(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 obtaining refugee status in this country if he “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). This so-called “persecutor bar” applies 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 petitioner, 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. Concluding 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 immaterial 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-
2 NEGUSIE v. HOLDER 

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. AguirreAguirre, 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 matter in the first instance in light of its own experience.” INS v. Orlando Ventura, 537 U. S. 12, 16–17. Pp. 4–5.

(b) As there is substance both to petitioner’s contention that involuntary acts cannot implicate the persecutor bar because “persecution” presumes moral blameworthiness, and to the Government’s argument 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 instance. 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), Fedorenko 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 persecution 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 enacted as part of the Refugee Act of 1980, which was designed to provide a general rule for the ongoing treatment of all refugees and displaced 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 developed in its cases: An alien’s motivation and intent are irrelevant to 

the issue whether he “assisted” in persecution; rather, his actions’ objective 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 presented. 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 statutory 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 
Cite as: 555 U. S. ____ (2009) 3 

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 additional 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, Washington, 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 obtaining 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, religion, nationality, membership in a particular social

group, or political opinion.” Immigration and Nationality 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 Convention 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) 
2 NEGUSIE v. HOLDER 

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 statute, 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 employment. 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 released 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 
Cite as: 555 U. S. ____ (2009) 3 

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 occasions. 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 immaterial.” 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 
4 NEGUSIE v. HOLDER 

Opinion of the Court 

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 interpreting 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 precedent 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. AguirreAguirre, 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 questions 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-
Cite as: 555 U. S. ____ (2009) 5 

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 determining 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 adjudication.’” 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 ambiguity 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 arguments may be persuasive in determining whether a particular agency interpretation is reasonable, but they do 

not demonstrate that the statute is unambiguous. Petitioner 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 
6 NEGUSIE v. HOLDER 

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 conclusive. The question is whether the statutory text mandates 

that coerced actions must be deemed assistance in persecution. On that point the statute, in its precise terms, is 

not explicit. Nor is this a case where it is clear that Congress 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 voluntariness was not required with respect to another persecutor 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 Persons 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 provides 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 Congress, 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 
Cite as: 555 U. S. ____ (2009) 7 

Opinion of the Court 

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 ‘voluntarily 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 Fedorenko 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 second 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 exclusion clause makes no reference to culpability. The exclusion of even those involved in nonculpable, involuntary 
8 NEGUSIE v. HOLDER 

Opinion of the Court 

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 (quoting Cardoza-Fonseca, 480 U. S., at 436–437).

These authorities illustrate why Fedorenko, which 

addressed a different statute enacted for a different purpose, does not control the BIA’s interpretation of this 

persecutor bar. Whatever weight or relevance these various 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 ambiguity in the text, the Board’s determination that the bar

contains no such exception is reasonable and thus controlling.” Brief for Respondent 11. Whether such an interpretation would be reasonable, and thus owed Chevron deference, 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-
Cite as: 555 U. S. ____ (2009) 9 

Opinion of the Court 

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 Fedorenko: “[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 controlling.” 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 protected 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 deportation. He argued that, unlike the DPA’s bar on any assistance—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 
10 NEGUSIE v. HOLDER 

Opinion of the Court 

voluntarily assisted in persecuting others. The BIA rejected 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 deportability 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 because 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 Fedorenko rule as applied in Matter of Laipenieks and reiterated 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 inapplicability of the principle of statutory construction invoked 

in Fedorenko, as well as a failure to appreciate the differences 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 different course of reasoning must be determined in the first

instance by the agency. 

III 

Having concluded that the BIA has not yet exercised its 
Cite as: 555 U. S. ____ (2009) 11 

Opinion of the Court 

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 explanation.”’” 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 jurisdiction 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.” National Cable & Telecommunications Assn. v. Brand X 

Internet Services, 545 U. S. 967, 980 (2005).

