Negusie v. Holder

(Slip Opinion) OCTOBER TERM, 2008 1

Syllabus

NOTE: Where it is feasible, a syllabus (headnote) will be released, as is
being done in connection with this case, at the time the opinion is issued.
The syllabus constitutes no part of the opinion of the Court but has been
prepared by the Reporter of Decisions for the convenience of the reader.
See United States v. Detroit Timber & Lumber Co., 200 U. S. 321, 337.

SUPREME COURT OF THE UNITED STATES

Syllabus

NEGUSIE v. HOLDER, ATTORNEY GENERAL

CERTIORARI TO THE UNITED STATES COURT OF APPEALS FOR
THE FIFTH CIRCUIT

No. 07–499. Argued November 5, 2008—Decided March 3, 2009
The Immigration and Nationality Act (INA) bars an alien from obtain
ing refugee status in this country if he “assisted, or otherwise partici
pated in the persecution of any person on account of race, religion,
nationality, membership in a particular social group, or political
opinion.” 8 U. S. C. §1101(a)(42). This so-called “persecutor bar” ap
plies to those seeking asylum or withholding of removal, but does not
disqualify an alien from receiving a temporary deferral of removal
under the Convention Against Torture and Other Cruel, Inhuman or
Degrading Treatment or Punishment (CAT). During the time peti
tioner, an Eritrean national, was forced to work as a prison guard in
that country, the prisoners he guarded were persecuted on grounds
protected under §1101(a)(42). After escaping to the United States,
petitioner applied for asylum and withholding of removal. Conclud
ing that he assisted in the persecution of prisoners by working as an
armed guard, the Immigration Judge denied relief on the basis of the
persecutor bar, but granted deferral of removal under CAT because
petitioner was likely to be tortured if returned to Eritrea. The Board
of Immigration Appeals (BIA) affirmed in all respects, holding, inter
alia, that the persecutor bar applies even if the alien’s assistance in
persecution was coerced or otherwise the product of duress. The BIA
followed its earlier decisions finding Fedorenko v. United States, 449
U. S. 490, controlling. The Fifth Circuit affirmed, relying on its
precedent following the same reasoning.
Held: The BIA and Fifth Circuit misapplied Fedorenko as mandating
that whether an alien is compelled to assist in persecution is immate
rial for prosecutor-bar purposes. The BIA must interpret the statute,
free from this mistaken legal premise, in the first instance. Pp. 4–12.
(a) Under Chevron U. S. A. Inc. v. Natural Resources Defense Coun
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Syllabus

cil, Inc., 467 U. S. 837, 842–843, the BIA is entitled to deference in
interpreting ambiguous INA provisions, see, e.g., INS v. Aguirre-
Aguirre, 526 U. S. 415, 424–425. When the BIA has not spoken on “a
matter that statutes place primarily in agency hands,” this Court’s
ordinary rule is to remand to allow “the BIA . . . to address the mat
ter in the first instance in light of its own experience.” INS v. Or
lando Ventura, 537 U. S. 12, 16–17. Pp. 4–5.
(b) As there is substance both to petitioner’s contention that invol
untary acts cannot implicate the persecutor bar because “persecu
tion” presumes moral blameworthiness, and to the Government’s ar
gument that the question at issue is answered by the statute’s failure
to provide an exception for coerced conduct, it must be concluded that
the INA has an ambiguity that the BIA should address in the first in
stance. Fedorenko, which addressed a different statute enacted for a
different purpose, does not control the BIA’s interpretation of this
persecutor bar. In holding that voluntariness was not required with
respect to such a bar in the Displaced Persons Act of 1948 (DPA), Fe
dorenko contrasted the omission there of the word “voluntary” with
the word’s inclusion in a related statutory subsection. 449 U. S., at
512. Because Congress did not use the word “voluntary” anywhere in
the persecutor bar at issue here, its omission cannot carry the same
significance as it did in Fedorenko. Moreover, the DPA’s exclusion of
even those involved in nonculpable, involuntary assistance in perse
cution was enacted in part to address the Holocaust and its horror,
see id., at 511, n. 32, whereas the persecutor bar in this case was en
acted as part of the Refugee Act of 1980, which was designed to pro
vide a general rule for the ongoing treatment of all refugees and dis
placed persons, see, e.g., Aguirre-Aguirre, supra, at 427. Pp. 5–8.
(c) Whether a BIA determination that the persecution bar contains
no exception for coerced conduct would be reasonable, and thus owed
Chevron deference, is a legitimate question; but it is not presented
here. In denying petitioner relief, the BIA recited a rule it has devel
oped in its cases: An alien’s motivation and intent are irrelevant to
the issue whether he “assisted” in persecution; rather, his actions’ ob
jective effect controls. A reading of those decisions confirms that the
BIA has not exercised its interpretive authority but, instead, has
deemed its interpretation to be mandated by Fedorenko. This error
prevented the BIA from fully considering the statutory question pre
sented. Its mistaken assumption stems from a failure to recognize
the inapplicability of the statutory construction principle invoked in
Fedorenko, as well as a failure to appreciate the differences in statu
tory purpose. The BIA is not bound to apply the Fedorenko rule to
the persecutor bar here at issue. Whether the statute permits such
an interpretation based on a different course of reasoning must be
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Syllabus

determined in the first instance by the agency. Pp. 8–10.
(d) Because the BIA has not yet exercised its Chevron discretion to
interpret the statute, the proper course is to remand to it for addi
tional investigation or explanation, e.g., Gonzales v. Thomas, 547
U. S. 183, 186, allowing it to bring its expertise to bear on the matter,
evaluate the evidence, make an initial determination, and thereby
help a court later determine whether its decision exceeds the leeway
that the law provides, e.g., id., at 186–187. Pp. 10–12.
231 Fed. Appx. 325, reversed and remanded.

KENNEDY, J., delivered the opinion of the Court, in which ROBERTS,
C. J., and SCALIA, SOUTER, GINSBURG, and ALITO, JJ., joined. SCALIA, J.,
filed a concurring opinion, in which ALITO, J., joined. STEVENS, J., filed
an opinion concurring in part and dissenting in part, in which BREYER,
J., joined. THOMAS, J., filed a dissenting opinion.
 Cite as: 555 U. S. ____ (2009) 1

Opinion of the Court

NOTICE: This opinion is subject to formal revision before publication in the
preliminary print of the United States Reports. Readers are requested to
notify the Reporter of Decisions, Supreme Court of the United States, Wash
ington, D. C. 20543, of any typographical or other formal errors, in order
that corrections may be made before the preliminary print goes to press.

SUPREME COURT OF THE UNITED STATES
_________________

No. 07–499
_________________

DANIEL GIRMAI NEGUSIE, PETITIONER v. ERIC
H. HOLDER, JR., ATTORNEY GENERAL
ON WRIT OF CERTIORARI TO THE UNITED STATES COURT OF

APPEALS FOR THE FIFTH CIRCUIT

[March 3, 2009]

JUSTICE KENNEDY delivered the opinion of the Court.
An alien who fears persecution in his homeland and
seeks refugee status in this country is barred from obtain
ing that relief if he has persecuted others.
“The term ‘refugee’ does not include any person who
ordered, incited, assisted, or otherwise participated in
the persecution of any person on account of race, relig
ion, nationality, membership in a particular social
group, or political opinion.” Immigration and Na
tionality Act (INA), §101, 66 Stat. 166, as added by
Refugee Act of 1980, §201(a), 94 Stat. 102–103, 8
U. S. C. §1101(a)(42).
This so-called “persecutor bar” applies to those seeking
asylum, §1158(b)(2)(A)(i), or withholding of removal,
§1231(b)(3)(B)(i). It does not disqualify an alien from
receiving a temporary deferral of removal under the Con
vention Against Torture and Other Cruel, Inhuman or
Degrading Treatment or Punishment (CAT), art. 3, Dec.
10, 1984, S. Treaty Doc. No. 100–20, p. 20, 1465 U. N. T. S.
85; 8 CFR §1208.17(a) (2008).
In this case the Board of Immigration Appeals (BIA)
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Opinion of the Court

determined that the persecutor bar applies even if the
alien’s assistance in persecution was coerced or otherwise
the product of duress. In so ruling the BIA followed its
earlier decisions that found Fedorenko v. United States,
449 U. S. 490 (1981), controlling. The Court of Appeals for
the Fifth Circuit, in affirming the agency, relied on its
precedent following the same reasoning. We hold that the
BIA and the Court of Appeals misapplied Fedorenko. We
reverse and remand for the agency to interpret the stat
ute, free from the error, in the first instance.
I
Petitioner in this Court is Daniel Girmai Negusie, a
dual national of Eritrea and Ethiopia, his father having
been a national of the former and his mother of the latter.
Born and educated in Ethiopia, he left there for Eritrea
around the age of 18 to see his mother and find employ
ment. The year was 1994. After a few months in Eritrea,
state officials took custody of petitioner and others when
they were attending a movie. He was forced to perform
hard labor for a month and then was conscripted into the
military for a time. War broke out between Ethiopia and
Eritrea in 1998, and he was conscripted again.
When petitioner refused to fight against Ethiopia, his
other homeland, the Eritrean Government incarcerated
him. Prison guards punished petitioner by beating him
with sticks and placing him in the hot sun. He was re
leased after two years and forced to work as a prison
guard, a duty he performed on a rotating basis for about
four years. It is undisputed that the prisoners he guarded
were being persecuted on account of a protected ground—
i.e., “race, religion, nationality, membership in a particular
social group, or political opinion.” 8 U. S. C. §1101(a)(42).
Petitioner testified that he carried a gun, guarded the gate
to prevent escape, and kept prisoners from taking showers
and obtaining fresh air. He also guarded prisoners to
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Opinion of the Court

