November 6, 2008 11:28 AM
Mayer Brown Argues Eritrean Accused of Torture Deserves Asylum
Posted by Zach Lowe
Should the United States deny political asylum to a man who, out of fear for his own life, stood by as others were tortured?
That's the question at the heart of the case Mayer Brown's Andrew Pincus argued before the U.S. Supreme Court on Wednesday. Pincus describes the case of Eritrean national Daniel Negusie as an "extremely interesting" one that, depending on how the Court rules, could help develop a unified standard for certain kinds of immigration cases: those of asylum-seekers who claim they committed torture or other abuses in their native countries only to save their own lives.
In Negusie's case, he was forced to serve as a prison guard (at a prison where he was once an inmate himself) after completing years of mandatory military service in the country's war against Ethiopia. Negusie admits that while working as a guard, he watched as inmates were forced to lay out in the hot sun for hours and subjected to other forms of abuse.
And based on a 1980 federal law, that admission was enough to disqualify him for asylum, according to every judge or panel that has heard the case so far; most recently, the U.S. Court of Appeals for the Fifth Circuit ruled against Negusie last year.
Negusie counters by claiming that he never beat or killed anyone and even snuck water to at least one prisoner. Beyond that, he argues, he became so disgusted with his plight that he escaped Eritrea, stowed away on a U.S. cargo ship and arrived in this country in about 2004.
Now, Negusie is caught in an immigration limbo: The government has held up his deportation because he could face torture upon his return to Eritrea. But they've denied permanent asylum, Pincus says. (He is currently living in Alabama, Pincus says.)
Government lawyers have taken the position that any asylum candidate who participates in torture can be denied that status--and that the candidate's willingness to do so is irrelevant. The key precedent is a 1981 case in which the high court revoked the citizenship of a former Nazi prison guard who said his service was involuntary, the New York Times reports. At least one federal appeals court -- the Eighth Circuit -- has ruled otherwise in a separate case, and Pincus says the U.S. needs a unified standard for these cases to address the issue so civilians drafted into civil wars against their will.
"The risk of people being forced to fight for one side or the other is becoming greater and greater," he says.
Pincus, who got the case from Negusie's immigration attorney after the Fifth Circuit loss, wouldn't comment on oral arguments, saying only that all the justices seemed engaged and asked questions "that ran the whole gamut." Pincus co-teaches a class at Yale Law School, and students in the school's Supreme Court clinic (led by Professor Dan Kahan) helped prepare the cert petition last year.
"It's always a long shot that the Court will take a case," says Pincus, "but we felt like we have a credible case."
The Court appeared to be divided on the case, the Times says, with at least one justice (Ruth Bader Ginsburg) asking if the Court should look to other nations' immigration systems for guidance. Chief Justice John Roberts, Jr., strongly questioned whether the so-called persecutor ban should apply to someone in Negusie's situation, the Times says.
"“When these people are forced to engage in persecution, it’s not because of the victim’s race or religion," Roberts said, according to the paper. "It’s because someone’s got a gun at their head.”Make a comment