Law School clinic wins second case

The United States Supreme Court has handed Yale Law School’s Supreme Court Clinic another victory, the clinic’s second in the span of just six weeks.

The nation’s highest court ruled 8-1 Tuesday that former Eritrean prison guard Daniel Girmai Negusie, who was forced by the Eritrean government to mistreat inmates in his homeland, could still be considered for asylum in the United States. The Court reversed the appellate court’s decision in Negusie v. Holder that a Congressional statute barring persecutors from obtaining asylum also applied to people forced to persecute others.

In the case, the clinic — which is in its third year — prepared the main arguments on behalf of the plaintiff. Negusie, a dual national of Ethiopia and Eritrea, was conscripted to work as a prison guard from 2001 to 2005 by the Eritrean government when he refused to fight against Ethiopia. Under duress, Negusie said, he kept prisoners from taking showers and getting fresh air but added that he never shot or directly punished any prisoner.

In May 2007, the 5th U.S. Circuit Court of Appeals ruled that the Refugee Act of 1980 prevented anyone who “ordered, incited, assisted or otherwise participated” in persecution from seeking asylum applied regardless of coercion. Federal prosecutors and the Board of Immigration Appeals supplemented the circuit court’s holding with the Supreme Court’s 1981 decision in Fedorenko v. United States, in which the plaintiff’s service as a concentration camp guard made him ineligible for a visa based on an earlier law, the Displaced Persons Act of 1948.

Negusie then — through an immigration clinic at the University of Texas — asked the Law School’s clinic to petition a writ of certiorari, asking the Supreme Court to hear an appeal from the lower court. The Supreme Court agreed to take the case in March and heard oral arguments in November, with Andrew Pincus ’77 presenting the clinic’s line of reasoning before the justices.

In a 12-page opinion Tuesday, Justice Anthony Kennedy wrote that the Board of Immigration Appeals misapplied the precedent of Fedorenko to the Refugee Act, adding that the statute does not make clear whether persecution requires hostile intent. The Court then sent the case — and the ambiguous statute — back to immigration officials for reconsideration.

“We’re on a roll,” said law professor Dan Kahan, one of the faculty supervisors of the clinic.

The Court rarely grants certiorari to cases in general, much less to private parties, Kahan said. The Court receives roughly 7,500 certiorari petitions each year, but hears fewer than 100 cases per term. Kahan said the clinic filed merits briefs for four cases last term, but wrote a writ of certiorari for only two of them.

Both Kahan and Scott Shuchart LAW ’03, the Supreme Court clinical fellow at the Law School, said the case’s decision set an important precedent for current and future refugees, as forced persecution — for instance, the use of child soldiers in West Africa — is on the rise in civil conflicts across the world, they said.

“The government needs to take a hard look at how to treat people in the position of our client,” Shuchart said. “It’s not that our client should automatically receive asylum, but there shouldn’t be a per se bar when considering the merits of his case.”

Joshua Lee LAW ’09, one of the four law students who worked on the case, said the case might attract potential plaintiffs to the clinic.

“To this point, we had gotten most of the cases on our own,” Lee said, adding that the team had, at times, spent over 20 hours individually per week on the case. “But I think the two victories we just had will increase the number of people who seek us out.”

In January, the Supreme Court ruled unanimously in favor of the petitioner in Fitzgerald v. Barnstable School Committee, the clinic’s first-ever victory. The clinic is still awaiting an opinion for Harbison v. Bell, which will test whether a death row inmate in Tennessee can obtain a federal lawyer to help him win clemency in state court.

Comments

  • Kailo

    When will such a ruling come from the heavens interpreting that those who provided material support under duress are eligible for asylum in the US? Aren't forced/involuntary participation in persecution and providing material support under duress almost the same? kailo28@hotmail.com.