A person who flees to the United States and was persecuted in their country of origin, or who has a well-founded fear of persecution if they return, can stay in the U.S. as a refugee. However, a person cannot be a refugee if they "assisted, or otherwise participated in the persecution of any person." This persecutor exception makes sense. But what if the person was "forced" to assist in the persecution of others?
Daniel Girmai Negusie was forced to work as an armed guard for four years at an Eritrean prison camp where prisoners were persecuted because of their religious beliefs. According to Daniel, part of his job was to firmly control the prisoners, to punish the prisoners, too, by exposing them to the extreme heat of the African sun. The guards would hold a stick and follow prisoners who were being forced to roll on the ground in the sun. Because it was extremely hot, prisoners would quickly get tired and feel shortness of breath and stop rolling. They were then beaten. Prisoners typically could not survive this punishment for more than two hours. Indeed, at least one prisoner died from sun exposure while Daniel stood guard. Daniel admitted that, as a guard, he prevented the prisoners from showering and forbade them from leaving their rooms for fresh air. This form of punishment was particularly severe because the prisons were built from stone and bricks with no cooling system, no ventilation, no windows, and intolerable heat. Daniel also prevented prisoner escapes, for which the punishment was forced sun exposure. And, although he never used electricity to torture prisoners, he was aware that his supervisor did.
But Daniel, who had converted to Protestantism when he was confined as a prisoner at that same camp before becoming a guard, also testified that he did not want to persecute any of the prisoners because his new religion taught him to be merciful. Thus, at times he disobeyed his orders. On one occasion, he gave water to a prisoner who was dying from sun exposure. On another occasion, he let female prisoners take showers after they had been denied that privilege for a long time. Daniel also occasionally allowed some of the prisoners to go outside during the night and during the evenings and refresh themselves in the fresh air.
After four years as a prison guard, Daniel deserted his post and hid in a container, which was loaded on board a ship heading to the U.S. The container arrived in the U.S. with Daniel inside on December 20, 2004.
Should Daniel get asylum in the U.S.?
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9 comments:
My first inclination is to say yes, of course. I still think that's the way to go. I would just like to know more about his story. How was he forced into service? Did others refuse, and what happened to them?
It's an actual Supreme Court case from this week. That's all the information you get to consider - you have enough information to know he didn't want to be a guard but he did it anyway. Decide!
Legally? I'm going to lean toward no. But like Laurie, I would like to know more about how he was "forced". Under the law he doesn't qualify for asylum because he did participate in the persucution of other people. Giving mercy to some doesn't nullify persection of others. As a judge I would definately want to know which was more the "norm" of this guards behavior - the mercy or the persecution.
Emotionally, I lean heavily toward yes. Mainly as an act of mercy and grace toward him - we all need it.
Firstly, yes I give asylum. Persecution implies intent. On these facts, it does not appear that we have hostile intent on his part, only the intent to stay alive.
Secondly, we allow criminal defendants to escape liability based on the defense of duress. Seems we should have this defense available for asylum seekers as well.
Thirdly, the Office of the High Commissioner on Refugees has a handbook for these situations and indicates that the Persecution Exception is based on a factor test and mitigating factors should be considered.
Lastly, if we were to truly apply the persecution exception, who does that allow in to the US? I wouldn't want to be subject to such a standard. Not that I have beat or tortured people, but I have certainly persecuted those different than me in my own way, especially as a child; judging, ridiculing, or other similar actions. I did so not out of a fear of death, but out of a fear of fitting in with the "cool people". Which is worse?
"That's all the information you get to consider..."
What? I feel a little like DVD is our Dungeon Master in this little game of Moral Dilemma. I'll take the Broad Axe of Legend with +2/+2 Hit Points.
Anyone who puts himself in a shipping container and survives the trip across the ocean gets extra credit in my book. Enough to bend the rules? For me, yep.
For the bigger question of whether this should be legalized, I believe flexibility for those forced to persecute is appropriate.
Agreed on that "that is all you get to consider" remark. That is not all SCOTUS (insert snicker here) gets when it renders its decision. It has access to legislative history, case law, guidebooks, Amicus briefs, etc. Simply saying here is a synopsis of the law, puts everyone at a disadvantage. Before my first comment, I happened to read the Writ filed on behalf of Daniel and the Brief filed by the Gov't in opposition. Thus, my opinion is not based solely on the story presented.
On a side note, Brian, your reference to Dungeons and Dragons was a little scary I must admit. You went into a little too much detail. But perhaps no scarier than a RISK reference or some other type of game.
I thought some more and if this law is given strict adherence, we are eliminating a large portion of the world from ever getting a chance to come to the US. What about child soldiers in any number of countries? They would be precluded from asylum. What about adult soldiers from other countries? They are following orders?. I guess I should watch the Reader on this issue.
Also, how do we reconcile denying asylum to someone in this instance when there is no penalty to soldiers who took part in beatings, waterboarding, Abu Ghraib? By no penalty I don't mean mental emotional or even criminal, but rather denial of entry to the US.
Let me try to clarify what I was after. The question for the Supreme Court was whether intent should even BE considered, not weigh his actual intent. I was trying to see what the consensus was on just these facts alone, but from the comments it is apparent that we want to weigh his intent. The Court, as it turns out, ruled 8-1 to consider Daniel's intent in persecution.
There is a valid (and strong) argument that if the law says "assisted or otherwise participated" then that's the law you apply. He either assisted and participated or he didn't. I also understand the morals behind that standard because is there really ANY circumstance to justify torturing someone? I like to think I'd accept death over participating in torturing someone else.
In the end, though, those same morals prohibit me from returning Daniel to certain persecution. I suspect the judges felt similarly.
Thanks for everyone's comments.
Yes intent should be considered. "Persecution" implies intent.
But what about "assist in persecution"?
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