh reality experienced by some refugees. "There are forces out there in the world who understand that forcing people to engage in violence against people they care about or people they identify with can be one of the worst things you can do to a person," she says. "For a lot of people, it ends up being the worst thing they suffer beyond whatever purely physical harm they have endured."

Friend-of-the-court briefs chronicle the grim stories. Christian villagers in Burma were forced to destroy their churches, graveyards, and religious monuments and then replace them with military camps and Buddhist pagodas. Child soldiers are proliferating in ongoing conflicts in Burma, Chad, Colombia, the Democratic Republic of Congo, Somalia, and Sudan. Human rights groups say they are frequently forced by commanders to take part in atrocities against their families or communities to stigmatize them and prevent them from returning home.