JUSTICE STEVENS would have the Court provide a definite 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 Thomas, JJ.) (“[I]f an agency erroneously contends that Congress’ 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 determined 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 questions 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-
12 NEGUSIE v. HOLDER 

Opinion of the Court 

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 determination 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 considers voluntariness to some degree, it may be prudent and

necessary for the Immigration Judge to conduct additional

factfinding based on the new standard. Those determinations 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, concurring. 

I agree with the Court that “the statute has an ambiguity,” 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 duress exception, post, at 7 (STEVENS, J., concurring in part 

and dissenting in part).

But good reasons for the agency’s current practice exist—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 reasoned, 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, raising 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 . . . ‘universal and persistent’ in American law.” Brief for Petitioner 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 others—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 preventing 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 culpability 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 statutory scheme. See generally Cox & Posner, Second-Order 

Structure of Immigration Law, 59 Stan. L. Rev. 809 

(2007). Immigration judges already face the overwhelming task of attempting to recreate, by a limited number of

witnesses speaking through (often poor-quality) translation, 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 necessarily 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 permanently) 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 separate 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 “allembracing 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 irrelevant 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 requires, 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 interpretation 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. Natural 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 Nutrition Institute, 476 U. S. 974, 988 (1986) (STEVENS, J., 

dissenting), die with that case. In the years before Chevron, this Court recognized that statutory interpretation is 

a multifaceted enterprise, ranging from a precise construction of statutory language to a determination of what 

policy best effectuates statutory objectives. We accordingly acknowledged that a complete interpretation of a

statutory provision might demand both judicial construction 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, Administrative 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 program. Congress left a gap for the agency to fill, and the 

agency brought its expertise, political acuity, and information-gathering abilities to bear in doing so. See Chevron, 

467 U. S., at 865–866.1 In keeping with precedent, see id., 

—————— 

1Notably, 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 modernization. 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 rulemaking 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 construction, while agencies are expert at statutory implementation. 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 interpretation. We have repeatedly held that “ambiguities in statutes within an agency’s jurisdiction to administer are

delegations of authority to the agency to fill the statutory 

gap in reasonable fashion.” National Cable & Telecommunications 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 sometimes 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 

—————— 

2Cf. 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 depends 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 rulemaking, 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: Certain aspects of statutory interpretation remain within the 

purview of the courts, even when the statute is not entirely clear, while others are properly understood as delegated by Congress to an expert and accountable administrative 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 CardozaFonseca, 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 

—————— 

3The 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 statutory 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 remained 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 particular 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-bycase 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 Cardoza-Fonseca indicated would warrant Chevron deference. 

The BIA had denied withholding of deportation because it

found that the respondent had “committed a serious nonpolitical 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 supplement 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 respondent’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 conclusion that the majority opinion in Fedorenko does not 

govern our interpretation of the persecutor bar, the differences 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 threatened to exclude from the United States concentration 

camp prisoners who were forced to assist the Nazis in the 

—————— 

5The 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 Government argued that the court had not respected “the BIA’s role as factfinder,” 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 construction 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 Refugee 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 Relating 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, religion, 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 

—————— 

6Asylum 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 obligation 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 “exceptions . . . 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 coerced or otherwise involuntary. Indeed, the United Nations Handbook, to which the Court has looked for guidance in the past, states that all relevant factors, including 

“mitigating circumstances,” must be considered in determining 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 Convention’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 acquiescence 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). 7See, 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 persecutor 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 delegation, the BIA—the question how the voluntariness standard 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 employed; 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 Immigration & 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). 8Other 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 culpability. 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 interpretation of Chevron endorsed by the Court in CardozaFonseca 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 Nationality Act (INA) denies asylum and the withholding of removal 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, therefore, 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 precludes 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 Immigration 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 beliefs. 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 petitioner 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 Torture 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, religion, 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 withhold 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 opinion.” §1231(b)(3)(A). However, the INA prohibits the 

