Supreme Court Clinic Wins Victory No. 2 in Negusie v Holder
Daniel Girmai Negusie had been denied asylum based on a law that excludes anyone 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.” The decision was upheld by the Board of Immigration Appeals and the Fifth U.S. Circuit Court of Appeals.
That’s when Clinic students got involved, filing a petition for writ of certiorari asking the U.S. Supreme Court to hear the case. The Court agreed and in November 2008, Andrew Pincus argued the case on behalf of the Clinic, saying Negusie should not be subject to the law prohibiting asylum because he was forced to be a prison guard against his will and feared for his life if he did not comply. Pincus said the law applies only to those who voluntarily commit acts of persecution.
On March 3, The Court ruled in favor of Negusie. In an 8-1 decision, it said the appeals court and the immigration board had misapplied a prior precedent that said persons engaging in persecution, even involuntarily, must be excluded from asylum. The Court said the statute that applies in Negusie’s case has not yet been fully interpreted and ordered the case be sent back to immigration officials for reconsideration.
“We are gratified by the Court’s decision that Congress did not categorically bar consideration of asylum applications from persons who are persecuted by being forced by threats of death or serious injury to engage in acts that resulted in persecution of others,” said Pincus, who, along with Mayer Brown colleague Charles Rothfeld, helps supervise Clinic students. “The law has long refused to penalize individuals on the basis of coerced conduct. We are hopeful that when the Board of Immigration Appeals reconsiders this case, it will recognize that principle and open the door to consideration of asylum applications by these victims of persecution.”
The Supreme Court Clinic, now in its third year, allows Yale Law students to work on real-life public interest cases pending before the Court. Its first victory came in late January in the case Fitzgerald v. Barnstable School Committee. Still pending is Harbison v. Bell, in which the Clinic filed a brief on behalf of a Tennessee death row inmate, arguing that Edward Harbison should have access to a federal public defender in state clemency proceedings. The case was heard January 12.
Of this newest victory, Clinic member Joshua Lee ’09 said, “I'm thrilled to see our work pay off this way for Mr. Negusie and other asylum seekers. The Supreme Court’s decision in this case underscores the value of our clinic to clients with momentous legal claims who could not otherwise afford to bring them before the Court.”
In addition to Lee and attorney Andrew Pincus, the Negusie team included Yale Law School fellows Scott Shuchart '03 and Terri-Lei O’Malley ’07 and Clinic members Michael Kimberly ’08, Joey Minta ’09, and Katherine Wilson-Milne ’09.