make sure they stayed in the sun, which he knew was a
form of punishment. He saw at least one man die after
being in the sun for more than two hours. Petitioner
testified that he had not shot at or directly punished any
prisoner and that he helped prisoners on various occa
sions. Petitioner escaped from the prison and hid in a
container, which was loaded on board a ship heading to
the United States. Once here he applied for asylum and
withholding of removal.
In a careful opinion the Immigration Judge, W. Wayne
Stogner, found that petitioner’s testimony, for the most
part, was credible. He concluded that petitioner assisted
in persecution by working as an armed guard. The judge
determined that although “there’s no evidence to establish
that [petitioner] is a malicious person or that he was an
aggressive person who mistreated the prisoners, . . . the
very fact that he helped [the government] in the prison
compound where he had reason to know that they were
persecuted constitutes assisting in the persecution of
others and bars [petitioner] from” obtaining asylum or
withholding of removal. App. to Pet. for Cert. 16a–17a
(citing, inter alia, Fedorenko, supra). The judge, however,
granted deferral of removal under CAT because petitioner
was likely to be tortured if returned to Eritrea.
The BIA affirmed the denial of asylum and withholding.
It noted petitioner’s role as an armed guard in a facility
where “prisoners were tortured and left to die out in the
sun . . . on account of a protected ground.” App. to Pet. for
Cert. 6a. The BIA held that “[t]he fact that [petitioner]
was compelled to participate as a prison guard, and may
not have actively tortured or mistreated anyone, is imma
terial.” Ibid. That is because “ ‘an alien’s motivation and
intent are irrelevant to the issue of whether he “assisted”
in persecution . . . [I]t is the objective effect of an alien’s
actions which is controlling.’ ” Ibid. (quoting Matter of
Fedorenko, 19 I. & N. Dec. 57, 69 (BIA 1984)). The BIA
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also affirmed the grant of deferral of removal under CAT.
On petition for review the Court of Appeals agreed with
the BIA that whether an alien is compelled to assist in
persecution is immaterial for persecutor-bar purposes.
App. to Pet. for Cert. 2a (citing Fedorenko, 449 U. S., at
512, n. 34). We granted certiorari. 552 U. S. ___ (2008).
II
Consistent with the rule in Chevron U. S. A. Inc. v.
Natural Resources Defense Council, Inc., 467 U. S. 837,
842–843 (1984), the BIA is entitled to deference in inter
preting ambiguous provisions of the INA. The question
here is whether an alien who was compelled to assist in
persecution can be eligible for asylum or withholding of
removal. We conclude that the BIA misapplied our prece
dent in Fedorenko as mandating that an alien’s motivation
and intent are irrelevant to the issue whether an alien
assisted in persecution. The agency must confront the
same question free of this mistaken legal premise.
A
It is well settled that “principles of Chevron deference
are applicable to this statutory scheme.” INS v. Aguirre-
Aguirre, 526 U. S. 415, 424 (1999). Congress has charged
the Attorney General with administering the INA, and a
“ruling by the Attorney General with respect to all ques
tions of law shall be controlling.” 8 U. S. C. §1103(a)(1).
Judicial deference in the immigration context is of special
importance, for executive officials “exercise especially
sensitive political functions that implicate questions of
foreign relations.” INS v. Abudu, 485 U. S. 94, 100 (1988).
The Attorney General’s decision to bar an alien who has
participated in persecution “may affect our relations with
[the alien’s native] country or its neighbors. The judiciary
is not well positioned to shoulder primary responsibility
for assessing the likelihood and importance of such diplo
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Opinion of the Court

matic repercussions.” Aguirre-Aguirre, 526 U. S., at 425.
The Attorney General, in turn, has delegated to the BIA
the “ ‘discretion and authority conferred upon the Attorney
General by law’ ” in the course of “ ‘considering and deter
mining cases before it.’ ” Ibid. (quoting 8 CFR §3.1(d)(1)
(1998)). As a consequence, “the BIA should be accorded
Chevron deference as it gives ambiguous statutory terms
‘concrete meaning through a process of case-by-case adju
dication.’ ” Aguirre-Aguirre, supra, at 425 (quoting INS v.
Cardoza-Fonseca, 480 U. S. 421, 448–449 (1987)). When
the BIA has not spoken on “a matter that statutes place
primarily in agency hands,” our ordinary rule is to remand
to “giv[e] the BIA the opportunity to address the matter in
the first instance in light of its own experience.” INS v.
Orlando Ventura, 537 U. S. 12, 16–17 (2002) (per curiam).
B
The parties disagree over whether coercion or duress is
relevant in determining if an alien assisted or otherwise
participated in persecution. As there is substance to both
contentions, we conclude that the statute has an ambigu
ity that the agency should address in the first instance.
Petitioner argues that the statute’s plain language
makes clear that involuntary acts do not implicate the
persecutor bar because “ ‘persecution’ ” presumes moral
blameworthiness. Brief for Petitioner 23–28. He invokes
principles of criminal culpability, concepts of international
law, and the rule of lenity. Id., at 28–45. Those argu
ments may be persuasive in determining whether a par
ticular agency interpretation is reasonable, but they do
not demonstrate that the statute is unambiguous. Peti
tioner all but conceded as much at argument in this Court
when he indicated that the BIA has discretion to construe
the duress defense in either a narrow or a broad way. Tr.
of Oral Arg. 20–24.
The Government, on the other hand, asserts that the
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Opinion of the Court

statute does not allow petitioner’s construction. “The
statutory text,” the Government says, “directly answers
that question: there is no exception” for conduct that is
coerced because Congress did not include one. Brief for
Respondent 11. We disagree. The silence is not conclu
sive. The question is whether the statutory text mandates
that coerced actions must be deemed assistance in perse
cution. On that point the statute, in its precise terms, is
not explicit. Nor is this a case where it is clear that Con
gress had an intention on the precise question at issue.
Cf. Cardoza-Fonseca, supra, at 448–449.
The Government, like the BIA and the Court of Appeals,
relies on Fedorenko to provide the answer. This reliance is
not without some basis, as the Court there held that vol
untariness was not required with respect to another per
secutor bar. 449 U. S., at 512. To the extent, however, the
Government deems Fedorenko to be controlling, it is in
error.
In Fedorenko, the Court interpreted the Displaced Per
sons Act of 1948 (DPA), 62 Stat. 1009. The DPA was
enacted “to enable European refugees driven from their
homelands by the [second world] war to emigrate to the
United States without regard to traditional immigration
quotas.” 449 U. S., at 495. Section 2(b) of the DPA pro
vides relief to “any displaced person or refugee as defined
in Annex I of the Constitution of the International Refugee
Organization” of the United Nations (IRO Constitution).
62 Stat. 1009. The IRO Constitution, as codified by Con
gress, excludes any individual “who can be shown: (a) to
have assisted the enemy in persecuting civil populations of
countries, Members of the United Nations; or (b) to have
voluntarily assisted the enemy forces since the outbreak of
the second world war in their operations against the
United Nations.” Annex I, Part II, §2, 62 Stat. 3051–3052.
The Fedorenko Court held that “an individual’s service
as a concentration camp armed guard—whether voluntary
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or involuntary—made him ineligible for a visa” under
§2(a) of the IRO Constitution. 449 U. S., at 512. That
Congress did not adopt a voluntariness requirement for
§2(a), the Court noted, “is plain from comparing §2(a) with
§2(b), which excludes only those individuals who ‘voluntar
ily assisted the enemy forces.’ ” Ibid. The Court relied on
the principle of statutory construction that “the deliberate
omission of the word ‘voluntary’ from §2(a) compels the
conclusion that the statute made all those who assisted in
persecution of civilians ineligible for visas.” Ibid.
Fedorenko does not compel the same conclusion in the
case now before us. The textual structure of the statute in
Fedorenko (“voluntary” is in one subsection but not the
other) is not part of the statutory framework considered
here. Congress did not use the word “voluntary” in any
subsection of the persecutor bar, so its omission cannot
carry the same significance.
The difference between the statutory scheme in Fe
dorenko and the one here is confirmed when we “ ‘look not
only to the particular statutory language, but to the design
of the statute as a whole and to its object and policy.’ ”
Dada v. Mukasey, 554 U. S. 1, ___ (2008) (slip op., at 13)
(quoting Gozlon-Peretz v. United States, 498 U. S. 395, 407
(1991)). Both statutes were enacted to reflect principles
set forth in international agreements, but the principles
differ in significant respects.
As discussed, Congress enacted the DPA in 1948 as part
of an international effort to address individuals who were
forced to leave their homelands during and after the sec
ond World War. Fedorenko, supra, at 495. The DPA
excludes those who “voluntarily assisted the enemy forces
since the outbreak of the second world war,” 62 Stat. 3052,
as well as all who “assisted the enemy in persecuting civil
populations of countries,” id., at 3051. The latter exclu
sion clause makes no reference to culpability. The exclu
sion of even those involved in nonculpable, involuntary
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assistance in Nazi persecution, as an expert testified in
Fedorenko, may be “ ‘[b]ecause the crime against humanity
that is involved in the concentration camp puts it into a
different category.’ ” 449 U. S., at 511, n. 32.
The persecutor bar in this case, by contrast, was enacted
as part of the Refugee Act of 1980. Unlike the DPA, which
was enacted to address not just the post war refugee
problem but also the Holocaust and its horror, the Refugee
Act was designed to provide a general rule for the ongoing
treatment of all refugees and displaced persons. As this
Court has twice recognized, “ ‘one of Congress’ primary
purposes’ in passing the Refugee Act was to implement the
principles agreed to in the 1967 United Nations Protocol
Relating to the Status of Refugees, Jan. 31, 1967, 19
U. S. T. 6224, T. I. A. S. 6577 (1968),” as well as the
“United Nations Convention Relating to the Status of
Refugees, 189 U. N. T. S. 150 (July 28, 1951), reprinted in
19 U. S. T. 6259.” Aguirre-Aguirre, 526 U. S., at 427 (quot
ing Cardoza-Fonseca, 480 U. S., at 436–437).
These authorities illustrate why Fedorenko, which
addressed a different statute enacted for a different pur
pose, does not control the BIA’s interpretation of this
persecutor bar. Whatever weight or relevance these vari
ous authorities may have in interpreting the statute
should be considered by the agency in the first instance,
and by any subsequent reviewing court, after our remand.
C
The Government argues that “if there were any ambigu
ity in the text, the Board’s determination that the bar
contains no such exception is reasonable and thus control
ling.” Brief for Respondent 11. Whether such an interpre
tation would be reasonable, and thus owed Chevron defer
ence, is a legitimate question; but it is not now before us.
The BIA deemed its interpretation to be mandated by
Fedorenko, and that error prevented it from a full consid
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eration of the statutory question here presented.
In denying relief in this case the BIA recited a rule that
has developed in its own case law in reliance on Fe
dorenko: “[A]n alien’s motivation and intent are irrelevant
to the issue of whether he ‘assisted’ in persecution . . . [I]t
is the objective effect of an alien’s actions which is control
ling.” App. to Pet. for Cert. 6a. The rule is based on three
earlier decisions: Matter of Laipenieks, 18 I. & N. Dec. 433
(1983); Matter of Fedorenko, 19 I. & N. Dec. 57; and Matter
of Rodriguez-Majano, 19 I. & N. Dec. 811 (1988).
In Matter of Laipenieks, the BIA applied the Court’s
Fedorenko analysis of the DPA to a different postwar
statute, which provided for the deportation of anyone
associated with the Nazis who “ordered, incited, assisted,
or otherwise participated” in persecution based on a pro
tected ground. 8 U. S. C. §1182(a)(3)(E)(i). Finding no
agency or judicial decision on point, the BIA relied on
Fedorenko. It recognized that the unique structure of the
Fedorenko statute was not present in §1182(a)(3)(E)(i), but
the BIA nevertheless adopted wholesale the Fedorenko
rule: “[A]s in Fedorenko, . . . the plain language of
[§1182(a)(3)(E)(i)] mandates a literal interpretation, and
the omission of an intent element compels the conclusion
that [§1182(a)(3)(E)(i)] makes all those who assisted in the
specific persecution deportable.” 18 I. & N. Dec., at 464.
In other words, “particular motivations or intent . . . is not
a relevant factor.” Ibid.
The second decision, Matter of Fedorenko, also dealt
with §1182(a)(3)(E)(i), and it involved the same alien
whose citizenship was revoked by this Court’s Fedorenko
decision. This time the agency sought to deport him.
Fedorenko responded by requesting suspension of deporta
tion. He argued that, unlike the DPA’s bar on any assis
tance—voluntary or involuntary—in persecution, see
Fedorenko, 449 U. S., at 512, the text and structure of
§1182(a)(3)(E)(i) required deportation only of those who
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voluntarily assisted in persecuting others. The BIA re
jected that distinction, noting that it was foreclosed by
Matter of Laipenieks: “It may be, as [Fedorenko] argues,
that his service at Treblinka was involuntary. . . . We
need not resolve the issue, however, because as a matter of
law [Fedorenko’s] motivations for serving as a guard at
Treblinka are immaterial to the question of his deportabil
ity under” §1182(a)(3)(E)(i). 19 I. & N. Dec., at 69–70.
Later, the BIA applied this Court’s Fedorenko rule to
the persecutor bar that is at issue in the present case. In
Matter of Rodriguez-Majano, the BIA granted relief be
cause the alien’s coerced conduct as a guerrilla was not
persecution based on a protected ground. 19 I. & N. Dec.,
at 815–816. Nevertheless, in reaching its conclusion the
BIA incorporated without additional analysis the Fe
dorenko rule as applied in Matter of Laipenieks and reiter
ated in Matter of Fedorenko. 19 I. & N. Dec., at 814–815.
The BIA reaffirmed that “[t]he participation or assistance
of an alien in persecution need not be of his own volition to
bar him from relief.” Id., at 814 (citing Fedorenko, 449
U. S. 490).
Our reading of these decisions confirms that the BIA
has not exercised its interpretive authority but, instead,
has determined that Fedorenko controls. This mistaken
assumption stems from a failure to recognize the inappli
cability of the principle of statutory construction invoked
in Fedorenko, as well as a failure to appreciate the differ
ences in statutory purpose. The BIA is not bound to apply
the Fedorenko rule that motive and intent are irrelevant
to the persecutor bar at issue in this case. Whether the
statute permits such an interpretation based on a differ
ent course of reasoning must be determined in the first
instance by the agency.
III
Having concluded that the BIA has not yet exercised its
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Chevron discretion to interpret the statute in question,
“ ‘ “the proper course, except in rare circumstances, is to
remand to the agency for additional investigation or ex
planation.” ’ ” Gonzales v. Thomas, 547 U. S. 183, 186
(2006) (per curiam) (quoting Ventura, 537 U. S., at 16, in
turn quoting Florida Power & Light Co. v. Lorion, 470
U. S. 729, 744 (1985)). This remand rule exists, in part,
because “ambiguities in statutes within an agency’s juris
diction to administer are delegations of authority to the
agency to fill the statutory gap in reasonable fashion.
Filling these gaps . . . involves difficult policy choices that
agencies are better equipped to make than courts.” Na
tional Cable & Telecommunications Assn. v. Brand X
Internet Services, 545 U. S. 967, 980 (2005).
JUSTICE STEVENS would have the Court provide a defi
nite answer to the question presented and then remand
for further proceedings. That approach, however, is in
tension with the “ordinary ‘remand’ rule.” Ventura, supra,
at 18; see also Cajun Elec. Power Cooperative, Inc. v.
FERC, 924 F. 2d 1132, 1136 (CADC 1991) (opinion for the
Court by Silberman, J., joined by R. Ginsburg and Tho
mas, JJ.) (“[I]f an agency erroneously contends that Con
gress’ intent has been clearly expressed and has rested on
that ground, we remand to require the agency to consider
the question afresh in light of the ambiguity we see”).
Thomas is illustrative. There, the agency had not deter
mined whether a family may constitute a social group for
the purposes of refugee status. The Ninth Circuit held
that the family can constitute a protected social group and
that the particular family at issue did qualify. 547 U. S.,
at 184–185. The Solicitor General sought review in this
Court on “whether the Ninth Circuit erred in holding, in
the first instance and without prior resolution of the ques
tions by the relevant administrative agency, that members
of a family can and do constitute a particular social group,
within the meaning of the Act.” Id., at 185 (internal quo
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tation marks omitted). He argued that the Ninth Circuit’s
decision violated the Ventura ordinary remand rule. We
agreed and summarily reversed. 547 U. S., at 184–185
Ventura and Thomas counsel a similar result here.
Because of the important differences between the statute
before us and the one at issue in Fedorenko, we find it
appropriate to remand to the agency for its initial deter
mination of the statutory interpretation question and its
application to this case. The agency’s interpretation of the
statutory meaning of “persecution” may be explained by a
more comprehensive definition, one designed to elaborate
on the term in anticipation of a wide range of potential
conduct; and that expanded definition in turn may be
influenced by how practical, or impractical, the standard
would be in terms of its application to specific cases.
These matters may have relevance in determining
whether its statutory interpretation is a permissible one.
As the Court said in Ventura and reiterated in Thomas,
“ ‘[t]he agency can bring its expertise to bear upon the
matter; it can evaluate the evidence; it can make an initial
determination; and, in doing so, it can, through informed
discussion and analysis, help a court later determine
whether its decision exceeds the leeway that the law
provides.’ ” 547 U. S., at 186–187 (quoting Ventura, supra,
at 17). If the BIA decides to adopt a standard that consid
ers voluntariness to some degree, it may be prudent and
necessary for the Immigration Judge to conduct additional
factfinding based on the new standard. Those determina
tions are for the agency to make in the first instance.
* * *
We reverse the judgment of the Court of Appeals and
remand the case for further proceedings consistent with
this opinion.
It is so ordered.
 Cite as: 555 U. S. ____ (2009) 1