Executive from granting asylum or withholding removal if 

an alien “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.” §1158(b)(2)(A)(i) (asylum); §1231(b)(3)(B) (withholding of removal). Nonetheless, 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 “prescribe regulations to implement the obligations of the

United States under Article 3 of the [CAT], subject to any

reservations, understandings, declarations, and provisos 

—————— 

1 “Deferral of removal” was created to accommodate Congress’ direction 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 terminated 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 tortured,” id. ̧ at 8481. 
Cite as: 555 U. S. ____ (2009) 5 

THOMAS, J., dissenting 

contained in the United States Senate resolution of ratification 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 participate as a prison guard” against his wishes, his “motivation 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, construction 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 Congress.’” 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 Council, 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 includes 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 voluntariness requirement for persecution. Under the ordinary

meaning of the term “persecution” at the time of the statute’s enactment in 1980 and its reenactment in 1996, the 

act of persecution alone is sufficient to classify one’s conduct as persecution. See Webster’s Ninth New Collegiate 

Dictionary 877 (1991) (hereinafter Webster’s Ninth) (defining “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) (hereinafter 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 voluntariness 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”). Accordingly, this Court has concluded that the ordinary meanings of “assist” and “participate” do not “connote voluntariness.” 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) (emphasis 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 specifically require voluntary conduct and explicitly exclude 

involuntary conduct in other provisions of the INA. See 

infra, at 15–16. For example, Congress has barred admission 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 voluntariness 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 specific 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 immigration 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 persecutor bar the greater protections of asylum and the withholding 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 consideration of [a statute’s] interlocking, interrelated, and 

interdependent remedial scheme” that addresses the

specific problem at issue in a conflicting way. Massachusetts 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, Sutherland 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 “ ‘entrusted 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 predecessor statutes. Under the 1948 DPA persecutor bar,

entry was denied to all who “‘assisted the enemy in persecuting civil[ians].’” Fedorenko, 449 U. S., at 495 (quoting 

62 Stat. 3051). In 1950, Congress added a second persecutor bar to the DPA that applied “to any person who advocated 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 categories of persecutors. See, e.g., §105, 91 Stat. 1224 (denying

permanent residence to aliens from Vietnam, Laos, and 

Cambodia “who ordered, assisted, or otherwise participated 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 persecution of any person because of race, religion, national origin, 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 statute 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 reenactment, 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.), transferred 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 decision 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 service 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 prisoners 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 prisoner 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 requirement 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 legislative grace, see n. 2, supra, for which judicial review has been “consistently 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 purpose 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 “silence,” ante, at 6, creates ambiguity, and therefore remands 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 statutory text because it does not include either the word “voluntary” or the word “involuntary.” See ante, at 7. But a 

statute cannot be deemed ambiguous until the court “exhaust[s] the aid of the ‘traditional tools of statutory construction’” 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 essentially 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 statute” simply because it requires some effort. Global Crossing Telecommunications, Inc. v. Metrophones Telecommunications, 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 before 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 Fedorenko Court’s reliance on a second part of the DPA

persecutor bar, which applied to those who “‘voluntarily 

—————— 

4Because this Court should not delegate the interpretation of the 

persecutor bar’s plain meaning to a federal agency, see Board of Governors, 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 majority, because the INA persecutor bar, unlike the DPA bar,

does not include a provision limited by the word “voluntarily” 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 naturalization 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, espoused, or persuaded others to endorse, espouse, or support terrorist activity); §1229c(a)(1) (allowing an alien to 

“voluntarily” depart the United States); §§1424(a), (d) 

(precluding naturalization for members of certain totalitarian 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 deliberate 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 

—————— 

5Moreover, 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 departure”), §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). 
Cite as: 555 U. S. ____ (2009) 17 

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 assistance 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 occurred in the decades since the INA’s enactment. 

Certainly, no such conclusion is compelled by the statutory 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 “particularly widespread, systematic, and heinous under totalitarian 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 condemns 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 intensely 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 
18 NEGUSIE v. HOLDER 

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.