SCALIA, J., concurring

SUPREME COURT OF THE UNITED STATES
_________________

No. 07–499
_________________

DANIEL GIRMAI NEGUSIE, PETITIONER v. ERIC
H. HOLDER, JR., ATTORNEY GENERAL
ON WRIT OF CERTIORARI TO THE UNITED STATES COURT OF

APPEALS FOR THE FIFTH CIRCUIT

[March 3, 2009]

JUSTICE SCALIA, with whom JUSTICE ALITO joins, con
curring.
I agree with the Court that “the statute has an ambigu
ity,” ante, at 5, with respect to whether an alien who was
coerced to assist in persecution is barred from obtaining
asylum in the United States. I agree that the agency is
entitled to answer that question. Ibid. See Chevron
U. S. A. Inc. v. Natural Resources Defense Council, Inc.,
467 U. S. 837, 843 (1984). And I agree that a remand is in
order, to give the agency an opportunity to clarify whether
its affirmative answer was premised on an erroneous view
that this Court’s decision in Fedorenko v. United States,
449 U. S. 490 (1981), compelled it. Ante, at 11.
I would not agree to remand if I did not think that the
agency has the option of adhering to its decision. The
majority appears to leave that question undecided, ante, at
5 (reserving whether “a particular agency interpretation is
reasonable”); two Justices forthrightly disagree and would
require the agency to recognize at least some sort of du
ress exception, post, at 7 (STEVENS, J., concurring in part
and dissenting in part).
But good reasons for the agency’s current practice ex
ist—reasons adequate to satisfy the requirement that an
agency act reasonably in choosing among various possible
constructions of an ambiguous statute. The statute does
2 NEGUSIE v. HOLDER

SCALIA, J., concurring

not mandate the rule precluding the duress defense but
does not foreclose it either; the agency is free to retain
that rule so long as the choice to do so is soundly rea
soned, not based on irrelevant or arbitrary factors (like
the Fedorenko precedent).
The primary contention to the contrary is, in short, that
barring aliens who persecuted under duress would punish
purely “nonculpable” conduct. That argument suffers from
at least three unjustified leaps of logic.
First, it implicitly adopts a view of “culpability” that is
neither the only view nor one necessarily applicable here.
The culpability of one who harms another under coercion
is, and has always been, a subject of intense debate, rais
ing profound questions of moral philosophy and individual
responsibility. (The so-called “Nuremberg defense” comes
readily to mind.) At common law, duress was not an
accepted defense to intentional killing, see 2 W. LaFave,
Substantive Criminal Law §9.7(b), pp. 74–75 (2d ed. 2003);
and in modern times, some states do not allow it as a
defense to lesser crimes, see id., at 81–82, and n. 50.
Notably, there is no historical support for the duress
defense when a soldier follows a military order he knows
to be unlawful. Id., §9.7(g), at 86; see also, e.g., Axtell’s
Case, Kel. J. 13, 84 Eng. Rep. 1060 (1660); Prosecutor v.
Erdemović, [1997] 2 ICTY Jud. Rep. 1610, 1635 (Int’l
Crim. Trib. for Former Yugoslavia). It is therefore far
from clear that precluding a duress defense here would, as
petitioner alleges, “disregard principles of blame . . . ‘uni
versal and persistent’ in American law.” Brief for Peti
tioner 32 (quoting Morissette v. United States, 342 U. S.
246, 250 (1952)). All of this suggests that those who are
coerced to commit wrong are at least sometimes “culpable”
enough to be treated as criminals.
More importantly, this is not a criminal matter. This
Court has long understood that an “order of deportation is
not a punishment for crime.” Fong Yue Ting v. United
 Cite as: 555 U. S. ____ (2009) 3

SCALIA, J., concurring

States, 149 U. S. 698, 730 (1893). Asylum is a benefit
accorded by grace, not by entitlement, and withholding
that benefit from all who have intentionally harmed oth
ers—whether under coercion or not—is not unreasonable.
Second, petitioner assumes that the persecutor bar must
have been intended merely to punish wrongdoing. But in
the context of immigration law, “culpability” as a relevant
factor in determining admissibility is only one facet of a
more general consideration: desirability. And there may
well be reasons to think that those who persecuted others,
even under duress, would be relatively undesirable as
immigrants. If, for example, the asylum laws grant entry
to those who suffered the persecution, might it not be
imprudent to also grant entry to the coerced persecutor,
who may end up living in the same community as one of
his victims? The Nation has a legitimate interest in pre
venting the importation of ethnic strife from remote parts
of the world, and the agency may resolve the statutory
ambiguity in a way that safeguards that interest.
Finally, even if culpability is the only relevant factor,
and even if a narrow, criminal-law based view of culpabil
ity is the authoritative one, a bright-line rule excluding all
persecutors—whether acting under coercion or not—might
still be the best way for the agency to effectuate the statu
tory scheme. See generally Cox & Posner, Second-Order
Structure of Immigration Law, 59 Stan. L. Rev. 809
(2007). Immigration judges already face the overwhelm
ing task of attempting to recreate, by a limited number of
witnesses speaking through (often poor-quality) transla
tion, events that took place years ago in foreign, usually
impoverished countries. See Dia v. Ashcroft, 353 F. 3d
228, 261–262 (CA3 2003) (en banc) (Alito, J., concurring in
part and dissenting in part). Adding on top of that the
burden of adjudicating claims of duress and coercion,
which are extremely difficult to corroborate and necessar
ily pose questions of degree that require intensely fact
4 NEGUSIE v. HOLDER

SCALIA, J., concurring

bound line-drawing, would increase the already inherently
high risk of error. And the cost of error (viz., allowing
uncoerced persecutors to remain in the country perma
nently) might reasonably be viewed by the agency as
significantly greater than the cost of overinclusion under a
bright-line rule (viz., denial of asylum to some coerced
persecutors—who might anyway be entitled to protection
under the Convention Against Torture, which includes no
analogous persecutor bar).
It is worth noting that although the agency’s “objective
effects” approach to the statute would seem to sweep
beyond the duress scenario to encompass even an alien
who had no idea that his actions would “objectively” assist
in persecution, see Castañeda-Castillo v. Gonzales, 488
F. 3d 17, 20 (CA1 2007) (en banc), there is no reason why
the agency cannot consider questions of knowledge sepa
rate and apart from questions of duress. Both can be said
to relate to the mental state of the persecutor,* but they
present different problems which can be grappled with
separately. The agency need not provide an “all
embracing answer,” ibid., in the present case. It may
evaluate problems one by one as they arise, and whatever
it might decide about an unknowing persecutor is irrele
vant to petitioner, who knew exactly what he was doing.
To be clear, I do not endorse any particular rule. It is to
agency officials, not to the Members of this Court, that
Congress has given discretion to choose among permissible
interpretations of the statute. They deserve to be told
clearly whether we are serious about allowing them to
exercise that discretion, or are rather firing a warning
shot across the bow.
——————
* The rationale for the duress defense, however, is conventionally “not
that the defendant . . . somehow loses his mental capacity to commit
the crime in question,” but rather that “even though he has done the
act the crime requires and has the mental state which the crime re
quires, his conduct . . . is excused.” 2 LaFave, supra, §9.7(a), at 73.
 Cite as: 555 U. S. ____ (2009) 1

Opinion of STEVENS, J.

SUPREME COURT OF THE UNITED STATES
_________________

No. 07–499
_________________

DANIEL GIRMAI NEGUSIE, PETITIONER v. ERIC
H. HOLDER, JR., ATTORNEY GENERAL
ON WRIT OF CERTIORARI TO THE UNITED STATES COURT OF

APPEALS FOR THE FIFTH CIRCUIT

[March 3, 2009]

JUSTICE STEVENS, with whom JUSTICE BREYER joins,
concurring in part and dissenting in part.
The narrow question of statutory construction presented
by this case is whether the so-called “persecutor bar,” 8
U. S. C. §§1101(a)(42), 1158(b)(2)(A)(i), 1231(b)(3)(B),
disqualifies from asylum or withholding of removal an
alien whose conduct was coerced or otherwise the product
of duress. If the answer to that threshold question is “no,”
courts should defer to the Attorney General’s evaluation of
particular circumstances that may or may not establish
duress or coercion in individual cases. But the threshold
question the Court addresses today is a “pure question of
statutory construction for the courts to decide.” INS v.
Cardoza-Fonseca, 480 U. S. 421, 446 (1987). For that
reason, while I agree with the Court’s cogent explanation
of why its misguided decision in Fedorenko v. United
States, 449 U. S. 490 (1981), does not govern our interpre­
tation of the persecutor bar, I would provide a definite
answer to the question presented and then remand for
further proceedings.
I
Judicial deference to agencies’ views on statutes they
administer was not born in Chevron U. S. A. Inc. v. Natu­
ral Resources Defense Council, Inc., 467 U. S. 837 (1984),
2 NEGUSIE v. HOLDER

Opinion of STEVENS, J.

nor did the “singularly judicial role of marking the
boundaries of agency choice,” Young v. Community Nutri­
tion Institute, 476 U. S. 974, 988 (1986) (STEVENS, J.,
dissenting), die with that case. In the years before Chev­
ron, this Court recognized that statutory interpretation is
a multifaceted enterprise, ranging from a precise construc­
tion of statutory language to a determination of what
policy best effectuates statutory objectives. We accord­
ingly acknowledged that a complete interpretation of a
statutory provision might demand both judicial construc­
tion and administrative explication. E.g., NLRB v. Hearst
Publications, Inc., 322 U. S. 111 (1944) (construing the
term “employee” in the National Labor Relations Act but
deferring to the National Labor Relations Board’s finding
that newsboys were employees); see Nathanson, Adminis­
trative Discretion in the Interpretation of Statutes, 3
Vand. L. Rev. 470 (1950).
Chevron adhered to this approach. There, we recognized
that the Clean Air Act did not define “stationary source,”
42 U. S. C. §7502(b)(6) (1982 ed.), but rather implicitly
delegated to the Environmental Protection Agency (EPA)
the policy question whether States could treat entire
plants or only their discrete pollution-emitting devices as
sources of pollution for purposes of the Act’s permit pro­
gram. Congress left a gap for the agency to fill, and the
agency brought its expertise, political acuity, and informa­
tion-gathering abilities to bear in doing so. See Chevron,
467 U. S., at 865–866.1 In keeping with precedent, see id.,
——————
1 Notably,
the EPA cast its activity not as statutory construction but
as public administration; its rulemaking sought to achieve policy goals,
such as reducing regulatory complexity and promoting plant moderni­
zation. See 46 Fed. Reg. 50766 (1981). To be sure, the EPA argued
that its regulation defining “stationary source” as an entire plant was
permissible under the Clean Air Act, but the agency treated its rule­
making as a matter of fashioning sound policy, not of discerning the
meaning of “stationary source” in the statute.
 Cite as: 555 U. S. ____ (2009) 3

Opinion of STEVENS, J.

at 843–845, and nn. 9, 11–14, our opinion reaffirmed both
that “[t]he judiciary is the final authority on issues of
statutory construction,” id., at 843, n. 9, and that courts
should defer to an agency’s reasonable formulation of
policy in response to an explicit or implicit congressional
delegation of authority. The Chevron framework thus
accounts for the different institutional competencies of
agencies and courts: Courts are expert at statutory con­
struction, while agencies are expert at statutory imple­
mentation. That the distinction can be subtle does not
lessen its importance.
In the 25 years since Chevron was decided, this Court
has continued to recognize that courts and agencies play
complementary roles in the project of statutory interpreta­
tion. We have repeatedly held that “ambiguities in stat­
utes within an agency’s jurisdiction to administer are
delegations of authority to the agency to fill the statutory
gap in reasonable fashion.” National Cable & Telecom­
munications Assn. v. Brand X Internet Services, 545 U. S.
967, 980 (2005). But even when confronted with a statute
that involves a degree of ambiguity—as most statutes do—
we have not abdicated our judicial role. The fact that
Congress has left a gap for the agency to fill means that
courts should defer to the agency’s reasonable gap-filling
decisions, not that courts should cease to mark the bounds
of delegated agency choice.2
In cases involving agency adjudication, we have some­
times described the court’s role as deciding pure questions
of statutory construction and the agency’s role as applying
law to fact. See, e.g., Cardoza-Fonseca, 480 U. S. 421;
NLRB v. Food & Commercial Workers, 484 U. S. 112
——————
2 Cf. United States v. Mead Corp., 533 U. S. 218, 236–238 (2001);

Barnhart v. Walton, 535 U. S. 212, 222 (2002) (noting that Mead
“indicated that whether a court should give [Chevron] deference de­
pends in significant part upon the interpretive method used and the
nature of the question at issue”).
4 NEGUSIE v. HOLDER

Opinion of STEVENS, J.

(1987); see also Republic of Austria v. Altmann, 541 U. S.
677, 701–702 (2004). While this phrasing is peculiar to
the adjudicatory context, the principle applies to Chevron’s
domain more broadly. In the context of agency rulemak­
ing, for instance, we might distinguish between pure
questions of statutory interpretation and policymaking, or
between central legal issues and interstitial questions.
See Barnhart v. Walton, 535 U. S. 212, 222 (2002).3 The
label is immaterial. What matters is the principle: Cer­
tain aspects of statutory interpretation remain within the
purview of the courts, even when the statute is not en­
tirely clear, while others are properly understood as dele­
gated by Congress to an expert and accountable adminis­
trative body. Statutory language may thus admit of both
judicial construction and agency exposition.
II
Two of this Court’s cases construing the Immigration
and Nationality Act (INA), 66 Stat. 166, 8 U. S. C. §1101
et seq., illustrate the proper division of responsibility
between courts and agencies and highlight when Chevron
deference is appropriate and when it is not. In Cardoza-
Fonseca, the question was whether the standard of INA
§243(h), 8 U. S. C. §1253(h) (1982 ed.), which requires an
alien to show that she is more likely than not to be subject
to persecution if she is deported, also governs applications
for asylum under §208(a), 8 U. S. C. §1158(a) (1982 ed.),
which authorizes the Attorney General to grant asylum to
an alien who has a well-founded fear of persecution in her
home country. After considering the INA’s language, its
legislative history, and the United Nations Protocol that
——————
3 The Administrative Procedure Act draws a similar distinction in

providing that courts “shall decide all relevant questions of law [and]
interpret constitutional and statutory provisions” but shall review
“agency action, findings, and conclusions” under the arbitrary and
capricious/abuse of discretion standard. 5 U. S. C. §706.
 Cite as: 555 U. S. ____ (2009) 5

Opinion of STEVENS, J.

Congress had implemented, the Court determined that the
two standards are not the same.
In so holding, we decisively rejected the Government’s
contention, echoed by JUSTICE SCALIA’s concurrence in the
judgment, that the Board of Immigration Appeals’ (BIA)
interpretation of the statute merited deference under our
then-recent decision in Chevron. “The question whether
Congress intended the two standards to be identical is a
pure question of statutory construction for the courts to
decide,” we stated. 480 U. S., at 446. We therefore did not
defer to the BIA’s interpretation of the two standards as
equivalent but instead employed traditional tools of statu­
tory construction and “concluded that Congress did not
intend the two standards to be identical.” Ibid.4
Importantly, we recognized that Chevron deference need
not be an all-or-nothing venture. Even after the question
of the standards’ equivalency was resolved, there re­
mained the question of their application. We explained,
“The narrow legal question whether the two standards are
the same is, of course, quite different from the question of
interpretation that arises in each case in which the agency
is required to apply either or both standards to a particu­
lar set of facts.” 480 U. S., at 448. And we noted that
applying the INA was a task particularly suited to the
agency’s unique competencies: “There is obviously some
ambiguity in a term like ‘well-founded fear’ which can only

——————
4 JUSTICE SCALIA objected in particular to the majority’s holding that

pure questions of statutory construction are for the courts, not agencies,
to decide; he insisted this was unfaithful to Chevron, “since in Chevron
the Court deferred to the Environmental Protection Agency’s abstract
interpretation of the phrase ‘stationary source.’ ” 480 U. S., at 455
(opinion concurring in judgment). The majority rejected JUSTICE
SCALIA’s argument, recognizing that Chevron involved an agency’s
complex policy judgment about how to fill a statutory gap, not a pure
question of statutory construction. See 480 U. S., at 445–448, and n. 29
(quoting extensively from Chevron).
6 NEGUSIE v. HOLDER

Opinion of STEVENS, J.

be given concrete meaning through a process of case-by­
case adjudication. In that process of filling ‘ “any gap left,
implicitly or explicitly by Congress,” ’ the courts must
respect the interpretation of the agency to which Congress
has delegated the responsibility for administering the
statutory program.” Ibid. (quoting Chevron, 467 U. S., at
843, in turn quoting Morton v. Ruiz, 415 U. S. 199, 231
(1974)).
In INS v. Aguirre-Aguirre, 526 U. S. 415 (1999), the
Court encountered just the type of agency decision Car­
doza-Fonseca indicated would warrant Chevron deference.
The BIA had denied withholding of deportation because it
found that the respondent had “committed a serious non­
political crime” before he entered the United States, 8
U. S. C. §1253(h)(2)(C) (1994 ed.). The Court of Appeals
reversed the agency’s decision and required it to supple­
ment its balancing test with specific additional factors
(such as whether the respondent’s acts were grossly out of
proportion to their objective and whether the acts were
politically necessary and successful).
We reversed the Court of Appeals, concluding that
Chevron deference should be accorded to the BIA “as it
gives ambiguous statutory terms ‘concrete meaning
through a process of case-by-case adjudication.’ ” 526 U. S.,
at 425 (quoting Cardoza-Fonseca, 480 U. S., at 448). The
BIA’s formulation of a test to apply the statutory standard
in individual cases and its application of that test in re­
spondent’s case were precisely the sort of agency actions
that merited judicial deference.
III
The threshold question the Court addresses today is the
kind of “pure question of statutory construction for the
courts to decide” that we answered in Cardoza-Fonseca,
id., at 446, rather than a fact-intensive question of the
kind we addressed in Aguirre-Aguirre. Just as we decided
 Cite as: 555 U. S. ____ (2009) 7

Opinion of STEVENS, J.

the narrow legal question presented in Cardoza-Fonseca
but did not “attempt to set forth a detailed description of
how the ‘well-founded fear’ test should be applied,” 480
U. S., at 448, I would decide the narrow legal question now
before us and remand for the agency to determine how the
persecutor bar applies in individual cases.5
For reasons similar to those set forth in my dissent in
Fedorenko, I think it plain that the persecutor bar does
not disqualify from asylum or withholding of removal an
alien whose conduct was coerced or otherwise the product
of duress. Although I agree in full with the Court’s con­
clusion that the majority opinion in Fedorenko does not
govern our interpretation of the persecutor bar, the differ­
ences the Court highlights between the Displaced Persons
Act of 1948 (DPA), 62 Stat. 1009, and the Refugee Act of
1980, 94 Stat. 102, only strengthen my conclusion that
voluntary assistance in persecution is required and that
duress and coercion vitiate voluntariness.
The Fedorenko Court’s construction of the DPA threat­
ened to exclude from the United States concentration
camp prisoners who were forced to assist the Nazis in the
——————
5 The majority suggests that this approach is inconsistent with the

“ ‘ordinary “remand” rule’ ” articulated in Gonzales v. Thomas, 547 U. S.
183 (2006) (per curiam), and INS v. Orlando Ventura, 537 U. S. 12
(2002) (per curiam). Ante, at 11–12. But those cases involved exactly
the sort of application of law to fact that is within the agency’s purview.
In Thomas, the Court of Appeals decided that the family at issue “fell
within the scope of the statutory term ‘particular social group.’ ” 547
U. S., at 185. We noted that the BIA had not considered this question,
which “require[d] determining the facts and deciding whether the facts
as found f[e]ll within a statutory term.” Id., at 186. Accordingly, we
held that the court should have remanded to the agency. Similarly, in
Ventura, the Court of Appeals addressed an issue that the BIA had not
reached and concluded that conditions in Guatemala had so improved
that no realistic threat of persecution currently existed. The Govern­
ment argued that the court had not respected “the BIA’s role as fact­
finder,” 537 U. S., at 16, and we agreed, reversing the court’s judgment
insofar as it had not remanded to the agency.
8 NEGUSIE v. HOLDER

Opinion of STEVENS, J.

persecution of other prisoners. In my view, this construc­
tion was insupportable—the DPA’s exclusion of persons
who “assisted the enemy in persecuting civil populations,”
Constitution of the International Refugee Organization,
Annex I, Part II, §2(a), 62 Stat. 3051, did not extend to
concentration camp prisoners who did so involuntarily.
These prisoners were victims, not persecutors.
Without an exception for involuntary action, the Refu­
gee Act’s bar would similarly treat entire classes of victims
as persecutors. The Act does not support such a reading.
The language of the persecutor bar is most naturally read
to denote culpable conduct, and this reading is powerfully
supported by the statutory context and legislative history.
As this Court has previously recognized—and as the
majority acknowledges again today—Congress passed the
Refugee Act to implement the United Nations Convention
Relating to the Status of Refugees, 189 U. N. T. S. 150
(July 28, 1951) (hereinafter Convention), reprinted in 19
U. S. T. 6259, and the 1967 United Nations Protocol Relat­
ing to the Status of Refugees, Jan. 31, 1967, [1968] 19
U. S. T. 6223, T. I. A. S. No. 6577 (hereinafter Protocol).
These treaties place a mandatory obligation on signatory
states not to “expel or return (‘refouler’) a refugee in any
manner whatsoever to . . . territories where his life or
freedom would be threatened on account of his race, relig­
ion, nationality, membership of a particular social group
or political opinion.” Convention, Art. 33(1), 19 U. S. T., at
6276; Protocol, Art. I, 19 U. S. T., at 6225. The Refugee
Act’s withholding of removal provision specifically tracks
this language. 8 U. S. C. §1231(b)(3)(A); see H. R. Rep.
No. 96–608, p. 18 (1979) (withholding of removal provision
“clearly reflects our legal obligations under international
agreements,” specifically Convention Article 33).6
——————
6 Asylum and withholding of removal address concerns different from

those addressed by the Convention Against Torture and Other Cruel,
 Cite as: 555 U. S. ____ (2009) 9

Opinion of STEVENS, J.

The Convention excludes from the nonrefoulement obli­
gation of Article 33 persons who have “committed a crime
against peace, a war crime, or a crime against humanity.”
Convention, Art. 1(F)(a), 19 U. S. T., at 6263. It is this
exception that the persecutor bar reflects. See, e.g., H. R.
Rep. No. 96–608, at 18 (persecutor bar encompasses “ex­
ceptions . . . provided in the Convention relating to aliens
who have themselves participated in persecution”); H. R.
Conf. Rep. No. 96–781, p. 20 (1980). The language of the
Convention’s exception is critical: We do not normally
convict individuals of crimes when their actions are co­
erced or otherwise involuntary. Indeed, the United Na­
tions Handbook, to which the Court has looked for guid­
ance in the past, states that all relevant factors, including
“mitigating circumstances,” must be considered in deter­
mining whether an alien’s acts are of a “criminal nature”
as contemplated by Article 1(F). Office of the United
Nations High Commissioner for Refugees, Handbook on
Procedures and Criteria for Determining Refugee Status
¶¶157, 162 (reedited Jan. 1992). Other states parties to
the Convention and Protocol likewise read the Conven­
tion’s exception as limited to culpable conduct.7 When we
——————
Inhuman, or Degrading Treatment or Punishment (CAT) and its
implementing regulations. CAT, Dec. 10, 1984, S. Treaty Doc. No. 100–
20 (1988), 1465 U. N. T. S. 85; 8 CFR §§1208.16–1208.18 (2008). The
CAT prohibits a state party from returning any person to a country
where there is substantial reason to believe he might be tortured, but
its definition of torture covers a narrower class of harms, imposed by a
narrower class of actors, than the asylum and witholding of removal
provisions. Most importantly, the CAT limits its definition of torture to
acts “inflicted by or at the instigation of or with the consent or acquies­
cence of a public official or other person acting in an official capacity,”
Pt. I, Art. 1, ¶1, p. 19, while asylum and withholding of removal are
available to victims of harm inflicted by private actors, without regard
to state involvement, see, e.g., In re Kasinga, 21 I. & N. Dec. 357, 365
(BIA 1996); In re H—, 21 I. & N. Dec. 337, 343–344 (BIA 1996).
7 See, e.g., Canada v. Asghedom, [2001] F. C. T. 972, ¶28 (Can. Fed.

Ct.); Gurung v. Secretary of State for Home Dept., [2002] UKIAT 4870,
10 NEGUSIE v. HOLDER

Opinion of STEVENS, J.

interpret treaties, we consider the interpretations of the
courts of other nations, and we should do the same when
Congress asks us to interpret a statute in light of a
treaty’s language. See Zicherman v. Korean Air Lines Co.,
516 U. S. 217, 226–228 (1996). Congress’ effort to conform
United States law to the standard set forth in the U. N.
Convention and Protocol shows that it intended the perse­
cutor bar to apply only to culpable, voluntary acts—and it
underscores that Congress did not delegate the question
presented by this case to the agency.
While I would hold that the persecutor bar does not
automatically disqualify from asylum or withholding of
removal an alien who acted involuntarily,8 I would leave
for the Attorney General—and, through his own delega­
tion, the BIA—the question how the voluntariness stan­
dard should be applied. The agency would retain the
ability, for instance, to define duress and coercion; to
determine whether or not a balancing test should be em­
ployed; and, of course, to decide whether any individual
asylum-seeker’s acts were covered by the persecutor bar.
Those are the sorts of questions suited to the agency’s
unique competencies in administering the INA. The
threshold question before the Court is not.
——————

¶¶108–110 (U. K. Immigr. App. Trib.); SRYYY v. Minister for Immigra­

tion & Multicultural & Indigenous Affairs, [2005] 147 F. C. R. 1,

¶¶126–128 (Austl. Fed. Ct.); Refugee Appeal No. 2142/94, pp. 12–14

(N. Z. Refugee Status App. Auth., Mar. 20, 1997). Notions of culpability
have deep roots in asylum law. See generally 2 H. Grotius, De Jure
Belli ac Pacis Libri Tres ch. XXI, §V(1), p. 530 (J. Scott ed., F. Kelsey
et al. transl., 1925) (“[P]laces of asylum were available [in ancient
times] for those from whose hands a chance missile had slain a man”
and for those with “innocent” minds).
8 Other considerations that are not presented in this case, such as an

alien’s lack of knowledge that he was involved in a persecutory act,
could likewise indicate that he did not act with the requisite culpabil­
ity. See, e.g., Castañeda-Castillo v. Gonzales, 488 F. 3d 17, 20–22 (CA1
2007) (en banc); Hernandez v. Reno, 258 F. 3d 806, 814 (CA8 2001).
 Cite as: 555 U. S. ____ (2009) 11

Opinion of STEVENS, J.

IV
Because I remain convinced that the narrower interpre­
tation of Chevron endorsed by the Court in Cardoza-
Fonseca was more faithful to the rationale of that case
than the broader view the Court adopts today, I am unable
to join its opinion. I would answer the question of law that
this case presents with an unequivocal “no” and remand to
the agency for further proceedings.
 Cite as: 555 U. S. ____ (2009) 1

THOMAS, J., dissenting

SUPREME COURT OF THE UNITED STATES
_________________

No. 07–499
_________________

DANIEL GIRMAI NEGUSIE, PETITIONER v. ERIC
H. HOLDER, JR., ATTORNEY GENERAL
ON WRIT OF CERTIORARI TO THE UNITED STATES COURT OF

APPEALS FOR THE FIFTH CIRCUIT

[March 3, 2009]

JUSTICE THOMAS, dissenting.
The “persecutor bar” in the Immigration and National­
ity Act (INA) denies asylum and the withholding of re­
moval to any alien who has “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.” 8 U. S. C.
§§1101(a)(42), 1158(b)(2)(A), 1231(b)(3)(B)(i). The Board
of Immigration Appeals (BIA), principally relying on this
Court’s decision in Fedorenko v. United States, 449 U. S.
490 (1981), held that the statute does not require that the
persecution be voluntarily inflicted. The Court of Appeals
for the Fifth Circuit affirmed.
According to the Court, Fedorenko, which construed the
similar text of a persecution bar in the Displaced Persons
Act of 1948 (DPA), is largely irrelevant to the question
presented here. See ante, at 6–8, 9–10; see also ante, at 2
(SCALIA, J., concurring). The majority further holds that
the INA is ambiguous as to “whether coercion or duress is
relevant in determining if an alien assisted or otherwise
participated in persecution” and that the agency, there­
fore, should interpret the statute in the first instance to
determine whether it reasonably can be read to include a
voluntariness requirement. Ante, at 5, 10–12; see also
ante, at 1 (SCALIA, J., concurring). I disagree with both of
2 NEGUSIE v. HOLDER

THOMAS, J., dissenting

these conclusions. Because the INA unambiguously pre­
cludes any inquiry into whether the persecutor acted
voluntarily, i.e., free from coercion or duress, I would
affirm the judgment of the Court of Appeals. I respectfully
dissent.
I
Petitioner Daniel Girmai Negusie testified to the Immi­
gration Judge (IJ) that he was forced to work as an armed
guard for four years at an Eritrean prison camp where
prisoners were persecuted because of their religious be­
liefs. According to petitioner, 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.
App. 58. The guards “would . . . hold [a] stick [with] their
hand” and follow prisoners who were being forced to “roll
on the ground in the sun.” Id., at 23. Because “it was
extremely hot,” prisoners would quickly “get tired and
[feel] shortness of breath and stop” rolling. Id., at 24.
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 peti­
tioner stood guard. See ante, at 3 (majority opinion).
Petitioner testified 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. App. 20, 30. Petitioner
also prevented prisoner escapes, for which the punishment
was forced sun exposure. And, although petitioner never
used “electricity to torture” prisoners, he was aware that
his supervisor did. Id., at 61–62.
But petitioner, who had converted to Protestantism
when he was confined as a prisoner at the camp, also
testified that he did not want to persecute any of the
 Cite as: 555 U. S. ____ (2009) 3

THOMAS, J., dissenting

prisoners because his new religion taught him “to be
merciful.” Id., at 34. 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.” Id., at 37. Petitioner also
occasionally allowed some of the prisoners to “go outside
during the night and during the evenings and . . . refresh
themselves in the fresh air.” Id., at 37–38.
After four years as a prison guard, petitioner deserted
his post, swam to a shipping container, and hid inside.
See ante, at 3 (majority opinion). The container arrived in
the United States with petitioner inside on December 20,
2004. Petitioner applied for asylum and the withholding
of removal under the INA, 8 U. S. C. §1101 et seq. He also
applied for protection under the Convention Against Tor­
ture and Other Cruel, Inhuman, or Degrading Treatment
or Punishment (CAT), under which it is “the policy of the
United States not to expel, extradite, or otherwise effect
the involuntary return of any person to a country in which
there are substantial grounds for believing the person
would be in danger of being subjected to torture.” Foreign
Affairs Reform and Restructuring Act of 1998, §2242(a),
112 Stat. 2681–822, note following 8 U. S. C. §1231, p. 263
(United States Policy with Respect to Involuntary Return
of Persons in Danger of Subjection to Torture (hereinafter
CAT Policy)). See also CAT, Dec. 10, 1984, S. Treaty Doc.
No. 100–20, 1465 U. N. T. S. 85. Petitioner feared that, if
returned to Eritrea, he would “be executed” because he
had converted to Protestantism and deserted his military
post. App. 65, 68.
The INA provides the Executive with the discretion to
grant asylum to aliens that are “unable or unwilling” to
return to their home country “because of persecution or a
well-founded fear of persecution on account of race, relig­
ion, nationality, membership in a particular social group,
4 NEGUSIE v. HOLDER

THOMAS, J., dissenting

or political opinion.” 8 U. S. C. §§1101(a)(42)(A),
1158(b)(1). The INA also requires the Executive to with­
hold removal of aliens to a country in which there is a
“clear probability” that their “life or freedom would be
threatened” because of their “race, religion, nationality,
membership in a particular social group, or political opin­
ion.” §1231(b)(3)(A). However, the INA prohibits the
Executive from granting asylum or withholding removal if
an alien “ordered, incited, assisted, or otherwise partici­
pated in the persecution” of any person on account of
“race, religion, nationality, membership in a particular
social group, or political opinion.” §1158(b)(2)(A)(i) (asy­
lum); §1231(b)(3)(B) (withholding of removal). Nonethe­
less, in light of the CAT’s requirement that “[n]o State
Party shall . . . return . . . a person to another State where
there are substantial grounds for believing that he would
be in danger of being subjected to torture,” Art. 3, S.
Treaty Doc. No. 100–20, at 20, regulations implementing
that convention provide “deferral of removal” to aliens
subject to the INA persecutor bar who would more likely
than not be tortured if removed to their home country.1 8
CFR §§1208.16(c)(4), (d)(2), 1208.17(a) (2008); see also
CAT Policy (b), at 263 (requiring federal agencies to “pre­
scribe regulations to implement the obligations of the
United States under Article 3 of the [CAT], subject to any
reservations, understandings, declarations, and provisos
——————
1 “Deferralof removal” was created to accommodate Congress’ direc­
tion to exclude those who fall within the INA persecutor bar “[t]o the
maximum extent consistent with the obligations of the United States
under the [CAT]” to not return an alien to a country in which he or she
will be tortured. CAT Policy (c), at 263. To accomplish that goal,
deferral of removal provides “a less permanent form of protection than
withholding of removal and one that is more easily and quickly termi­
nated if it becomes possible to remove the alien consistent with Article
3” of the CAT, 64 Fed. Reg. 8480 (1999), while also “ensur[ing] that
[such aliens] are not returned to a country where they would be tor­
tured,” id.¸ at 8481.
 Cite as: 555 U. S. ____ (2009) 5

THOMAS, J., dissenting

contained in the United States Senate resolution of ratifi­
cation of the Convention”).
The IJ denied petitioner’s applications for asylum and
the withholding of removal, but granted him deferral of
removal. The BIA affirmed. In their view, petitioner’s
conduct objectively qualified as assistance or participation
in the persecution of others based on religion. See ante, at
3 (majority opinion). Relying on Fedorenko, the IJ and
BIA found that even if petitioner was “compelled to par­
ticipate as a prison guard” against his wishes, his “motiva­
tion and intent are irrelevant to the issue of whether he
‘assisted’ in persecution.” Ibid. (some internal quotation
marks omitted). Therefore, petitioner was ineligible for
asylum or the withholding of removal under the INA. The
IJ and BIA agreed, however, that petitioner qualified for
deferral of removal because it is “more likely than not that
he would be tortured” if returned to Eritrea given that its
“government has used deadly force and threatened to use
deadly force against deserters.” App. to Pet. for Cert. 7a–
8a, 20a, 19a. The Court of Appeals affirmed. See Negusie
v. Gonzales, 231 Fed. Appx. 325, 326 (CA5 2007) (per
curiam).
II
As with all statutory interpretation questions, construc­
tion of the INA’s persecutor bar must begin with the plain
language of the statute. See Jimenez v. Quarterman, 555
U. S. ___, ___ (2009) (slip op., at 5) (citing Lamie v. United
States Trustee, 540 U. S. 526, 534 (2004)). If the text of a
statute governing agency action “ ‘directly addresse[s] the
precise question at issue,’ ” then, “ ‘that is the end of the
matter; for the court, as well as the agency, must give
effect to the unambiguously expressed intent of Con­
gress.’ ” National Assn. of Home Builders v. Defenders of
Wildlife, 551 U. S. 664, ___ (2007) (slip op., at 18) (quoting
6 NEGUSIE v. HOLDER

THOMAS, J., dissenting

Chevron U. S. A. Inc. v. Natural Resources Defense Coun
cil, Inc., 467 U. S. 837, 842–843 (1984)).
A
A court must first “look to the particular statutory
language at issue.” K mart Corp. v. Cartier, Inc., 486 U. S.
281, 291 (1988). As the majority acknowledges, see ante,
at 5–6, the text of the INA’s persecutor bar neither in­
cludes the term “voluntary” nor contains an exception for
involuntary, coerced conduct. The statute instead applies
to any alien “who ordered, incited, assisted, or otherwise
participated in the persecution of any person” on account
of a protected ground. §§1101(a)(42), 1158(b)(2)(A)(i),
1231(b)(3)(B)(i).
The statute’s key terms also do not imply any voluntari­
ness requirement for persecution. Under the ordinary
meaning of the term “persecution” at the time of the stat­
ute’s enactment in 1980 and its reenactment in 1996, the
act of persecution alone is sufficient to classify one’s con­
duct as persecution. See Webster’s Ninth New Collegiate
Dictionary 877 (1991) (hereinafter Webster’s Ninth) (defin­
ing “persecution” as “the act or practice of persecuting esp.
those who differ in origin, religion, or social outlook”); see
also Webster’s New Collegiate Dictionary 855 (1975) (here­
inafter Webster’s) (same). The term itself includes no
intrinsic mens rea requirement. As a result, an individual
can “persecute”—meaning “harass in a manner designed
to injure, grieve, or afflict”—without having designed the
act or intended for injury, grief, or affliction to occur.
Webster’s Ninth 877; see also Webster’s 855 (same).
The persecutor bar’s inclusion of those who “assist” or
“participate” confirms that it does not include a voluntari­
ness requirement. The term “assist” is defined as “to give
support or aid,” Webster’s Ninth 109, or “to help,” Oxford
American Dictionary 36 (1980) (hereinafter Oxford). See
also Black’s Law Dictionary 111 (5th ed. 1979) (hereinaf­
 Cite as: 555 U. S. ____ (2009) 7

THOMAS, J., dissenting

ter Black’s) (defining “assist” as “[t]o help; aid; succor; lend
countenance or encouragement to; participate in as an
auxiliary”). And “participate” means simply “to take part,”
Webster’s Ninth 858, or “to have a share, to take part in
something,” Oxford 487; see also Black’s 1007 (defining
“participate” as “[t]o receive or have a part or share of; to
partake of; experience in common with others; to have or
enjoy a part or share in common with others”). Accord­
ingly, this Court has concluded that the ordinary mean­
ings of “assist” and “participate” do not “connote volun­
tariness.” Pennsylvania Dept. of Corrections v. Yeskey, 524
U. S. 206, 211 (1998) (participate); see also Fedorenko, 449
U. S., at 512 (assist). These are “terms and concepts of
breadth,” Russello v. United States, 464 U. S. 16, 21–22
(1983), that require only that an individual take “some
part in” an activity, or help it to occur in some way. Reves
v. Ernst & Young, 507 U. S. 170, 178–179 (1993) (empha­
sis in original). Even if participation or assistance is
coerced, it remains participation or assistance just the
same.
B
In addition to the particular statutory section of the INA
before the Court, “the language and design of the statute
as a whole” is instructive in determining the provision’s
plain meaning. K mart Corp., supra, at 291; see also
Amoco Production Co. v. Gambell, 480 U. S. 531, 552–553
(1987). Here, the INA’s design and structure buttress the
conclusion that the persecutor bar applies irrespective of
voluntariness.
First, Congress has evidenced its ability to both specifi­
cally require voluntary conduct and explicitly exclude
involuntary conduct in other provisions of the INA. See
infra, at 15–16. For example, Congress has barred admis­
sion to the United States of totalitarian party members
unless their membership was “involuntary,” 8 U. S. C.
8 NEGUSIE v. HOLDER

THOMAS, J., dissenting

§1182(a)(3)(D)(ii), and it has provided for the termination
of asylum when an alien “has voluntarily availed himself
or herself” of another country’s protections, §1158(c)(2)(D).
“[W]here Congress includes particular language in one
section of a statute but omits it in another section of the
same Act, it is generally presumed that Congress acts
intentionally and purposely in the disparate inclusion or
exclusion.” Russello, supra, at 23 (internal quotation
marks omitted); see, e.g., Barnhart v. Sigmon Coal Co.,
534 U. S. 438, 452–454 (2002). The absence of a volun­
tariness requirement in the INA persecutor bar is no
exception.
Second, federal immigration law provides calibrated
remedies, which include partial refuge for specified aliens
who have both suffered from and inflicted persecution.
Those who have been persecuted and have not engaged in
persecution may receive both asylum and the withholding
of removal. §§1231(b)(3)(A), 1158(b)(1)(A). Those at the
other end of the spectrum, who have not been persecuted
but have persecuted others, may not receive either asylum
or the withholding of removal. §§1231(b)(3)(B)(i),
1158(b)(2)(A)(i). And finally, for many individuals who
(like petitioner) have both persecuted others and been
persecuted, the scheme provides temporary refuge; they
will receive deferral of removal under the CAT if they will
face torture upon their return to their home country. CAT
Policy (a), at 263; see also 8 CFR §§1208.13(a),
1208.16(d)(2).
Where “Congress has enacted a comprehensive scheme
and has deliberately targeted specific problems with spe­
cific solutions,” courts should not read one part of the
legislative regime (the INA) to provide a different, and
conflicting, solution to a problem that has already been
specifically addressed elsewhere in the federal immigra­
tion regime (regulations implementing the CAT). Varity
Corp. v. Howe, 516 U. S. 489, 519 (1996) (THOMAS, J.,
 Cite as: 555 U. S. ____ (2009) 9

THOMAS, J., dissenting

dissenting); see also Transamerica Mortgage Advisors, Inc.
v. Lewis, 444 U. S. 11, 19 (1979). Federal law provides
only partial protection to a victim of persecution who has
also engaged in persecution, voluntarily or not. There
simply is no justification for writing into the INA’s perse­
cutor bar the greater protections of asylum and the with­
holding of removal for individuals who were coerced into
engaging in persecution. That is, the “assumption of
inadvertent omission” of a voluntariness requirement in
the INA “is rendered especially suspect upon close consid­
eration of [a statute’s] interlocking, interrelated, and
interdependent remedial scheme” that addresses the
specific problem at issue in a conflicting way. Massachu
setts Mut. Life Ins. Co. v. Russell, 473 U. S. 134, 146–147
(1985).2
C
Finally, Congress is aware of a judicial interpretation of
statutory language and “adopt[s] that interpretation when
it re-enacts a statute without change.” Lorillard v. Pons,
434 U. S. 575, 580 (1978); see also Traynor v. Turnage,
485 U. S. 535, 546 (1988); 2B N. Singer & J. Singer, Suth­
erland on Statutory Construction §49.9, pp. 127–133 (7th
——————
2 It also is important to acknowledge that the object of the INA is to

codify Congress’ policy decisions “ ‘pertaining to the entry of aliens and
their right to remain’ ” in the United States—decisions that are “ ‘en­
trusted exclusively to Congress.’ ” Kleindienst v. Mandel, 408 U. S. 753,
766, 767 (1972) (quoting Galvan v. Press, 347 U. S. 522, 531–532
(1954)). In fact, “over no conceivable subject is the legislative power of
Congress more complete than it is over” the decision of Congress to
admit or to exclude aliens. Oceanic Steam Nav. Co. v. Stranahan, 214
U. S. 320, 339 (1909). Courts therefore must enforce the immigration
policy decision reflected in a statute’s plain terms, even if Congress has
chosen “to forbid the entrance of foreigners within its dominions”
altogether, Fong Yue Ting v. United States, 149 U. S. 698, 705 (1893).
Likewise, here, where Congress has made a judgment about which
persons to admit and exclude from the country, it is not for this Court
to question the wisdom of that choice.
10 NEGUSIE v. HOLDER

THOMAS, J., dissenting

ed. 2008). Here, the statutory and decisional backdrop
against which Congress enacted the INA’s persecutor bar
counsels against grafting a voluntariness requirement
onto the statute.
When Congress enacted the INA’s persecutor bar, it
essentially retained the language used in similar prede­
cessor statutes. Under the 1948 DPA persecutor bar,
entry was denied to all who “ ‘assisted the enemy in perse­
cuting civil[ians].’ ” Fedorenko, 449 U. S., at 495 (quoting
62 Stat. 3051). In 1950, Congress added a second persecu­
tor bar to the DPA that applied “to any person who advo­
cated or assisted in the persecution of any person because
of race, religion, or national origin.” §13, 64 Stat. 227. In
the years that followed, Congress continued to use this
same broad language in denying asylum to specific catego­
ries of persecutors. See, e.g., §105, 91 Stat. 1224 (denying
permanent residence to aliens from Vietnam, Laos, and
Cambodia “who ordered, assisted, or otherwise partici­
pated in the persecution of any person because of race,
religion, or political opinion”); 8 U. S. C. §§1182(a)(3)(E),
1227(a)(4)(D)) (authorizing the exclusion of anyone who
had been associated with Nazi forces and had “ordered,
incited, assisted, or otherwise participated in the persecu­
tion of any person because of race, religion, national ori­
gin, or political opinion”); §14(a), 67 Stat. 406 (imposing
persecutor bar on “any person who personally advocated or
assisted in the persecution of . . . [a] group of persons
because of race, religion, or national origin”).
Congress then enacted the INA bar in 1980. This stat­
ute comprehensively labeled as a persecutor “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.” §201(a), 94 Stat. 102–103. Congress
reenacted the INA’s persecutor bar in 1996 and retained
its breadth. See Illegal Immigration Reform and Immi­
 Cite as: 555 U. S. ____ (2009) 11

THOMAS, J., dissenting

grant Responsibility Act of 1996 (IIRIRA),
§§305(b)(3)(B)(i), 601(a)(1), 604(b)(2)(A)(i), 110 Stat. 3009–
602, 689, 691.
Congress’ uninterrupted use of this broad statutory
language, which parallels the persecutor bars dating back
to 1948, was not accidental. By the time of the 1996 reen­
actment, this Court had specifically interpreted the plain
language of the predecessor bars to apply regardless of the
voluntariness of a persecutor’s conduct. See Fedorenko,
supra, at 512 (1948 DPA bar); see also United States v.
Koreh, 59 F. 3d 431, 439 (CA3 1995) (1950 DPA bar);
United States v. Schmidt, 923 F. 2d 1253, 1258 (CA7 1991)
(1948 DPA bar); Maikovskis v. INS, 773 F. 2d 435, 445–
446 (CA2 1985) (8 U. S. C. §1251(a)(19) (1982 ed.), trans­
ferred to §1227(a)(4)(D) (2006 ed.)). In particular, this
Court had held that the phrase in the 1948 DPA bar,
“assisted the enemy in persecuting civil[ians],” contained
no “ ‘involuntary assistance’ exception.” Fedorenko, 449
U. S., at 512. Rather, the statute’s “plain language” made
clear that “an individual’s service as a concentration camp
armed guard—whether voluntary or involuntary—made
him ineligible for a visa.” Ibid.
In light of this legal backdrop, Congress’ decisions in
1980 and 1996 to retain a persecutor bar that broadly
applies to anyone who “assisted, or otherwise participated
in the persecution” of any person, §§1158(b)(2)(A)(i),
1231(b)(3)(B), is significant evidence that Congress did not
intend to include any involuntariness exception in the INA
bar. This Court must assume, absent textual proof to the
contrary, that Congress was aware of the Fedorenko deci­
sion when it reenacted the persecutor bar and thus
“adopt[ed] that interpretation when it re-enact[ed the]
statute without change,” Lorillard, supra, at 580.
D
In sum, the INA’s persecutor bar does not require that
12 NEGUSIE v. HOLDER

THOMAS, J., dissenting

assistance or participation in persecution be voluntary or
uncoerced to fall within the statute’s reach. It instead
“mandates precisely” what it says: “[A]n individual’s ser­
vice as a [prison] camp armed guard—whether voluntary
or involuntary—ma[kes] him ineligible for” asylum or
withholding of removal if the guard’s service involved
assistance or participation in the persecution of another
person on account of a protected ground. Fedorenko,
supra, at 512. Here, it is undisputed that petitioner
served at a prison camp where guards persecuted prison­
ers because of their religious beliefs. See ante, at 2–3
(majority opinion). It also is undisputed that petitioner
carried out the persecution by preventing prisoners from
escaping and by standing guard while at least one pris­
oner died from sun exposure. Ibid. Petitioner, therefore,
“assisted, or otherwise participated” in persecution and
thus is statutorily disqualified from receiving asylum or
withholding of removal under the INA. 3
——————
3 JUSTICE STEVENS also finds the language of the INA’s persecutor bar
“plain,” but concludes that it must incorporate a culpability require­
ment because the statute applies to those whose “acts are of a ‘criminal
nature.’ ” See ante, at 7, 9 (opinion concurring in part and dissenting in
part). I disagree. The decision to admit an alien is a matter of legisla­
tive grace, see n. 2, supra, for which judicial review has been “consis­
tently classified” as civil in nature, Harisiades v. Shaughnessy, 342
U. S. 580, 594 (1952); see also Zadvydas v. Davis, 533 U. S. 678, 720
(2001) (KENNEDY, J., dissenting) (explaining that “ ‘an alien seeking
initial admission to the United States requests a privilege and has no
constitutional rights regarding his application, for the power to admit
or exclude aliens is a sovereign prerogative’ ” (quoting Landon v.
Plasencia, 459 U. S. 21, 32 (1982))). There is no warrant to read
criminal-law requirements into a statute that is “nonpunitive in pur­
pose and effect.” Zadvydas, supra, at 690. Further, the conclusory
pronouncement in the Office of the United Nations High Commissioner
for Refugees’ Handbook on Procedures and Criteria for Determining
Refugee Status ¶162 (reedited Jan. 1992), that “it has to be assumed,
although this is not specifically stated, that the acts covered by the
present clause must also be of a criminal nature,” is insufficient to
require criminal proof to deny withholding of removal, contra, ante, at
 Cite as: 555 U. S. ____ (2009) 13

THOMAS, J., dissenting

III
The majority nevertheless concludes the statute’s “si­
lence,” ante, at 6, creates ambiguity, and therefore re­
mands the case to the BIA for it to determine, in the first
instance, whether persecution must be voluntary to fall
within the terms of the INA’s persecutor bar. “The Court’s
efforts to derive ambiguity from th[e] utmost clarity” of the
persecutor bar, however, “are unconvincing” in every
respect. INS v. St. Cyr, 533 U. S. 289, 329 (2001) (SCALIA,
J., dissenting).
The majority principally finds ambiguity in the statu­
tory text because it does not include either the word “vol­
untary” or the word “involuntary.” See ante, at 7. But a
statute cannot be deemed ambiguous until the court “ex­
haust[s] the aid of the ‘traditional tools of statutory con­
struction’ ” and determines that Congress did not resolve
the issue under consideration. Clark v. Martinez, 543
U. S. 371, 402 (2005) (THOMAS, J., dissenting) (quoting
Chevron, 467 U. S., at 843, n. 9). Deeming a statute with
broad terms to be ambiguous for that reason alone essen­
tially requires Congress either to obey a judicially imposed
clear-statement rule or accept the risk that the courts may
refuse to give full effect to a statute’s plain meaning in the
name of Chevron deference. Not every difficult question of
statutory construction amounts to a statutory gap for a
federal agency to fill. See ante, at 1–4 (opinion of
STEVENS, J.). And the Court should not, “in the name of
deference, abdicate its responsibility to interpret a stat­
ute” simply because it requires some effort. Global Cross
ing Telecommunications, Inc. v. Metrophones Telecommu
nications, Inc., 550 U. S. 45, 77 (2007) (THOMAS, J.,
dissenting).
——————

9–10 (opinion of STEVENS, J.). The United Nations handbook “is not

binding on the Attorney General, the BIA, or United States courts.”

INS v. Aguirre-Aguirre, 526 U. S. 415, 427 (1999).

14 NEGUSIE v. HOLDER

THOMAS, J., dissenting

The majority makes no attempt to apply the “traditional
tools of statutory construction” to the persecutor bar be­
fore retreating to ambiguity. See ante, at 5–6. Rather, it
merely observes that Congress could have spoken more
directly to the issue, which it finds sufficient to render the
statute ambiguous on this score. Ante, at 6. But the
absence of a phrase specifying that the provision applies to
both involuntary and voluntary conduct is not definitive
proof of ambiguity. It is certainly correct that Congress
“ ‘could have spoken in clearer terms,’ ” Clark, 543 U. S., at
402 (THOMAS, J., dissenting), as it almost always can in
any statute. However, this “proves nothing” in evaluating
whether the statute is ambiguous. Ibid. The question
before the Court instead is whether Congress has provided
an unambiguous answer in the plain language that it
chose to use. Here, for the reasons just explained, the
traditional tools of statutory interpretation show with
“utmost clarity,” St. Cyr, supra, at 329, that the statute
applies regardless of the voluntariness of the alien who
participates or assists in persecution.4
The majority also finds ambiguity based on differences
between the INA and the DPA statutory bar considered in
Fedorenko. In particular, the majority points to the Fe
dorenko Court’s reliance on a second part of the DPA
persecutor bar, which applied to those who “ ‘voluntarily
——————
4 Because this Court should not delegate the interpretation of the

persecutor bar’s plain meaning to a federal agency, see Board of Gover
nors, FRS v. Dimension Financial Corp., 474 U. S. 361, 368 (1986), it is
largely irrelevant whether the BIA properly relied on Fedorenko v.
United States, 449 U. S. 490 (1981), in interpreting the statute, see
ante, at 9–11 (majority opinion); ante, at 2 (SCALIA, J., concurring). In
any event, the BIA’s construction of the INA’s persecutor bar correctly
reflected the text of the provision. There is no reason to remand the
question to the agency when only one construction of the statute is
permissible and the agency’s original decision adopted that proper
construction. See National Cable & Telecommunications Assn. v.
Brand X Internet Services, 545 U. S. 967, 982–985 (2005).
 Cite as: 555 U. S. ____ (2009) 15

THOMAS, J., dissenting

assisted the enemy forces . . . in their operations against
the United Nations.’ ” 449 U. S., at 495, and n. 3 (quoting
62 Stat. 3052; emphasis added). The Court noted that
“[u]nder traditional principles of statutory construction,
the deliberate omission of the word ‘voluntary’ from §2(a),”
which addressed the assistance of persecution—but not
from §2(b)—“compel[led] the conclusion that the statute
made all those who assisted in the persecution of civilians
ineligible for visas.” Id., at 512. According to the major­
ity, because the INA persecutor bar, unlike the DPA bar,
does not include a provision limited by the word “voluntar­
ily” adjacent to the provision that is not so limited, the
absence of the adverb here cannot carry the significance
given it in Fedorenko. See ante, at 7.
The majority’s reasoning is flawed. The mere fact that
the INA’s persecutor bar is not accompanied by a
neighboring provision containing the word “voluntarily”
does not negate the significance of the term’s absence
when other INA provisions are explicitly limited to actions
undertaken voluntarily. As noted above, see supra, at 7,
the INA imposes a voluntariness requirement in a host of
statutory provisions, see, e.g., 8 U. S. C. §1158(c)(2)(D)
(terminating asylum when alien has “voluntarily” availed
himself of the protection of his country);
§§1182(a)(3)(D)(i)–(ii) (denying admission and naturaliza­
tion to those who have been members of, or affiliated with,
“the Communist or any other totalitarian party” unless
that membership or affiliation was “involuntary”);
§1182(d)(3)(B)(i) (denying admission to those who have
“voluntarily and knowingly” engaged in, endorsed, es­
poused, or persuaded others to endorse, espouse, or sup­
port terrorist activity); §1229c(a)(1) (allowing an alien to
“voluntarily” depart the United States); §§1424(a), (d)
(precluding naturalization for members of certain totali­
tarian parties, unless membership was “involuntary”);
§1481(a) (providing for loss of nationality by “voluntarily”
16 NEGUSIE v. HOLDER

THOMAS, J., dissenting

performing certain specified acts with the intention of
relinquishing nationality).5
In the immigration and naturalization context, then,
Congress is certainly capable of declaring its preference
for a voluntariness requirement. That Congress’ explicit
references to voluntariness appear in other sections of this
particular statutory scheme, rather than in subsections of
§§1158 or 1231, is immaterial. Cf. Rusello, 464 U. S., at
23; Barnhart, 534 U. S., at 452–454. And the fact that
Congress, in the course of making structural revisions to
the statutory regime, eliminated the specific dichotomy
the Court noted in Fedorenko does not undermine the
critical point: The INA expressly includes a voluntariness
requirement in several places but does not impose such a
requirement in the persecution bar. Thus, the omission of
the word “voluntarily” from the persecutor bar in the INA
is just as conclusive as its omission from the persecutor
bar in the DPA. With respect to both statutes, the delib­
erate omission “compels the conclusion that the statute
made all those who assisted in the persecution of civilians
ineligible for visas.” 449 U. S., at 512.
Finally, the majority concludes that the DPA bar is
distinguishable from the INA bar because the former was
enacted in the context of the “ ‘ “crime against humanity
that [was] involved in the concentration camp,” ’ ” which
was so horrific that it is in a category all its own. Ante, at
——————
5 Moreover, in the Refugee Act of 1980, which added the persecutor
bar to the INA, Congress separately codified its desire to “promote
opportunities for resettlement or voluntary repatriation.” §101(a), 94
Stat. 102, note following 8 U. S. C. §1521. In 1996, when Congress
reenacted the statutory text, it retained the persecution bar’s broad
language while again restricting other sections to voluntary conduct.
See IIRIRA, §304, 110 Stat. 3009–587 (relating to “voluntary depar­
ture”), §402, id., at 3009–656 (relating to “voluntary” participation in
pilot programs for confirming employment eligibility), §604, id., at
3009–690 (providing for termination of asylum when alien “voluntarily”
takes certain actions).
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THOMAS, J., dissenting

8 (quoting Fedorenko, supra, at 511, n. 32). In that unique
context, the majority reasons, it made sense to exclude
“even those involved in nonculpable, involuntary assis­
tance in Nazi persecution.” Ibid. But the majority cannot
intend to suggest that all acts of persecution during the
Second World War were inherently more depraved or
reprehensible than all acts of persecution that have oc­
curred in the decades since the INA’s enactment.
Certainly, no such conclusion is compelled by the statu­
tory text. Congress has steadfastly condemned all acts of
persecution. See 22 U. S. C. §§6401(a)(5)–(7) (noting that
“Congress has recognized and denounced acts of religious
persecution,” which can be “severe and violent” and “par­
ticularly widespread, systematic, and heinous under to­
talitarian governments and in countries with militant
politicized religious majorities”); §6401(b)(5) (announcing
that it is the “policy of the United States” to “stan[d] with
the persecuted”); §501, 78 Stat. 1015 (“The Congress con­
demns the persecution of any persons because of their
religion”); Refugee Act of 1980, §101(a), 94 Stat. 102 (“The
Congress declares that it is the historic policy of the
United States to respond to the urgent needs of persons
subject to persecution in their homelands”). There is no
reason to deny the INA persecutor bar its full meaning
based on a speculative assumption that Congress, in 1980,
could not have meant to oppose persecution quite as in­
tensely as it did in the aftermath of World War II. Rather,
the INA’s persecutor bar naturally extends to all acts of
persecution and, therefore, requires the denial of asylum
and withholding of removal for “even those involved in
nonculpable, involuntary assistance in . . . persecution.”
Ante, at 8 (majority opinion).
IV
Because I conclude that the INA’s persecutor bar applies
whether or not petitioner’s assistance or participation in
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THOMAS, J., dissenting

persecution was voluntary, and because it is conceded that
petitioner assisted and participated in persecution while
serving as an armed prison guard in Eritrea, I would
affirm the decision of the Court of Appeals. Accordingly, I
respectfully dissent.